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Sims v. Frakes

United States District Court, D. Nebraska

September 19, 2016

SCOTT R. FRAKES, Director of Corrections; DIANE SABATKERHINE, Deputy Director; MICHAEL ROTHWELL, Deputy Director; SHARON PETTID, Deputy Director; RICHARD CRUICKSHANK, Warden @ NSP; RANDY BARTELT, Religious Coor. @ NSP; TIMOTHY KRAMER, Religious Coor. @ NSP; and RELIGIOUS STUDY COMMITTEE MEMBERS, et al., NDCS (multiple committee members unknown), Defendants.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Michael Joseph Sims, filed this case on July 5, 2016. He has been granted leave to proceed in forma pauperis. The court now conducts an initial review of Sims' Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.


         Sims is an inmate at the Nebraska State Penitentiary (“NSP”), and apparently is a member of the Native American Faith Group Practitioners (“NAFGP”) at NSP. Suing several prison officials, Sims claims Defendants have impinged upon his First Amendment right to free exercise of religion in several ways: (1) As of July 1, 2016, the time allowed for NAFGP to conduct a weekly sweatlodge ceremony was reduced from 2 hours to 1 hour, even though at least 2 hours allegedly is required to conduct the ceremony; NAFGP was informed it could conduct a biweekly 2-hour sweatlodge ceremony as an alternative, but other religious groups are allowed to worship on a weekly basis (Complaint, ¶¶ 1-9).[1] (2) The sweatlodge ceremonies are not permitted to conclude with the burning of tobacco prayer flags and ties (Complaint, ¶¶ 10-13).[2](3) Sims cannot have more than 10 eagle feathers, but an eagle dance bustle which is used during ceremonial dance at Pow Wow allegedly requires 28 wing feathers and a tail feather (Complaint, ¶¶ 14-16).[3] (4) Only dues-paying members of a Native American club are permitted to attend the Pow Wow (Complaint, ¶ 17-18).[4] (5) A ceremonial meal is not permitted at the Pow Wow (Complaint, ¶¶ 19-21).[5] (6) The Pow Wow is limited to 2 hours, while Sims claims that 8 hours on a weekend is required (Complaint, ¶¶ 24-27).[6] Sims alleges that he has “made several attempts through interview requests, the grievance procedures, letters to the director's office, and numerous proposals to the warden(s), religious study committee members, religious coordinator(s), and the NSP staff, ” but that “[t]he defendants have not accommodated any requests” (Complaint, ¶ 22).

         Sims brings this action under 42 U.S.C. § 1983 and seeks only injunctive relief, although he purports to sue all Defendants in their individual and official capacities. He has requested a temporary restraining order and preliminary injunction to allow the continuation of a weekly 2-hour sweatlodge ceremony (Filing No. 5).


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. ANALYSIS

         Although pleaded as a Section 1983 action to enforce rights arising under the Free Exercise Clause of the First Amendment, this action may also be maintainable under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which provides, in part:

         No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in [42 U.S.C. § 1997], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). A jail, prison, or other correctional facility which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State, is an “institution.” See 42 U.S.C. § 1997(1). RLUIPA defines “religious exercise” broadly as including “any exercise of religion, whether or not compelled ...

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