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Delayed Sweat Lodge Construction Unconstitutional; Qualified Immunity Granted
A federal district court in Iowa has held that prison officials' delay in
constructing a Sweat lodge for Native American prisoners incarcerated at
Fort Dodge Correctional Facility (FDCF) violates the prisoners' right to
free exercise of religion under the First Amendment, but they were not
denied equal protection. The Court also held the defendants are entitled to
qualified immunity.
The Court was deciding the matter a trial the merits. The Court found that
FDCF was a newly constructed prison, which the defendants knew would
require a Sweat lodge to accommodate the religious needs of Native American
prisoners who would be housed there within 30 days of opening. A Sweat
lodge is an oval, dome shaped structure of a willow sapling frame and
traditionally covered with animal hides, but now often with canvas. Inside,
a pit is dug in which rocks are placed after being treated in a fire
outside the structure. The lodge is used as the heart of Native Americans'
purification ceremony.
The defendants argued the nine-month delay in building the Sweat lodge was
attributed to their inability to contract a consultant on Native American
religious ceremonies. However, in applying the Turner v. Safley, 107 S. Ct.
2254 (1987) test, the Court held that all four factors weigh in favor of
the prisoners. First, other Iowa Department of Corrections (IDOC) employees
were available to advise in constructing, and on one occasion FDCF was
advised by an IDOC chaplain on how to construct the lodge. Second, the
prisoners had no other way of exercising their religion. Third, there is no
adverse effect on guards or prisoners in building the lodge. In fact, FDCF
intended to build the lodge, it just placed a low priority on it. Fourth, a
reasonable alternative to the delay was taking the necessary three hours to
build the lodge, as advised, with the materials available to FDCF.
The Court held that the delay was not based on unfavorable treatment of the
prisoners, and there was no equal protection violation. Additionally, the
court held that although the defendants violated the prisoners' First
Amendment rights by the delay in building the lodge, they were entitled to
qualified immunity because that right was not clearly established at the
times relevant to the action. See: Youngbear v. Thackler, 174 F. Supp. 2d
902 (N.D. Iowa 2001).
constructing a Sweat lodge for Native American prisoners incarcerated at
Fort Dodge Correctional Facility (FDCF) violates the prisoners' right to
free exercise of religion under the First Amendment, but they were not
denied equal protection. The Court also held the defendants are entitled to
qualified immunity.
The Court was deciding the matter a trial the merits. The Court found that
FDCF was a newly constructed prison, which the defendants knew would
require a Sweat lodge to accommodate the religious needs of Native American
prisoners who would be housed there within 30 days of opening. A Sweat
lodge is an oval, dome shaped structure of a willow sapling frame and
traditionally covered with animal hides, but now often with canvas. Inside,
a pit is dug in which rocks are placed after being treated in a fire
outside the structure. The lodge is used as the heart of Native Americans'
purification ceremony.
The defendants argued the nine-month delay in building the Sweat lodge was
attributed to their inability to contract a consultant on Native American
religious ceremonies. However, in applying the Turner v. Safley, 107 S. Ct.
2254 (1987) test, the Court held that all four factors weigh in favor of
the prisoners. First, other Iowa Department of Corrections (IDOC) employees
were available to advise in constructing, and on one occasion FDCF was
advised by an IDOC chaplain on how to construct the lodge. Second, the
prisoners had no other way of exercising their religion. Third, there is no
adverse effect on guards or prisoners in building the lodge. In fact, FDCF
intended to build the lodge, it just placed a low priority on it. Fourth, a
reasonable alternative to the delay was taking the necessary three hours to
build the lodge, as advised, with the materials available to FDCF.
The Court held that the delay was not based on unfavorable treatment of the
prisoners, and there was no equal protection violation. Additionally, the
court held that although the defendants violated the prisoners' First
Amendment rights by the delay in building the lodge, they were entitled to
qualified immunity because that right was not clearly established at the
times relevant to the action. See: Youngbear v. Thackler, 174 F. Supp. 2d
902 (N.D. Iowa 2001).
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Related legal case
Youngbear v. Thackler
| Year | 2001 |
|---|---|
| Cite | 174 F.Supp. 2d 902 (N.D., Iowa 2001). |
| Level | District Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
174 F.Supp.2d 902
United States District Court,
N.D. Iowa,
Central Division.
James YOUNGBEAR, Robert Youngbear, and Robert Strongheart, Plaintiffs,
v.
John A. THALACKER, Ernie Owens, and David Costello, Defendants.
No. C 99-3027-MWB.
Nov. 8, 2001.
Native American inmates brought § 1983 action against state prison officials for violation of the First Amendment free exercise of religion clause and the Fourteenth Amendment equal protection clause for delay in construction of a sweat lodge for conducting ceremonies of the Native American religion at the prison. The District Court, Bennett, Chief Judge, held that: (1) the year-long delay violated the Native American inmates' First Amendment free exercise of religion rights; (2) the delay did not violate the Native American inmates' Fourteenth Amendment equal protection rights; and (3) the prison officials were entitled to qualified immunity for the First Amendment violation.
Ordered accordingly.
*906 Patrick Ingram, Mears Law Office, Iowa City, IA, for Plaintiffs.
Layne M. Lindebak, Asst. Iowa Atty. General, Des Moines, IA, for Defendants.
MEMORANDUM OPINION REGARDING TRIAL ON THE MERITS
BENNETT, Chief Judge.
The issue of the right of inmate practitioners of the Native American religion to have access to a sweat lodge has been the subject of widespread and pervasive litigation over the past decade. See e.g., Rich v. Woodford, 210 F.3d 961 (9th Cir.2000) (dissent from refusal to rehear case en banc in which a condemned man had sought to take part in a sweat lodge ceremony prior to his execution); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.2000) (unpublished decision affirming the granting of summary judgment for defendant prison officials on First Amendment claim that plaintiff's free exercise of religion rights were denied by lack of access to a sweat lodge); Swan v. Smith, 129 F.3d 127, 1997 WL 697802 (9th Cir.1997) (unpublished opinion considering prisoner's claim that his constitutional rights *907 were violated when he and other close custody inmates were not allowed to attend sweat lodge ceremonies); Thomas v. Gunter, 103 F.3d 700, 702 (8th Cir.1997) (affirming the granting of summary judgment in favor of prison officials where district court determined that denial of extended daily access to sweat house was rationally related to legitimate penological interests); Cubero v. Burton, 96 F.3d 1450, 1996 WL 508624, at *1 (7th Cir.1996) (unpublished decision considering claims that prison officials interfered with inmates' First Amendment right to practice their Native American religion by denying them religious materials, permission to "smudge" in their rooms, and temporarily closing sweat lodge at prison); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.) (considering Native American inmate's claim that prison officials violated his First Amendment right to free exercise of religion by denying him access to sweat lodge), cert. denied,519 U.S. 874, 117 S.Ct. 193, 136 L.Ed.2d 130 (1996); Werner v. McCotter, 49 F.3d 1476, (10th Cir.) (holding that absence of evidence as to governmental interest and burden associated with provision of sweat lodge to facilitate exercise of Native American shamanism precluded summary judgment for prison officials), cert denied sub nom. Thomas v. McCotter, 515 U.S. 1166, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995); Thomas v. Gunter, 32 F.3d 1258, 1261 (8th Cir.1994) (holding that prison officials would not be entitled to qualified immunity for violating prisoner's rights to free exercise of religion unless rational relationship could be shown between legitimate penological interests and denial of access to prison sweat lodge for prayer); McKinney v. Maynard, 952 F.2d 350, 351 (10th Cir.1991) (inmate sought declaratory and injunctive relief to permit the construction of a sweat lodge at correctional facility), overruled by McAlpine v. Thompson, 187 F.3d 1213 (10th Cir.1999); Allen v. Toombs, 827 F.2d 563, 565 & nn. 5, 9 (9th Cir.1987) (upholding regulations denying access to the sweat lodge by high security inmates but allowing weekly access by general prison population).
In this case, the court must determine whether correctional officials' year-long delay in the construction of a sweat lodge, used for conducting ceremonies of the Native American religion, at a newly opened correctional facility, was violative of plaintiffs' right to free exercise of religion under the First Amendment and equal protection under the Fourteenth Amendment.
I. INTRODUCTION AND BACKGROUND
On April 22, 1999, plaintiffs James Youngbear, Robert Youngbear, and Robert Strongheart filed their complaint in this lawsuit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendants John A. Thalacker, Ernie Owens, and David Costello.FN1 Plaintiffs, all Native Americans presently incarcerated at the Fort Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, assert that defendants, all Iowa prison officials at FDCF, violated their First Amendment right to free exercise of religion by delaying construction of and access to a sweat lodge.FN2 Plaintiffs also allege that defendants*908 violated their Equal Protection rights under the Fourteenth Amendment to the United States Constitution by providing members of other religions the opportunity to conduct services while denying the same opportunity to plaintiffs to conduct a Native American religious service. Defendants filed their answer in this matter on November 8, 1999. In their answer, defendants denied plaintiffs claims, and asserted the affirmative defense of qualified immunity.
FN1. There were seventeen plaintiffs originally named in the complaint: James Youngbear; Kenneth A. Frazier; Kenneth Morris; Robert Saul; Dayton Sabasta; Michael Wabasha; Ellsworth Youngbear; Christopher Chapman; Gary Rice; Robert Youngbear; Michael Benton; Terrance Keahna; Michael Cleveland; Marvin Mitchell; Jeremy McKinney; and, Henry White. Of the original plaintiffs, only James Youngbear and Robert Youngbear remain. Plaintiff Strongheart joined the lawsuit on November 22, 2000.
FN2. Plaintiffs presented no evidence at trial with respect to defendant Costello. Therefore, the court concludes that plaintiffs have failed to establish their claims with respect to defendant Costello and are not entitled to judgment on their claims with respect to defendant Costello. For the remaining portion of this decision any reference to "defendants" is to defendants Owens and Thalacker only.
This case was tried to the court on October 16, 2001, in Sioux City, Iowa. The court exercised jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs were represented by Patrick Ingram of Mears Law Office, Iowa City, Iowa. Defendants were represented by Assistant Attorney General Layne M. Lindebak, Des Moines, Iowa.
The court will begin with its findings of fact and then turn to its legal analysis and conclusions of law regarding plaintiffs' claims. If the court concludes that defendants are liable on any of the legal theories asserted by plaintiffs, it will determine whether defendants have established their affirmative defense of qualified immunity. Finally, if the court concludes that defendants are liable on any of the legal theories and not entitled to qualified immunity, the court will determine what remedies are available and appropriate under the circumstances.
II. FINDINGS OF FACT
The Fort Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, opened in April of 1998. FDCF is a medium level correctional facility. At the time FDCF opened, it did not have a sweat lodge. A sweat lodge is used by members of the Native American religion as the heart of their purification ceremony. A sweat lodge consists of an oval, dome shaped structure made using willow saplings as the frame. The sweat lodge structure was traditionally covered by animal hides but is now often covered by canvas. Inside the sweat lodge a pit is dug in which rocks are placed after being heated in a fire pit outside the structure. The Iowa Department of Corrections knew when the FDCF opened that it would require a sweat lodge. It could also have reasonably anticipated having Native American inmates incarcerated at that facility within thirty days of its opening.
Plaintiffs James Youngbear, Robert Youngbear, and Robert Strongheart are inmates at the FDCF. Robert Youngbear was transferred to the FDCF on June 24, 1998. Approximately a month later, on July 29, 1998, James Youngbear was transferred to the FDCF. Robert Strongheart arrived at the FDCF on December 16, 1998. Plaintiffs are all members of the Native American religion All three plaintiffs practiced the Native American religion before being incarcerated. Plaintiffs James Youngbear and Robert Youngbear had each been involved in the construction of sweat lodges before being incarcerated. All three plaintiffs hold sincere beliefs in the Native American religion.
Defendant John Thalacker is the FDCF's warden. Defendant Ernie Owens was hired in September 1998, as the first treatment manager for the FDCF. Before working at the FDCF, defendant Owens was a substance abuse counselor at the Clarinda correctional facility, Clarinda, Iowa. Defendant Owens's responsibilities as a treatment manager at the FDCF *909 included work programs, private sector jobs, and religious activities at the FDCF. Defendant Owens's duties at Clarinda did not involve supervision of the Native American religious activities at that correctional facility. There were five to ten Native American inmates at the FDCF when Owens arrived there.
On September 9, 1998, inmate Kenneth Frazier submitted a written request for services in the Native American religion at the FDCF to Marry Dix, the treatment director at the FDCF.FN3 At the time of Frazier's request, defendant Owens was in his orientation process. Owen met with Frazier on October 5, 1998, and discussed Frazier's request. Frazier also requested that until a sweat lodge could be constructed at the FDCF that the Native American inmates be permitted to meet for one hour each week. Owen stressed to Frazier the need for the FDCF to have a consultant to advise the institution on how to start and maintain Native American religious services. Owens wanted the assistance of a Native American consultant because he did not have a background in Native American affairs. Frazier informed Owens that he had built sweat lodges previously. Frazier initially told Owens that any ground on which the sweat lodge would be situated would need to be blessed by a medicine man. Frazier informed told Owens that while such a blessing would be preferred, it was not required.
FN3. Frazier's request is Defendants' Exhibit H. In his request, Frazier wrote in relevant part:
This is a request for our Native American church time. I'm asking for a weekday time maybe Tuesday or Monday I know we don't have a sweat lodge yet, but this time that us Native Americans are asking for will help us prepare for when it gets here. I'm enrolled in Santee Nebraska I am a Pipe carrier for the people. I'm also a Sundance pledger. I've lived with a Medicine Man before I have been taught this Red Road since I was seven.
712-258-2726 Home
279-6754 Work
I'm sure our consultant Fred LaMere will be willing to work with us & the staff to get a sweat lodge here soon as possible. I would like to teach this class & run the sweat lodg (sic) ceremoneys (sic). I just came from Newton & was running it there. Is there some way I can talk to you our (sic) the chaplon (sic) to get this started. For now we will only need an hour a week. When the sweat lodg (sic) does get here we will need more time.
Frazier letter, Defendants' Ex. H.
The Iowa Department of Corrections has contracted with Native American religion consultants since the mid-1980's to supervise and assist Native American inmates who practice the Native American religion who are incarcerated in Iowa's correctional facilities.FN4 The Native American religion consultants also advise correctional staffs as to religious practices and beliefs. The Native American religion consultants' duties include quarterly visits to each correctional institution assigned to them, supplying ceremonial items, informing correctional staff as to which inmates may participate in the sweats, and conducting the sweats when at the institution.
FN4. The Iowa Department of Corrections also contracts with consultants for such other religions as Christianity, Judaism, and Islam.
Prior to June of 1998, the Iowa Department of Corrections contracted with Ralph Preston to act as its Native American religion consultant. However, by June 8, 1998, the Iowa Department of Corrections decided not to renew its contract with Preston because Preston was not making his required visits to the correctional facilities. The Iowa Department of Corrections decided to contract with two Native American consultants, one to work with correctional facilities located in western Iowa and the other to work with correctional facilities located in eastern Iowa. The Iowa Department of Corrections contracted with *910 Fred LaMere to be a Native American consultant to provide services to the correctional facilities located in eastern Iowa: the Iowa State Penitentiary in Fort Madison, Iowa: the Anamosa State Penitentiary in Anamosa, Iowa; the Mount Pleasant Correctional Facility; and, the Newton Correctional Facility. LaMere resides in Sioux City, Iowa, located in Northwest Iowa.FN5 The reason LaMere was assigned to the correctional facilities located in eastern Iowa was because the Iowa Department of Corrections was most concerned about the Iowa State Penitentiary and the Anamosa State Penitentiary.
FN5. The court takes judicial notice of the fact that Sioux City is 92 miles from Fort Dodge, Iowa.
Paul A. Muller, the Iowa Department of Corrections's Assistant Deputy Director for the Eastern Region was in charge of locating a Native American religion consultant to replace Preston. On June 4, 1998, Muller called Maria Pearson to find a Native American consultant. Pearson, a Native American who lives in Ames, Iowa, and is on the Governor's Committee For Native American Affairs, said that she would look into finding a consultant. On June 23, Muller again called Maria Pearson regarding finding a Native American consultant. Pearson indicated that she thought she new an individual in Des Moines, Iowa, who might be interested in the position. Muller had used Pearson in this capacity previously to find Native American religion consultants for the Iowa Department of Corrections. On June 29, 1998, Muller tried to call Pearson regarding the consultant position but her telephone was temporarily disconnected. On July 2, 1998, Muller again tried to get in contact with Pearson by telephone. On this occasion Pearson was not home. Muller left a message on Pearson's answering machine inquiring whether the person from Des Moines, that Pearson had previously mentioned, was interested in the Native American religion consultant position. On July 10, 1998, Muller again telephoned Pearson and found that she was not home. Muller left his name on her answering machine. On July 13, 1998, Muller learned from Jane Ross that Maria Person had called and said that the person in Des Moines she had previously mentioned was not interested in the Native American religion consultant position. On September 13, 1998, LaMere telephoned Muller regarding the FDCF. LaMere informed him that willows could be brought into the FDCF and that the inmates could construct a sweat lodge in that facility. LaMere also suggested the name of an individual, Elmer Running, to Muller who might be interested in the Native American religion consultant position. Muller did not request that LaMere go to the FDCF to oversee the construction of a sweat lodge there and LaMere did not volunteer to do so.
Muller subsequently met with Running, Running's wife, and LaMere sometime in the fall of 1998, regarding the Native American religion consultant position. In December of 1998, the Iowa Department of Corrections contracted with Elmer Running, a Nebraska medicine man, to become the Iowa Department of Corrections's Native American religion consultant for the Iowa correctional facilities located in western Iowa. Running was expected to visit the FDCF soon to provide guidance and help establish the sweat lodge at the FDCF. When Running did not visit the FDCF, defendant Owens telephoned the Running residence and spoke with his wife. Mrs. Running indicated that they did not have enough money to enable Running*911 to come the FDCF at that time. On February 26, 1999, the contract between Running and the Iowa Department of Corrections was terminated because Running was unable to fulfill its terms.
United States District Court,
N.D. Iowa,
Central Division.
James YOUNGBEAR, Robert Youngbear, and Robert Strongheart, Plaintiffs,
v.
John A. THALACKER, Ernie Owens, and David Costello, Defendants.
No. C 99-3027-MWB.
Nov. 8, 2001.
Native American inmates brought § 1983 action against state prison officials for violation of the First Amendment free exercise of religion clause and the Fourteenth Amendment equal protection clause for delay in construction of a sweat lodge for conducting ceremonies of the Native American religion at the prison. The District Court, Bennett, Chief Judge, held that: (1) the year-long delay violated the Native American inmates' First Amendment free exercise of religion rights; (2) the delay did not violate the Native American inmates' Fourteenth Amendment equal protection rights; and (3) the prison officials were entitled to qualified immunity for the First Amendment violation.
Ordered accordingly.
*906 Patrick Ingram, Mears Law Office, Iowa City, IA, for Plaintiffs.
Layne M. Lindebak, Asst. Iowa Atty. General, Des Moines, IA, for Defendants.
MEMORANDUM OPINION REGARDING TRIAL ON THE MERITS
BENNETT, Chief Judge.
The issue of the right of inmate practitioners of the Native American religion to have access to a sweat lodge has been the subject of widespread and pervasive litigation over the past decade. See e.g., Rich v. Woodford, 210 F.3d 961 (9th Cir.2000) (dissent from refusal to rehear case en banc in which a condemned man had sought to take part in a sweat lodge ceremony prior to his execution); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.2000) (unpublished decision affirming the granting of summary judgment for defendant prison officials on First Amendment claim that plaintiff's free exercise of religion rights were denied by lack of access to a sweat lodge); Swan v. Smith, 129 F.3d 127, 1997 WL 697802 (9th Cir.1997) (unpublished opinion considering prisoner's claim that his constitutional rights *907 were violated when he and other close custody inmates were not allowed to attend sweat lodge ceremonies); Thomas v. Gunter, 103 F.3d 700, 702 (8th Cir.1997) (affirming the granting of summary judgment in favor of prison officials where district court determined that denial of extended daily access to sweat house was rationally related to legitimate penological interests); Cubero v. Burton, 96 F.3d 1450, 1996 WL 508624, at *1 (7th Cir.1996) (unpublished decision considering claims that prison officials interfered with inmates' First Amendment right to practice their Native American religion by denying them religious materials, permission to "smudge" in their rooms, and temporarily closing sweat lodge at prison); Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.) (considering Native American inmate's claim that prison officials violated his First Amendment right to free exercise of religion by denying him access to sweat lodge), cert. denied,519 U.S. 874, 117 S.Ct. 193, 136 L.Ed.2d 130 (1996); Werner v. McCotter, 49 F.3d 1476, (10th Cir.) (holding that absence of evidence as to governmental interest and burden associated with provision of sweat lodge to facilitate exercise of Native American shamanism precluded summary judgment for prison officials), cert denied sub nom. Thomas v. McCotter, 515 U.S. 1166, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995); Thomas v. Gunter, 32 F.3d 1258, 1261 (8th Cir.1994) (holding that prison officials would not be entitled to qualified immunity for violating prisoner's rights to free exercise of religion unless rational relationship could be shown between legitimate penological interests and denial of access to prison sweat lodge for prayer); McKinney v. Maynard, 952 F.2d 350, 351 (10th Cir.1991) (inmate sought declaratory and injunctive relief to permit the construction of a sweat lodge at correctional facility), overruled by McAlpine v. Thompson, 187 F.3d 1213 (10th Cir.1999); Allen v. Toombs, 827 F.2d 563, 565 & nn. 5, 9 (9th Cir.1987) (upholding regulations denying access to the sweat lodge by high security inmates but allowing weekly access by general prison population).
In this case, the court must determine whether correctional officials' year-long delay in the construction of a sweat lodge, used for conducting ceremonies of the Native American religion, at a newly opened correctional facility, was violative of plaintiffs' right to free exercise of religion under the First Amendment and equal protection under the Fourteenth Amendment.
I. INTRODUCTION AND BACKGROUND
On April 22, 1999, plaintiffs James Youngbear, Robert Youngbear, and Robert Strongheart filed their complaint in this lawsuit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendants John A. Thalacker, Ernie Owens, and David Costello.FN1 Plaintiffs, all Native Americans presently incarcerated at the Fort Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, assert that defendants, all Iowa prison officials at FDCF, violated their First Amendment right to free exercise of religion by delaying construction of and access to a sweat lodge.FN2 Plaintiffs also allege that defendants*908 violated their Equal Protection rights under the Fourteenth Amendment to the United States Constitution by providing members of other religions the opportunity to conduct services while denying the same opportunity to plaintiffs to conduct a Native American religious service. Defendants filed their answer in this matter on November 8, 1999. In their answer, defendants denied plaintiffs claims, and asserted the affirmative defense of qualified immunity.
FN1. There were seventeen plaintiffs originally named in the complaint: James Youngbear; Kenneth A. Frazier; Kenneth Morris; Robert Saul; Dayton Sabasta; Michael Wabasha; Ellsworth Youngbear; Christopher Chapman; Gary Rice; Robert Youngbear; Michael Benton; Terrance Keahna; Michael Cleveland; Marvin Mitchell; Jeremy McKinney; and, Henry White. Of the original plaintiffs, only James Youngbear and Robert Youngbear remain. Plaintiff Strongheart joined the lawsuit on November 22, 2000.
FN2. Plaintiffs presented no evidence at trial with respect to defendant Costello. Therefore, the court concludes that plaintiffs have failed to establish their claims with respect to defendant Costello and are not entitled to judgment on their claims with respect to defendant Costello. For the remaining portion of this decision any reference to "defendants" is to defendants Owens and Thalacker only.
This case was tried to the court on October 16, 2001, in Sioux City, Iowa. The court exercised jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs were represented by Patrick Ingram of Mears Law Office, Iowa City, Iowa. Defendants were represented by Assistant Attorney General Layne M. Lindebak, Des Moines, Iowa.
The court will begin with its findings of fact and then turn to its legal analysis and conclusions of law regarding plaintiffs' claims. If the court concludes that defendants are liable on any of the legal theories asserted by plaintiffs, it will determine whether defendants have established their affirmative defense of qualified immunity. Finally, if the court concludes that defendants are liable on any of the legal theories and not entitled to qualified immunity, the court will determine what remedies are available and appropriate under the circumstances.
II. FINDINGS OF FACT
The Fort Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, opened in April of 1998. FDCF is a medium level correctional facility. At the time FDCF opened, it did not have a sweat lodge. A sweat lodge is used by members of the Native American religion as the heart of their purification ceremony. A sweat lodge consists of an oval, dome shaped structure made using willow saplings as the frame. The sweat lodge structure was traditionally covered by animal hides but is now often covered by canvas. Inside the sweat lodge a pit is dug in which rocks are placed after being heated in a fire pit outside the structure. The Iowa Department of Corrections knew when the FDCF opened that it would require a sweat lodge. It could also have reasonably anticipated having Native American inmates incarcerated at that facility within thirty days of its opening.
Plaintiffs James Youngbear, Robert Youngbear, and Robert Strongheart are inmates at the FDCF. Robert Youngbear was transferred to the FDCF on June 24, 1998. Approximately a month later, on July 29, 1998, James Youngbear was transferred to the FDCF. Robert Strongheart arrived at the FDCF on December 16, 1998. Plaintiffs are all members of the Native American religion All three plaintiffs practiced the Native American religion before being incarcerated. Plaintiffs James Youngbear and Robert Youngbear had each been involved in the construction of sweat lodges before being incarcerated. All three plaintiffs hold sincere beliefs in the Native American religion.
Defendant John Thalacker is the FDCF's warden. Defendant Ernie Owens was hired in September 1998, as the first treatment manager for the FDCF. Before working at the FDCF, defendant Owens was a substance abuse counselor at the Clarinda correctional facility, Clarinda, Iowa. Defendant Owens's responsibilities as a treatment manager at the FDCF *909 included work programs, private sector jobs, and religious activities at the FDCF. Defendant Owens's duties at Clarinda did not involve supervision of the Native American religious activities at that correctional facility. There were five to ten Native American inmates at the FDCF when Owens arrived there.
On September 9, 1998, inmate Kenneth Frazier submitted a written request for services in the Native American religion at the FDCF to Marry Dix, the treatment director at the FDCF.FN3 At the time of Frazier's request, defendant Owens was in his orientation process. Owen met with Frazier on October 5, 1998, and discussed Frazier's request. Frazier also requested that until a sweat lodge could be constructed at the FDCF that the Native American inmates be permitted to meet for one hour each week. Owen stressed to Frazier the need for the FDCF to have a consultant to advise the institution on how to start and maintain Native American religious services. Owens wanted the assistance of a Native American consultant because he did not have a background in Native American affairs. Frazier informed Owens that he had built sweat lodges previously. Frazier initially told Owens that any ground on which the sweat lodge would be situated would need to be blessed by a medicine man. Frazier informed told Owens that while such a blessing would be preferred, it was not required.
FN3. Frazier's request is Defendants' Exhibit H. In his request, Frazier wrote in relevant part:
This is a request for our Native American church time. I'm asking for a weekday time maybe Tuesday or Monday I know we don't have a sweat lodge yet, but this time that us Native Americans are asking for will help us prepare for when it gets here. I'm enrolled in Santee Nebraska I am a Pipe carrier for the people. I'm also a Sundance pledger. I've lived with a Medicine Man before I have been taught this Red Road since I was seven.
712-258-2726 Home
279-6754 Work
I'm sure our consultant Fred LaMere will be willing to work with us & the staff to get a sweat lodge here soon as possible. I would like to teach this class & run the sweat lodg (sic) ceremoneys (sic). I just came from Newton & was running it there. Is there some way I can talk to you our (sic) the chaplon (sic) to get this started. For now we will only need an hour a week. When the sweat lodg (sic) does get here we will need more time.
Frazier letter, Defendants' Ex. H.
The Iowa Department of Corrections has contracted with Native American religion consultants since the mid-1980's to supervise and assist Native American inmates who practice the Native American religion who are incarcerated in Iowa's correctional facilities.FN4 The Native American religion consultants also advise correctional staffs as to religious practices and beliefs. The Native American religion consultants' duties include quarterly visits to each correctional institution assigned to them, supplying ceremonial items, informing correctional staff as to which inmates may participate in the sweats, and conducting the sweats when at the institution.
FN4. The Iowa Department of Corrections also contracts with consultants for such other religions as Christianity, Judaism, and Islam.
Prior to June of 1998, the Iowa Department of Corrections contracted with Ralph Preston to act as its Native American religion consultant. However, by June 8, 1998, the Iowa Department of Corrections decided not to renew its contract with Preston because Preston was not making his required visits to the correctional facilities. The Iowa Department of Corrections decided to contract with two Native American consultants, one to work with correctional facilities located in western Iowa and the other to work with correctional facilities located in eastern Iowa. The Iowa Department of Corrections contracted with *910 Fred LaMere to be a Native American consultant to provide services to the correctional facilities located in eastern Iowa: the Iowa State Penitentiary in Fort Madison, Iowa: the Anamosa State Penitentiary in Anamosa, Iowa; the Mount Pleasant Correctional Facility; and, the Newton Correctional Facility. LaMere resides in Sioux City, Iowa, located in Northwest Iowa.FN5 The reason LaMere was assigned to the correctional facilities located in eastern Iowa was because the Iowa Department of Corrections was most concerned about the Iowa State Penitentiary and the Anamosa State Penitentiary.
FN5. The court takes judicial notice of the fact that Sioux City is 92 miles from Fort Dodge, Iowa.
Paul A. Muller, the Iowa Department of Corrections's Assistant Deputy Director for the Eastern Region was in charge of locating a Native American religion consultant to replace Preston. On June 4, 1998, Muller called Maria Pearson to find a Native American consultant. Pearson, a Native American who lives in Ames, Iowa, and is on the Governor's Committee For Native American Affairs, said that she would look into finding a consultant. On June 23, Muller again called Maria Pearson regarding finding a Native American consultant. Pearson indicated that she thought she new an individual in Des Moines, Iowa, who might be interested in the position. Muller had used Pearson in this capacity previously to find Native American religion consultants for the Iowa Department of Corrections. On June 29, 1998, Muller tried to call Pearson regarding the consultant position but her telephone was temporarily disconnected. On July 2, 1998, Muller again tried to get in contact with Pearson by telephone. On this occasion Pearson was not home. Muller left a message on Pearson's answering machine inquiring whether the person from Des Moines, that Pearson had previously mentioned, was interested in the Native American religion consultant position. On July 10, 1998, Muller again telephoned Pearson and found that she was not home. Muller left his name on her answering machine. On July 13, 1998, Muller learned from Jane Ross that Maria Person had called and said that the person in Des Moines she had previously mentioned was not interested in the Native American religion consultant position. On September 13, 1998, LaMere telephoned Muller regarding the FDCF. LaMere informed him that willows could be brought into the FDCF and that the inmates could construct a sweat lodge in that facility. LaMere also suggested the name of an individual, Elmer Running, to Muller who might be interested in the Native American religion consultant position. Muller did not request that LaMere go to the FDCF to oversee the construction of a sweat lodge there and LaMere did not volunteer to do so.
Muller subsequently met with Running, Running's wife, and LaMere sometime in the fall of 1998, regarding the Native American religion consultant position. In December of 1998, the Iowa Department of Corrections contracted with Elmer Running, a Nebraska medicine man, to become the Iowa Department of Corrections's Native American religion consultant for the Iowa correctional facilities located in western Iowa. Running was expected to visit the FDCF soon to provide guidance and help establish the sweat lodge at the FDCF. When Running did not visit the FDCF, defendant Owens telephoned the Running residence and spoke with his wife. Mrs. Running indicated that they did not have enough money to enable Running*911 to come the FDCF at that time. On February 26, 1999, the contract between Running and the Iowa Department of Corrections was terminated because Running was unable to fulfill its terms.