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Native American Council of Tribes v. Weber

United States District Court, D. South Dakota, Southern Division

August 9, 2017

NATIVE AMERICAN COUNCIL OF TRIBES, BLAINE BRINGS PLENTY, and CLAYTON SHELDON CREEK, Plaintiffs,
v.
DOUGLAS WEBER, Warden of the South Dakota State Penitentiary; and DENNIS KAEMINGK, Secretary of the Department of Corrections, Defendants.

          ORDER DENYING MOTIONS TO MODIFY REMEDIAL ORDER, DENYING MOTION FOR PERMANENT INJUNCTION AND HEARING, DENYING MOTION TO REPLACE COUNSEL, AND DENYING MOTIONS TO AMEND

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings Plenty, and Clayton Creek, succeeded in a court trial against defendants, Douglas Weber and Dennis Kaemingk, showing that a complete ban of tobacco in Department of Corrections (DOC) facilities violates the Religious Land Use and Institutionalized Persons Act (RLUIPA). Native Am. Council of Tribes v. Weber, 897 F.Supp.2d 828 (D.S.D. 2012) (NACT I).

         On January 25, 2013, this court entered a remedial order that afforded inmates who participate in the Native American religion the opportunity to use tobacco during certain religious ceremonies. Docket 196. On appeal, the Eighth Circuit Court of Appeals affirmed the remedial order. Native Am. Council of Tribes v. Weber, 750 F.3d 742 (8th Cir. 2014) (NACT II). On September 23, 2015, this court amended that order. Docket 248. Creek now moves to modify the order, for a preliminary injunction and hearing, to remove counsel, and to amend the complaint. Docket 270; Docket 273; Docket 275; Docket 276; Docket 279; Docket 280; Docket 281; Docket 282; Docket 284.

         DISCUSSION

         I. Motion to Modify Remedial Order

         Creek moves to modify the remedial order to increase the volume of tobacco allowed in the mixtures to five percent tobacco by volume. Docket 270; Docket 271 at 4; Docket 273. Creek argues that the court should increase the permitted volume of tobacco because the Eighth Circuit acknowledged that a mixture that contains one to five percent tobacco would be appropriate for Lakota religious ceremonies and the DOC has not met its “goal of preventing contraband tobacco from entering the prisons [sic] systems.” Docket 271 at 6.

         The standard for modifying a remedial order is governed by Fed.R.Civ.P. 60(b)(5), [1] 18 U.S.C. § 3626, [2] and the test set out in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992).[3] “[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383. “A party seeking a modification of a consent decree may meet its initial burden by showing either a significant change in either factual conditions or in law.” Id. at 384.

         Creek has failed to show a significant change in facts or law that would satisfy the standard for modifying a remedial order. Creek argues that the order should be modified to allow five percent tobacco by volume in the mixtures used for Native American religious ceremonies because the Eighth Circuit acknowledged in its opinion that one to five percent of tobacco in a mixture is satisfactory for practicing religious ceremonies. Docket 271 at 4. This argument does not meet the Rufo standard because it is not a change in fact. When the Eighth Circuit originally upheld the remedial order in NACT II, it considered the testimony at trial that one to five percent tobacco was satisfactory to practice the Lakota religion. NACT II, 750 F.3d at 752. Thus, there has not been a change in fact since the Eighth Circuit upheld the remedial order.

         Creek also argues that the DOC has not upheld its goal of preventing contraband tobacco from entering the prison. Docket 271 at 3 (“[U]nauthorized tobacco continues to enter the South Dakota prison system through visitors, employees, inmates from trustee units, inmates from other facilities, and volunteers.”). Creek does not provide any evidence that the DOC is failing to prevent contraband tobacco from entering the prisons. But even if the DOC is struggling to keep contraband tobacco out of the prisons, that does not warrant modifying the order. Defendants originally argued that they had a compelling interest in maintaining security by preventing tobacco from being used for non-religious purposes in the prisons, and the Eighth Circuit found that the remedial order balanced the DOC's interest with the prisoners' religious rights. NACT II, 750 F.3d at 750-51. The fact that defendants are still unable to prevent contraband tobacco from entering the prisons is not a significant change in facts because the DOC was unable to prevent contraband from entering the prisons at the time of the order. Thus, Creek's motions to modify the order (Docket 270; Docket 273) are denied.

         Creek also attempts to amend the order to add provisions regarding the seven sacred ceremonies and prisoners' access to a sweatlodge. Docket 271 at 5-6. The scope of this case and this remedial order is limited to tobacco use and this case has already been decided on the merits. Thus, any attempts to amend the remedial order must be limited to tobacco use, and the remedial order may only be amended in the event of a substantial change in facts or law. Any new claims alleging that DOC policies are restricting additional religious rights of prisoners, such as the seven sacred ceremonies, access to a sweat lodge, or any other non-tobacco related claims, should be brought in a new complaint and not as an amendment to the remedial order.

         II. Motion for Temporary Restraining Order and Hearing

         Creek moves for a temporary restraining order (TRO) under Fed.R.Civ.P. 65(b) until such time as this court can have a hearing to determine if a preliminary injunction is justified. Docket 275; Docket 276. The four factors the court considers in determining whether to grant preliminary injunctive relief are: “ ‘(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.' ” Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)). The Eighth Circuit Court of Appeals has “observed that the ‘likelihood of success on the merits is most significant.' ” Id. (quoting S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)).

         Creek does not precisely identify the relief requested, [4] but to the extent Creek is asking this court to impose a temporary restraining order prohibiting defendants from banning the use of tobacco in Native American religious ceremonies, this request is denied as moot because that exact language is already part of this court's order dated January 25, 2013. Docket 196 at 10. To the extent that Creek is requesting a temporary restraining order prohibiting defendants from restricting the mixture used in Native American ceremonies to one percent tobacco, this request is denied because this court's order specifically permits defendants to restrict the mixtures to one percent tobacco, and Creek does not show a significant change in facts or law to warrant ...


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