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(Cite as: 2005 WL 552350 (D.Or.))

United States District Court,

D. Oregon.

Blackie Florinceo ALVAREZ, Plaintiff,


Jean HILL, Superintendent; Max Williams, Director; Mitch Morrow, Asst.

Director; J. Gilmore, Superintendent; S. Franke, Security; T. O'Conner; T.

Armstrong; S. Brabb; Mr. Cain; Mr. Rider; Sonia Hoyt; in individual/official

capacities; Defendants.

No. CV 04-884-BR.

March 7, 2005.

Blackie Florinceo Alvarez, SID # 13130374, Oregon State Penitentiary, Salem, OR, Plaintiff pro se.



Plaintiff, an inmate at the Oregon State Penitentiary, brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the Court is Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (# 23). For the following reasons, the Court DENIES Plaintiff's motion.


Plaintiff's claims in this action arise from his prior incarceration at the Snake River Correctional Institution ("SRCI"). Plaintiff filed this action on June 29, 2004. On August 18, 2004, Plaintiff filed a "Memorandum of Law in Support of Motion for a TRO and Preliminary Injunction," which the Court construes as a motion.

Plaintiff's Complaint alleges three claims for relief against various correctional officials at SRCI: (1) Plaintiff alleges Defendants violated his rights under the First and Fourteenth Amendments by substantially burdening his religious freedoms, causing Plaintiff to suffer severe mental anguish in violation of his Eighth Amendment right to be free from cruel and unusual punishment; (2) Plaintiff alleges Defendants violated his Fourteenth Amendment right to due process because Plaintiff was not given a full opportunity to participate in a hearing in connection with a misconduct report; and (3) Plaintiff alleges Defendants violated his rights under the First, Sixth, and Eighth Amendments by denying Plaintiff religious freedom, by denying Plaintiff due process, by hindering Plaintiff's access to legal materials, and by hindering Plaintiff's contact with the Court by mail.

In his Declaration in Support of his Motion for TRO and Preliminary Injunction, Plaintiff seeks an order requiring Defendants to: (1) make the necessary arrangements to allow and/or hire a Native American Spiritual Leader from the outside community to work at SRCI; (2) allow a designated spiritual leader within the Native American inmate population to conduct religious ceremonies; (3) allow Native American inmates weekly sweat lodge, drum, and pipe ceremonies; (4) allow tobacco to be used in all Native American religious ceremonies; (5) allow Native Americans to wear headbands throughout DOC institutions; (6) allow Native Americans to practice their religion freely and equally without being discriminated against or harassed; and (7) expunge the alleged retaliatory misconduct charges of Unauthorized Organization I and Extortion II.


To qualify for injunctive relief, the moving party must satisfy one of two alternative tests. Under the traditional test, plaintiffs must show 1) they will suffer irreparable injury if injunctive relief is not granted; 2) they probably will prevail on the merits; 3) in balancing the equities, defendants will not be harmed more than plaintiffs will be helped by the injunction; and 4) the public interest favors granting the injunction. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir.1994) . Under the alternative test, plaintiffs must demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships "tips sharply" in Plaintiffs' favor. Id. The two standards are not treated as two distinct tests, but rather as a sliding scale representing "a continuum of equitable discretion whereby the greater the relative hardship to the moving party, the less probability of success must be shown." Regents of Univ. of Cal. v.. ABC, Inc., 747 F.2d 511, 515 (9th Cir.1984) .


Plaintiff's request for injunctive relief falls into two categories: religious freedom and due process. Defendants argue Plaintiff does not have a fair chance of success on the merits, and that he fails to allege any irreparable harm or immediate danger of injury.

I. Religious Freedom

"The right to exercise religious practices and beliefs does not terminate at the prison door. The free exercise right, however, is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." McCauley v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987) ( per curiam ) (citations omitted). To establish a free exercise violation, an inmate must show that defendants burdened the practice of his or her religion by preventing the inmate from engaging in conduct mandated by his or her religious faith. Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.1997) . The burden imposed must be substantial, and not merely an inconvenience. Id. at 737.

Viewing the record before this Court as a whole, the restrictions on Plaintiff's religious freedom are not a substantial burden on Plaintiff's practice of his religion. The regulations on religious volunteers, the frequency of sweat lodge, pipe, and drum ceremonies, and the restriction on headbands are aimed at achieving legitimate correctional goals and maintaining prison security. Likewise, the increased restrictions on participation in group religious activities in the Disciplinary Segregation Unit do not rise to the level of a constitutional violation. Non-essential elements of a religion may be withheld from inmates in a disciplinary segregation unit, even though they are provided to inmates in the general population. See Allen v. Toombs, 827 F.2d 563, 567 (9th Cir.1987) (security considerations supported restriction that prevented Native American inmates in the disciplinary segregation unit from participating in Sweat Lodge Ceremony). The court finds that Plaintiff has not established a possibility of irreparable injury or a balance of hardships in his favor sufficient to warrant the issuance of a preliminary injunction.

II. Due Process

Plaintiff also alleges Defendants violated his due process rights in connection with a disciplinary hearing where Plaintiff was found guilty of Unauthorized Organization I and Extortion II. Plaintiff argues the underlying misconduct report was issued in retaliation for Plaintiff's attempts to secure religious rights. He further argues there was inadequate evidence to support the disciplinary officer's findings. As such, Plaintiff seeks an order expunging the charges from his record.

Due process requires that "some evidence" support a prison disciplinary hearing decision. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) ; Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) ; Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir.1989) . "There 'must be some indicia of reliability of the information that forms the basis for prison disciplinary actions." ' Toussaint v. McCarthy, 926 F.2d 800, 802-03 (9th Cir.1990) , cert. denied, 112 S.Ct. 213 (1991) (quoting Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987) ). Due process is violated, however, when a prison disciplinary official convicts an inmate after a hearing "at which no shred of evidence of the inmate's guilt is presented." Burnsworth v. Gunderson, 179 F.3d 771, 774 (9th Cir.1999) .

Plaintiff was charged with several rules violations based upon reports from five confidential informants that Plaintiff was engaged in Security Threat Group activities and extorting property from others. Plaintiff received notice of the disciplinary hearing and was given the opportunity to testify and to seek review of the findings. The disciplinary hearings officer reviewed information provided by the five confidential informants as well as additional unspecified evidence and determined Plaintiff violated two disciplinary rules.  [FN1] The evidence relied upon by the hearings officer is not part of the record before this Court. While Defendants argue the decision was supported by some reliable evidence, in the absence of the evidence relied upon to find Plaintiff guilty, it is impossible for this Court to evaluate whether Plaintiff has a likelihood of success on this claim.

FN1. Three other charges were dropped by the disciplinary hearings officer, on the basis there was insufficient evidence.

Notwithstanding, Plaintiff fails to establish he will suffer some irreparable harm or immediate danger of injury if the Court does not immediately order Defendants to expunge the charges. Indeed, because Plaintiff's disciplinary segregation time expired and Plaintiff was subsequently transferred to another institution, that portion of his motion seeking release back into the general population is moot. Accordingly, the Court declines to grant the preliminary injunctive relief requested.


For these reasons, the Court DENIES Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (# 23).


2005 WL 552350 (D.Or.)