Andrew v. Tinsley et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRENDA ANDREW,
Plaintiff,
v.
SCOTT TINSLEY et al.,
Defendants.
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Case No. CIV-25-928-D
REPORT AND RECOMMENDATION
Before the Court is Defendants Oklahoma Department of Corrections
(ODOC), ODOC Director Steven Harpe (Harpe), and ODOC Warden Scott
Tinsley (Tinsley)’s Motion to Dismiss.1 Doc. 11. Plaintiff Brenda Andrew, an
Oklahoma inmate, filed a complaint seeking relief under 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1, et seq., for violating her constitutional rights at the Mabel Bassett
Correctional Center (MBCC). Doc. 1. Chief United States District Judge
Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge
for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Upon 	review, 	the 	undersigned 	recommends 	the 	Court 	grant 	Defendants’
motion to dismiss as to Count I (Eighth Amendment), and deny it as to Counts
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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II 	(First 	Amendment 	retaliation), 	III 	(First 	Amendment 	free 	exercise 	of
religion), and IV (RLUIPA).
I. 	Factual background and Plaintiff’s claims.
Plaintiff is the only woman on death row in Oklahoma. Doc. 1, at 6.
Plaintiff was “convicted of first-degree murder for the shooting death of her
estranged husband.” Id. at 1. Plaintiff states that she has been a model
prisoner 	who 	has 	“contributed 	positively 	to 	her 	community” 	during 	her
incarceration. Id. at 2. Plaintiff was in solitary confinement in the Special
Management Unit (SMU) for sixteen years before being “moved to general
population, where she got along well with others and did not commit any
infractions.” Id. She “was consistently rated ‘outstanding’ by [prison] officials”
under ODOC’s Female Custody Assessment Procedures until January 2024.
Id. at 8.
In January 2024, Plaintiff filed a writ of certiorari with the Supreme
Court, appealing the dismissal of her habeas petition. Id. at 1-2.2 Immediately
2 	On January 21, 2025, the Supreme Court vacated the Tenth Circuit’s
decision 	affirming 	the 	district 	court’s 	denial 	of 	Plaintiff’s 	habeas 	corpus
petition, 	and 	remanded 	Plaintiff’s 	case 	to 	the 	Tenth 	Circuit 	for 	further
proceedings. See Andrew v. White, 604 U.S. 86, 96 (2025). On January 13, 2026,
the Tenth Circuit affirmed the district’s court ruling on Plaintiff’s habeas
corpus petition. Andrew v. Tinsley, No. 15-6190, 2026 WL 89313, at *12 (10th
Cir. Jan. 13, 2026).
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after filing the writ, Plaintiff was transferred from general population and
returned to solitary confinement in the SMU. Id. at 2.
Plaintiff “is forced to remain in her cell for at least 23 hours each day
with 	no 	human 	interaction.” 	Id. 	She 	has 	received 	various 	“shifting
explanations for [the] move” to solitary confinement such as complaints by
other prisoners about her “‘appeals process,’” that it “was for ‘her own safety,’”
“that she was planning a suicide attempt with prescription medication,” and
an unsubstantiated rumor that she was “planning an escape.” Id. at 2, 7-8. Her
“placement in solitary confinement remains indefinite.” Id. at 2.
Plaintiff’s 	“overall 	physical 	health 	substantially 	declined” 	since 	the
return to solitary confinement and “she now suffers from back pain, high blood
pressure, weight gain from lack of meaningful access to exercise, and other
significant medical concerns.” Id. at 3. Her cell is “roughly 9 feet by 11 feet”
and only “contains a shower, sink, and toilet” with “a small tray pass in the
door through which she receives her meals.” Id. at 9. Her cell has “no exposure
to sunlight.” Id. at 12. And the SMU “smells like urine and body odor because
most women confined there are only able to shower three times each week.” Id.
Plaintiff cannot keep her room clean as she is only provided cleaning
supplies once per week, whereas “[i]n general population, . . . incarcerated
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people have daily access to cleaning supplies including a broom, mop, toilet
brush, dustpan, cleaning products, and rags.” Id.
Plaintiff is unable to work in the SMU3, and cannot “participate in any
prison programming.” Id. at 13. “She can request specific books” from the
library, “but she cannot go to the library or browse the catalogue to see what
books are available, so she has to make her requests without any information
about what is available.” Id. Reading is often Plaintiff’s sole pastime and she
“reads frequently and usually gets through a book a day,” but because she
cannot visit the library, sometimes “they bring her a substitution at the
prison’s sole discretion,” including books that “she has already read or are
series provided out of order.” Id. at 14.
She is occasionally “allowed into the ‘yard’—a small room with concrete
floors and no ceiling—for an hour.” Id. at 11. “The only exercise available to
her is jogging or walking in the yard during her recreation time.” Id. at 14. And
she can only jog or walk in a “concise circle” due to the size of the yard. Id. “She
is also restrained during her time in the yard with heavy handcuffs, making
exercise both uncomfortable and potentially dangerous.” Id.
3 	Plaintiff acknowledges that “she was also unable to work a job for most
of her time in general population due to her sentence.” Doc. 1, at 13.
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Her access to sunlight in the yard is also compromised as it “is completely
covered by chain link and sunlight only comes through partially.” Id. at 12.
There are also days where she never gets sunlight because of the “physical
orientation of the yard.” Id. She is sometimes taken into the yard before the
sun rises, which deprives of her sunlight. Id.
Plaintiff has “repeatedly informed Defendants of the difficulty of her
housing conditions and the detrimental effect it has on her well-being.” Id. at
3. Additionally, Plaintiff has “had issues with her visitation time arbitrarily
being moved around to inconvenient times for her friends and family.” Id. at
14. This “failure to give [her] a consistent, convenient visitation schedule
contributes further to her isolation, as it makes it more difficult for friends and
family to visit her.” Id. “[U]ntil recently, [Plaintiff] was only allowed access to
no-contact visits with friends and family” which “exacerbated her feelings of
isolation.” Id. at 14-15.
During her “few contact visits with family members,” she is restrained
by “handcuffs, a belly chain, shackles, and a black box” which “make[s] it
difficult for [her] to carry anything and to fully engage with her visitors.” Id.
at 15.
Additionally, “[Plaintiff] has also been subjected to more frequent strip
searches during her time in the SMU.” Id. at 16. The strip searches are
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conducted by female officers. Id. And she must remove all her clothing, “lift her
breasts and flip her hair over,” “squat[], pull[] her butt cheeks apart, and
cough[]” while an “officers stare at her while she does it.” Id. Plaintiff feels
humiliated during these searches and they “cause her to fear for her safety,
[because] . . . an MBCC Officer was charged with raping two women in the
prison” in 2025. Id.
Plaintiff is also a “devout Catholic” and has communicated to Defendants
the importance of regularly attending bible study and Catholic Mass which is
“very meaningful and extremely important to her spiritual wellbeing.” Id. at 4.
She has generally “been denied access to Bible Study and Catholic Mass since
January 2024, with [] two exceptions” in which she was “permitted to attend
Mass fully shackled.” Id. “The shackles impeded her ability to fully participate
in 	worship.” 	Id. 	She 	has 	also 	been 	prevented 	from 	having 	private 	and
confidential discussions with her priest as “they are only able to speak through
a narrow tray pass in her door.” Id. And the “noise and disruption [in] the SMU
prevents [her] from being able to fully engage in worship or have [] meaningful
religious experience[s] during [her] visits” with her priest. Id.
“[T]he other residents in the SMU” “frequently scream, shout, or have
other audible and ongoing displays of distress and anger, which makes the
environment chaotic, loud, and disruptive.” Id. at 13. As a result, Plaintiff’s
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“sleep is constantly disrupted . . . [because] the other residents [] scream at all
hours of the night.” Id.
Plaintiff 	alleges 	Defendants’ 	conduct 	has 	resulted 	in 	the 	following
negative medical and mental health issues:
• 	“[S]tress, 	anxiety, 	headaches, 	insomnia, 	lethargy,
depression, and paranoia”;
• 	Inability “to receive prompt medical care because of a policy
that prohibits” other prisoners “from being in the medical
unit when a person from the SMU is there” which results in
her appointments being consistently delayed;
• 	Respiratory issues because of frequent use of pepper spray
by prison officials “when people are not behaving” as “the gas
permeates [her] room, and she has no window or functioning
ventilation”;
• 	“[B]ack problems due to her confinement in the SMU,” which
she has not received medical attention as “it is difficult for
her to get an appointment in the medical unit”;
• 	Worsening headaches that have not been resolved due to
officers repeatedly “telling her that the canteen is out of
ibuprofen”;
• 	Tooth pain, which she has been unable to receive care for
“despite repeated requests”;
• 	Increased blood pressure;
• 	Weight gain “because of the lack of meaningful opportunities
for exercise and because she finds it difficult to refrain from
eating everything given to her since she has nothing else to
occupy her time”;
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• 	Sleep issues due to “the noise of other SMU residents” and
lack of “exposure to daylight” which “affects her circadian
rhythm and causes [her] to have difficulty sleeping at night”;
• 	Physical 	pain 	due 	to 	her 	restraints 	which 	“leave
indentations on her arms” including “permanent bruises on
her lower arms from the handcuffs” and “permanent marks
on her right ankle from the leg restraints”; and
• 	Overall 	declining 	mental 	health 	due 	to 	her 	prolonged
isolation.
Id. at 17-21.
Plaintiff seeks declaratory relief that “Defendants’ conduct violates 42
U.S.C. § 1983; the First, Eighth, and Fourteenth Amendments to the United
States Constitution; 18 U.S.C. § 3599; and [RLUIPA].” Id. at 4-5. She also seeks
“injunctive relief as fashioned by [the] Court to provide relief from the mental
and physical impacts of her indefinite solitary confinement and to redress the
other violations of her rights.” Id. at 5.
“[T]o redress the deleterious psychological and physical effects of her
long-term isolation in solitary confinement,” she “seeks confidential mental
health counseling and treatment, and other appropriate medical care.” Id. “The
relief [she] seeks is structural in nature and involves changes to the policies
and procedures set and controlled by Defendants.” Id. at 5-6. Defendants
Tinsley and Harpe are sued in their official capacities.
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II. 	Standard of review.
“To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff also raises a claim under RLUIPA. Doc. 1, at 33. To state a valid
claim for relief under RLUIPA, Plaintiff must allege: (1) that the prison’s policy
“implicates [her] religious exercise”; (2) “that the relevant exercise of religion
is 	grounded 	in 	a 	sincerely 	held 	religious 	belief” 	and 	“not 	some 	other
motivation”; and (3) that the prison’s policy “substantially burden[s] that
exercise of religion.” Holt v. Hobbs, 574 U.S. 352, 360-61 (2015).
“[A] complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010).
“In deciding a Rule 12(b)(6) motion, a federal court may only consider
facts alleged within the complaint.” County of Santa Fe, N.M. v. Pub. Serv. Co.
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of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). So, the undersigned does not
consider new facts or legal theories asserted in Plaintiff’s response to the extent
that they deviate from those in the complaint. See Hayes v. Whitman, 264 F.3d
1017, 1025 (10th Cir. 2001) (“While it might be appropriate for a court to
consider additional facts or legal theories asserted in a response brief to a
motion to dismiss if they were consistent with the facts and theories advanced
in the complaint, a court may not consider allegations or theories that are
inconsistent with those pleaded in the complaint.” (internal citation omitted)).
III. 	Analysis.
A. 	Exhaustion.
As an initial matter, Defendants contend that Plaintiff failed to exhaust
her administrative remedies for most of her claims. Doc. 11, at 13.
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust
all available administrative remedies before resorting to an action in federal
court:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). “[E]xhaustion requirements are designed to . . . give the
agency a fair and full opportunity to adjudicate their claims” before a plaintiff
files an action in federal court. Woodford v. Ngo, 548 U.S. 81, 90 (2006). “There
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is 	no 	question 	that 	exhaustion 	is 	mandatory 	under 	the 	PLRA 	and 	that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
211 (2007). To exhaust administrative remedies, the plaintiff must “us[e] all
steps that the agency holds out, and [do] so properly (so that the agency
addresses the issues on the merits).” Woodford, 548 U.S. at 90 (internal
quotation marks omitted); see Fields v. Okla. State Penitentiary, 511 F.3d 1109,
1112 (10th Cir. 2007) (“To exhaust administrative remedies an inmate must
properly 	comply 	with 	grievance 	procedures; 	substantial 	compliance 	is
insufficient.”). “An inmate who begins the grievance process but does not
complete it is barred from pursuing a § 1983 claim under [the] PLRA for failure
to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002).
1. 	ODOC’s administrative grievance procedures.
Plaintiff is an ODOC inmate, so ODOC’s grievance procedures apply to
her.4
4 	The 	Court 	takes 	judicial 	notice 	of 	ODOC 	Policy 	OP-90124,
https://oklahoma.gov/content/dam/ok/en/doc/documents/policy/section-
09/op090124.pdf (last visited Jan. 21, 2026), which governs the grievance
procedures for Oklahoma inmates such as Plaintiff. See Gist v. Anderson, No.
CIV-12-1208-HE, 2013 WL 6909470, at *l-2 (W.D. Okla. Dec. 30, 2013) (taking
judicial notice of an ODOC prison policy because plaintiff had referenced the
policy in his complaint and it was “a judicially noticeable public record”).
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To exhaust under ODOC’s grievance policy, Plaintiff was first required
to attempt informal resolution with a staff member. ODOC Policy OP-90124,
§ V. If that attempt proved unsuccessful, Plaintiff could then file a request to
staff (RTS). Id. § V(A). And, if she remained dissatisfied, Plaintiff had the
opportunity to file a grievance. Id. § VI(A). Plaintiff could also bypass the first
two steps, and proceed directly with an “emergency” grievance, if her issue was
one “of a sensitive nature or when substantial risk of personal injury, sexual
assault, or other irreparable harm exists.” Id. § IX.
Finally, if Plaintiff remained dissatisfied with her grievance results, she
could then appeal to the ODOC administrative review authority (ARA). Id.
§ VIII(A)-(B).
2. 	Defendants’ argument that Plaintiff failed to exhaust
various claims.
Based on nonexhaustion, Defendants seek dismissal of most of Plaintiff’s
claims except for her claims related “to moving her housing location and access
to weekly religious services.” Doc. 11, at 15-17. Defendants maintain that
Plaintiff did not exhaust her claims that:
[S]he has been denied mental health counseling and treatment,
denied 	prompt 	medical 	care 	due 	to 	ODOC’s 	policies; 	specific
allegations includ[ing]: a complaint of pepper spray used on other
inmates causing her eyes to steam and coughing, a complaint of
back problems and discomfort, lack of access to medical unit at her
leisure for Ibuprofen, denial of access to a dentist for tooth pain
and a filling, a complaint of high blood pressure, a complaint of
weight gain due to lack of exercise and no microwave for her to
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cook her own meals, a complaint of circadian rhythm interruption,
bruises on her wrists from handcuffs, marks or scarring on her
ankles from shackles, and mental health distress due 	to her
isolation.
. . .
[That] she has control of the lighting in her cell but not for the
lights in the hallway which shine into her cell and disrupt her
sleep, some days she is taken into the yard before sunrise and
receives no sunlight on those days, the smell in SMU is terrible
because other inmates are only able to shower three days a week,
she is only able to access cleaning supplies for her cell once a week,
other inmates in SMU yell and scream disrupting her sleep, she
cannot work a job while in SMU, she is unable to go the library
and chose her own books, she only has access to her tablet and
radio the one hour a day she is in the yard, visitation hours with
family and friends has been inconsistent and inconvenient, visits
from friends and family are no contact, her restraints make it
difficult to fully engage with visitors, and she is subject to more
frequent strip searches in SMU.
Id. at 16-17 (internal citations omitted).
a. 	Plaintiff’s 	medical 	and 	general 	confinement
complaints.
Plaintiff contends that “[t]here is no requirement that [she] include in a
grievance every single fact that supports her claim, [and] the forms, which are
quite short, [do not] allow for such detail.” Doc. 23, at 14. The undersigned
agrees.
On October 6, 2024, Plaintiff submitted an RTS requesting that she be
moved back to general population after attempting to resolve her complaints
with staff informally. Doc. 1, at 25. She then filed another RTS on November
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18, 2024. Id. Defendant Tinsley responded to the October 6 RTS on October 24,
2024, and informed Plaintiff “that her request ‘has not yet been approved.’” Id.
He responded to the November 18 RTS on December 5, 2024, stating that “‘this
has previously been addressed.’” Id.
Plaintiff submitted a grievance on the issue on December 5, 2024, to
which she received the following response:
This subject has been answered and addressed several times to you
and your legal team as to why you are housed in the [SMU].
Id. at 25-26. She then filed an appeal to the ODOC ARA on January 6, 2025,
which was denied on February 10, 2025. Id. at 26.
Given that the medical problems and lack of privileges in the SMU that
Plaintiff 	complains 	of 	flow 	directly 	from 	her 	being 	moved 	to 	solitary
confinement, her “grievance [] sufficiently alert[ed] prison officials as to the
nature of the alleged wrong.” Davis v. Oklahoma Dep’t of Corr., No. CIV-06-
0229-HE, 2007 WL 869650, at *10-11 (W.D. Okla. Mar. 20, 2007) (“When the
administrative rulebook is silent, a grievance suffices if it alerts the prison to
the nature of the wrong for which redress is sought. As in the notice-pleading
system, the grievant need not lay out the facts, articulate legal theories, or
demand particular relief. All the grievance need do is object intelligibly to some
asserted shortcoming.” (quoting Kikumura v. Osagie, 461 F.3d 1269, 1289
(10th Cir. 2006), overruled on other grounds by Twombly, 550 U.S. 544))).
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Therefore, the undersigned finds that Plaintiff’s claims were exhausted, and
dismissal of Plaintiff’s complaint is not warranted on this ground.
B. 	Eleventh Amendment immunity.
Plaintiff sues Defendants Tinsley and Harpe solely in their official
capacities. See Doc. 1, at 6. Defendants maintain that they are immune from
suit under the Eleventh Amendment because they are not “‘person[s]’ for
purposes of 42 U.S.C. § 1983.” Doc. 11, at 17-18.
Section 1983 is a “remedial vehicle for raising claims based on the
violation of constitutional rights.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9
(10th Cir. 2016). Congress, in creating a private right of action under § 1983,
did not, however, abrogate state sovereign immunity. See Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 65-67 (1989). And neither States nor state officials
sued in their official capacities are considered “persons” under 42 U.S.C. §
1983. Id. at 71.
“The 	Eleventh 	Amendment 	is 	a 	jurisdictional 	bar 	that 	precludes
unconsented suits in federal court against a state and arms of the state.”
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (internal quotation
marks omitted). Thus, claims for damages against a state official in his official
capacity are construed as claims against the State and, so, are barred by the
Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169 (1985)
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(holding that a suit against an individual acting in an official capacity is
properly 	treated 	as 	a 	suit 	against 	the 	State 	itself 	and 	“the 	Eleventh
Amendment bars a damages action against a State in federal court”); see also
White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (holding that Eleventh
Amendment sovereign immunity barred § 1983 claims “for money damages”
against prison officials in their official capacities).
Here, 	Plaintiff 	sues 	Defendants 	Tinsley 	and 	Harpe 	for 	prospective
injunctive relief. See Doc. 1, at 4-5. “Under Ex parte Young, [209 U.S. 123
(1908),] a plaintiff may avoid the Eleventh Amendment’s prohibition on suits
against states in federal court by seeking to enjoin a state official from
enforcing an unconstitutional statute.” Cressman v. Thompson, 719 F.3d 1139,
1146 n.8 (10th Cir. 2013). “[F]or the Ex parte Young exception to apply,
plaintiffs must show that they are: (1) suing state officials rather than the state
itself, 	(2) 	alleging 	an 	ongoing 	violation 	of 	federal 	law, 	and 	(3) 	seeking
prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167
(10th Cir. 2012). Plaintiff is alleging an ongoing violation of her constitutional
rights and federal law, specifically under the First, Eighth, and Fourteenth
Amendments, so the undersigned finds that Defendants Tinsley and Harpe are
not 	immune 	from 	suit 	in 	their 	official 	capacities 	as 	Plaintiff 	is 	seeking
prospective injunctive relief. See Will, 491 U.S. at 71 n.10 (“[A] state official in
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his or her official capacity, when sued for injunctive relief, would be a person
under § 1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State.’”) (emphasis added).
Plaintiff also sues Defendants for injunctive and declaratory relief under
RLUIPA. Doc. 1, at 33-34. “RLUIPA itself contemplates not just traditional Ex
parte Young actions against individual officials but also claims directly against
governmental entities.” Yellowbear v. Lampert, 741 F.3d 48, 53 n.1 (10th Cir.
2014). ODOC is an arm of the state of Oklahoma, and thus shares Oklahoma’s
sovereign immunity. See Eastwood v. Dep’t of Corr. of State of Okla., 846 F.2d
627, 631-32 (10th Cir. 1988) (“We conclude that the DOC is an arm of the state
and should be entitled to absolute immunity.”). “A person may assert a
violation of [RUILPA] as a claim or defense in a judicial proceeding and obtain
appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a). RUILPA
defines “government” as:
(i) a State, county, municipality, or other governmental entity
created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of
an entity listed in clause (i); and
(iii) any other person acting under color of State law.
42 U.S.C. § 2000cc-5(4)(A)(i)-(iii).
Defendants Tinsley and Harpe are sued in their official capacities, Doc.
1, at 6, for declaratory and injunctive relief which is permitted by RLUIPA. See
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Warner v. Patterson, 534 F. App’x 785, 788 (10th Cir. 2013) (“The only relief
available . . . under RLUIPA is declaratory and injunctive relief against
defendants in their official capacities.”); see also Reed v. Bryant, 719 F. App'x
771, 777 (10th Cir. 2017) (stating that a RLUIPA claim “may be brought
against individual prison officials in their official capacities.”). And, ODOC is
an appropriate Defendant for Plaintiff’s claims as a state governmental entity
under § 2000cc-5(4)(A)(i), so dismissal is not warranted on this ground.
C. 	Plaintiff 	fails 	to 	state 	a 	claim 	under 	the 	Eighth
Amendment.
Plaintiff alleges that Defendants have violated “contemporary standards
of human decency [which] constitutes cruel and unusual treatment prohibited
by the Eighth and Fourteenth Amendments” by placing her in “prolonged and
indefinite solitary confinement without sufficient justification.” Doc. 1, at 28.
Defendants maintain that she fails to state a claim as she “has not pled any
facts indicating she is in substantial or excessive risk of serious harm, nor
alleged any conditions that could be easily recognizable as needing immediate
medical attention.” Doc. 11, at 25. The undersigned agrees.
“An inmate making an Eighth Amendment claim for constitutionally
inadequate conditions of confinement must allege and prove an objective
component and subjective component associated with the deficiency.” Shannon
v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). “First, the deprivation alleged
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must be objectively ‘sufficiently serious,’ depriving the inmate of ‘the minimal
civilized measure of life’s necessities.’” Barney v. Pulsipher, 143 F.3d 1299,
1310 (10th Cir. 1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
“Second, the official must have a ‘sufficiently culpable state of mind,’ which in
this context means the official must exhibit ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate.” Id. (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). This means the prison official “knows of and
disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at
837.
“An inquiry into conditions of confinement by necessity relies on the
particular facts of each situation.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th
Cir. 2001). These include the “‘circumstances, nature, and duration’ of the
challenged conditions.” Id. (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th
Cir. 2000)). “In general, the severity and duration of deprivations are inversely
proportional, so that minor deprivations suffered for short periods would not
rise to an Eighth Amendment violation, while ‘substantial deprivations of
shelter, food, drinking water, and sanitation’ may meet the standard despite a
shorter duration.” Id. (quoting Johnson, 217 F.3d at 732).
The undersigned finds that the alleged deprivations are not “sufficiently
serious” under the Eighth Amendment. Plaintiff acknowledges that she can
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regularly have visits with family members, even if only within the confines of
an inconsistent visitation time schedule. Doc. 1, at 14-15. She is also able to
visit her priest. Id. at 4. Plaintiff “maintains a degree of social contact and
environmental stimuli” in solitary confinement, which “does not violate [her]
Eighth Amendment right to be free from cruel and unusual punishment.”
Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739, 756 (10th Cir. 2014).
And solitary confinement for “twenty-three hours a day for five days a week
and twenty-four hours the remaining two days” does not in itself constitute
cruel 	and 	unusual 	punishment 	where 	the 	inmate’s 	“‘minimal 	physical
requirements—food, shelter, clothing and warmth’ [are] met.” Hill v. Pugh, 75
F. App’x 715, 721 (10th Cir. 2003); see, e.g., Grissom v. Roberts, 902 F.3d 1162,
1174-75 (10th Cir. 2018) (holding that prison officials were entitled to qualified
immunity where prisoner in solitary confinement had regular communication
“with other inmates and staff and [was] afforded regular exercise (including
outdoor recreation) and regular access to reading materials and to medical and
mental health care). Plaintiff has alleged no deprivations of food, shelter,
clothing, or warmth, so the undersigned recommends dismissal of Plaintiff’s
Eighth Amendment claim.5
5 	Defendants also raise the defense of qualified immunity for Plaintiff’s
Eighth Amendment claim. See Doc. 11, at 18-21. Because Plaintiff fails to state
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D. 	Plaintiff states a claim for First Amendment retaliation.
Plaintiff alleges that Defendants Harpe and Tinsley retaliated against
her for filing a petition for writ of certiorari with the United States Supreme
Court by immediately moving her to solitary confinement. Doc. 1, at 30.6
Defendants maintain that Plaintiff “cannot show that she was chilled from
continuing to engage in further activity, nor that her movement back to SMU
(which aligned with her death sentence) was substantially motivated by her
filing an appeal.” Doc. 11, at 28. The undersigned disagrees.
“It is well-settled that ‘[p]rison officials may not retaliate against or
harass an inmate because of the inmate’s exercise of [her] right of access to the
courts.” Gee, 627 F.3d at 1189 (quoting Smith v. Maschner, 899 F.2d 940, 947
(10th Cir. 1990)). To state a claim for retaliation, a plaintiff must allege:
(1) that [she] was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an
an Eighth Amendment claim, the undersigned need not address qualified
immunity.
6 	Plaintiff 	also 	references 	the 	Fourteenth 	Amendment 	under 	her
retaliation claim in her complaint, see Doc. 1, at 29, 31, but the parties’ briefs
only address retaliation in the First Amendment context. See Docs. 11 & 23.
So, the undersigned does not read Plaintiff’s complaint as raising a Fourteenth
Amendment retaliation claim. See County of Sacramento v. Lewis, 523 U.S.
833, 842 (1998) (“‘[W]here a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing these claims.’” (quoting Albright v.
Oliver, 510 U.S. 266, 273 (1994))).
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injury 	that 	would 	chill 	a 	person 	of 	ordinary 	firmness 	from
continuing to engage in that activity; and (3) that the defendant’s
adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). “[A] plaintiff ‘must
prove that ‘but for’ the retaliatory motive, the incidents to which [s]he refers,
including the disciplinary action, would not have taken place.’” Peterson v.
Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quoting Smith, 899 F.2d at 949-
50).
Defendants concede that Plaintiff can establish that she was engaged in
a constitutionally protected activity, but they maintain that she still fails to
state a claim as her allegations “are merely conclusory and offer no support as
evidence other than her movement back to SMU coincid[ing] with a habeas
corpus appeal.” Doc. 11, at 28.
Plaintiff meets all elements of a retaliation claim. The second prong is
met as a transfer to less favorable conditions than previously enjoyed as
punishment for filing an appeal is the type of punishment that would chill a
person of ordinary firmness from continuing with the appeals’ process. See
Wade v. Smith, 2018 WL 4565566, at *6 (D. Colo. Sept. 21, 2018) (“[T]ransfer
to solitary confinement as punishment for submitting grievances to prison
officials is the sort of punishment that would chill a person of ordinary firmness
from continuing to submit grievances.”).
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Plaintiff 	plausibly 	pleads 	that 	“but 	for” 	Defendants’ 	motivation 	of
punishing her for exercising her right to access the Courts, she would not have
been placed in solitary confinement. “Temporal proximity between protected
action and the alleged retaliatory action ‘can be circumstantial evidence of
retaliatory intent.’” Frederick v. Hamilton, No. CIV-24-847-SLP, 2025 WL
2101974, at *6 (W.D. Okla. June 30, 2025) (quoting McCook v. Springer Sch.
Dist., 44 F. App’x 896, 907 (10th Cir. 2002)), adopted, 2025 WL 2098358 (W.D.
Okla. July 25, 2025). The temporal proximity between the protected action and
Defendants’ retaliation is extremely close here—three days after the filing of
the writ. Doc. 1, at 7, 31. And Plaintiff had only one minor infraction before
being suddenly plucked from general population and placed in the SMU. Id. at
8-9.
As Plaintiff correctly notes, Doc. 23, at 26, “the allegations may be
improbable,” but if “they are not implausible” then dismissal is not warranted.
Gee, 627 F.3d, at 1189. Although “discovery may reveal contrary evidence,” “a
definitive resolution is not the issue” currently before this Court. See Lucas v.
Turn Key Health Clinics, LLC, 58 F.4th 1127, 1143 (10th Cir. 2023). So,
dismissal is not warranted as Plaintiff sufficiently alleges all elements of a
retaliation claim.
E. 	Plaintiff states claims under the First Amendment 	and
RLUIPA.
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Plaintiff alleges that Defendants Tinsley and Harpe violated her right to
free exercise of her religion (Count III), and that Defendants Harpe, Tinsley,
and ODOC violated RLUIPA by depriving her of “the ability to participate in
Bible Study, attend Mass, and fully engage in meaningful visits with her priest
during her time in solitary confinement” (Count IV). Doc. 1, at 31-34.
Defendants argue that the prison has “provided [her] with reasonable
accommodations for her to exercise her religion, namely weekly visits with a
chaplain, access to religious books, and even allowing her to attend mass on
Easter 	and 	Christmas.” 	Doc. 	11, 	at 	27. 	Defendants 	maintain 	that 	any
restrictions 	on 	Plaintiff’s 	exercise 	of 	religion 	are 	to 	advance 	ODOC’s
“compelling interest in limiting a death row inmate’s access to certain services
as transporting high security inmates compromises the institutional security
and safety of staff and other prisoners.” Id. at 32. And Defendants argue that
they have “employ[ed] the least restrictive methods by allowing [her] religious
accommodations to exercise her faith.” Id.
Prisons may not prohibit the free exercise of religion. See O’Lone v. Est.
of Shabazz, 482 U.S. 342, 348 (1987) (“Inmates clearly retain protections
afforded by the First Amendment, including its directive that no law shall
prohibit the free exercise of religion.” (internal citations omitted)). To state a
valid claim for relief under the First Amendment, Plaintiff must allege that
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Defendants “substantially burdened” her “sincerely held religious belief.” Holt
v. 	Hobbs, 	574 	U.S. 	352, 	361 	(2015). 	This 	entails 	alleging 	“conscious 	or
intentional interference with [her] free exercise rights.” Gallagher v. Shelton,
587 F.3d 1063, 1070 (2009) (quoting Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir.
2006)).
RLUIPA provides in part that:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
unless the government demonstrates that imposition of the burden
on that person −
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a).
1. 	First Amendment.
“[A]t the motion-to-dismiss stage,” Plaintiff “adequately state[s] a First
Amendment free exercise claim if the complaint alleges that Defendants
substantially burdened the exercise of [her] sincerely-held religious belief.” See
Williams v. Wilkinson, 645 F. App’x 692, 704 (10th Cir. 2016).
As Plaintiff notes, Doc. 23, at 25, inquiry into “whether the government’s
actions may be justified by a legitimate penological interest is not relevant at
the pleading stage.” Smith v. Williams, 2021 WL 4947353, at *10 (D. Colo. Oct.
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13, 2021), adopted sub nom. Smith v. Crockett, 2021 WL 5736434 (D. Colo. Dec.
2, 2021). Plaintiff alleges that she “is a devout Catholic” and “has been denied
access to Bible Study and Catholic Mass since January 2024, with only two
exceptions.” Doc. 1, at 4. She also states that she is unable to “participate in
the Eucharist or Confession” fully when visiting with her priest as she is
currently only able to see her priest at her cell door where conversations are
not confidential or private. Id. at 24-25.
Plaintiff 	alleges that she has a sincerely held religious 	belief that
Defendants substantially burdened, so Defendants’ motion to dismiss her First
Amendment claim should be denied. See Makin v. Colo. Dep’t of Corr., 183 F.3d
1205, 1212-13 (10th Cir. 1999) (holding district court properly found for
Plaintiff on First Amendment free exercise claim where “defendants’ actions
substantially diminished his qualitative spiritual experience” of Ramadan).
2. 	RLUIPA.
Likewise, 	Plaintiff’s 	RLUIPA 	claim 	survives 	Defendants’ 	motion 	to
dismiss. “To survive a motion to dismiss,” Plaintiff is “required to allege only
that [her] request[s] [were] motivated by a sincerely held religious belief and
that [her] exercise of that belief has been substantially burdened by the
government.” Williams, 645 Fed. App’x at 699. As explained above, Plaintiff’s
complaint adequately alleges that her requests were motivated by her Catholic
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beliefs and that Defendants substantially burdened her exercise of those
beliefs. See Strope v. Cummings, 381 F. App’x 878, 881 (10th Cir. 2010) (“While
the analysis under [RLUIPA and the First Amendment] differs in some
respects, the principle dispositive here is the same: [the plaintiff] must show
that 	defendants’ 	conduct 	imposed 	a 	‘substantial 	burden’ 	on 	his 	religious
practice.”); see, e.g., Khan v. Barela, 808 F. App’x 602, 614 n.12 (10th Cir. 2020)
(“[B]ecause 	Congress 	intended 	‘substantial 	burden’ 	under 	RLUIPA 	to 	be
interpreted consistent with ‘the Supreme Court’s articulation of the concept of
substantial 	burden 	on 	religious 	exercise,’ 	[the 	Court’s] 	discussion 	of
substantial burden in . . . RLUIPA cases applies as well to a First Amendment
free-exercise claim.” (quoting Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315
(10th Cir. 2010)) (internal citations omitted). So, Defendants’ motion to dismiss
Plaintiff’s RLUIPA claim is denied.
IV. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Defendants motion to dismiss, in part, and deny Defendants’ motion to
dismiss, in part. Specifically, the Court should dismiss Plaintiff’s Eighth
Amendment conditions of confinement claim and deny the rest of Defendants’
motion to dismiss, Doc. 11.
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The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court on or before
February 11, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72(b)(2). The undersigned further advises the parties that failure to make a
timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal questions contained herein. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred
to the undersigned Magistrate Judge in this matter.
ENTERED this 21st day of January 2026.
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