Christopher Flores, Plaintiff, v. Collette Peters, et al., Defendants. (2025)

ORDER

Plaintiff Christopher Flores, who is currently confined in the Federal Corrections Institution in Phoenix, Arizona (FCI-Phoenix) and is represented by counsel, brought this civil rights action under 42 U.S.C. § 1983.¹ Defendants move for summary judgment based on failure to exhaust administrative remedies and qualified immunity. (Doc. 37.) The Motion is fully briefed. (Doc. 40, 44).

The Court will grant the Motion for Summary Judgment.

I. Background

On screening under 28 U.S.C. § 1915A(a), the Court determined Plaintiff stated Religious Freedom Restoration Act (RFRA), claims in Count Three against Defendants Federal Bureau of Prisons (BOP) Director Collette Peters; now-former FCI-Phoenix Warden B. Hudson; FCI-Phoenix Head of Chaplain Services D. Rice; and FCI-Phoenix Chaplain Davis. (Doc. 14.) The claims arise from these Defendants’ alleged failures to properly investigate and remedy the damage caused by unknown “Doe” Defendants’ destruction of Native American ceremonial drums and Defendants’ alleged denials of Plaintiff's access to a properly structured/equipped sweat lodge and a “Traditional Spiritual Leader.” (Doc. 7 at 9.) The Court directed Defendants Peters, Hudson, Rice, and Davis to answer the RFRA claims in Count Three and dismissed the remaining claims and Defendants. (Id.)

II. Legal Standards

A. Summary Judgment

A court must grant summary judgment “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

B. Exhaustion

Under the Prison Litigation Reform Act, a prisoner must exhaust “available” administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). The prisoner must complete the administrative review process according to the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001).

The defendant bears the initial burden to show that there was an available administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must demonstrate that applicable relief remained available in the grievance process). Once that showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in fact, exhausted administrative remedies or “come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a).

If the defendants move for summary judgment for failure to exhaust and the evidence shows that the plaintiff did, in fact, exhaust all available administrative remedies, it is appropriate for the court to grant summary judgment sua sponte for the nonmovant on the issue. See Albino, 747 F.3d at 1176 (pro se prisoner did not cross-move for summary judgment on issue of exhaustion, but because he would have succeeded had he made such a motion, sua sponte grant of summary judgment was appropriate).

III. Failure to Exhaust

A. BOP Administrative Remedy Process

The BOP has a four-tiered administrative remedy process for resolving complaints about prison life. (Doc. 38, Defs.’ Statement of Facts (DSOF) ¶ 1.) First, the prisoner must attempt to resolve his issue informally with prison staff using an Informal Resolution form, known as a BP-8. (Id. ¶ 2.) BP-8 forms require the prisoner to identify (1) the complaint, (2) the relief sought, and (3) efforts made to informally resolve the issue, including staff contacted. (Id. ¶ 4.) BP-8s are not assigned a Remedy I.D. number and are not tracked. (Id. ¶ 3.)

Second, the prisoner must file a formal Request for Administrative Remedy, also known as a BP-9, at the prisoner's institution. (Id. ¶ 5.) The prisoner must file a BP-9 within 20 days of the incident for which he seeks relief. (Id. ¶ 6.) If the prisoner is not satisfied with the BP-9 response from the Warden, the third step is to file an appeal to the Regional Director using a Regional Office Administrative Remedy Appeal, also known as a BP-10, within 20 days of the Warden's signature on the response. (Id. ¶ 7.) If the prisoner is dissatisfied with the Regional Director's response, the fourth and final step is to appeal to the National Inmate Appeals Director by filing a Central Office Administrative Remedy Appeal, also known as a BP-10. (Id. ¶ 8.)

Any member of the Unit Team (a unit manager, case manager, correctional counselor, and unit secretary) may distribute or accept the appropriate administrative remedy forms. (Id. ¶¶ 16.) At any level of the four-step process, the Administrative Remedy Coordinator may reject and return to the prisoner without a response a submission that does not conform to the requirements outlined in the Code of Federal Regulations, 28 C.F.R. § 542.17(a). (Id. ¶ 9.) When a submission is rejected, BOP policy requires staff to “provide[ ] a written notice, signed by the Administrative Remedy Coordinator, explaining the reason for the rejection,” and, “[i]f the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.” (Doc. 41, Pl.’s Separate Statement of Facts (PSOF) ¶ 1; Doc. 41-1 at 9.)

Upon arrival at FCI-Phoenix, prisoners attend an orientation that includes instruction on the BOP Administrative Remedy Program, how to obtain and submit appropriate forms, and how to proceed at all levels of the process. (Id. ¶ 18.) Prisoners also have access to the Code of Federal Regulations and BOP Program Statements, including Program Statement 1330.18, Administrative Remedy Program, in the institution law library and the Electronic Law Library. (Id. ¶ 15.)

Since 1990, the BOP has maintained information about administrative complaints in its computerized database, SENTRY, which it uses to track complaints and appeals and via which staff may search for filings by a specific prisoner. (Id. ¶¶ 11–12.) Each formal complaint (BP-9, BP-10, and BP-11) is logged into SENTRY at the receiving location. (Id. ¶ 13.) The initial complaint (BP-9) receives a unique Remedy I.D. Number that stays the same throughout the appeals process. (Id.) At each level, the Remedy I.D. Number also receives an extension indicating the level of review: F-1 for the institution level (BP-9), R-1 for the regional appeal level (BP-10), and A-1 for the national appeal level (BP-11). (Id. ¶ 14.) The number at the end of the extension may change if a filing at that level is rejected and the prisoner refiles it, so that F-1 may become F-2, etc., but the Remedy I.D. number prior to the extension remains the same. (Id.)

B. Plaintiff's Administrative Remedies

Plaintiff was incarcerated at the FCI-Phoenix from August 3, 2017 to February 14, 2025. (Id. ¶ 20.) Plaintiff adheres to religious beliefs, which he describes as Native American. (Id. ¶ 30.)

On March 10, 2023, Plaintiff submitted a BP-8 informal resolution request about alleged damage to Native American religious drums. (DSOF ¶ 27; Doc. 38-4 at 2.) He wrote that, on February 24, 2023, he noticed two handmade sacred hand drums had been damaged, and he informed Defendant Chaplains Davis and Rice and met with non-defendant investigators on the issue. (Doc. 38-4 at 2.) As relief, Plaintiff requested that (1) FCI-Phoenix appoint a Native American spiritual adviser, (2) those responsible for the damage be held accountable, (3) a chaplain be present during any searches of Native American religious grounds and items, and (4) staff/officers be re-trained on the significance of Native American religious items. (Id.) Correctional Counselor D. Quintana responded to the BP-8, stating, “Unable to resolve this issue at my level. Referral to religious services for [illegible].” (Id.) On March 10, 2023, Quintana forwarded the BP-8 to Defendant Rice. (Id.)

Plaintiff received a “Chaplain Response to Request for Administrative Remedy Informal Resolution,” addressing each of his requests for relief. (Doc. 41-3 at 2.)² On the appointment of a Spiritual Advisor, the Response states,

The institution's Chaplain may contract with religious community representatives to provide specific religious services which the Chaplain cannot personally deliver due to religious prescriptions or ecclesiastical constraints to which the chaplain adheres. The term “religious representatives” includes both clergy and spiritual advisors. All contractual representatives will be afforded equal status as they assist inmates in the observance of their religious beliefs unless the security and orderly running of the institution warrants otherwise. As a government official, the chaplain is forbidden by policy to request donations from organizations or individuals.

(Doc. 41-3 at 2.) On having a chaplain present during searches of religious grounds and items, the Response states,

All Bureau staff are trained by institutional chaplains in their initial and annual training on searching and handling sacred items, inmate personal property, and congregant religious property. Depending on their schedules, Chaplains are available to assist correctional staff with searches when requested. Due to safety and security concerns, all items and persons inside the facility must consent to staff requests to search them or their possessions.

(Id.) Regarding holding the persons responsible accountable, it states,

The review confirmed the allegations brought forward in your Administrative Remedy process were forwarded to the appropriate Bureau component. Information regarding an investigation of staff misconduct is confidential, and you will not be provided with the outcome of the investigation.

(Id.) On Plaintiff's request on re-training staff, it states, “[a]ll Bureau staff are trained by institutional chaplains in their initial and annual training on searching and handling sacred items, inmate personal property, and congregant religious property.” (Id.) The Response did not state whether any further remedies were available. (Id.) Plaintiff avers that he “was confused by the fact that [he] was given both a response from the chaplain and a rejection” (PSOF ¶ 6; Doc. 41-4, Pl. Decl. ¶ 3), but it is not clear what Plaintiff means that he received a “rejection” since Counselor Quintana merely stated he could not resolve the issue at his level and forwarded it to a chaplain.

Based on the BOP's search of Plaintiff's administrative remedy history, Plaintiff filed a single administrative remedy at the institution level (BP-9) about damaged religious items. (Id. ¶19, 21; Doc. 42, Pl.’s Controverting Statement of Facts (PCSOF) ¶ 21.) In it, he stated that his BP-8 was unresolved, and the chaplain's responses showed a lack of concern because they only stated “guidelines or program statements ․ and were not written with much concern of the issue at hand.” (Doc. 38-2 at 2.)

On April 6, 2023, BOP staff received and rejected this BP-9. (DSOF ¶ 22.) The Rejection Notice from the Administrative Remedy Coordinator states, “[f]or the reasons listed below, this administrative remedy request is being rejected and returned to you. You should include a copy of this notice with any future correspondence regarding the rejection.” (Doc. 38-1 at 16.) Under “Reject Reason,” the Notice states, “see remarks,” and under “Remarks,” it states, “[i]f you are dissati[s]fied with this BP-9 response, you may appeal to the regional director, western regional office 20 calendar days from date of appeal.” (Id.) Plaintiff did not appeal to the Regional Office via a BP-10 or the Office of General counsel via a BP-11 on this or any other issue. (DSOF ¶ 23.)³

Plaintiff asked his counselor for a BP-10 form, and his counsellor said to ask the unit manager, but the unit manager did not respond to Plaintiff. (Doc. 41, Plaintiff's Statement of Facts (PSOF) ¶¶ 8–9; Pl. Decl. ¶¶ 4–5.) Plaintiff repeatedly asked the counselor, unit manager, legal personnel, security personnel, and mail room staff for a BP-10 form, and they all refused to give him one. (PSOF ¶¶ 9–10; Pl. Decl. ¶¶ 6–7.)

C. Discussion

Defendants have shown that Plaintiff had administrative remedies available to grieve the issues underlying his RFRA claims, and he failed to exhaust those remedies. First, Plaintiff did not submit any grievances on Defendants’ alleged failures to provide access to a properly constructed and furnished sweat lodge. Second, although Plaintiff completed the first and second steps of the administrative remedy process about the damaged hand drums and made various requests for relief by filing a BP-8 and BP-9, he did not appeal by filing a BP-10, even though a BP-10 regional appeal is the next available step in the BOP administrative remedy process. Notably, the Response to Plaintiff's BP-9 stated, “[i]f you are dissati[s]fied with this BP-9 response, you may appeal to the regional director, western regional office 20 calendar days from date of appeal.” (Doc. 38-1 at 16.) See Brown, 422 F.3d at 937 (“information provided the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, ‘available.’ ”) (internal citation omitted).

On this record, Plaintiff failed to exhaust his available administrative remedies prior to filing this action, so to survive summary judgment for failure to exhaust, he must either show that he did exhaust or that “something in his particular case ․ made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. Exhaustion is not required when circumstances render administrative remedies “effectively unavailable.” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see Sapp, 623 F.3d at 823. The Ninth Circuit has held that a prisoner is excused from the exhaustion requirement where he does not have access to the necessary forms to timely file a grievance. Marella v. Terhune, 568 F.3d 1024, 1027–28 (9th Cir. 2009) (per curiam). Further, if prison officials use misrepresentation or intimidation to prevent prisoners from using a grievance process, such interference renders the administrative process unavailable. Ross v. Blake, 136 S. Ct. 1850, 1860 (2016).

Plaintiff's firsthand averments in his declaration that he repeatedly asked his unit counselor, unit manager, legal personnel, security personnel, and mail room staff for BP-10 forms, and they denied his requests create a question of fact whether administrative remedies remained available to Plaintiff after he completed the BP-8 and BP-9 process. See Brown, 422 F.3d at 936–37 (a defendant must demonstrate that applicable relief remained available in the grievance process). Based on this question of fact, the Court will deny in part Defendants’ Motion for Summary Judgement for failure to exhaust on Defendants’ alleged failures to properly investigate the destruction of sacred drums or to provide a Native American spiritual adviser, both of which Plaintiff raised in his BP-8 and stated in his BP-9 were not sufficiently addressed. (Doc. 38-4 at 2) If Plaintiff's claims on these issues survive summary judgment on the merits, the Court will permit Defendants to seek an evidentiary hearing on exhaustion specific to these issues. See Albino, 747 F.3d at 1170-71, 1174 (“If a motion for summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual question relevant to jurisdiction and venue.”)

However, the Court will grant summary judgment to Defendants on Plaintiff's RFRA claims based on Defendants’ alleged failure to provide a properly built and furnished sweat lodge. The evidence shows Plaintiff was able to file a BP-8 and BP-9, and there is no dispute Plaintiff never filed any grievances about this issue and so he failed to exhaust his administrative remedies. See Booth, 532 U.S. at 741 n.6 (“we will not read futility or other exceptions into statutory exhaustion requirements”); Pogue v. Calvo, No. C03-0803 VRW (PR), 2004 WL 443517 at *3 (N.D. Cal. Feb. 24, 2004) (to satisfy the PLRA exhaustion requirement, a prisoner must actually file a grievance and have it rejected; “he cannot anticipate that the process will be futile and bypass it”).

IV. The Merits

A. Relevant Facts

1. Native American Drums

While incarcerated at FCI-Phoenix, Plaintiff was the “Native American pipe holder,” and he interacted with Defendant Chaplain Davis about three days a week “to get the stuff we need for our religious services.” (DSOF ¶ 32; Doc. 38-3 at 39, Pl. Dep. at 37:18–25.)

On February 24, 2023, Plaintiff and other prisoners informed Defendant Davis that the Native American drums in their outdoor worship area had been damaged. (Id. ¶ 45; Doc. 38-5, Davis Decl. ¶ 4.) Under BOP policy, the drums belong to Religious Services and are for congregant use by the Native American group. (Davis Decl. ¶ 4.) Davis went to the outdoor worship area and spoke to Plaintiff, who informed him the hide straps on the backs of the drums had been cut off and could not be found. (Id.) Davis retrieved the drums and secured them in his office. (Id.) The next day, he searched unsuccessfully for the missing straps. (Id.) Davis does not know how the drums got damaged, but he observed rat droppings in the area and thinks rodents might have caused the damage. (Id.)

Alternate drums were provided prior to the next pipe ceremony and kept inside. (Id.) Defendant Chaplain Rice also provided new hide from Religious Services to replace the missing straps, and the drums were repaired “within a short time” and were available for use by the Native American group. (Id.) Rice keeps extra hide on hand to replace the leather on the drums, which is normally done every three years. (Doc. 38-6, Rice Decl. ¶ 8.)

Plaintiff does not know how the drums got damaged, which happened while the prisoners were locked down, but he believes someone intentionally vandalized them. (DSOF ¶ 47.) Plaintiff says that, based on his knowledge and “Native American knowledge in this world,” the drums are “very sacred and priceless” and “should never be mistreated or damaged in any way, shape, or form,” and they “have been around for years and years and done a lot of things that some people would never understand.” (Doc. 38-3 at 19, Pl. Dep. at 17:7–13.) Plaintiff says it took “quite a while” to replace the drums because “we have to construct them oursel[ves] and make them ․ we don't just go to the store and buy them.” (Id. at 21, Pl. Dep. at 19:15–22.) Plaintiff states, “its very hard to ․ reconstruct something that ha[s] been damaged[,] and we asked for stuff, given to us bits and pieces, not the way it should be, but we do [currently] have something that will work.” (Id. at 22, Pl. Dep. at 20:1–5.)

Defendant Hudson was not at FCI-Phoenix when the drums were damaged and only served as interim Warden from August 20, 2023 through September 16, 2023. (Id. ¶ 59; Doc. 38-7, Hudson Decl. ¶ 5.) Plaintiff does not recall ever meeting Hudson and has no evidence Hudson damaged the drums. (DSOF ¶ 61.) Plaintiff has also never spoken to Defendant Director Peters and has no evidence she damaged the drums. (Id. ¶ 62.)

2. Native American Spiritual Advisor

BOP policy allows prison chaplains to “contract with community religious representatives to provide specific religious services which the Chaplain cannot personally deliver due to religious prescriptions or ecclesiastical constraints.” (DSOF ¶ 50.) A prisoner seeking visits from clergy or a faith group representative must submit a request in writing. (Id. ¶ 51.) In March 2023, Plaintiff and other Native American prisoners requested a Native American spiritual advisor to assist in reconstructing a sweat lodge that Plaintiff and other prisoners took down because it had fallen into disrepair. (DSOF ¶ 52; Doc. 38-5, Davis Decl. ¶¶ 8–9.)

On March 15, 2023, Defendant Chaplain Rice reached out to a potential Native American spiritual advisor, Joseph Wolves Kill, to assist with reconstructing the sweat lodge and to spiritually advise Native American prisoners. (Doc. 38-5, Davis Decl. ¶ 9.) On June 7, 2023, Mr. Wolves Kill met with the Native American prisoners, including Plaintiff, but according to Defendant Davis, the prisoners behaved disrespectfully toward Mr. Wolves Kill during the meeting and said they did not want him to return. (Id.) On June 8, 2023, Religious Services hosted a talking circle with the prisoners, and the prisoners said they respected Mr. Wolves Kill as a Sundancer, but they wanted a spiritual advisor who would bring them religious materials, which Mr. Wolves Kill would not do. (Id.) Instead, Mr. Wolves Kill said he would help rebuild the sweat lodge but only if he was required to be present to lead the sweats. (Id.) Plaintiff stated he only wanted Mr. Wolves Kill to provide the willow branches for rebuilding the sweat lodge and not to be their spiritual advisor. (Id.) According to Plaintiff, even though they followed “the same religion” as Mr. Wolves Kill, Plaintiff and the other Native American prisoners “had disagreements with this man to where he couldn't set aside his own beliefs or whatever[,] and his — his doings that affected ours and what we do[,] and so he — he didn't want to help us.” (DSOF ¶ 54; Doc. 38-5 at 25, Pl. Dep. at 23:19–25.)

Due to the tension between the Native American prisoners and Mr. Wolves Kill, Defendant Davis did not ask Mr. Wolves Kill to provide religious services at FCI-Phoenix, although Mr. Wolves Kill provides religious services to female Native American prisoners in the Satellite Prison Camp. (Doc. 38-5, Davis Decl. ¶ 11.) Davis opines it is historically difficult to locate a Native American spiritual advisor for a correctional institution. (Id.) During the remainder of his time in custody, Plaintiff did not request another spiritual advisor or ask to meet with a spiritual advisor from the community, although he was free to make such a request at any time. (Id. ¶ 13.)

B. Discussion

RFRA provides that the government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates a compelling governmental interest and uses the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(a), (b). Government is defined as including a branch, department agency, and official (or other person acting under color of law) of the United States. 42 U.S.C. § 2000bb-2. To establish a prima facie claim under RFRA, a plaintiff must demonstrate that the defendant's actions impose a substantial burden on his ability to practice his religion freely. Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002). If there is a substantial burden, the defendant does not violate RFRA if the defendant's actions serve a compelling government interest in the least restrictive manner possible. Id.

Defendants argue that they are entitled to summary judgment on Plaintiff's RFRA claims because all Defendants are entitled to qualified immunity, and the claims against supervisory Defendants Peters and Hudson additionally fail because these Defendants were not involved in the alleged violations. (Doc. 37 at 7.)

Government officials enjoy qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding if qualified immunity applies, the Court must determine: (1) whether the facts alleged show the defendant's conduct violated a federal or constitutional right; and (2) whether that right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230-32, 235-36 (2009) (courts may address either prong first depending on the circumstances in the particular case).

Whether a right was clearly established must be determined “in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The plaintiff has the burden to show that the right was clearly established at the time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). Thus, “the contours of the right must be sufficiently clear that at the time the allegedly unlawful act is [under]taken, a reasonable official would understand that what he is doing violates that right;” and “in the light of preexisting law the unlawfulness must be apparent.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994) (quotations omitted). Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not “clearly established” or the officer could have reasonably believed that his particular conduct was lawful. Romero, 931 F.2d at 627.

1. Sacred Drums

Defendants argue that because Plaintiff does not allege, and no evidence supports, that any named Defendant damaged the sacred drums, Plaintiff's theory of liability on this issue is unclear. (Doc. 37 at 13.) They argue that, if their purported liability arises from a failure to replace or repair the drums more swiftly, Plaintiff fails to articulate this in the Complaint. (Id.) They further argue that no Ninth Circuit or Supreme Court precedent speaks to any clear violation here, where the evidence shows Defendants provided alternate drums prior to the next piping ceremony and leather hide to replace the missing drum straps on the damaged drums. (Id.)

Defined with the requisite particularity, the right at issue here is the right of a prisoner to access sacred items required to practice his sincerely held religious beliefs, including the right to have such items replaced or repaired when damaged.

In Johnson v. Baker, the Ninth Circuit found that banning a Muslim prisoner from keeping a small amount of scented oil in his cell to anoint/purify himself before daily prayers substantially burdened his religious beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and “the State failed to show that the regulation was the least restrictive means of serving its compelling interest.” 23 F.4th 1209, 1218 (9th Cir. 2022). Although Johnson involved a claim under RLUIPA, not RFRA, the legal standards are sufficiently alike that Johnson clearly establishes a prisoner's right to access ceremonial items for religious use when banning such items does not serve a compelling government interest. This proposition does not help Plaintiff, however, because unlike in Johnson, Defendants did not ban the use of any requested ceremonial items. Instead, Religious Services provided sacred drums to Plaintiff and other Native American prisoners for congregate worship. (Doc. 38-5, Davis Decl. ¶ 4.)

Plaintiff argues that Johnson “recognized that lesser restrictions, such as a substantial delay, uncertainty, and expense to worship may also amount to a substantial burden.” (Doc. 40 at 14 (citing Johnson, 23 F.4th at 1215).) For this broader proposition, Johnson relied on another RLUIPA case, International Church of Foursquare Gospel v. City of San Leandro, which states, “when the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the [religious institution's] application might be indicative of a substantial burden.” 673 F.3d 1059, 1068 (9th Cir. 2011) (alteration in original; internal quotation marks and citations omitted). Plaintiff argues that “such is the case here” because he “testified at his deposition that it took ‘quite a while’ to get new drums once he discovered that the ceremonial drums had been vandalized.” (Doc. 40 at 14.)

These assertions fail to show a clearly established violation. First, Plaintiff does not allege any facts about when or how often his sincerely held religious beliefs required the use of sacred drums or any facts showing he was unable to sufficiently engage in these practices for a substantial time after the ceremonial drums were damaged. Defendants state that Chaplain Rice provided new hide from Religious Services, and the drums were repaired “within a short time” and were available for use. (DSOF ¶ 45; Doc. 38-5, Davis Decl. ¶ 4.) The evidence also shows that alternate drums were provided prior to the next piping ceremony, and Plaintiff does not claim he was deprived of any intervening religious ceremonies that required their use. He also does not allege or present any evidence that the alternate drums, once provided, were inadequate for religious purposes; nor does he dispute that Defendant Rice provided leather hide from on-hand supplies to replace the broken straps on the original handmade drums.

Second, Plaintiff's deposition testimony that it took “quite a while” to reconstruct the drums and that the materials to do so were “given to us bits and pieces, not the way it should be” is too vague and conclusory to create a genuine issue of material fact that Defendants failed to timely provide suitable materials to repair the damaged drums. Taking as true that these drums were “very sacred and priceless” and could not be replaced by simply buying new drums, the evidence shows only that the straps to the drums were either intentionally cut or otherwise damaged, and Defendant Rice provided new leather for the prisoners to make new straps. Plaintiff does not identify any other damage to these drums that required additional repairs or materials that were not provided. He also does not claim or produce any evidence that he made additional requests of Defendants that were denied or substantially delayed.

On these facts, any burdens on Plaintiff's religious exercise caused by the alleged vandalism to sacred drums, even if substantial, cannot be attributed to the actions or inactions of Defendants. Accordingly, neither Johnson nor the caselaw upon which it relies would have placed Defendants on notice that Defendants’ conduct violated clearly established law of which a reasonable prison official would have known. Plaintiff also fails to identify any other precedent that would make this showing.

The Court will grant Defendants’ Motion for Summary Judgment on Plaintiff's RFRA claim pertaining to sacred drums on qualified immunity grounds.

2. Spiritual Advisor

Defendants argue they are entitled to qualified immunity on Plaintiff's RFRA claim based on their alleged failure to provide Plaintiff a spiritual advisor. They assert that there is no precedent showing how a prison official must act when the prison provides a spiritual advisor who is, in effect, rejected by the prisoners making the request. (Doc. 37 at 14.)

The undisputed facts show that BOP policy allows prisoners to request visits from clergy or to appoint a faith group representative, and prison chaplains may contract with suitable clergy from the community to meet these requests. The evidence shows Plaintiff and other Native American prisoners made such a request in March 2023, specifically for help in reconstructing a sweat lodge on prison grounds. (DSOF ¶ 52.) Additionally, in his March 10, 2023 informal complaint, Plaintiff more broadly requested that FCI-Phoenix appoint a Native American spiritual advisor for the institution. (Doc. 38-4 at 2; Doc. 41-3 at 2.) Following these requests, on March 15, 2023, Defendant Rice contacted a potential Native American spiritual advisor—Mr. Wolves Kill—and in June 2023, Mr. Wolves Kill met with Plaintiff and the other Native American congregants, but according to Plaintiff, the prisoners had disagreements with Mr. Wolves Kill that made him unsuitable to meet their needs. (Doc. 38-5 at 25, Pl. Dep. at 23:19–25.) Defendant Davis also noted the tension between Mr. Wolves Kill and the Native American prisoners and decided not to have him provide religious services at FCI-Phoenix. (Doc. 38-5, Davis Decl. ¶¶ 9, 11.) Afterwards, there is no evidence Plaintiff identified or requested any other clergy from the community to provide Native American religious services or made any additional requests for a spiritual advisor.

Applied to these facts, the right at issue is a prisoner's right to a spiritual advisor, including the right to have an available candidate replaced if the prisoner disagrees with his religious views, even if the prisoner fails to identify any other candidates or make any additional requests.

Defendants argue there is no such clearly established right under RFRA. (Doc. 37 at 14.) They cite to Ninth Circuit cases in other contexts that have held prison officials are not required to provide prisoners a spiritual advisor of their choice. For example, in Hartmann v. California Department of Corrections and Rehabilitation, the Ninth Circuit dismissed constitutional claims brought by a group of Wiccan prisoners who asked prison officials to appoint a paid Wiccan chaplain because the volunteer chaplain only came to the prison once a month, and they claimed the prison's existing paid chaplains were insufficiently knowledgeable to counsel them in their Wiccan beliefs. 707 F.3d 1114, 1120 (9th Cir. 2013). In rejecting the prisoners’ First Amendment free exercise claim, the court reasoned that, “while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice.” Id. at 1122. (Emphasis added). The court found that the facts alleged failed to show “that defendants denied them a ‘reasonable opportunity’ to freely exercise their faith comparable to inmates ‘adhering to conventional religious precepts.’ ” Id. at 1123.

Hartmann relied in part on Allen v. Toombs, in which Native American prisoners alleged that the prison's policy of having an outside religious volunteer conduct weekly pipe ceremonies but not allowing a prisoner “Pipe Bearer” to do so when the volunteer was unavailable, violated their equal protection rights, arguing that “the limited availability of outside volunteer leaders resulted in an undue restriction on access to spiritual counseling and the rites of their religion.” 827 F.2d 563, 566 (9th Cir. 1987). The Ninth Circuit disagreed and held that prison administrators do not have “an affirmative duty to provide each inmate with the spiritual counselor of his choice,” and the existing policy of enlisting volunteer clergy “provides a reasonable opportunity for the plaintiffs to exercise their faith.” Id. at 569.

Additionally, in Ward v. Walsh, the Ninth Circuit concluded that the First Amendment did not require prison officials to have a rabbi on staff for a single Orthodox Jewish prisoner, and the officials had also not infringed on the prisoner's free exercise right by not enlisting a volunteer rabbi where the prisoner was not precluded from contacting a rabbi on his own to come to the prison. 1 F.3d 873, 880 (9th Cir. 1993) (quoting Allen, 827, F.2d at 569 (“prison administration is not under an affirmative duty to provide each inmate with the spiritual counselor of his choice”)).

Defendants argue that, while these decisions do not squarely address the circumstances or RFRA claims here, “they hold that prison officials do not owe an obligation to a prisoner to select a spiritual advisor of that prisoner's personal and subjective choosing,” and the cases “fail to establish any clear statutory guidelines under RFRA” that would have put Defendants on notice of any such obligations here. (Doc. 37 at 14, 15 (emphasis in original).)

Plaintiff argues that Ward is inapplicable because the plaintiff in Ward was the only Orthodox Jewish prisoner at the prison, whereas the procedural history of this action shows Plaintiff was one of 71 Native American prisoners who originally filed suit. (Doc. 40 at 15.) Plaintiff also argues that Arizona has a significant Native American population, and this is reflected in FCI-Phoenix's prison demographics. (Doc. 40 at 15.)⁴ Plaintiff argues that, “[c]onsequently, the prison administration would not be required to provide ‘each inmate with the spiritual advisor of his choice,’ but rather a general Native American Spiritual advisor.” (Id.)

Plaintiff is correct that, unlike the plaintiff in Ward, Plaintiff was not alone in requesting a Native American spiritual advisor at FCI-Phoenix. Even without citing FCI-Phoenix demographics, the facts and procedural history of this action show a relatively large number of prisoners (71) at FCI-Phoenix initially filed suit over this and other issues. (See Doc. 1 (severing original action into individual actions).) This data, though, does not alter the central proposition in Ward, Allen, and Hartmann that prison administrators are not required to provide prisoners a spiritual advisor of their choice where prisoners otherwise have access to volunteer clergy and/or are permitted to request a spiritual advisor from the community. See Hartmann, 707 F.3d at 1123 (“Plaintiffs’ allegation that there are more Wiccan inmates than inmates of certain chaplain-provided faiths ․ does not show that they have been deprived a ‘reasonable opportunity’ to freely exercise their faith”). Plaintiff also fails to point to any other cases that have found a prison's failure to appoint a spiritual advisor under like circumstances constitutes a federal or constitutional violation.

Plaintiff attempts to show a constitutional violation based on the Ninth Circuit's statement in Allen that “[t]he Supreme Court has made clear that an inmate who is an adherent of a minority religion must be afforded ‘a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’ ” 827 F.2d at 568 (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)). (Doc. 40 at 15.) Plaintiff further argues that Defendants’ own policies permitting prison chaplains to contract with community religious representatives and their outreach to Mr. Wolves Kills means Defendants “were obviously aware of their obligation to provide Plaintiff and other Native American inmates with a spiritual advisor,” so they are not entitled to qualified immunity. (Doc. 40 at 15–16.)

Not so. The Supreme Court's statement in Cruz that prisoners must be afforded a “reasonable opportunity” to practice their faith is stated at a high level of generality, and whether a right is clearly established must be determined “in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. Moreover, the Ninth Circuit in Ward, Allen, and Hartmann found prisoners were given “reasonable opportunities” to practice their faith, even though prison staff failed to satisfy their specific requests. Nothing in Cruz or the above cases would have put a reasonable official on notice that Defendants’ conduct under the facts presented here violated any clearly established rights of Plaintiff.

The BOP policy permitting FCI-Phoenix chaplains to enlist clergy from the community and Defendants’ attempt to do so here does not bolster an alleged constitutional violation. At most, these facts show that Defendants took reasonable available steps to accommodate Plaintiff's and the other Native American prisoner's requests for a Native American spiritual advisor. These efforts do not clearly establish any requirements for doing so or show that Defendants needed to continue looking for suitable candidates until the prisoners were satisfied with that selection. This would be akin to requiring prison officials to provide prisoners a spiritual advisor of their choice, which the Ninth Circuit has consistently held is not required.

Plaintiff implies that Defendants violated his rights under RFRA by not appointing Mr. Wolves Kill, even though he does not dispute that he and the other Native American prisoners clashed with him, and the evidence shows they told staff in a talking circle they did not want him Mr. Wolves Kill to return. (PCSOF ¶¶ 52–56; Doc. 38-5, Davis Decl. ¶ 9).) Plaintiff argues that he “did not object to Mr. Wolves Kill coming back as a spiritual advisor,” and he “never expressed any desire for his removal,” instead “it was the [BOP] who decided that Mr. Wolves Kill would not return.” (Doc. 40 at 14, n. 8.) Plaintiff also argues that, after making this decision, Defendants should have appointed a “new adviser,” and “there is no indication they even tried.” (Id. at 14–15.) He baldly disputes that he had any obligation to request a new spiritual advisor. (PCSOF ¶ 58.)

Regardless of what Plaintiff communicated to Defendants about Mr. Wolves Kill, the undisputed facts show Defendant Davis did not ask Mr. Wolves Kill to return due to the difference of beliefs and overt tension between Mr. Wolves Kill and the Native American prisoners, including Plaintiff, who asked for a spiritual advisor. (DSOF ¶¶ 52–56; Doc. 38-5, Davis Decl. ¶ 11.) It is also undisputed that Plaintiff remained free to request another spiritual advisor from the community and there is no evidence that he did so. Plaintiff offers no precedent showing that Defendants’ failure to appoint Mr. Wolves Kill or continue searching for another Native American spiritual advisor, under these facts, violated any clearly established rights of which a reasonable prison official would have known. The Court will grant summary judgement to Defendants on the remainder of Plaintiff's RFRA claims on qualified immunity grounds.

Because Defendants are entitled to qualified immunity, the Court need not discuss Defendants’ alternate argument that Defendants Peters and Hudson are additionally entitled to summary judgment because they were not involved in the alleged violations.

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 37).

(2) Defendants’ Motion for Summary Judgment (Doc. 37) is granted; Plaintiff's RFRA claims in Count Three based on failure to provide a sweat lodge are dismissed without prejudice for failure to properly exhaust available administrative remedies, and the remainder of these claims based on failure to provide sacred drums and a Native American spiritual advisor are dismissed with prejudice based on qualified immunity.

(3) This action is terminated; the Clerk of Court must enter judgment accordingly.

Dated this 4th day of December, 2025.

FOOTNOTES

1.   Plaintiff initiated this action pro se, but on March 25, 2025, Attorney Stacy Scheff filed a Notice of Appearance on Plaintiff's behalf (Doc. 35), and on May 7, 2025, the Court granted Attorneys Kathryn A. Hettler and Frank R. Schirripa's pro hac vice motions to represent Plaintiff. Ms. Scheff subsequently withdrew as counsel (see Docs. 47, 48), and Ms. Hettler and Mr. Schirripa continue to represent Plaintiff.

2.   The Response is addressed to Plaintiff but is undated and unsigned. (Doc. 43-1 at 2.) Based on the context, the Court infers it was issued by Defendant Rice sometime after Correctional Counselor Quintana forwarded Plaintiff's BP-8 to him.

3.   Plaintiff claims to dispute this fact, but he only disputes that any further action was required because BOP staff failed to comply with BOP Program Statement 1330.18(11), which requires a written notice explaining why a submission is rejected; he does not dispute that he received the rejection notice. (Id.)

4.   Plaintiff does not cite to any evidence to support these assertions.

Honorable Diane J. Humetewa United States District Judge