The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court are a Motion for Summary Judgment filed by Defendant Brenda Ausmus (Dkt. 54) and various other motions filed by the parties (Dkt. 53, 59, 62, 63, 65, 68, 69, 74, and 75). Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In a motion for summary judgment, the moving party bears the "initial burden of identifying for the court those portions of the record which demonstrate the absence of any genuine issues of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party points to portions of the record which demonstrate that there appears to be no genuine issue of material fact as to claims or defenses at issue, the burden of production shifts to the non-moving party. To meet its burden of production, the non-moving party "may not rest upon the mere allegations contained in his complaint, but he must set forth, by affidavits, exhibits or otherwise, specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; see T.W. Electric Serv., Inc., 809 F.2d at 630 (internal citation omitted).
The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. All inferences which can be drawn from the evidence must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31 (internal citation omitted).
Generally, the Establishment Clause of the First Amendment is invoked by litigants asserting that the government is sponsoring religion, while the Free Exercise Clause is implicated where the government is allegedly attempting to discourage a religion or practice. However, the line between these two Clauses is often blurred*fn1. In Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), the United States Supreme Court defined the reach of the First Amendment Establishment Clause as follows:
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
Id. at 15-16. State action violates the Establishment Clause if its primary effect is to advance or inhibit religion. Gray v. Johnson, 436 F.Supp. 2d 795 (W.D. Va. 2006) (citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 (1987)).
The Free Exercise of Religion Clause of the First Amendment absolutely protects the right to believe in a religion; it does not absolutely protect all conduct associated with a religion. Cantwell v. Connecticut, 310 U.S. 296 (1940). Citizens clearly retain their free exercise of religion rights while in state custody. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Challenges to restrictions that are alleged "to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125 (1977) (citation omitted).
An inmate cannot challenge revocation of parole in a civil rights action. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (a prisoner in state custody cannot use a civil rights action to challenge the fact or duration of his confinement). The Supreme Court has made it clear that when a state prisoner seeks "a determination that he is entitled to immediate release or a speedier release from... imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
The following are either undisputed facts, or facts disputed by Defendant but taken in a light most favorable to Plaintiff.
Plaintiff was convicted of lewd conduct with a minor in 1994, and was subsequently designated a violent sexual predator (VSP) by the Sex Offender Classification Board. Plaintiff was paroled on January 24, 2004. He entered into a contract, agreeing to certain parole conditions in order to be released on parole. His parole conditions prohibited him from associating with a minor child under the age of 18 unless a responsible adult, approved by supervising personnel, is present. (Affidavit of Brenda Ausmus, Exhibit E, Dkt. 54-3.)*fn2
On May 18, 2004, under supervision of Senior Parole and Probation Officer (PPO) Moira Lynch, Plaintiff signed an addendum to the parole contract, indicating that he was to be allowed "the privilege" of attending LDS church meetings (LDS addendum). (Id., Exhibit F.) Plaintiff now admits he desired to attend the LDS church a few times only because he did not agree with the doctrine, but he had received some charitable assistance from the church and its missionaries and wished to "allow them to complete their mission." (Affidavit of William Lightner, ¶ 17, Dkt. 58-1.) Lynch approved the addendum to attend the LDS church on May 25, 2004. (Ausmus Aff., ¶ 16 & Exhibit F, Dkt. 54-3.)
Defendant Brenda Ausmus became Plaintiff's parole officer on June 7, 2004. (Id.) Plaintiff later told Defendant Ausmus he wished to have an addendum to attend the Baptist church (Baptist addendum) instead of the LDS church. Defendant Ausmus explained the procedure necessary to obtain an addendum. Plaintiff declares that on or about August 12, 2004, the Baptist pastor, Robin Davies, signed the Baptist addendum the same day it was presented to him, as did Plaintiff's SANE therapist, Mark McCullough. (Affidavit of William Lightner, ¶¶ 22-25; Dkt. 58-1; Response, p. 14, Dkt. 58.) Plaintiff and Plaintiff's wife, Marcia Lightner, state that the Baptist addendum was left with Ausmus, and they understood it would not be approved and signed until Ausmus spoke to Pastor Davies. (Dkt. 58, p. 14; Affidavit of Marcia Lightner, ¶ 12, Dkt. 58-2.)
Five days after the Baptist addendum was submitted to Ausmus, Plaintiff was accused of violating parole and returned to prison. The Baptist addendum was either not approved by Ausmus, or it was later revoked by her. Plaintiff did not ever get to attend the Baptist church under the Baptist addendum.
When Plaintiff was released from prison after eight months of incarceration, he was returned to Defendant Ausmus' supervision on March 11, 2005. What happened next in Plaintiff's quest to attend the Baptist church is unclear from Plaintiff's filings. In some of his filings, Plaintiff states that, on April 12, 2005, Ausmus refused to sign or re-approve the same Baptist addendum that had been turned in eight months earlier (Response, p. 4, Dkt. 58); similarly, Plaintiff's wife's Affidavit states that on April 12, 2005, they went back to Ausmus' office to "pick up" the Baptist addendum. (Marcia Lightner Aff., ¶ 17, Dkt. 58-2.)
Elsewhere, Plaintiff contrarily states that he "took" a signed Baptist addendum to Ausmus and "submitted" it to her on April 12, 2005. (William Lightner Aff., ¶ 28 & ¶ 26, Dkt. 58-1.) This seems to suggest that there was a new Baptist addendum, or that Plaintiff had custody of the prior Baptism addendum and actually resubmitted it.
A third factual scenario Plaintiff poses is that "[w]hile it is true that Defendant denied Plaintiff's request for the Baptist church addendum in August 2004, it was not until 12 April 2005 when Defendant reinstated the LDS addendum." (Response, p. 6, Dkt. 58.) This suggests nothing at all was done with any Baptist addendum on April 12, 2005, but something was done with the prior LDS addendum.
A fourth factual scenario Plaintiff offers is that "[b]ecause Defendant reinstated the Internet addendum on 4-11-05 she also reinstated the LDS addendum on 4-12-05." (Response, p. 18, Dkt. 58.) This seems to say that Plaintiff is merely assuming that because something was done with ...