Colorado’s second-highest court has reinstated a lawsuit against the state’s Department of Corrections over its regulation on inmates’ name changes, siding with a man who is representing himself from prison.

The department’s policy requires inmates to use their “commitment name,” meaning their name upon entering prison. While inmates may legally change their names and use those in addition to their commitment names, Patrick Duray Portley-El believed the policy violated his rights under a federal law protecting religious expression.

Portley-El, who converted to an American sect of Islam shortly after his incarceration, began using his religious name by adding the suffix “-El.” He sued the Department of Corrections in 2010 after employees denied him certain services for failing to use his commitment name. Although a lower court judge decided Portley-El’s lawsuit was moot in 2020 because his current facility permits him to use his religious name, a three-judge panel for the Court of Appeals was unconvinced the controversy was over.

“(N)o prison official has ever given any assurance, much less made an official declaration or promise, that the DOC will not resume enforcing the naming policy at some point in the future,” wrote Judge Elizabeth L. Harris in a July 28 opinion. “The DOC has simply confirmed that its ‘current practice’ is not to enforce the policy at one of its facilities.”

Portley-El was formerly incarcerated at the Kit Carson Correctional Center, a now-closed, privately-operated prison. While there, he initiated a lawsuit against the corrections department and individual employees for limiting his religious exercise. The prison allegedly denied him services for adding “-El” to his commitment name — Portley — and also allegedly prohibited Portley-El and other members of his sect from observing Ramadan.

Following years of proceedings in the trial court, multiple appeals and a November 2017 jury trial, the corrections employees prevailed over Portley-El. He appealed once more to the Court of Appeals, where a three-judge panel evaluated his name-change claim against the department itself.

Portley-El had alleged a violation of his rights under the Religious Land Use and Institutionalized Persons Act, a federal law applicable to inmates that prohibits the government from imposing a substantial burden on a person’s religious exercise unless it furthers a compelling governmental interest and is the least restrictive means of carrying out such a goal.

A panel for the Court of Appeals found the trial judge’s prior ruling in favor of the corrections department to be confusing, and in July 2019 ordered a new analysis of Portley-El’s RLUIPA claim.

“Is it time to ‘pull the plug’ on this long-running litigation?” wrote then-District Court Chief Judge Michael K. Singer of Kit Carson County during his subsequent review. “The parties have fought long and well, but I agree that no further hearings are necessary, and that circumstances intervening over the past decade have now mooted this case.”

The Department of Corrections argued Portley-El was now housed at Buena Vista Correctional Complex, where the “current practice” was to allow inmates to include religious suffixes on their names. Consequently, a favorable decision from the court would have no effect for Portley-El. Singer agreed it was “not likely” the department would penalize Portley-El in the future for using his religious name, so the case was moot.

It “defies common sense” that the department would change course once the case was dismissed, Singer believed, because if the declarations of the prison officials were false, “they could face criminal consequences.”

Portley-El appealed again to the Court of Appeals, arguing the department had not, in fact, changed its policy. He claimed the government was attempting to evade a court review of the naming policy, and that it was a fundamental violation of his religious rights under RLUIPA to require indigent inmates like Portley-El to pay to legally change their name in order for the prison to recognize it.

“Reforms taken under the pressure of litigation generally does not moot claims. If there is a concrete reason to believe that the violations is (sic) likely to recur, the case cannot be mooted,” he wrote.

The government countered that even if Portley-El’s lawsuit was not moot, the policy of requiring inmates to use their commitment names did not violate RLUIPA because it advanced a compelling governmental interest: maintaining order and security in prisons.

Using inmates’ commitment names, argued the Colorado Attorney General’s Office, enables corrections staff to more easily classify and compute the sentences of detainees, and to control the inmates’ movement.

“Additionally, staff members’ identifying and knowing an inmate by their commitment name is vital for efficient and quick access to an inmate’s records during medical emergencies and facility disruptions,” wrote Second Assistant Attorney General Karen Lorenz.

The Court of Appeals panel reviewing Portley-El’s latest appeal disagreed the dispute over the department’s naming policy was dead. There was no indication from prison officials, wrote Harris, that the government had suspended the naming policy at any facility other than Portley-El’s, nor did they commit to permanently suspending the policy there either.

“Most importantly, the naming policy is still in effect: the DOC has not amended the relevant administrative regulation,” Harris explained. She added that the department had asserted its right to enforce the policy as-is throughout the entirety of the litigation and Portley-El’s appeal.

It was still a live controversy, the panel determined, whether the prison had imposed a substantial burden on Portley-El’s religious expression, and did so in the least restrictive manner while advancing a compelling interest. Harris acknowledged the government had offered security and logistical reasons for why prisons had an interest in using inmates’ commitment names.

But the department, she cautioned, “does not point to any evidence in the record to support a finding of ‘least restrictive means’.”

The panel returned the case to the trial court for further proceedings on the naming policy.

The case is Portley-El v. Colorado Department of Corrections.