Searles v. DechantSearles v. Dechant
Jimmy Searles appeals from the district court’s orders granting summary judgment for the defendants on his
FACTS
At the time his claims arose, Searles was a Kansas state inmate, housed in the Hutchinson Correctional Facility (Facility). He has identified himself as Jewish since approximately August 1995, and has litigated a prior case involving his faith in this court.
See Searles v. Van Bebber,
At some point prior to August 1, 1999, Searles was assigned to work in the food service area of the Facility. Searles objected to this assignment. He informed his unit team counselor and a prison chaplain that the kitchen was an unclean area for a Jewish person, particularly since there was no mikveh available for purification. 1 Because Searles refused to work in the kitchen, he received a disciplinary report and after a hearing was found guilty of a work performance violation.
In April 2000, Searles was again assigned to work in the kitchen. The Faсility’s Director of Religious Programs obtained an opinion from Rabbi Friedman in Kansas City, who served as a religious advisor for the Kansas Department of Corrections, that working in a non-Kosher kitchen did not violate the Jewish faith and that in any event, if an inmate was concerned about contamination, he could wear gloves. Rabbi Friedman also stated that a mikveh is only used for very special occasions such as conversion to the Jewish faith. Searles’ continued protests that the assignment violated his religious beliefs fell on deaf ears, and he was again written up for refusing to work. 2 A hearing officer again found Searles guilty of a work performance violation.
Searles’ second conviction resulted in serious collateral consequences. Since this entailed a second downgrade in his prison incentive lеvel rating to Level I within five years, he lost the right to possess property items. The prison collected his personal property from his cell and shipped it to his wife. Searles claims that the property items were sent to the wrong address and were lost. 3
Before turning to thе merits of this appeal, we must first address a rather complex jurisdictional issue arising from what appears to be an untimely notice of appeal. On October 23, 2003, the district court entered its final order granting summary judgment for the defendants. R., Vol. II, doe. 103. On the same day, it entered а separate
Alternatively, Searles could have extended the time for filing the notice of appeal by filing a motion to alter or amend the judgment or for a new trial, pursuant to
On November 4, 2003, Searles mailed a letter to the district court, stating that “A Motion to Reconsider was mailed out of the Lansing Correctional Facility to be typed and has not yet reachеd its destination. This was placed in the U.S. mail in the Lancing [sic] Correctional Facility. I wish this letter to be entered in the Journal-Entry.” R., Vol. II, doc. 107. The district court clerk filed this letter on November 5, 2003.
Searles’ letter states no substantive grounds for relief, and cannot itself be construed as a
Given the untimeliness of Searles’ motion, the deadline for the notice of appeal from the summary judgment order remained fixed at November 24, 2003. The next action in the case occurred on November 26, 2003, two days after this deadline. Searles filed two documents: (1) a “Motion for Permission to Appeal,”
id.
doc. Ill,, and (2) “Notice to Appeal,”
id.
doc. 112. According to the certificate of mailing, each of these documents was placed in the United States mail the day before, November 25. Thus, even if Searles were given the benefit of the “mailbox rule” in
Searles’ “Motion for Permission to Appeal” did not request an extension of time to file the notice оf appeal. Nor did it state any grounds for an extension of time. It merely discussed the merits of the issues Searles wished to present on appeal, and concluded that the district court should grant Searles permission to do so. Since the motion did not expressly request additiоnal time, we are doubtful whether it could be construed as a request for extension of time.
See Senjuro v. Murray,
Nevertheless, the district court implicitly construed the motion for permission to appeal as a request for extension of time. The district court then' denied the motion as moot, reasоning that during the time it had been pending, Searles’. motion for reconsideration had already tolled the time period for filing a notice of appeal. See R., Vol. II, doc. 114. As we have seen, however, the motion for reconsideration could not have had such a tolling effect, because it was itself untimely.
The issue now before us, therefore, is whether we can save Searles’ summary judgment appeal by granting him an extension of time based on his “Motion for Permission to Appeal,” rather than denying it as moot as the district court did. We hold that we cannоt. While the motion itself is timely filed,
see
In short, Searles failed to show his entitlement to an extension of time. His notice of appeal from the summary judgment оrder was therefore untimely and did not confer jurisdiction on this court.
Searles also appealed, however, from the denial of his motion for reconsideration. His notice of appeal from that order was filed within thirty days of the order, and is therefore timely to aрpeal from that order.
See Weitz,
“We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion.”
Cummings v. General Motors Corp.,
ANALYSIS
In assessing Searles’ claim that the defendants violated his right to free exercise of his religion, the district court properly applied the four-part test set out in
Turner v. Safley,
(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether аlternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implemеnt alternatives exist that would accommodate the prisoner’s rights.
Beerheide v. Suthers,
As a threshold matter, a court must also determine whether the inmate’s belief is “sincerely held” and “religious in nature.”
DeHart v. Horn,
Searles argues (relying on what is at best hearsay evidence) that othеr inmates did not care if he was reassigned out of the kitchen due to his religious beliefs. He also contends that the defendants’ stated penological justifications are vague, that monetary concerns do not justify assigning him to the kitchen because he would have been рaid more to work there than a lower-level inmate, and that the defendants should be required to incur some expense to accommodate his religious beliefs in any event. These arguments do not justify reversal, under our extremely limited standard of review, of the district court’s denial of his motion for reconsideration. We therefore DISMISS this appeal, insofar as it seeks review of the district court’s order of summary judgment, and AFFIRM the denial of Searles’ motion for reconsideration, treated as a motion under
Notes
After examining the briefs and appellаte record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.
See
.A mikveh is a purifying bath involving rainwater stored in a ceremonial fashion.
. The warden did offer, "out of the kindness of my heart,” to assist Searles in finding a different job at the Facility, but told him he was expected to continue in his present job in the kitchen until another one could be found. R., Vol. Ill, doc. 78 (Martinez report), ex. 10. When Searles nevertheless continued his refusal to work, the wardеn withdrew this offer and stated "[y]our refusal shall be met with appropriate action.” Id., ex. 12.
. In the district court, Searles claimed that the Facility deliberately sent his property items to the wrong address. The defendants
. On October 27, 2003, the court clerk filed a purported amended judgment. R., Vol. II, doc. 105. This document, however, related to a different case and was stricken the same day. See id. doc. 106. There is no indication that Searles relied on this misfiled document in calculating the time period for appeal.
. The letter might, however, have been construed as a request for additional time to file a tolling motion. Even givеn such a construction, however, the letter would not have satisfied the tolling requirements of
. Searles' fear of contamination is triggered by both "aroma ingestion and contact with non-kosher food” in the prison kitchen. R., Vol. I, doc. 1 at 5. Defendants contend thаt avoiding the ingestion of non-kosher odors and the handling of non-kosher food is a "non-central religious practice” in the Jewish faith. Aplee Br. at 6. To the extent they contend that this belief is therefore somehow entitled to less protection than central or corе tenets of Judaism, we must disagree. "It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”
Hernandez v. Com'r of Internal Revenue,