United States District Court, Middle District of Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.
On March 18, 2012, plaintiff Irvin, a member of the plaintiff class, filed a supplemental motion for further relief, compliance and/or contempt (doc. # 552) in which he alleges that the defendants have unlawfully confiscated, retained and destroyed a number of his religious items. He also contends that he has been subjected to retaliatory transfers because he has sought to enforce the prior orders of this court securing to him certain rights to practice his Native American religion. He seeks declaratory and monetary relief.
On June 12, 2000, the court entered a comprehensive order and judgment in this case adopting findings and conclusions set forth in a recommendation of this Magistrate Judge which incorporated the parties’ stipulation filed March 5, 1998 as injunctive relief. That stipulation resolved all issues in the case except claims about the use of a sweat lodge and restrictions on hair length. As to the two latter issues, the court later found for the defendants, adopting another recommendation of this Magistrate Judge.
On April 23 and 25, 2012, the court held an evidentiary hearing on Irvin’s motion for contempt. See Transc. of Evid. Hr’g, I & II (docs. ## 567 & 571) (“Tr.”). For the reasons which follow, the court concludes that the motion for further relief, compliance and/or contempt (doc. # 522) should be denied.
“[C]ivil contempt proceeding[s are] brought to enforce a court order that requires [a party] to act in some defined manner.” Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998) quoting Mercer v. Mitchell, 908 F.2d 763, 768 (11th Cir. 1990) (alterations in original). In this case, the plaintiff bears the initial burden of establishing by clear and convincing evidence that the order of this court was violated. See Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th 1990). If the plaintiff makes “a prima facie showing that the . . . [court order] was violated, the burden of production shifts to the alleged contemnor to show a “present inability to comply that goes ‘beyond a mere assertion of inability...’” Id. See also Sec. & Exchange Comm v. Pension Fund of Am., 396 Fed.Appx. 577, 582 (11th Cir. 2010)
We will make a finding of civil contempt - that is, willful disregard of the authority of this Court - only upon a showing that the alleged contempt is clear and convincing. See McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000); NLRB v. Crockett-Bradley, Inc., 598 F.2d 971, 975 (5th Cir. 1979). “This burden of proof is more exacting than the ‘preponderance of the evidence’ standard but, unlike criminal contempt, does not require proof beyond a reasonable doubt.” Jordan v. Wilson, 851 F.2d 1290, 1292 (11th Cir. 1988) (per curiam). The clear and convincing evidence must establish that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order. McGregor, 206 F.3d at 1383 (emphasis added).
Ga. Power Com. v. Nat’l Labor Relations Bd., 484 F.3d 1288, 1291 (11th Cir. 2007)
The court’s order is “subject to reasonable interpretation, ” and the court “will construe any ambiguities or uncertainties in . . . a light favorable to the person charged with contempt.” Ga. Power Com., 484 F.3d at 1291.
The defendants argue that officials at the Alabama Department of Corrections did not intend to violate the court’s order, but that avails them nothing because the court does not look to the “subjective beliefs or intent of the alleged contemners . . . but whether in fact their conduct complied with the order at issue.” Ga. Power Com., 484 F.3d at 1291 citing Howard Johnson, 892 F.2d at 1516.
A. History of confiscations.
The plaintiff asserts that the defendants violated the order of this court by failing to comply with the requirements of the Stipulation filed by the parties on March 5, 1998 in the Limbaugh v. Thompson, Civil Action No. 2:93cv1404-ID, and Native American Prisoners of Alabama v. State of Alabama Department of Corrections, Civil Action No. 2:96cv554-WHA as set forth in the court’s orders in those cases. The plaintiff relies on the Recommendation of the Magistrate Judge entered on September 10, 1999, which recommended that injunctive relief to the inmates be granted “[b]ased on the stipulation which embodies the agreement of the parties on all issues . . . the evidence heard by the court and the record as a whole. . .” Limbaugh v. Thompson, Civil Action No. 2:93cv1404-ID, Doc. # 193 - September 10, 1999 Recommendation of the Magistrate Judge (adopted as Judgment of the court by final order of June 12, 2000, Doc. # 214). The injunctive relief granted by the court included, but was not limited to, authorizing Native American religion inmates to possess medicine bags, feathers, storage space, maintenance and use of ceremonial grounds and permission to celebrate particular ceremonial days. Irvin complains of several instances in which his sacred religious items were confiscated and/or destroyed.
Plaintiff Irvin is a named plaintiff in this litigation. In February 2001, Irvin was transferred to Limestone Correctional Facility. In January 2002, Irvin was transferred to West Jefferson Correctional Facility. In December 2004, Irvin was transferred to Kilby Correctional Facility. On January 20, 2005, Irvin was transferred to St. Clair Correctional Facility. During these transfers, he was permitted to keep all religious items in his possession.
On October 23, 2008, Irvin was transferred back to Limestone Correctional Facility at his request to be closer to his family. It was the confiscation of items during his intake that forms the first basis for his motion for contempt. During Irvin’s intake, Chaplain Baggett confiscated feathers, a personal prayer pipe, spiritual writings and literature, a communal prayer pipe, small rocks, beads, and antlers used for adorning religious items, a prayer shirt, sacred herbs, multiple necklaces, and multiple rings. Shortly thereafter, Irvin was transferred to Fountain Correctional Facility.
On December 2, 2010, while housed at the Fountain Correctional Facility, the following items were confiscated: a personal medicine wheel, a dream catcher, a small leather pouch with stones, a small ceremonial drum, an extra medicine bag, a prayer shirt, a prayer rug and a handkerchief. These items were not returned to Irvin. Eventually, the items were destroyed when the property room was cleaned out in September 2011.
In August 2011, during a shake down of the prison dormitory, Irvin’s sacred pipe bowl was shattered. According to Irvin, his religious items were desecrated by non-visual inspection by prison guards.
On March 9, 2012, Irvin was transferred to Bibb Correctional Facility where all his religious items except his medicine bag were confiscated, ostensibly because the Chaplain was on vacation and there was no one else to review his items. His religious items have been returned, and this confiscation is not the subject of this contempt proceeding.
B. Specific violations of the Court’s Order.
The court will address seriatim each area of the court’s order that the plaintiff alleges the defendants have violated.
1. Paragraph 19.
According to Irvin, the
defendants violated paragraph 19 of the courts order by confiscating religious
items that he had in his possession prior to his transfer to Limestone,
Fountain and Bibb correctional facilities. Paragraph 19 of the courts order
states, in pertinent part, that [t]he DOC shall permit inmates to keep and
retain their religious items in the event they are transferred from one
facility to another. (Doc. # 193, Recommendation of the Magistrate Judge at p.
11, ¶ 19). Irvin claims that by confiscating his religious items upon his
arrival at Limestone, Fountain and Bibb, the defendants are in violation of the
courts order and therefore in contempt.
The plaintiff reads paragraph 19 too broadly. While this provision allows an inmate who is transferred from one institution to another to take with him religious items, paragraph 19 does not require the Alabama Department of Corrections to allow the inmate to keep items that violate the court’s order or DOC policy. Historically, when inmates were transferred between correctional facilities, religious items were left at the institution the inmate was leaving. Paragraph 19 was drafted to eliminate the problem of inmates having to abandon their religious items at an institution they were leaving.
More importantly, paragraph 19 cannot be read in isolation and does not otherwise expand the limits of the court’s order. Paragraph 22 specifically states that “[t]he religious and ceremonial items which were previously possessed by the plaintiffs and do not violate the provision set forth herein or DOC policy shall be returned.” (Doc. # 193, Recommendation of the Magistrate Judge at p. 11, ¶ 22) (emphasis added). The mere fact that one institution might be more liberal than another institution in allowing an inmate to possess religious items does not then raise the bar for other institutions and does not imply that the defendants are in contempt for strictly adhering to the court’s order and prison regulations. Moreover, paragraph 22 implies that religious items may be seized because it provides that items not in violation of the DOC policy shall be returned. Absent this interpretation, paragraph 22 makes no sense. Consequently, the court concludes that the plaintiff has failed ...