United States Court of Appeals,
Fifth Circuit.
No. 95-40131
Summary Calendar.
Kenneth I. GANTHER, Plaintiff-Appellant,
v.
Tommy INGLE, Jr., et al., Defendants-Appellees.
Feb. 16, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before WISDOM, DAVIS and STEWART, Circuit Judges.
PER CURIAM:
The plaintiff/appellant, Kenneth I. Ganther, is a convicted
felon confined in the McConnell Unit of the Texas Department of
Criminal Justice (TDCJ). Ganther filed a 42 U.S.C. § 1983 civil
rights action in the United States District Court for the Southern
District of Texas seeking injunctive and monetary relief from TDCJ
officials for alleged violations of his right to religious freedom.
The district court dismissed his suit on the grounds of official
immunity. Ganther now appeals both the dismissal of his case, and
the interim denial of two emergency motions for injunctive relief.
We AFFIRM in part, VACATE in part, and REMAND the case for further
consideration.
BACKGROUND
Kenneth Ganther asserts that he is the pastor of the "House
Hold Faith Full Gospel Church," a Protestant church that consists
of approximately forty other TDCJ inmates. He alleges that for
1
about six months before he filed suit, prison officials allowed his
group to meet regularly in the prison recreation yard, and also
allowed it to hold a one-week revival meeting. After several
months, the group had grown in size, so Ganther asked for
permission to use the TDCJ chapel once a week for Bible study and
once a week for a Sunday service. The TDCJ chaplain denied
Ganther's request, citing a prison policy that the chapel only be
used for distinct religions, rather than distinct denominations
within religions. The chaplain added that the prison offered three
Protestant services each week that Ganther and his group could
attend. Shortly after the chaplain denied use of the prison
chapel, prison officials also ordered Ganther and his group to
disassemble and refrain from worship in the prison unit. Ganther
maintains that prison officials violated his right to religious
freedom both by denying his group access to prison facilities and
by ordering his group to disassemble.
Ganther filed this suit on August 25, 1993. He named the
prison chaplain and three prison wardens as defendants, in both
their official and personal capacities. Ganther requested both
injunctive relief from the officers' orders and monetary damages
for the intentional infliction of emotional distress.
On June 17, 1994, the district court ordered service on the
defendants, and ordered them to answer Ganther's complaint by
August 19, 1994. On July 8, and July 20, 1994, before the
defendants had answered, Ganther filed two emergency motions for
injunctive relief. In the first Ganther alleged that as
2
retaliation for filing the instant suit, one Warden Woods, who is
not a named defendant, changed Ganther's job assignment from an
indoors position as a laundry attendant to an outdoors position as
a yard worker, thereby aggravating Ganther's asthmatic condition.
In the second motion, Ganther alleged that prison officials
had continued to retaliate against him by moving him into a
dormitory with fresh paint that caused him respiratory problems.
He acknowledged, however, that since he had filed his first
emergency motion, prison officials had changed his work assignment
back to an indoors position.
The defendants answered Ganther's complaint on August 17,
1994, two days late. With their answer, they also filed a motion
for summary judgment on the grounds of official immunity and the
failure to state a cause of action.
On August 23, 1995, Ganther filed a motion for entry of a
default judgment based on the defendants' failure to file a timely
answer. Without addressing this motion, the district court first
denied Ganther's two emergency requests for injunctive relief. It
then granted the defendants' motion for summary judgment and
concurrently entered final judgment. Ganther subsequently filed a
motion for relief from judgment, which the court denied.
Ganther now appeals the grant of summary judgment to the
defendants, the denial of his emergency motions for injunctive
relief, and the district court's decision to address the
defendants' motion for summary judgment before addressing his own
motion for a default judgment.
3
I.
This court reviews de novo the decision to grant summary
judgment. In their motion for summary judgment, defendants make
three arguments for dismissal. First, they maintain that the
claims against them in their official capacities are barred by the
Eleventh Amendment. Second, they argue that the claims against
them in their personal capacities are barred under the doctrine of
qualified immunity. Finally, defendants argue that Ganther failed
to state a cause of action under which relief could be granted. We
address each of these arguments in turn.
Federal claims against state employees in their official
capacities are the equivalent of suits against the state.1 The
Eleventh Amendment prohibits a citizen from bringing suit against
a state unless the state waives its immunity.2 This prohibition
does not apply, however, to requests for injunctive relief.3
In this case, Ganther has requested both monetary and
injunctive relief from the state officials. The district court
correctly ruled that the Eleventh Amendment bars Ganther's claim
for damages for the intentional infliction of emotional distress.
Section 101.057 of the Texas Civil Practice and Remedies Code
provides that any waiver of sovereign immunity does not apply to
1
Monell v. New York City Dep't of Social Services, 436 U.S.
658, 690 n. 55, 98 S.Ct. 2018, (1978).
2
Ex Parte Young, 209 U.S. 123, 149, 28 S.Ct. 441, 449-50, 52
L.Ed. 714, 725 (1908).
3
Id.
4
claims arising out of intentional torts.4 Thus, Texas has
explicitly refused to waive its sovereign immunity for claims such
as Ganther's. The Eleventh Amendment bars Ganther's damages claim
against the defendants in their official capacities.
The district court did not complete its Eleventh Amendment
analysis, however. It completely failed to address Ganther's
request for injunctive relief against the defendants in their
official capacities. It is black letter law that the Eleventh
Amendment does not apply to a request for a federal court to grant
prospective injunctive relief against state officials on the basis
of federal claims.5
Defendants argue that this exception does not apply here
because Ganther allegedly does not have the requisite standing to
proceed with a claim for injunctive relief. They argue that in
order to seek an injunction against a state official, a plaintiff
must show a real and immediate threat that he or she will in the
future be subject to the conduct he attempts to proscribe.
Defendants maintain that because all but one of the named
defendants have left Ganther's prison unit since Ganther filed his
suit, he cannot meet this burden, and therefore may not seek an
injunction against the defendants in their official capacities.
This argument misconstrues Eleventh Amendment law. Although
4
Tex.Civ.Prac. & Rem.Code Ann. § 101.057 (West 19--); see
also Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir.1993).
5
Ex Parte Young, 209 U.S. at 149, 28 S.Ct. at 449-50; see
also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
96, 104 S.Ct. 900, 905-06, 79 L.Ed.2d 67, 75 (1984).
5
it is true that a plaintiff must have standing to obtain relief
from a federal court,6 this requirement does not limit suits
seeking to enjoin state officials any more than it limits other
claims for injunctive relief. In addition, Ganther clearly does
have standing. Ganther has retained his standing against the one
remaining original defendant, and through automatic substitution,
has also retained standing against the official successors of the
departed defendants.7 Ganther's request for injunctive relief
against the defendants in their official capacities falls within
the established exception to Eleventh Amendment immunity.8 The
district court should not have dismissed this portion of Ganther's
case against the defendants in their official capacities.
The district court also dismissed the claim against the
defendants in their personal capacities under the doctrine of
qualified immunity. In assessing a claim of qualified immunity,
this court engages in a two part analysis.9 The court first
determines if the plaintiff has alleged a violation of a clearly
established constitutional or statutory right.10 If so, the court
6
Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 1665-
66, 75 L.Ed.2d 675, 685 (1983).
7
When a public officer is party to an action in his official
capacity and during its pendency dies, resigns, or otherwise ceases
to hold office, the action does not abate and the officer's
successor is automatically substituted as a party. F.R.C.P. 25(d)
(emphasis added).
8
Ex Parte Young, 209 U.S. at 149, 28 S.Ct. at 449-50.
9
Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir.1993).
10
Id. at 105.
6
then decides if the defendant's conduct was objectively
reasonable.11 In assessing whether a right is "clearly
established," the court must use the standards applicable at the
time of litigation.12 In contrast, the court looks to the time of
the alleged offense to determine if the defendant's conduct was
"objectively reasonable."13
In this case, the law at the time of the alleged offense was
different from that at the time of the litigation. Ganther filed
his suit on August 25, 1993, solely on the basis of a First
Amendment violation. After that time, but before the district
court dismissed the case, the Religious Freedom Restoration Act of
199314 (RFRA) went into effect. Thus, the district court should
have analyzed the first part of the qualified immunity test in
light of RFRA, and should only have considered pre-RFRA law in the
second part of the test. However, the district court's failure to
consider RFRA in the first prong of the test was harmless error
because the defendants' actions satisfy the second, objective
reasonableness, prong of the qualified immunity inquiry.
Under pre-RFRA law, prisoners were only required to be given
"reasonable opportunity" to exercise their religious freedom.15
11
Id.
12
Id. at 106; see also, Spann v. Rainey, 987 F.2d 1110, 1115
(5th Cir.1993).
13
Id.
14
42 U.S.C.A. § 2000bb et seq. (West 1994).
15
Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081-82, 31
L.Ed.2d 263 (1972).
7
This requirement did not include the right to receive facilities or
personnel identical to that of more populous denominations.16 Thus,
at the time Ganther filed his complaint, he had no right to demand
use of the prison chapel or other prison facilities to hold
services for his church. Therefore, applying the law at time of
their actions, the defendants' conduct towards Ganther on this
request was "objectively reasonable" under the second part of the
qualified immunity test. It was correct for the district court to
dismiss this part of Ganther's case against the defendants in their
personal capacities.
Ganther's complaint also alleges that he and his group were
ordered to stop holding religious services in the recreation yard
after being allowed to meet for months.17 Under pre-RFRA law,
prison officials could revoke prisoners' leave to attend
particularized religious ceremonies if there was a logical
connection to legitimate governmental interests and if the inmates
were allowed to participate in other religious ceremonies of their
faith.18 Ganther was allowed to attend other Protestant religious
ceremonies and the defendant prison officials have offered logical
explanations for ordering Ganther's church to stop meeting.
16
Id.; See also Frank v. Terrell, 858 F.2d 1090 (5th
Cir.1988).
17
See Plaintiff's Complaint at 2, "Plaintiff's Grounds for suit
are that Defendants ordered Plaintiffs to disassemble and refrain
from worshipping [sic] or fellowshipping [sic] as an organized
church body on the McConnell Unit."
18
O'Lone v. Estate of Shabazz, 482 U.S. 342, 350-352, 107 S.Ct.
2400, 2405-06, 96 L.Ed.2d 282, 291-292 (1987).
8
Specifically, the affidavit of defendant Chaplain Tommy Ingle
states that three reasons for the prison's treatment of Ganther:
(1) administrative and space limits at the prison and its policy of
not holding denominational services, (2) prison officials' belief
that allowing Ganther to lead religious services violated the
spirit of Ruiz19 and (3) concern that allowing Ganther to lead
religious services would lead to abuse by groups of inmates who
call themselves a separate denomination so that they can meet
together when they want to even though they may not have any bona
fide religious purpose. In light of these undisputed and logically
relevant justifications for the defendants' actions, the district
court correctly concluded that no material issue of disputed fact
existed as to the reasonableness of the defendants' actions.
The district court refused to consider the effects of RFRA on
Ganther's claim, even though Ganther raised RFRA in both his motion
in opposition to summary judgment and in his motion for relief from
judgment. The district court held that Ganther was inappropriately
attempting to assert a new claim. This was error. The district
court should have construed Ganther's response to the motion for
summary judgment as a motion to amend his complaint and granted
it.20 This error was harmless with respect to Ganther's claims
against the defendants' in their personal capacities but may have
a significant impact on the district court's consideration
19
Ruiz v. Estelle, 650 F.2d 555, 575 (5th Cir.1981).
20
Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.1972) See
also, F.R.C.P. 15(a), which provides that leave to amend a party's
pleading "shall be freely given when justice so requires."
9
Ganther's claim for prospective injunctive relief against the
defendants in their official capacities. Accordingly, on remand
the district court should consider Ganther's claim for injunctive
relief under RFRA and make findings of fact as to whether: 1) the
defendants' failure to allow Ganther's church to meet separately
(even though there are protestant services available to him) places
a substantial burden on him and 2) if so, whether there is any
compelling interest which justifies this burden (such as orderly
administration of the prison).
II.
Ganther also appeals the district court's denial of his
emergency motions for injunctive relief. We review the denial of
preliminary injunctions for an abuse of discretion.21
Ganther's first motion alleged that a non-defendant in this
case reassigned Ganther from an indoors laundry position to an
outdoors yard detail as retaliation against Ganther for filing this
suit. The district court found that the defendants had not yet
been served with the complaint in this action at the time of
Ganther's reassignment, and that Ganther had already been assigned
to another indoors position by the time he filed his second motion
for relief. The district court concluded that Ganther would be
unlikely to prevail on a claim of retaliation, and denied the
request for a preliminary injunction.
Ganther's second motion alleged that as further retaliation
for filing suit, prison officials had transferred him to a freshly
21
White v. Carlucci, 862 F.2d 1209 (5th Cir.1989).
10
painted dormitory room, knowing that the fresh paint fumes could
trigger respiratory problems. The district court found that there
was no substantial likelihood that irreparable harm could result
where the paint fumes would eventually dissipate.
This court finds no abuse of discretion in either decision.
III.
Finally, Ganther appeals the district court's decision to
address the defendants' motion for summary judgment before
addressing his own motion for a default judgment. This argument is
without merit. A party is not entitled to a default judgment as a
matter of right, even where the defendant is technically in
default.22 Furthermore, scheduling is a matter which is generally
left to the discretion of the district court. In this case, the
fact that the defendants' motion was filed before Ganther's is an
adequate reason for the court to rule on it first. We find no
error in the district court's decision to do so.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
dismissal of Ganther's damages claim against the defendants in
their official capacity, and the dismissal of his claims for
injunctive and monetary relief against the defendants in their
personal capacities. We also AFFIRM the district court's denial of
Ganther's two emergency motions for injunctive relief, and its
decision to consider the defendants' motion for summary judgment
before considering Ganther's motion for a default judgment. We
22
Mason v. Lister, 562 F.2d 343, 345 (5th Cir.1977).
11
VACATE the dismissal of Ganther's claim for injunctive relief
against the defendants in their official capacities. Finally, on
REMAND, we direct the district court to consider the remaining
claims in light of the Religious Freedom Restoration Act of 1993.
12