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Lindh v. Warden, Federal Correctional Institution

United States District Court, S.D. Indiana, Terre Haute Division

August 30, 2016



          Hon. Jane Magnus-Stinson, Judge

         Presently pending before the Court are cross-motions for summary judgment filed by Plaintiff Yahya (John) Lindh and Defendant Warden, Federal Correctional Institution, Terre Haute, Indiana (the “Warden”). [Filing No. No. 56; Filing No. 68.] In the operative complaint, Mr. Lindh challenges the Warden's policy that as an inmate in the Communications Management Housing Unit of the Terre Haute Federal Correctional Institution, he must undergo a visual strip search of all body surfaces and body cavities before a non-contact visit where he is located in a separate room from his visitors. [Filing No. 42.] He argues that this policy violates his rights under the Religious Freedom Restoration Act (“RFRA”) and is unreasonable in violation of the Fourth Amendment to the United States Constitution.[1] [Filing No. No. 42 at 6.] For the reasons that follow, the Court grants summary judgment in favor of the Warden on Mr. Lindh's Fourth Amendment claim and grants summary judgment in favor of Mr. Lindh on his RFRA claim.

         I. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         “The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial.” Id. at 648. Put another way, cross-motions for summary judgment do not waive the right to a trial and, instead, are treated separately. McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 (7th Cir. 2008).

         II. Relevant Background

         The parties do not dispute the vast majority of material facts at issue in this litigation. [Filing No. No. 57 at 2-11; Filing No. 70 at 2-4.] Thus, the following facts are undisputed, unless otherwise noted.

         A. The CMU

         A Communications Management Housing Unit (“CMU”) “is a general population housing unit where inmates ordinarily reside, eat, and participate in all educational, recreational, religious, visiting, unit management, and work programming, within the confines of the CMU.” 28 C.F.R. § 540.200(b); [see also Filing No. 42 at 3; Filing No. 47 at 2]. “The purpose of CMUs is to provide an inmate housing unit environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community.” 28 C.F.R. § 540.200(c). “The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and protection of the public.” 28 C.F.R. § 540.200(c).

         The CMU located in Terre Haute opened in 2006.[2] [Filing No. No. 42 at 2-3; Filing No. 47 at 2.] It contains 56 cells that can each house two inmates. [Filing No. No. 42 at 3; Filing No. 47 at 2; Filing No. 56-1 at 4.] As of May 2015, the CMU had 47 total inmates, all of whom were male. Filing No. 56-1 at 4.] The CMU is not a special housing unit, although it does contain six cells reserved for special housing. [Filing No. 42 at 3; Filing No. 47 at 2; Filing No. 56-1 at 4; Filing No. 56-1 at 8.]

         Aside from attorney visits, law enforcement interviews, or other extraordinary circumstances, visits at the CMU are “non-contact with no physical contact possible between visitors and prisoners.” [Filing No. 42 at 3; Filing No. 47 at 2.] These visits are also referred to as “social visits, ” and they take place on Saturday, Sunday, or Monday, unless authorized in advance for another day. [Filing No. 56-1 at 4.] An inmate may have up to two non-contact visits per month for four hours. [Filing No. No. 56-1 at 4.] Only one non-contact visit may occur at a time. [Filing No. No. 56-1 at 5.]

         Non-contact visits occur in two rooms separated from each other by a plexiglass window and separated from the regular access area of the CMU by a locked door.[3] [Filing No. No. 42 at 3; Filing No. 47 at 2.] The visits take place through the plexiglass window with the parties conversing by phone. [Filing No. 42 at 3; Filing No. 47 at 3.] One custodial officer remains immediately outside the visiting rooms at a desk with a phone. [Filing No. 42 at 3; Filing No. 47 at 3; Filing No. 56-1 at 5-6; Filing No. 56-1 at 14.] The doors on the visiting rooms are plexiglass, so the officer can see into them. [Filing No. 56-1 at 5-6.] The officer “observes the visit periodically” through the plexiglass door. [Filing No. No. 56-1 at 6.] There is a video camera present in the visiting room space and audio monitoring of the conversation through the phone that the inmate and visitor use. [Filing No. No. 42 at 4; Filing No. 47 at 3.] The audio and video feed are monitored offsite and also recorded. [Filing No. 56-1 at 6.]

         Until the end of October 2012, CMU inmates who had non-contact social visits were not given a visual strip search. [Filing No. No. 42 at 5; Filing No. 47 at 3.] They were, however, “under constant observation during the visits.” [Filing No. 42 at 5; Filing No. 47 at 3.] Currently, CMU inmates who have a non-contact social visit are subject to a visual strip search before the visit. [Filing No. No. 42 at 5; Filing No. 47 at 3.] The inmate is asked to remove his clothing and the officer inspects his body, ears, hands, feet, back of his neck, inside of his mouth, and inside of his nose. [Filing No. No. 56-1 at 7.] The inmate also must run his fingers through his hair, bend over, and squat so that the officer can look at his anal area. [Filing No. No. 56-1 at 7.] He also must lift his genitals so that area is visible to the officer. [Filing No. 56-1 at 7.] Visual strip searches occur in the bathroom next to the room where the inmates are located during the visits. [Filing No. 42 at 5; Filing No. 47 at 3.] A correctional officer of the same sex as the inmate conducts the visual strip search. [Filing No. 56-1 at 8.] The inmate may not take anything into the visiting room other than a comb, a religious medallion, a handkerchief, and a wedding ring. [Filing No. 56-1 at 11.] The inmate is instructed to remain seated during the visit. [Filing No. 56-1 at 15.]

         The Warden has identified a few security-related incidents that led to the implementation of the visual strip search policy before non-contact visits at the CMU.[4] For example, a CMU inmate was once able “to conceal a photograph on his person and hold it in such a way that his visitors could see it but observing staff could not.” [Filing No. 69-1 at 6.] Another CMU inmate “attempted to bring a written message into a legal visit for another inmate [and t]he note was discovered in the inmate's clothes after the inmate had removed them.” [Filing No. 69-6 at 3.] Another CMU inmate attempted to take messages out to the recreation cells and was discovered to have messages hidden in his underwear that were not discovered during a pat search and did not become dislodged from his underwear even when the inmate was jostling around to remove it. [Filing No. No. 69-3 at 6-7; Filing No. 69-4 at 2-3.] Another CMU inmate's visitor once manipulated her body to block the view of the inmate's activity, and it was later discovered upon terminating the visit that the visitor had exposed her breasts to the inmate while the inmate exposed his genitals. [Filing No. No. 69-6 at 2.] Finally, the Warden identifies a general concern that an inmate could write a message on his body and avoid detection of the message without a visual strip search, but he does not detail any instances where that actually happened. [Filing No. 69-1 at 5.]

         B. Mr. Lindh

         Mr. Lindh was convicted of Supplying Services to the Taliban and Carrying an Explosive During the Commission of a Felony Which May Be Prosecuted in the United States. [Filing No. 69-7 at 5.] He is an inmate at the Terre Haute CMU and has been incarcerated there since October 2007. [Filing No. No. 42 at 1; Filing No. 47 at 1; Filing No. 56-2 at 1.] Mr. Lindh did not challenge his original designation to a CMU and has not challenged the continuation of that designation following subsequent reviews. [Filing No. 69-7 at 5.] Mr. Lindh has had non-contact social visits at the CMU.[5] [Filing No. 56-2 at 2.] He has seen the video camera pointing toward where the inmate sits during social visits from the visitor's side of the plexiglass separator. [Filing No. 56-2 at 2.] Mr. Lindh is aware that his conversations over the telephone with any visitor are monitored and recorded. [Filing No. 56-2 at 2-3.] The only social visits that Mr. Lindh has had while housed at the CMU have been with family members. [Filing No. 56-2 at 1.]

         From the time Mr. Lindh arrived at the CMU until fall 2012, CMU inmates who had social visits were given “at most only a pat-down search.” [Filing No. 56-2 at 2.] In fall 2012, a new policy was implemented and “CMU prisoners who had social visits were subject to [visual] strip searches both before and after all social visits.” [Filing No. No. 56-2 at 2.] Mr. Lindh noticed that at some point that policy changed “so that now we are required to have a strip search before all of our social visits, but not after.” [Filing No. 56-2 at 2.] During a visual strip search, Mr. Lindh is required to take off his clothes while he is observed by a correctional officer. [Filing No. 56-2 at 2.] The correctional officer searches his clothes separately from visually searching him. [Filing No. 56-2 at 2.]

         Mr. Lindh is a practicing Muslim. [Filing No. No. 42 at 5; Filing No. 47 at 3; Filing No. 56-2 at 4.] Pursuant to his religious beliefs, “a male person is prohibited from exposing the area of his body between the navel and the knees. This area is called the awrah.” [Filing No. No. 56-2 at 4.] Exceptions to this prohibition exist for showing the awrah to one's spouse, for medical treatment, or for other circumstances of necessity. [Filing No. 56-2 at 4.] Islam “recognizes that if a Muslim is compelled by force or some other human behavior to violate certain religious principles and requirements then the Muslim person being so forced is absolved of sin because he acts under compulsion.” [Filing No. No. 56-2 at 4.] Mr. Lindh emphasizes, however, that “Islam also teaches that if a Muslim can challenge the compulsion he must do so for Islam requires that if somebody encounters something that is wrong and the person has the ability to seek to change it he or she must do so.” [Filing No. 56-2 at 5.]

         The Warden presents no evidence that Mr. Lindh has attempted to communicate any concealed messages to members of the public while housed in the CMU, either inside or outside of a non-contact visit.

         Mr. Lindh filed an administrative grievance regarding the visual strip search policy, but it was denied. [Filing No. 42-1.]

         C. Procedural History

         In May 2014, Mr. Lindh filed a Complaint against the Warden in this Court. [Filing No. 1.] The operative complaint alleges that the Warden's policy of subjecting Mr. Lindh to visual strip searches before non-contact visits violates his rights under RFRA. [Filing No. 42 at 6 (citing 42 U.S.C. § 2000bb-1).] Mr. Lindh alleges that the Warden's policy “imposes a substantial burden on plaintiff's religious exercise and neither furthers a compelling governmental interest, nor is it the least restrictive alternative to further that interest.” [Filing No. No. 42 at 6.] Mr. Lindh requests permanent injunctive relief enjoining the Warden from conducting visual strip searches of him when he has non-contact visits. [Filing No. No. 42 at 7.]

         Mr. Lindh filed a Motion for Summary Judgment in favor of his claim, [Filing No. 56], and the Warden filed a Cross-Motion for Summary Judgment in response, [Filing No. 68]. Those motions are now ...

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