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Religious Garments May Be Worn During Prisoner Transport
The United States District Court for the District of Colorado
rejected a plea for qualified immunity by the Colorado Department of
Corrections (CDOC) over their refusal to transport a Jewish prisoner while
wearing religious Garments.
Russell Boles, an Orthodox Jewish state prisoner at the Fremont
Correctional Facility, refused medical transport for outside surgery when
guards wold not let him wear his "yarmulke" (skull cap or head covering)
and "tallit katan" (undergarment bearing fringes), Boles was forced to
wait 18 months for surgery.
Filing a 42 U.S.C. § 1983 complaint, Boles argued that he
suffered "religious discrimination that aggravated a medical condition"
and also raised a claim under the Religious Land Use and Institutionalized
Persons Act (RLUIPA). All other claims were dismissed. The CDOC moved for
dismissal based on qualified immunity.
Adopting the magistrate's recommendation, the Court rejected
qualified immunity under the two-prong test mandating (1) allegations of
constitutional rights violations that were (2) clearly established at the
time of the alleged events. First, Boles alleged that guards placed an
unreasonable burden upon him that diminished his religious practice
Second, Boles' right to a reasonable opportunity to exercise his religion
was clearly established at the time of the alleged events. See: Makin v.
Colorado Department of Corrections, 183 F.3d 1205, 1210-1213 (10th Cir.
1999) [PLN Apr. 2000, p. 27]. Moreover, the right to assert a RLUIPA claim
was clearly established by statute.
As is often the case, the CDOC claimed entitlement to qualified
immunity based on a complete absence of case law clearly establishing the
specific right to a yarmulke and tallit katan. Rejecting this as "too
narrow," the Court found the established right "does not have to be so
fact specific that it is identical to what is alleged in the case at
issue." See: Boles v. Neet, 333 F.Supp.2d 1005 (D. Colo. 2004). Note this
is not a ruling on the merits and the CDOC's regulations were amended to
allow transportation with these religious Garments.
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