7th Circuit upholds qualified immunity

December 11, 2017

The Department of Correction’s religious director was entitled to qualified immunity on a complaint alleging he violated two Jewish plaintiffs’ First Amendment rights by failing to delay their transfer to a facility that did not offer Jewish group worship services, the 7th Circuit Court of Appeals ruled Monday.

After originally being incarcerated at the Pendleton Correctional Facility, Larry Kemp and Brian Woodring were transferred to the Wabash Valley Correctional Facility, where they would be able to maintain a kosher diet consistent with their Jewish beliefs. However, unlike in Pendleton, the Wabash facility did not offer group worship services for Judaism because the Department of Correction’s contracted rabbis did not visit Wabash. Kosher inmates were given the option of staying in Pendleton, but Kemp and Woodring declined.  

Jack Hendrix, the DOC’s executive director of classification, then made the decision of which facility the inmates would be transferred to, while David Liebel, the DOC’s director of religious and volunteer services had the ability to request the transfers be delayed. Liebel did not do so, and Kemp and Woodring were transferred in May 2014.  

After the transfer, Liebel made a concerted effort to find Jewish volunteers to train the Wabash inmates to lead worship services, and he was finally successful in January 2015. However, Kemp and Woodring filed a complaint in October 2014 against the DOC commissioner, the Wabash chaplain and Liebel for violations of their rights under the First Amendment and Religious Land Use and Institutionalized Persons Act.

The inmates and Liebel filed cross motions for summary judgment, which the Southern District Court granted in Liebel’s favor on the basis of qualified immunity. Kemp and Woodring then appealed in Larry Kemp, et al. v. David Liebel, 17-1314, but the 7th Circuit Court of Appeals upheld the district court’s ruling on Monday.

Judge Joel Flaum wrote in a Monday opinion that Liebel’s conduct did not violate clearly established law because the appellants failed to cite to cases where the First Amendment’s free exercise clause gave prisoners the right to group worship when outside volunteers were unavailable. Similarly, they did not point to caselaw that says the free exercise clause can be violated by transferring inmates to a facility without congregational worship or study, or by failing to delay a transfer until those services become available, Flaum said.

“Indeed, our precedent suggested that prison officials ‘need not…allow inmates to conduct their own religious services’ so long as the delay in offering services by qualified leaders is reasonable,” the judge wrote. “Moreover, the Court has held that an inmate has no right to remain at a particular facility under the Due Process Clause.”

“Not only were (Liebel’s) actions not counter to any of our precedent, but he also made a significant effort to recruit Jewish volunteers so that Wabash Valley could offer group prayer and study,” Flaum continued. “Moreover, Liebel was not even the ultimate decision maker with respect to plaintiffs’ transfer; he simply had the ability to delay it.”


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