Bradshaw v. Dahlstrom et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA JAMES BRADSHAW,
Plaintiff,
v.
NANCY DAHLSTROM, et al.,
Defendants.
Case No. 3:20-cv-00292-SLG-KFR
ORDER RE FINDINGS AND RECOMMENDATIONS
Before 	the 	Court 	is 	Defendant 	Nancy 	Dahlstrom’s 	Motion 	to 	Dismiss
Plaintiff’s Second Amended Complaint.1 Plaintiff Joshua Bradshaw responded in
opposition to the motion.2 Also before the Court is Mr. Bradshaw’s Motion to
Compel.3 Defendant Dahlstrom responded in opposition to the motion, and Mr.
Bradshaw filed supplemental information relating to the motion.4
These matters were referred to the Honorable Magistrate Judge Kyle F.
Reardon. Judge Reardon issued his Findings and Recommendations, in which he
recommended that the Motion to Dismiss be granted and that, if the District Court
1 Docket 56. Ms. Dahlstrom is no longer the Commissioner of DOC. See generally Docket 71,
pp. 3-4, notes 18, 21.
2 Docket 63.
3 Docket 64.
4 Dockets 66 and 67.
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adopts that recommendation, the Motion to Compel be denied as moot because
the case no longer contains a live controversy.5 	Mr. Bradshaw filed objections to
the Magistrate Judge’s report and Defendant filed a response in support of the
report.6
In addition, at Docket 69, Mr. Bradshaw filed a motion seeking to hold
Defendants in contempt. 	The Magistrate Judge issued an order recommending
the motion be denied at Docket 78; no objections to that report have been filed.
These matters are now before this Court pursuant to 28 U.S.C. § 636(b)(1).
That statute provides that a district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.”7 	A
court is to “make a de novo determination of those portions of the magistrate
judge’s 	report 	or 	specified 	proposed 	findings 	or 	recommendations 	to 	which
objection is made.”8 	However, § 636(b)(1) does not “require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.” 9
5 Docket 71.
6 Dockets 73 and 77.
7 28 U.S.C. § 636(b)(1).
8 Id.
9 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
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Mr. Bradshaw asserts that Defendant Dahlstrom violated his constitutional
right to freedom of religion by enacting a policy that restricted his ability to attend
group religious activities during the COVID-19 pandemic.10 The Magistrate Judge
recommended that the Court grant the Motion to Dismiss Plaintiff’s Second
Amended Complaint and deny Plaintiff’s Motion to Compel, after concluding that
“Plaintiff’s Second Amended Complaint fails to state how Commissioner Dahlstrom
personally participated in the deprivation of his rights.”11 	The Magistrate Judge
also recommended that since Mr. Bradshaw had “been given multiple opportunities
to correctly plead his complaint,” and that the deficiencies “cannot be cured by
further amendment,” the dismissal should be without leave to amend.12 	In his
objections, Mr. Bradshaw asserts that he can cure these deficiencies. He cites to
the doctrine of supervisory liability, and maintains that the former Commissioner’s
adoption of the COVID restrictions constituted “the moving force of a constitutional
violation.”13 For supervisory liability to attach, “the policy itself [must constitute] a
repudiation of constitutional rights”; Mr. Bradshaw maintains that the former
Commissioner’s personal participation is not required.14 	He has simultaneously
10 Docket 54 at 3.
11 Docket 71 at 11.
12 Docket 71 at 10.
13 Docket 73 at 4 (quoting Hansen v. Black, 885 F.2d 642, 645-46 (9 th Cir. 1989).
14 Hansen, 885 F. 2d at 646 (quoting Thompkins v. Belt, 828 F.2d 298, 303-04 (5 th Cir. 1987).
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filed a motion to file a proposed Third Amended Complaint that he maintains
remedies the deficiencies that the Magistrate Judge identified, and therefore, he
argues, the dismissal of the Second Amended Complaint should be without
prejudice.15
On de novo review, the Court finds that Mr. Bradshaw’s Second Amended
Complaint fails to state a viable First Amendment claim. 	For the reasons
discussed below, the Court agrees with the Magistrate Judge that amendment
would be futile and will not grant leave to amend.
I. 	Individual Capacity Liability
Mr. Bradshaw brings his claims against the former Commissioner in her
individual capacity. Individual capacity liability, also referred to as personal liability
or personal capacity liability, may impose liability, including liability for damages,
when a plaintiff proves that a “government-official defendant, through the official's
own individual actions, has violated the Constitution.”16 	In order to sufficiently
plead an individual capacity claim against a supervisor under 42 U.S.C. § 1983, a
plaintiff must allege “personal involvement in the constitutional deprivation, or ... a
sufficient causal connection between the supervisor's wrongful conduct and the
constitutional violation.”17
15 Docket 74.
16 Iqbal, 556 U.S. at 676.
17 Keates v. Koile, 883 F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011) (internal quotation marks omitted)).
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Mr. Bradshaw is correct that supervisors may be liable “even without overt
personal participation if supervisory officials implement a policy so deficient that
the policy itself is a repudiation of constitutional rights and is the moving force of
the constitutional violation.”18 However, it is not enough to allege that a supervisor
implemented a policy that may have infringed on a plaintiff’s constitutional rights.19
Rather, a prison policy that burdens a constitutional right is permissible so long as
“it is reasonably related to legitimate penological interests” and “does not represent
an exaggerated response to those concerns.”20 	When determining whether a
policy is reasonably related to legitimate penological interests, “[t]he burden is not
on the State to prove the validity of prison regulations but on the prisoner to
disprove it.”21
II. 	Prison Policies during the Pandemic
The “operation of a correctional institution is at best an extraordinarily difficult
undertaking.” 22 But that “undertaking is particularly difficult where… prison officials
are grappling with a global pandemic.”23 	Guards, inmates, and administrators
18 Docket 73 at 4 (internal citations and quotations omitted).
19 Starr v. Baca, 652 F.3d1202, 1207 (9th Cir. 2011); see also Lacey v. Maricopa County, 693 F.3d
896, 915-16 (9th Cir. 2012) (discussing culpability and intent of supervisors).
20 Turner v. Safley, 482 U.S. 78, 89 (1987).
21 Overton, 539 U.S. at 132.
22 Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
23 Singleton v. Cal. Dep't of Corr. & Rehab., 2020 WL 6587657 at *2 (C.D. Cal. 2020). See also
Martinez v. Sherman, 2022 WL 126054 at 6 (E.D. Cal. Jan. 13, 2022) (“It is clear that COVID-19
poses a substantial risk of serious harm.”) (citations omitted); Fuller v. Houston, 2021 WL 6496742
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have all been affected by the proper allocation of a prison’s limited resources
during the global pandemic. 	Courts should be “particularly deferential to the
informed discretion of corrections officials, especially when the accommodation of
a constitutional right would “have a significant ‘ripple effect’ on fellow inmates
or prison staff.”24
Moreover, prison officials have a constitutional obligation to protect inmates
from serious communicable diseases, such as the COVID-19 pandemic.25 	Prison
officials also have a legitimate interest in getting inmates to their work and
educational assignments;26 and physical exercise “is one of the most basic human
necessities protected by the Eighth Amendment.”27 Accordingly, particularly in the
midst of a pandemic, prison officials must be “ ‘accorded wide-ranging deference
in the adoption and execution of policies and practices that are needed 	. . to
preserve internal order and to maintain institutional security.’ ” 28
at 4 (“There is absolutely no question that COVID-19 is a serious communicable disease.”)
(citations omitted); Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020) (“The COVID-19
pandemic is ‘unprecedented,’ and no one questions that it poses a substantial risk of serious harm
to [prisoners].”)
24 Appel v. King Cnty., 2023 WL 2529443 at *10 (W.D. Wash., 2023), report and recommendation
adopted, 2023 WL 2527100 (W.D. Wash. Mar. 15, 2023) (internal citations and quotations
omitted).
25 See Helling, 509 U.S. at 33; Fuller v. Houston, 2021 WL 6496742, at *3 (C.D. Cal. Nov. 19,
2021), adopted, 2022 WL 225671 (C.D. Cal. Jan. 25, 2022).
26 See Mayweathers, 258 F.3d at 938.
27 Thomas, 611 F.3d at 1151– 52 (quotation omitted).
28 Singleton v. Cal. Dep't of Corr. & Rehab., 2020 WL 6587657, at *2 (C.D. Cal. Apr. 3, 2020)
(quoting Bell v. Wolfish, 441 U.S. 520, 527 (1979)); see also Florence v. Bd. of Chosen
Freeholders of Cnty. of Burlington, 566 U.S. 318, 326 (2012) (“The difficulties of operating a
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III. 	COVID-19 Policies Restricting Religious Activities in Prison
Outside of the prison context, the Supreme Court has held that 	a state’s
restrictions 	on 	private 	at-home 	religious 	gatherings 	during 	the 	COVID-19
pandemic that treated comparable secular activities more favorably was subject to
strict scrutiny review and likely unconstitutional.29 	But in the prison context, a
court’s 	review 	of 	prison 	policies 	that 	restrict 	constitutional 	rights 	“is 	highly
deferential, and it often requires [courts] to uphold rules that, in contexts not
involving prisons, would plainly violate the First Amendment.”30 	Further, the
Supreme Court has observed that “freedom of association is among the rights least
compatible with incarceration.”31 	In sum, the right to exercise one’s religious
beliefs in prison, particularly during a pandemic, “is necessarily limited by the fact
of incarceration and may be curtailed in order to achieve legitimate correctional
goals or to maintain prison security.” 32
detention center must not be underestimated by the courts.”).
29 See, e.g., Tandon v. Newsom, 209 L. Ed. 2d 355 (2021) (requiring “[c]omparability of gatherings
for secular and religious activities, so that strict scrutiny for a violation of the Free Exercise Clause
is triggered if the government treats a comparable secular activity more favorably, is concerned
with the risks various activities pose, not the reasons why people gather”).
30 Prison Legal News v. Ryan, 39 F.4th 1121, 1128 (9th Cir. 2022); see also O'Lone, 482 U.S. at
349 (alleged infringements of prisoners' free exercise rights under the First Amendment must be
“judged under a ‘reasonableness' test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights”).
31 Jones v. N. Carolina Prisoners' Lab. Union, Inc., 433 U.S. 119 (1977).
32 McElyea, 833 F.2d at 197 (citing O'Lone, 482 U.S. at 348). See also, e.g., United States v.
Berrios, 2020 WL 4451165 at 3 (D. Or. Aug. 3, 2020) (rejecting claim that prison lockdowns
during COVID-19 pandemic violated due process, as such lockdowns were imposed to prevent
the spread of the virus, not to punish inmates); Cardenas-Ornelas v. Wickham, 2021 WL 1907827,
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To state a free exercise claim under the First Amendment, a prisoner must
plausibly allege facts that demonstrate that a defendant substantially burdened the
practice of his religion, “by preventing him from engaging in conduct mandated by
his faith, without any justification reasonably related to legitimate penological
interests.”33 	To be considered a “substantial burden,” the challenged state action
must “place more than an inconvenience on religious exercise; it must have a
tendency to coerce individuals into acting contrary to their religious beliefs or exert
substantial pressure on an adherent to modify his behavior and to violate his
beliefs.”34
IV. 	Plaintiff’s Allegations
Mr. Bradshaw maintains his rights to free exercise of his religion and his
freedom of association were curtailed by COVID-19 restrictions put in place by
former Commissioner Dahlstrom. However, Mr. Bradshaw has not pled facts that,
if proven, would demonstrate that he was substantially burdened by these policies.
Mr. Bradshaw states he “prays daily and excercizes [sic] his faith by following gods
at *3 (D. Nev. May 11, 2021) (dismissing allegations challenging policies requiring “lockdown” and
restricting religious services but allowing prisoner to work in a crowded warehouse with other
inmates); Cruz, 405 U.S. at 322 n. 2 (“A special chapel or place of worship need not be provided
for every faith regardless of size; nor must a chaplain, priest, or minister be provided without
regard to the extent of the demand.”).
33 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled in part on other grounds
by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008).
34 Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting Guru Nanak Sikh Soc'y of Yuba
City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (internal quotation marks and alterations
omitted)).
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[sic] word and spreading the good news to other inmates and to anyone who will
listen.”35 Further, he acknowledges that as the “case has progressed through the
federal court, the Commissioner and Governor have allowed limited education
center and program access, limited religious services for Christians [ ], and limited
visiting.” 36 	Further, even before contact visits were reinstated, he alleges that
“members 	from 	the 	public 	[were] 	allowed 	access 	to 	prisoners 	for 	religious
service.”37 	While 	Mr. 	Bradshaw 	repeatedly 	filed 	grievances 	regarding 	the
restrictions on group religious activities,38 he made no assertions he was denied
the opportunity to pray, follow God’s word, or spread God’s word.39 	Nor has Mr.
Bradshaw alleged facts that the policy denied him “a reasonable opportunity of
pursuing his faith comparable to the opportunity afforded fellow prisoners.”40
Instead, Mr. Bradshaw claimed that all church services prayer groups, devotional
35 Docket 10 at 4.
36 Docket 28 at 7.
37 Docket 28 at 8.
38 See, e.g., Dockets 7-2 at 1; 7-4 at 7, 10 at 3-4, 11 at 2, 74-2 at 18.
39 Compare Ward, 1 F.3d at 878 (concluding that where prison officials deprived Orthodox Jewish
prisoner of kosher diet, a rabbi, and religious services, prisoner’s ability to participate in religious
observances was significantly circumscribed within prison, as the prisoner had only limited
alternative means available to him to practice his religion), with id. at 880 (concluding that
prisoner’s request to never be transported on the Sabbath was not reasonable because prisoner
had many opportunities to observe the Sabbath and prison has a legitimate penological interest
in having a standardized, efficient transportation system), and Van Wyhe v. Reisch, 581 F.3d 639,
657-58 (8th Cir. 2009) (finding that religious practice was not substantially burdened where prison
permitted the inmate a reasonable opportunity to engage in religious activities even though the
inmate was not permitted to access certain religious material).
40 Cruz, 405 U.S. at 322.
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service meetings, Bible studies as well as faith-based Narcotics Anonymous and
Alcoholics Anonymous group meetings were prohibited. 41
But even if Defendant Dahlstrom had implemented a COVID-19 policy and
Mr. Bradshaw could plead facts showing that the policy imposed a substantial
burden on his religious exercise, Mr. Bradshaw would also need to plausibly
alleged facts that, if proven, would demonstrate that the policy is not “reasonably
related to legitimate penological interests.” Whether a policy is reasonably related
to such interests requires consideration of the four-factor test established by the
Supreme Court in Turner v. Safley.42 These factors are: (1) whether there is a
‘”valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it,” (2) “whether there are alternative
means of exercising the right that remain open to prison inmates”; (3) “the impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally”; and (4) whether
there are “ready alternatives” to the prison's policy.43 Applying these factors, courts
have upheld policies restricting religious gatherings in prisons, such as policies
prohibiting inmate-led religious services,44 denying sectarian services in favor of
41 Docket 54 at 4; see also Docket 74-3 at 17-19.
42 482 U.S. 78 (1987).
43 Turner, 482 U.S. at 90.
44 See Anderson, 123 F.3d at 1198–99; see also Ward, 1 F.3d at 880 (prison officials have no
affirmative obligations to provide appropriate clergy for inmates).
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generic 	congregate 	services,45 	and 	preventing 	attendance 	at 	sweat-lodge
ceremonies.46
Applying the Turner factors here, Mr. Bradshaw’s claim is insufficient to
proceed. The first Turner factor weighs in Defendant’s favor, since there is a valid,
rational connection between a policy suspending religious gatherings during a
pandemic and the legitimate governmental interest of protecting the health and
safety of inmates, guards and others at the prison.47 	Under the second Turner
factor – availability of alternatives – “[t]he relevant inquiry … is not whether the
inmate has an alternative means of engaging in the particular religious practice
that he or she claims is being affected; rather, [the court must] determine whether
the inmates have been denied all means of religious expression.”48 	Mr. Bradshaw
has 	not 	alleged 	facts 	that 	he 	was 	restricted 	from 	“generally 	engag[ing] 	in
45 See Watkins, supra; Jones v. Shabazz, 2007 WL 2873042, at 20 (S.D. Tex. 2007) (holding that
plaintiff was allowed a reasonable opportunity to practice his religion; prison's structure of
grouping multiple sects under the umbrella of Islam was reasonably related to legitimate
penological interests); Boxer X v. Donald, 169 Fed. Appx. 555, 2006 WL 463243, *3-4 (11th Cir.
2006) (no free exercise or equal protection violations when prison denied sectarian services and
instead provided congregational religious services based on “generic abstractions” of actual
denominational faiths); Smith v. Cooley, 2017 WL 5178920, at *3 (W.D. La. 2017), adopted at
2017 WL 5178820 (W.D. La. Nov. 7, 2017) (no free exercise violation where Nation of Islam
inmate was denied separate Muslim service).
46 Standing Deer v. Carlson, 831 F.2d 1525, 1528–29 (9th Cir. 1987).
47 Cf. Burrage v. Lee County, 2021 WL 1343510, at *1 (N.D. Miss. Mar. 23, 2021) (finding that
restricting access to visitors because of Covid-19 “without question ... constitutes a legitimate
penological objective” (citing Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020)).
48 Ward, 1 F.3d at 877 (citing O’Lone, 482 U.S. at 351–52).
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worship.”49 	On the third Turner factor, the Court must give substantial deference
to 	prison 	officials 	regarding 	the 	impact 	on 	guards, 	inmates, 	and 	resource
allocation.50 Faced with the highly contagious and potentially deadly nature of the
virus, staffing shortages, enhanced sanitation procedures, and “the ‘inordinately
difficult undertaking’ that is modern prison administration,” 51 accommodating Mr.
Bradshaw’s request for religious gatherings would have had a substantial impact.
Finally, with respect to the fourth Turner factor – the ready presence of alternative
prison policies – Mr. Bradshaw bore the burden of demonstrating alternatives that
the State could have readily employed but has failed to meet that burden.
Accordingly, Mr. Bradshaw’s allegations are insufficient to state a First Amendment
claim against Defendant Dahlstrom on a supervisory theory of liability.
V. 	Amendment is Futile and the Motion to Compel is Moot
On March 3, 2023, Mr. Bradshaw filed a Motion for Leave to File a Third
Amended Complaint.52 	Mr. Bradshaw attached a Third Amended Complaint that
49 Firewalker-Fields v. Lee, 58 F.4th 104, 111 (4th Cir. 2023) (“this is not about whether Firewalker-
Fields had the opportunity to engage in Friday Prayer on his terms, but rather whether he could
generally engage in worship.”). See also Ford v. Northam et al., 2023 WL 2767780, at *13 (W.D.
Va. 2023) (Other than stating that he has been unable to gather with his religious community,
Plaintiff failed to provide sufficient factual matter to establish that any defendant “imposed a
substantial burden” on his religious exercise).
50 Overton v. Bazzetta, 539 U.S. 126, 135 (2003). See also Florence v. Bd. of Chosen Freeholders
of Cnty. of Burlington, 566 U.S. 318, 326 (2012) (recognizing that prison officials “must have
substantial discretion to devise reasonable solutions to the problems they face”).
51 Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S. at 85).
52 Docket 74.
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he maintains remedies the deficiencies and properly states a claim against
Defendant Dahlstrom in her individual capacity.53 However, upon review, the Third
Amended Complaint suffers from the same deficiencies. 	Because amendment
would be futile, the Court will not grant additional leave to amend.54 Relatedly, the
Motion to Compel is moot because there is no actionable controversy to proceed.
VI. 	Motion for Contempt
No objections were filed to this motion; 	therefore, the Court adopts it in its
entirety.
CONCLUSION
For the foregoing reasons, on de novo review, the Court ADOPTS the
Magistrate Judge’s Findings and Recommendations as set forth at Docket 71, as
modified herein. The motion to dismiss at Docket 56 is GRANTED with prejudice
and without leave to amend. 	The motion to compel at Docket 64 is DENIED as
moot.
The Court also ADOPTS in its entirety the Report and Recommendation
regarding the contempt motion at Docket 78 and the motion for contempt at Docket
69 is DENIED.
53 Docket 74 at 2.
54 AE, 666 F.3d at 636 (“A district court abuses its discretion by denying leave to amend unless
amendment would be futile or the plaintiff has failed to cure the complaint's deficiencies despite
repeated opportunities.”); see, e.g., Fid. Fin. Corp. v. Fed. Home Loan Bank of S.F., 792 F.2d
1432, 1438 (9th Cir. 1986) (“The district court's discretion to deny leave to amend is particularly
broad where the court has already given the plaintiff an opportunity to amend his complaint.”).
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The Clerk of Court is instructed to enter a final judgment accordingly. 55
DATED this 25th day of April, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
55 To the extent that Mr. Bradshaw sough declaratory relief on official capacity claims against the
Commissioner of DOC, the Second Amended Complaint also fails to state a viable claim in this
regard.
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