LEONARD T. STRAND, Chief District Judge.
Presently before the Court is defendant's motion for summary judgment. Doc. No. 25. Plaintiff has filed a resistance (Doc. No. 26) and defendants have filed a reply (Doc. No. 27). The plaintiff also filed a pro se supplement. Doc. No. 29. The motion is deemed fully submitted on the parties' written submissions.
West is a patient at the Civil Commitment Unit for Sexual Offenders (CCUSO), located in Cherokee, Iowa. The patients at CCUSO "have served their prison terms but in a separate civil trial have been found likely to commit further violent sexual offenses."
Since being committed to CCUSO, West has filed a variety of suits in this court. See, e.g., C12-4059-DEO. West filed the above captioned case on November 14, 2014. Doc. No. 1. Senior United States District Judge Donald E. O'Brien granted West's motion to proceed in forma pauperis and his motion to appoint counsel. Doc. No. 3. Around the same time, West filed a factually related case, C14-4098-MWB. That case was a 42 U.S.C. § 1983 case against a non-governmental entity, Tyson Foods, Inc. West later voluntarily dismissed that case. C14-4098-MWB, Doc. No. 4. However, West then refiled a factually identical case as an employment discrimination action. C15-4052-CJW. The parties in that case eventually entered into a stipulation of dismissal. C-15-4052-CJW, Doc. No. 27.
Shortly after filing the above captioned case, West filed another pro se complaint, C14-4125-DEO. In that complaint, West alleged various CCUSO defendants were opening his mail. Judge O'Brien consolidated C14-4125-DEO with the above captioned case. Doc. No. 10. Judge O'Brien then directed appointed counsel to file one consolidated amended complaint, which she did. Doc. No. 12.
West's amended complaint contains five different claims. First, West alleges that the defendants were deliberately indifferent to a risk of sexual assault that West suffered while working at Tyson Industries. Next, West alleges that the defendants improperly forced him to disclose his mental health diagnosis to his Tyson employers. Third, West alleges that the defendants have read his legal mail. Fourth, West alleges that the defendants have engaged in retaliation for his past lawsuits. Finally, West alleges that the defendants have infringed on his religious liberty.
The parties agree to many of the relevant facts. As noted above, the State of Iowa committed West as a sexually violent predator in September, 2011. West, 2013 WL 988815 *1. West proceeded through the "phases" of treatment at CCUSO relatively quickly, earning "phase 5" in October, 2013.
West claims he was sexually harassed and assaulted while at Tyson. He blames the treatment he received at Tyson as the reason he absconded. West alleges that Ricardo Perez, his supervisor, and Rick Lipai, a co-worker, harassed and intimidated him while he was at Tyson. West said they made graphic derogatory remarks related to his status as a sex offender. West further claims Lipai burned West with a steam valve and grabbed him while he was nude taking a work-related shower.
West asserts he reported the incidents to Perez per the "chain of command." Reporting incidents to your supervisor was generally consistent with Tyson's policy, although it stated that if you were harassed by your supervisor you could seek out a HR supervisor directly. Following his return to Iowa, West also filed a police report and a grievance with the Iowa Civil Rights Commission. Neither was resolved in West's favor. Tyson also internally investigated the situation but took no action. Both Lipai and Perez denied anything happened.
West testified that he told CCUSO employees Jeremy Rowenbeck and Clint Frederiksen about the initial harassment he encountered at Tyson. He also stated that he "briefly mentioned" the sexual assault to CCUSO employee Byron Kelley, but "didn't get a chance to go into the whole detail on it." The CCUSO employees testified that they did not recall West making specific complaints about working at Tyson, just general complaints about the nature of the work. West did not file any grievances with CCUSO about the situation, did not write any "kites" about it, nor did he request that he be allowed to get a different job. West also claims he kept a journal about the situation, but the defendants contend the journal West submitted is not accurate.
CCUSO directs patients to disclose their status as sex offenders when they are seeking employment. In addition, West's status as a committed sex offender is public record, as is the fact that he is required to register as a sex offender. The parties agree that Iowa Code § 229A.15 requires medical records to be sealed from the public. According to West, CCUSO employee Mike White told him to disclose that he was a sexual offender, with a mental abnormality of paraphilia not otherwise specified.
As will be discussed more below, CCUSO's general mail policy has been reviewed and approved by this court. Per the policy, CCUSO is directed to deliver legal mail unopened to the patients. On one instance, a piece of West's mail that should have been considered legal mail was opened outside West's presence. West filed a grievance consistent with CCUSO policy alleging his legal mail was opened outside his presence. That piece of mail was preserved and included in the parties' appendix. (Doc. No. 25-3 at 57.) CCUSO found, and I agree, that because of the way the return address was positioned on the envelope, it was impossible to see that letter was from the clerk of court. Instead, the letter appeared to be normal government correspondence. In an additional incident, defendant Reann Jackson allegedly read legal mail West was attempting to mail. Jackson denies this allegation. West filed a grievance. In response, defendant Wittrock sent an email to CCUSO staff reminding them that they were not allowed to read legal mail. West also claimed someone looked at legal documents in his room and on his flash drive.
The facts related to West's retaliation claim are sparse. He generally alleges that he was retaliated against for filing a lawsuit. He alleges he lost access to a DVD player. However, there were no disciplinary reports associated with this restriction. Additionally, West alleges that his lost access for religious materials was in retaliation for filing a lawsuit.
West belongs to a Pentecostal Christian church. At some point in the past, Pentecostal Pastor Jerry Greenwalt provided services at CCUSO, but had stopped doing so before the events giving rise to this case. West, upon earning transitional release, developed a relationship with Pastor Kevin Grimes and attended Grime's Pentecostal services in Spencer, Iowa. However, following his escape to Oklahoma, West was not allowed to leave CCUSO and was otherwise restricted to its highest security classification. Both his access to visitors and his access to the phone was restricted. At one point, he sought to call Pastor Grimes. Defendant Reinert initially told West that he could only call his attorney. However, within a few hours, West was informed he was allowed to call his pastor.
West also filed a kite asking for access to his pastor. However, CCUSO has no control over whether independent pastors are willing or able to work with CCUSO patients. The parties generally dispute the other religious services available at CCUSO, the frequency of the non-denominational services and the quality of the religious materials, such as books and vocational information, available. There is no real dispute that West has access to Bob Stout, the CCUSO chaplain, and to other common religious material at CCUSO. There is no dispute that West requested additional, in person, contact with a Pentecostal minister, but as Stout testified, CCUSO defendants have no control over whether outside pastors are willing to visit the CCUSO facility.
Related to both his free exercise and retaliation claims, a number of West's personal items were secured by CCUSO employees after his escape. Only certain items were returned to his direct control when he returned to CCUSO, as patients in CCUSO's secure facility are allowed less personal property than those who have advanced to the transitional release, non-secured, part of the facility. During this process, certain religious items were secured by CCUSO employees. However, it is undisputed that West failed to file "kites" formally asking that the property be returned.
Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A material fact is one that "`might affect the outcome of the suit under the governing law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, "the substantive law will identify which facts are material." Id. Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when "`a reasonable jury could return a verdict for the nonmoving party' on the question," Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, or evidence that is "merely colorable" or "not significantly probative," Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" so as to "require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 248-49. The party moving for entry of summary judgment bears "the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, "because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, "the court's function is to determine whether a dispute about a material fact is genuine." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).
West alleges that the defendants forced him to work at Tyson and to reveal to his Tyson co-workers that he is a sex offender. West alleges that because of his status as a sex offender, he was harassed and assaulted while working at Tyson. He contends CCUSO employees knew he was in danger at Tyson but ignored that danger.
In their motion, defendants concede that in most situations they have a duty to protect incarcerated or committed individuals. They cite Reynolds v. Dormire, 636 F.3d 976 (8th Cir. 2011), for the proposition that the proper constitutional standard in this case is deliberate indifference. They then argue:
Doc. No. 25-2 at 8-9. Defendants also argue:
Id. at 9-10.
West responds:
Doc. No. 26-1 at 4-5.
"When a person is involuntarily confined in a state mental health facility, the State has a duty imposed by the Substantive Due Process Clause of the Fourteenth Amendment to provide a `reasonably safe environment.'" Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir. 2006) (quoting Beck v. Wilson, 377 F.3d 884, 890 (8th Cir. 2004)). "To establish prison officials
The Eighth Circuit recently stated:
Montgomery v. City of Ames, 749 F.3d 689, 694 (8th Cir. 2014).
This case could present a complicated question about the extent to which CCUSO has a duty to protect a patient working at outside employment while on transitional release. There is little precedent to help determine whether West was "in-custody" while at Tyson, or whether the state created a danger by placing West at Tyson. However, I need not reach that issue. As set out above, the appropriate standard in this case is the deliberate indifference standard, which asks whether there was a risk and whether defendants were deliberately indifferent to that risk. I will assume without deciding that there was a risk that defendants were responsible for, either because West was in custody or because defendants created the risk by placing West at Tyson. I will also assume that West has created a question of fact that he was harassed and assaulted while at Tyson.
Defendants argue that West cannot make a valid claim regarding confidentiality. They state:
Doc. No. 27 at 2. Defendants argue:
Doc. No. 25-2 at 10-11. Defendants also note:
Id. at 10 n.1.
West responds as follows:
Doc. No. 26-1 at 5.
The parties are correct that the law regarding medical disclosure and privacy rights has not been clearly delineated by the Eighth Circuit. However, the Eighth Circuit recently considered a medical disclosure case from this district, and granted the defendants qualified immunity. In that case, Willet v. Smith et. al., C11-4090-MWB, a CCUSO patient alleged that a CCUSO employee had disclosed the patient's medical information to a different CCUSO patient. See Willet, C11-4090-MWB, Doc. No. 73 at 1-3. This court assumed without deciding that the Seaton standard, referenced above, is correct, meaning that individuals have a constitutional right to privacy, but in the context of prisoners (and civilly committed patients) that right can be abrogated by a legitimate institutional interest. C11-4090-MWB, Doc. No. 73 at 2. In denying the defendants' summary judgment motion, the court found that there was no legitimate penological interest in disclosing the plaintiff's medical information. The defendants appealed, and in an unpublished per curiam decision, the Eighth Circuit found the defendants were entitled to qualified immunity because the privacy rights were not clearly established. Willet v. Smith, 627 F. App'x 580 (8th Cir. 2016). However, the court did not expound upon the proper privacy standard. Accordingly, I will continue to assume that Seaton sets out the proper standard. See e.g. Haid v. Cradduck, No. 5:14-CV-5119, 2016 WL 3555032, at *5 (W.D. Ark. 2016) (drawing the same conclusion).
However, establishing the correct standard does not resolve the issues in this case because defendants do not argue that there is a legitimate institutional interest in the disclosing of West's confidential information. Rather, they argue: (1) West's information was not confidential; (2) no named defendant required West to disclose the information; and (3) defendants are entitled to qualified immunity. I agree on all three points.
First, the fact that West is a sex offender is a matter of public record. There is no violation in either disclosing that fact or requiring West to do so when he applies for jobs. West also argues that he was required to disclose his actual medical diagnosis. However, assuming that is true, and assuming that disclosing his mental health diagnosis would amount to a violation of his right to privacy, the person West alleges forced him to make the disclosure is not a party to this case. As noted above, according to West, CCUSO employee Mike White told him to tell Tyson that he was a sex offender, with a mental abnormality of paraphilia not otherwise specified. A claim against a person who is not a party to this case must fail.
Finally, in Willet the Eighth Circuit found CCUSO defendants entitled to qualified immunity in a privacy case where the facts viewed in the light most favorable to the plaintiff showed a clear privacy violation. Accordingly, because the Willet defendants were entitled to qualified immunity on the plaintiff's monetary claims, so too are these defendants. For all three reasons, defendants' motion for summary judgment is granted in regards to West's confidentiality claim.
Regarding West's mail claim, defendants note that this court has previously reviewed and approved CCUSO's mail policy and assert that they generally follow the policy. However, conceding that West has created a genuine issue of fact regarding whether certain defendants violated the policy on various occasions, defendants argue:
Doc. No. 25-2 at 12-13.
West responds:
Doc. No. 26-1 at 6.
To the extent West seeks to change CCUSO's mail policy, he is prohibited from doing so. CCUSO patients previously litigated the constitutionality of the mail policy as a class in Taft et. al., v. Turner et. al., C05-4065-DEO. That action concluded with a settlement agreement that was accepted by this court. Id., at Doc. No. 151. The agreement is binding on all parties and the class members waived and released all claims raised in the complaints. Accordingly, West's claims must be grounded in an allegation that CCUSO has violated the policy.
West claims that CCUSO violated its own policy and opened his legal mail outside his presence. As noted above, it is undisputed that on one instance a CCUSO official did open a piece of mail that should have been considered legal mail from a court. West followed proper grievance procedure and CCUSO's administration determined that the letter was insufficiently marked legal mail. On another occasion, West alleges Jackson read a piece of legal mail he was trying to send. West filed a grievance and CCUSO sent a reminder to staff about the proper legal mail policy. West also alleges that a flash drive with legal work was accessed by Jackson and other CCUSO employees. Finally, West alleges that his legal mail was opened several other times by Jackson and other CCUSO employees.
The constitutional right to legal papers and to be free from interference with legal mail are closely related to the access to courts. Goff v. Nix, 113 F.3d 887, 892 (8th Cir. 1997) ("The taking of an inmate's legal papers can be a constitutional violation when it infringes his right of access to the courts."). In addition, "[p]rivileged prisoner mail, that is mail to or from an inmate's attorney and identified as such, may not be opened for inspections for contraband except in the presence of the prisoner." Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981). Additionally:
Goff, 113 F.3d at 892.
Regarding his broad claims, West has failed to create a material issue of fact that his flash drive was accessed or that his mail was opened numerous times in violation of CCUSO's policy. He has presented no evidence, apart from his own suspicions, to support those claims. See Anuforo v. C.I.R., 614 F.3d 799, 807 (8th Cir. 2010) (a self-serving allegation does not create a genuine factual dispute.) However, there are two instances in which West has provided support for his legal papers/mail claims: (1) the allegation that a particular item of mail was opened improperly and (2) the allegation that Jackson read a piece of legal mail.
Regarding the first, I agree with CCUSO that it was impossible for CCUSO employees to know that letter from the clerk of court was legal mail. The Eighth Circuit has stated that a mail claim must include an allegation that the state actor deliberately opened confidential correspondence. See Gardner v. Howard, 109 F.3d 427, 431 (8th Cir. 1997). As I noted above, the letter at issue was not clearly marked as legal mail. Accordingly, it was accidently opened. Under Eighth Circuit precedent an accidental opening is not a constitutional violation.
Regarding the second incident, during which Jackson allegedly read West's mail, there is no allegation that this was a mere "accident." Thus, and viewing the evidence most favorably to West, a named defendant intentionally violated CCUSO's policy and read a piece of confidential legal correspondence. However, it is firmly established that non-prejudicial, isolated incidents, cannot give rise to constitutional claims in this context. Beaulieu v. Ludeman, 690 F.3d 1017, 1037 (8th Cir. 2012); Gardner, 109 F.3d at 430-31. Because this is a lone isolated incident, with no allegation of prejudice, West has failed to allege a question of fact that can proceed to trial.
Defendants argue:
Doc. No. 25-2 at 13.
West responds:
Doc. No. 26-1 at 6.
The parties agree on the correct legal standard. As the Eighth Circuit has explained,
Spencer v. Jackson Cty., Mo., 738 F.3d 907, 911 (8th Cir. 2013).
West's allegations are similar to those in another recent CCUSO case, Altman v. Palmer, C13-4066-DEO, 2015 WL 1383824, at *8 (N.D. Iowa 2015). In that case, Altman alleged that he filed a lawsuit, which is undisputedly a protected activity, and was then denied various privileges at CCUSO including access to religious services. This court observed that the protected activity factor was met, and assumed without deciding that Altman had suffered an adverse action, but found Altman had failed to allege any facts that the adverse action was related to the protected activity.
The same analysis applies here. West did engage in a protected activity, and there may have been an adverse action.
In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court held that the Fourteenth Amendment of the United States Constitution determines the rights of individuals who have been involuntary committed to a facility. Id. at 312. Although residents at state institutions do have constitutionally protected interests, these rights must be balanced against the reasons put forth by the State for restricting their liberties. Id. at 321. Because inmates retain their First Amendment right to the free exercise of religion in prison, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), so too do civil detainees retain their First Amendment Rights.
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court found that a prison regulation infringing on an inmate's constitutional rights is valid so long as it is reasonably related to a legitimate penological interest. Id. at 89. The Court also recognized that deference should be given to the decisions of prison administrators, especially when those decisions deal with issues of prison safety and security. Id.
In Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th Cir. 2012), the Eighth Circuit applied the Turner framework to civilly committed patients' free speech claims. Many courts have applied Turner in analyzing constitutional claims by civilly committed sexually violent predators. See, e.g., Thompson v. Vilsack, 328 F.Supp.2d 974 (S.D. Iowa 2004) (applying Turner to a claim that co-payment for Kosher meals violated civilly committed sexual predator's First Amendment rights). This court has also used a modified Turner test on a number of occasions in analyzing free exercise claims arising out of CCUSO. See, e.g. Altman, 2015 WL 1383824.
In a typical prisoner free-exercise case, the plaintiff must allege a substantial burden on his free exercise of religion. Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). Substantially burdening one's free exercise of religion means the regulation:
Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004)(quotation and alterations omitted).
"A discussion of constitutional violations in a prison setting requires a two-step analysis. First, [the court] must determine whether the liberty interest asserted by an inmate is an interest protected by the Constitution. If [the court] find[s] a protected liberty interest exists, [the court] must balance this interest against a State's interest in prison safety and security." Goff v. Harper, 235 F.3d 410, 413-14 (8th Cir. 2000) judgment reinstated, 96-1018, 2002 WL 34541628 (8th Cir. Jan. 15, 2002). Under Turner, a prison regulation that impinges on inmates' constitutional rights . . . is valid if it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. As modified for use in the context of civil commitment, the claim must be considered in light of appropriate therapeutic interests as well as relevant safety and security concerns.
"Turner employs a four-factor test to resolve this inquiry: (1) whether there is a rational relationship between the regulation and the legitimate government interest advanced; (2) whether the inmates have available alternative means of exercising the right; (3) the impact of the accommodation on prison staff, other inmates, and the allocation of prison resources generally; and (4) whether there are ready alternatives to the regulation. Freeman v. Texas Dept. of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004) (internal citations omitted).
Defendants argue there is a rational relationship between the regulation at issue and the legitimate government interest advanced:
Doc. No. 25-2 at 15-16. Defendants go on to argue:
Doc. No. 25-2 at 16-17.
West responds:
Doc. No. 26-1 at 7-8.
As noted above, this court has twice previously had the opportunity to consider the religious services available at CCUSO. See Altman, 2015 WL 1383824, at *7, and Mead, 2014 WL 2557673, at *6. The second of those cases also dealt with a Pentecostal CCUSO patient who complained that CCUSO employees interfered with his free exercise of religion. In that case, this court discussed the difficulty CCUSO employees have had in finding ministers willing to come to CCUSO and concluded that, "[CCUSO employees] do not have the power to compel a minister to come to CCUSO." Mead, 2014 WL 2557673, at *6. The court granted summary judgment in favor of the defendants, concluding:
Id.
The factual record in this case demonstrates that the situation regarding access to religious services at CCUSO remains largely the same, and I agree with the analysis and conclusions set forth in Mead. Accordingly, to the extent West alleges a general denial of his right to free exercise because CCUSO does not provide specific Pentecostal services, he has failed to generate a disputed issue of material fact for the reasons set forth in Mead. Similarly, to the extent West argues he has been denied a right to free exercise because he is not allowed to attend services outside of the CCUSO facility, that claim is also denied for the reasons set out in Mead and Altman.
Of course, West's situation is somewhat different than Mead's in that West had been on transitional release and, therefore, had been allowed to attend religious services outside the CCUSO facility prior to his escape. West had also developed a relationship with Pastor Grimes. West specifically alleges that following his return to CCUSO after the escape, he was restricted from contacting Grimes and was restricted from watching his religious DVDs.
Applying the Turner framework to these specific allegations, it is clear that West has failed to allege sufficient facts to allow his claim to proceed. First, there is a rational relationship between CCUSO's religious regulations and a legitimate government interest. Defendants provide various non-denominational religious services and provide specific Pentecostal material to patients such as West. Defendants do not have the authority to compel a Pentecostal minister to come to CCUSO. But CCUSO has made Pastors Greenwalt and Grimes aware that they are welcome to minister to West if they so choose.
Second, West was allowed an alternate means to exercise his faith. Although, for a time, he was not allowed to access all the personal property he had amassed while on transitional release, he still had access to the religious materials that all secure-unit CCUSO patients were permitted to access. As noted above, this included Pentecostal videos. West is also allowed to attend other, non-denominational Christian services officiated by Pastor Stout. While it is true that West was briefly prohibited from calling Grimes, West has cited no authorities supporting his assertion that he has a constitutional right to call his preferred religious officiant. Regardless, the situation was quickly clarified such that West was allowed to make religious calls. As discussed above, a brief, accidental denial of a constitutional right is not sufficient to prevail on a Section 1983 claim under current Eighth Circuit precedent.
Third, defendants are willing to allow Pentecostal ministers to communicate with West and conduct services at CCUSO. Other than West's unsupported, self-serving allegations, the remainder of the record demonstrates that defendants are making reasonable attempts to facilitate West's religious exercise in a manner that is commiserate with his treatment level.
Fourth, there is no ready alternative to this situation. Other than briefly denying West the use of the phone, defendants have provided West an opportunity to exercise his faith in a manner consistent with his security and treatment levels. Accordingly, defendants are entitled to summary judgment on this issue.
For the reasons set forth herein, defendants' motion (Doc. No. 25) for summary judgment is
