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McGovern v. Ferriter

United States District Court, D. Montana, Helena Division

May 14, 2014

THOMAS MCGOVERN, Plaintiff,
v.
MIKE FERRITER, et al., Defendants.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

Pending before the Court is Plaintiff Thomas McGovern's Motion for Reconsideration. (Doc. 44.) Mr. McGovern seeks reconsideration of the Court's Order denying his Motion for Preliminary Injunction regarding Defendants' refusal to allow him register his religion as Native American/Wiccan. Defendants were instructed in the Court's Order of March 12, 2014 (Doc. 43) to indicate what burden Mr. McGovern's requested relief would impose on the Prison when Prison policy allows inmates to register as Native American/Christians. Defendants provided a general justification for the religious registration policy but no justification for allowing inmates to register as Native American/Christian but not Native American/Wiccan. As such, Mr. McGovern's Motion for Reconsideration (Doc. 44) will be granted and the Motion for Preliminary Injunction (Doc. 33) with regard to the registration issue will be granted.

I. Standard for Injunctive Relief

Injunctive relief "is an extraordinary remedy never awarded as a matter of right." Winter v. Natural Resources Defense Council. Inc., 555 U.S. 7, 24 (2008). To obtain a preliminary injunction the plaintiff must "establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20. Following Winter, in Alliance for the Wild Rockies v. Cottrell, 632 F.3d 117, 1132 (9th Cir. 2011), the Ninth Circuit clarified that its "serious questions" approach to preliminary injunctions survives Winter when applied as part of the four-part Winter test. Thus, once a plaintiff has shown a likelihood of irreparable injury and that the injunction is in the public interest, an injunction is warranted if the plaintiff can further show that there are "serious questions going to the merits' and the balance of hardships tips sharply towards the plaintiff." Id. at 1135.

Where "a plaintiff seeks a mandatory preliminary injunction that goes beyond maintaining the status quo pendente courts should be extremely cautious' about issuing a preliminary injunction and should not grant such relief unless the facts and law clearly favor the plaintiff." committee of Central American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir. 1986) (quoting Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984)).

II. Analysis

A. Likelihood of success on the merits

Mr. McGovern brings his claims regarding the registration policy under both Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the Equal Protection Clause of the Fourteenth Amendment. The Court finds that Mr. McGovern has showed serious questions going to the merits of his equal protection claim and therefore will not address the RLUIPA issues. Those issues can be dealt with more appropriately through motions practice and/or at trial.

To state an equal protection claim, a plaintiff Must allege facts sufficient to establish that prison officials intentionally discriminated against him on the basis of his religion by failing to provide him a reasonable opportunity to pursue his faith compared to other similarly situated religious groups. Cruz v. Beto, 405 U.S. 319, 321-22 (1972); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled in part on other grounds, Shakur, 514 F.3d at 884-85. "To succeed on an equal protection claim, a plaintiff in a section 1983 claim must show that officials intentionally acted in a discriminatory manner." Freeman, 125 F.3d at 737. "Proof of discriminatory motive... can in some situations be inferred from the mere fact of differences in treatment." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977).

Mr. McGovern has presented evidence that the Department of Corrections allows Christian inmates to select "Native American/Christian" as a religious preference, presumably allowing Christians to participate in both Christian services and Native American services. (MSP Inmate Religious Preference Statement, Doc. 2-1 at 5.) Mr. McGovern filed a sworn declaration and provided documentary evidence that he requested to be allowed to register as a Native American/Wiccan and be allowed to participate in both Native American services and Wiccan services. He stated in a grievance that he is Native and his family is from the Browning Indian Reservation. He also indicated that he practices Wiccan. (July 13, 2011 Grievance, Doc. 2-1 at 7.) M. McGovern was denied his request to register as a "Native American/Wiccan." Instead, he has registered as a Wiccan only and has not been allowed to attend Native American services.

Mr. McGovern has shown that there are serious questions going to the merits of his claim that he is being discriminated against on the basis of his religion. He has shown that he has not been allowed a reasonable opportunity to pursue his Native American faith along with his Wiccan faith when Christians are allowed to practice both Christian and Native American faiths.

B. Irreparable Harm

An "irreparable injury" is a harm that "cannot be adequately measured or compensated by money." Black's Law Dictionary 856 (9th ed. 2009). Constitutional violations, unlike monetary injuries, cannot be adequately remedied through damages and alone can constitute irreparable harm. Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).

Mr. McGovern alleges Defendants are violating his constitutional rights and he is being irreparably harm by not being allowed to practice his religious beliefs, i.e., participate in Native American services. "[I]nmates suffer irreparable injury when they are unable to attend religious services that are commanded by" their religion. Mayweathers v. Newland, 258 F.3d 930, 93 (9th Cir. 2001). Inhibition of religious practice is a constitutional injury that cannot be adequately remedied through damages. To the extent Mr. McGovern is likely suffering and will likely continue to suffer injuries arising from the inhibition of his religious practice, his injuries are irreparable. Mr. McGovern indicates he has been forced to modify his behaviors regarding religious practices for more than three years-time he cannot get back and he continues to be harmed by the current religion registration policy. (McGovern Reply to ...


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