United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT.
Kevin Morris-Bey, an inmate of the Indiana Department of
Correction (“IDOC”), brings this action pursuant
to 42 U.S.C. § 1983 against David Liebel and Jeffrey
Hinshaw alleging that the defendants violated his rights
under the Religious Land Use and Institutionalized Persons
Act (RLUIPA) and the First Amendment. The RLUIPA claim is
proceeding against Mr. Liebel in his official capacity as a
claim for injunctive relief. The First Amendment claims are
proceeding against both defendants in their individual
capacities. The defendants moved for summary judgment and Mr.
Morris-Bey was directed to respond, and given ample time to
do so, but he has not responded. The motion is therefore now
ripe for ruling. For the following reasons, the motion for
summary judgment is granted.
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
“Material facts are those that might affect the outcome
of the suit under applicable substantive law.”
Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015)
(internal quotation omitted). “A genuine dispute as to
any material fact exists ‘if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.’” Daugherty v. Page, 906 F.3d
606, 609-10 (7th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views
the facts in the light most favorable to the non-moving party
and all reasonable inferences are drawn in the
non-movant’s favor. Barbera v. Pearson Education,
Inc., 906 F.3d 621, 628 (7th Cir. 2018). The Court
cannot weigh evidence or make credibility determinations on
summary judgment because those tasks are left to the
fact-finder. Johnson v. Advocate Health and Hospitals
Corp. 892 F.3d 887, 893 (7th Cir. 2018).
plaintiff failed to respond to the defendants’ summary
judgment motion. Accordingly, facts alleged in the motion are
deemed admitted so long as support for them exists in the
record. See S.D. Ind. Local Rule 56-1 (“A
party opposing a summary judgment motion must . . . file and
serve a response brief and any evidence . . . that the party
relies on to oppose the motion. The response must . . .
identif[y] the potentially determinative facts and factual
disputes that the party contends demonstrate a dispute of
fact precluding summary judgment.”); Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003)
(“[F]ailure to respond by the nonmovant as mandated by
the local rules results in an admission”); Brasic
v. Heinemanns, Inc., 121 F.3d 281, 285-286 (7th Cir.
1997) (affirming grant of summary judgment where the
nonmovant failed to properly offer evidence disputing the
movant's version of the facts). This does not alter the
summary judgment standard, but it does “reduce the
pool” from which facts and inferences relative to the
motion may be drawn. Smith v. Severn, 129 F.3d 419,
426 (7th Cir. 1997).
Statement of Facts
times relevant to this lawsuit, Mr. Morris-Bey was confined
at the Correctional Industrial Facility. Dkt. 44-1, p. 8. Mr.
Morris-Bey has practiced Islamism since he was eight years
old. Id. He uses religious oils five times a day
during his daily prayers. Id., p. 11. Pursuant to
IDOC policy, an inmate may possess up to two ounces of
religious oils, regardless of religious preference or lack
thereof. Dkt. 44-2, ¶ 4. However, IDOC policy states
that religious oils may be purchased only through commissary.
Id. This is to ensure that the oils do not come in
glass bottles, are not flammable, and do not have strong
scents because those scents could be used to mask the
presence of contraband such as tobacco or marijuana and may
be offensive to others or cause allergic reactions.
Id. ¶ 5. IDOC has made great efforts to find
religious oils that satisfy these concerns. Id.,
¶ 6. The religious oils sold on commissary are packaged
in clear plastic bottles and are designed for use in prison.
Id., ¶ 7. The oil will char, but not burn.
Id. And the oil contains no animal byproducts and is
certified halal. Id.
April 2017, Mr. Morris-Bey would buy religious oils from
commissary every few months. Dkt. 44-1, p. 14. He was
notified in April of 2017 that religious oils were
unavailable from commissary. Id., p. 16. He was not
able to purchase religious oils from commissary from April
2017 to approximately September 6, 2017. Dkt. 44-1, p. 16.
This inability to purchase religious oils from commissary
occurred because some of the oils were testing positive for
synthetic marijuana, also known as K2 or spice, with the
field tests used at the facilities. Dkt. 44-2, ¶ 9. From
April to June 2017, the Deputy Chief Investigator of
IDOC’s Division of Investigations and Intelligence
tested various religious oils that were sold on commissary.
Id., ¶ 10. Nine of the religious oils tested
positive for K2. Id. The only religious oil that did
not test positive was the unscented hypo-allergenic oil.
Id. More formal lab results showed that these were
false positives. Id., ¶ 11. Allowing an item
known to trigger a positive result to be purchased from
commissary could call into question any positive test.
Id., ¶ 12. Additionally, inmates could use the
oil containers to conceal liquid K2 and the investigators at
the facility would not be able to determine if it was
religious oil or actual K2. Id.
2017, Mr. Morris-Bey tried purchasing oils from an outside
vendor called HalalCO. Dkt. 44-1, p. 18. The bottles that he
purchased from the outside vendor were confiscated by the
mailroom because the oils were not approved. Dkt. 44-1, p.
or June 2017, Mr. Morris-Bey spoke with Defendant Hinshaw
about commissary not having any religious oils. Id.,
p. 23. Defendant Hinshaw is the chaplain at Correctional
Industrial Facility. Id. p., 22. Defendant Hinshaw
informed Mr. Morris-Bey that the religious oils were
unavailable from commissary because the oils tested positive
for a synthetic drug. Id., p. 24. Defendant Liebel
is the Director of Religious Services at IDOC. Dkt. 44-2,
¶ 1. Mr. Morris-Bey’s only communication with
Defendant Liebel about this issue was during the grievance
appeal processes. Dkt. 44-1, p. 27-28.
Morris-Bey believes the defendants should have provided some
sort of accommodation such as releasing the confiscated oils
or providing temporary religious oils to prevent interruption
in his daily prayers. Dkt. 44-1, 26-27, 29.
defendants move for summary judgment on Mr.