UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

TERRY PAUL HEDIN, 

Plaintiff, 

v. 

JUAN CASTILLO, et al., 

Defendants. 

CLARKE, Magistrate Judge. 

3:14-cv-01504-CL 

FINDINGS AND 

RECOMMENDATION 

Plaintiff, an inmate in the custody of the Federal Bureau 

of Prisons (BOP) filed a complaint pursuant to Bivens v. Six 

Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 

288 (1972) alleging that defendants violated his First 

Amendment rights to practice his Asatru faith by changing 

worship and study schedules, by limiting the use of fire 

during outdoor worship, and by reducing the number of 

religious items and educational items that had previously been 

1 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 1 of 13
available at FCI Sheridan. Complaint (#1). Plaintiff's 

Complaint (#1) also alleges claims under the Federal Tort 

Claims Act (FTCA). Plaintiff filed a "Supplement" (#51) 

alleging a violation of the Religious Freedom Restoration Act 

(RFRA) based on the same underlying facts. Plaintiff seeks 

compensatory, injunctive and declaratory relief. 

Defendants seek an order of summary judgment for 

plaintiff's failure to exhaust his administrative remedies on 

the Bivens and RFRA claims; or in the alternative, an order 

dismissing the Bivens claims based on qualified immunity and 

failure to state a claim. Defendant further seek an order 

dismissing the RFRA claims for failure to state a claim and 

dismissing all FTCA claims based on lack of jurisdiction and 

failure to state a claim. Motion for Summary Judgment (#56) 

p. 2. 

The relevant facts giving rise to plaintiff's claims are 

as follows: In December 2013, FCI Sheridan Supervisor Chaplain 

Richard Kowalczyk changed the worship schedules at FCI 

Sheridan, permitting the Asatru inmates one night to celebrate 

Yule in the outdoor worship area, instead of the 12 nights 

that had been previously permitted at FCI Sheridan. Chaplain 

Williams and Chaplain Kowalczyk also removed from the Asatru 

locker certain ceremonial and educational items which had been 

purchased by FCI Sheridan Religious Services for use by the 

2 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 2 of 13
Asatru inmates. The removed ceremonial items included: Odin 

statutes, an oak staff, a bag of runes, a large Thor~s hammer, 

alter clothes, Tyr banner, rune board, incense, charcoal, and 

a drinking horn. Educational items included: books, CD's, 

cassette tapes, and other study materials. Plaintiff filed 

administrative remedies to challenge the changes made by the 

Religious Services Department. 

The history of plaintiff's administrative remedies 

(grievances, grievance responses and appeals) is set forth in 

defendants Motion for Summary Judgment (#56) pp. 3 - 6, and 

need not be repeated here. The relevant fact in this regard 

is that plaintiff did not pursue any of the grievances to the 

final stage of the administrative remedy process. 

The Prison Litigation Reform Act requires that prisoners 

exhaust available administrative remedies before bringing a 

federal action concerning prison conditions. Griffin v. 

Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. 

§ 1997e (a)) . Inmates are required to exhaust all grievance 

remedies before filing a Section 1983 action, including 

appealing the grievance decision to the highest level within 

the grievance system. James v. Bock, 549 U.S. 199, 218 (2007); 

Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003); Bennett v. 

King, 293 F.3d 1096, 1098 (9th Cir. 2002); McKinney v. Carey, 

311 F.3d 1198 (9th Cir. 2002). Moreover, "the PLRA exhaustion 

3 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 3 of 13
requirement requires proper exhaustion." Woodford v. Ngo, 548 

U.S. 81, 93 (2006). This means that a prisoner must "complete 

the administrative review process in accordance with the 

applicable procedural rules, including deadlines, as a 

precondition to bringing suit in federal court." Marella v. 

Terhune, 568 F. 3d 1024, 1027 (9th Cir. 2009) (quoting Woodford, 

548 U.S. at 88). 

Defendants have the burden to show that "there was an 

available administrative remedy and that the prisoner did not 

exhaust that available remedy. Albino v. Bacca, 747 F.3d 

1162, 1172 (9th Cir. 2014). Once defendants have met this 

burden, the burden shifts to the plaintiff to demonstrate 

"that there is something in this particular case that made the 

existing and generally available administrative remedies 

effectively unavailable to him." Id. 

The Bureau of Prisons has established an administrative 

remedy procedure which through an inmate may seek formal 

review of any complaint regarding any aspect of his 

imprisonment. In order to exhaust appeals under the 

procedure, an inmate must first seek to resolve his complaint 

informally (BP-9). If an inmate cannot resolve his complaint 

informally, he must present his Administrative Remedy Request 

(BP-10) to the Warden. 28 CFR § 542-14(a). If the inmate is 

dissatisfied with the Warden's response to the BP-(, he may 

4 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 4 of 13
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submit an Administrative Remedy Appeal (BP-10) to the Regional 

Director "within 20 calendar days of the date the Warden 

signed the response." 28 CFR § 542.15(a). If dissatisfied 

with the Regional Director's response, the inmate may finally 

file an Administrative Remedy Appeal (BP-11) with the General 

Counsel in the Central Office of the BOP "within 30 calendar 

days of the date the Regional Director signed the response. 28 

CFR § 542.15(a). No administrative appeal is considered to 

have been exhausted until a decision is reached on the merits 

by the Bureau of Prisons' Central Office. 28 CFR § 542.15(a). 

Only after this procedure is completely exhausted is a 

prisoner authorized to file suit in District Court. 42 U.S.C. 

§ 1887e(A). 

It is undisputed that plaintiff submitted three BP-9 

requets to the Warden at FCI Sheridan and three BP-10 appeals 

to the BOP Regional Off ice related to his claims in this 

proceeding. However, the record reflects that plaintiff did 

not submit a final appeal to the BOP Central Office as to any 

of his grievances. 

Plaintiff claims he mailed the three Central Off ice 

appeals on the following dates: March 20, 2014, May 11, 2014, 

and June 11, 2014. However, there is no record in BOP Sentry1 

1 

"BOP Sentry" is the BOP' s computerized system of record 

keeping. 

5 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 5 of 13
that plaintiff ever submitted any of the appeals to the BOP 

Central Office. 

Plaintiff argues that all three of the Central Off ice 

appeals were "either not mailed and/or the Federal Bureau of 

Prisons Cent al Off ice Counsel never filed and documented those 

filings." 

However, all of plaintiff's other remedies were properly 

processed and recorded, and plaintiff has not submitted any 

evidence to support a claim of mis-handling. 2 

Based on the record before the court I find that there is 

no genuine issue of material fact that plaintiff did not 

properly exhaust his administrative remedies prior to filing 

his claims in this action. 

"If the District Court concludes that the prisoner has 

not exhausted non-judicial remedies, the proper remedy is 

dismissal of the claim without prejudice." Wyatt v. Terhune, 

315 F.3d at 1120. However, in this case, defendant's alternate 

grounds for dismissal discussed below establish that 

2 

At FCI Sheridan, inmate administrative remedy appeals to the 

Regional Director and the BOP Central Off ice must be placed in 

outgoing mail. Within each unit at FCI Sheridan, there is a 

secured metal mailbox outside the officer's station that is 

padlocked. The morning-watch officer removes the outgoing mail 

and screens the general correspondence pursuant to BOP policy. 

The mail is then provided to the FCI Sheridan mail-room to be 

sent out of the institution via the United States Postal 

Service. Declaration of Scott Poisal (#39). 

6 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 6 of 13
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plaintiff's claims fail to state a claim as a matter of law 

and should be dismissed with prejudice. 

A constitutional Bivens action is not permitted "where a 

meaningful post-deprivation remedy for the loss is available." 

Hudson v. Palmer, 468 U.S. 517, 533 (1984); Wilkie v. Robbins, 

551 U.S. 537, 549-50 (2007) ("a damages remedy is not an 

entitlement ... and in most instances ... a Bivens remedy [has 

been found to be] unjustified."). 

In Wilkie, the Supreme Court set forth a two-step process 

for determining whether to devise a Bivens remedy. The first 

step is to determine whether any alternative process exists 

for protecting the interest, one which amounts to a convincing 

reason for the courts to ref rain from providing a new and 

freestanding Bivens damage remedy. The second step is that the 

court must weigh the resons for and against creating a new 

cause of action. Wilkie, 51 U.S. at 549-554; see also, 

Hudson, 468 U.S. at 533 (when plaintiff has an adequate remedy 

available outside of a Bivens claim, then a Bivens claim was 

necessarily unavailable to plaintiff); Bush v. Lucus, 462 U.S. 

367, 390 (1987) (declined to extend Bivens liability to a 

First Amendment violation by a federal employer, declining "to 

create a new substantive legal liability because 

Congress is in a better position to decide whether or not the 

public interest would be served by creating it."); Western 

7 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 7 of 13
Radio Services Co. V. U.S. Forest Service, 578 F.3d 1116, 

1122-23 (9th Cir. 2009) (holding that a Bivens action was not 

allowed because an alternate adequate remedy was available 

under the APA.). 

The Supreme Court has never held that Bivens extends to 

First Amendment claims. See, Reichle v. Howards, 132 S.Ct. 

2088, 2093 n. 4 (2012); see also, Ashcroft v. Iqbal, 556 U.S. 

662, 675 (2009) declining to decide whether free exercise 

claim is actionable under Bivens); Bush v. Lucas, 462 U.S. 

367, 368 (1983) (refusing to extend Bivens to a First 

Amendment speech claim) . Nor has the Ninth Circuit so held. 

See, e.g. Resnick v. Adams, 

2003) (declining to decide the 

3 4 8 F . 3 d 7 6 3 ( 9th 

question of whether 

remedy was available for a First Amendment claim.) 

Cir. 

Bivens 

Congress has created a meaningful alternative remedial 

statutory scheme under the Religious Freedom Restoration Act 

(RFRA) for challenging restrictions on the exercise of 

religious freedom. 42 U.S.C. §2000bb. Under RFRA, if a 

plaintiff can show that the federal government has imposed a 

"substantial burden" on a person's exercise of religion, the 

Ninth Circuit has held that the government must then be able 

to show that the challenged conduct is "advancing a compelling 

interest through the least restrictive means possible." Ruiz8 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 8 of 13
Dias v. United States, 703 F.3d 483, 485 (9th Cir. 2012) . 3 

Plaintiff has alleged a RFRA claim in this case. I find 

that the availability of that alternative remedy precludes 

plaintiff from pursuing a Bivens claim. 

To the extent that a Biven' s claim might arguably be 

available to plaintiff, I find that plaintiff has failed to 

establish a Constitutional violation. 

The Free Exercise Clause of the First Amendment 

guarantees inmates the right to reasonable accommodation of 

sincerely held religious beliefs. See, e.g. Lovelace v. Lee, 

4 7 2 F . 3 d 174 , 19 8 - 9 9 (4th Cir . 2 O O 6 ) . However, free exercise 

rights are "necessarily limited by the fact of incarceration, 

and may be curtailed in order to achieve legitimate 

correctional goals or to maintain prison security." O'Lone v. 

Estate of Shabazz, 482 U.S. 342, 348 (1987). 

To merit protection, the religious exercise or belief 

which is burdened must be "sincerely held" and "rooted in 

religious belief." Shakur v. Schiro, 514 F.3d 878, 884-85 (9th 

3RFRA does not waive the federal governments sovereign 

immunity. Okleyueha Native Am. Church of Hawaii v. Holder, 676 829 

(9th Cir. 2012) . Therefore, a plaintiff may only proceed on a RFRA 

claim for injunctive relief. See also Minneci v. Pollard, 132 S.Ct. 

617, 625 (2012) (Bivens jurisdiction denied and alternative remedy 

was adequate even if it provides less recovery, forbids recovery, 

or requires additional procedural obstacles); Adams v. Johnson, 355 

F.3d 1179, 1184 (9th Cir. 2004) (" [W]here Congress has provided some 

mechanism for relief, Bivens claims are precluded."). 

9 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 9 of 13
Cir. 2008), quoting Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 

1994); see also Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 

1981). 

In addition, to state a free exercise claim, a plaintiff 

must demonstrate that prison authorities "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." 

Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) abrogated 

on other grounds as recognized in Shakur, 515 F.3d at 884-85, 

citing Turner v. Safley, 482 U.S. 78, 89 (1987). 

In this case, plaintiff has failed to set forth any 

specific factual allegations that demonstrate how defendants 

alleged conduct of reducing the congregate ritual and 

educational items in the FCI Sheridan Asatru locker required 

him to violate any sincerely held religious belief, or how he 

was prevented from engaging in conduct mandated by his faith. 

The gravaman of plaintiff's complaint is that his 

constitutional rights were violated because, in "past 

practice", the FCI Sheridan Astru group was allowed to keep 

additional ceremonial and educational items in the Asatru 

locker, not because the items that are currently permitted are 

insufficient. 

Plaintiff alleges in a conclusory fashion that ceremonial 

10 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 10 of 13
items "were essential for observing plaintiff's sincerely held 

religious faith." Supplemental Complaint (#51) p. 7. But he 

has not specifically alleged what items were so necessary or 

that he does not have access to other ceremonial items 

sufficient to practice his religion. Nor has plaintiff 

established that defendants' alleged conduct required him to 

violate his religious beliefs. Plaintiff does not have a 

constitutional right to any and all religious items he desires 

stored in a location he desires - which seems to be the 

fundamental basis for his claim in this case. 

Further, plaintiff has not demonstrated how the change in 

practice from allowing outdoor celebrations on all twelve days 

of Yule, to allowing an outdoor celebration on one day of 

Yule, violates his First Amendment rights. Plaintiff has not 

alleged any tenet of his Asatru faith that requires outdoor 

celebrations, with or without fire, for all twelve days of 

Yule. Plaintiff has alleged that Yule is a holy time for 

adherents of the Asatru religion and for him personally but 

has not established that his faith requires him to observe all 

twelve days of Yule in a group, outdoor worship, with fire, or 

that one such celebration during Yule, with the remaining days 

observed individually, is somehow insufficient. 

Based on the foregoing, I find that defendants are 

entitled to judgment as a matter of law on plaintiff's RAFTA 

11 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 11 of 13
claim. 

In any event, defendants Castillo and Feather are 

entitled to summary judgment because plaintiff has not alleged 

that they were personally involved in the alleged conduct 

giving rise to plaintiff's claims. These defendants' 

supervisory roles are not a sufficient basis to subject them 

to liability under Bivens. Terrell v. Brewer, 935 F.2d 1015 

( 9th Cir . 19 91 ) . 

Because I find that plaintiff has not sufficiently 

alleged a constitutional violation, it is unnecessary to 

address defendants' qualified immunity argument in detail. 

However, I find for the record that defendants' alleged 

conduct did not violate any of plaintiff's clearly established 

constitutional rights, and that even if some minimal 

encroachment did arguably occur, defendants are qualifiedly 

immune from liability for damages because they reasonably 

misapprehended the law governing the circumstances they 

confronted. Brosseau v. Haugen, 453 U.S. 194, 202 (2004); 

Harlow v. Fitzgerald, 457 U.S. 800 (1982). 

Defendants Motion for Summary Judgment (#56) should be 

allowed. The Clerk of the Court should be directed to enter 

a judgment dismissing this proceeding prejudice. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

12 - Findings and Recommendation 

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of appeal pursuant to Rule 4 (a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appeal form an order adopting this Findings and 

Recommendation or judgment dismissing this case would be 

frivolous and not taken in good faith. Therefore, plaintiff's 

in forma pauperis status should be revoked. 

DATED this 2J day of Septfa1\1i?er 

~.·· 

ar e 

United States Magistrate Judge 

13 - Findings and Recommendation 

Case 3:14-cv-01504-CL Document 63 Filed 09/27/16 Page 13 of 13