This matter comes before the Court on the Defendants' motion for summary judgment. (Defs.' Mot. Summ. J., Docket Number ("DN") 32.) The Plaintiffs have responded. (Pls.' Resp., DN 42.) The Defendants have replied. (Defs.' Reply, DN 44.) Fully briefed, this matter is now ripe for adjudication. For the following reasons, the Defendants' motion is GRANTED.
Plaintiffs Randy Haight, Robert Foley, Roger Epperson, Vincent Stopher, and Gregory Wilson (collectively referred to hereinafter as "Plaintiffs") are death-row inmates imprisoned at the Kentucky State Penitentiary ("KSP") in Eddyville, Kentucky. Representing themselves pro se, they bring suit against LaDonna Thompson, Commissioner of the Kentucky Department of Corrections ("KDOC"); James Erwin, Director of Operations/Programs for KDOC; Al Parke, Deputy Commissioner of KDOC; Philip Parker, Warden of KSP; Ernest Williams, Deputy Warden of Security of KSP; Alan Brown, Deputy Warden of Programs of KSP; Michael Ray, Unit Administrator of KSP; and Robert ("Rocky") Roberts, Program Director of KSP (collectively referred to hereinafter as "Defendants").
Plaintiffs Haight and Wilson assert that the Defendants violated their right to Free Exercise as protected by the First Amendment as well as the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"), by changing prison policy in a way that prohibits them from receiving visits from with the clergy members of their choice.
Plaintiffs Foley, Epperson, and Stopher claim that the Defendants violated their Free Exercise rights and RLUIPA by denying them access to a sweat lodge for use in the practice of Native American religious ceremonies and by not providing certain foods for use in a Native American powwow to be held at the prison.
Finally, Plaintiff Haight alleges that he and others were retaliated against in violation of the First Amendment for filing grievances concerning the above-stated claims.
A.Facts Concerning Clergy Visits
The Kentucky Department of Corrections maintains policies and procedures that govern the operation of Kentucky's correctional facilities. In addition to the correctional policies and procedures ("CPPs"), each facility, like KSP, may create and maintain its own institutional policies and procedures ("IPPs"), which apply specifically to that facility. To the extent that CPPs and IPPs conflict with one another, CPPs issued by the Kentucky Department of Corrections control over facility-specific policies. At issue in this case are CPP 16.1 and KSP- specific procedures, IPP 16-01-01 and IPP 23-01-03. CPP 16.1 and IPP 16-01-01 govern visitation procedures at KSP, while IPP 23-01-03 applies to religious services at the facility. Plaintiffs Haight and Wilson claim that a change in visitation policy violates their Free Exercise rights and RLUIPA because it prohibits them from receiving visits from the clergy member of their choice.
Prior to June 2010, clergy were allowed to visit inmates at KSP pursuant to IPP 16-01-01.
(See IPP 16-01-01, DN 1-1, pp. 28-37.) That procedure specifically provided that clergy could make "Special Visits" for "a family death, illness, or similar situation." (Id. at pp. 35-36.)
In practice, however, clergy and their family members, including minor children, were allowed to visit KSP inmates for any number of reasons, not just those outlined in the policy. During a review of prison procedures, Defendant Ernest Williams, a deputy warden at KSP, discovered that the visitation policy, as liberally applied to clergy under the "Special Visits" provision, conflicted with CCP 16.1. (William Aff., DN 32-2, p. 7.) CPP 16.1 did not contain a "Special Visits" provision similar to IPP 16-01-01. In fact, subject to certain exceptions, the version of CPP 16.1 applicable at the time of Williams's review provided that "[a]n individual shall not be allowed to visit an inmate unless his name appears on the approved visitation list." (CCP 16.1, DN 32-1, p. 4.) That policy also stated that "[a] visitor shall not be placed on more than one (1) inmate [visitation] list[.]" (Id.) As the policy was applied at KSP, however, clergy were allowed to visit an inmate after receiving approval from the facility, did not have to be on an inmate's approved visitation list, and could visit multiple inmates during a single trip to the prison.
Additionally, their children were sometimes allowed to accompany them even though they were not included on any inmate's visitation list.
Around May 28, 2010, Pastor Ralph Hale wrote to Defendant Rocky Roberts requesting to visit Ralph Baze, a death-row inmate who is not a party to this action. (See Email of May 28, 2010, DN 1-1, p. 6.) On June 3, 2010, Defendant Williams denied Pastor Hale's request. (See Letter of June 3, 2010, DN 1-1, p. 4.) Williams denied the request even though he noted that Pastor Hale had "been approved on many occasions[,]" and directed him to "ask the inmate to place [Pastor Hale] on [the inmate's] visitation list." (Id.) Williams also denied a similar request by Pastor Hale to visit Plaintiff Randy Haight. (See Letter of June 21, 2010, DN 1-1, p. 8.)
These visitation requests were denied because Pastor Hale was not on either inmates' visitation list, and his visit would have violated CPP 16.1 if allowed. (See William Aff., DN 32-2, p. 7.)
Similar to Haight, Plaintiff Gregory Wilson was denied visits from another clergyman, Pastor Gerry Otahal.
Soon after the visits were denied, Plaintiff Haight filed a grievance seeking restoration of clergy visits in accordance with KSP's previous application and interpretation of CCP 16.1 and IPP 16-01-01. (See Grievance Number #10-07-005-G, DN 1-1, p. 1.) Haight's chief argument -- developed in more detail through the grievance process -- was that regardless of the terms of CCP 16.1 and IPP 16-01-01, clergy visits were governed by IPP 23-01-03. Under the heading "Religious Programming," the version of IPP 23-01-03 applicable at the time of Haight's grievance stated, "An inmate visit by a Certified Religious Leader shall be conducted in the visitation area during regular visitation. The Program Director shall approve this visit after verification of credentials." (IPP 23-01-03, DN 1-1, p. 42; see Grievance Appeal Form, DN 1-1, pp. 48-49.) This policy did not contain the restrictions set forth in CPP 16.1 and IPP 16-01-01.
While Plaintiff Haight's grievance was pending, Defendant Williams notified Defendant Philip Parker, the Warden at KSP, of the discrepancies and inconsistencies between KDOC and KSP policy. (Williams Aff., DN 32-2, p. 7.) Warden Parker then placed Defendant Rocky Roberts, KSP's Program Director, in charge of a committee formed to review visitation policy at KSP. (See Mem. of July 8, 2010, DN 1-1, p. 10.) Visits with clergy were suspended during the period of the committee's review. (Id.) According to Defendant James Erwin, the Deputy Commissioner of KDOC and an individual with supervisory capacity over Warden Parker, the decision to suspend clergy visits during the period of review helped ensure safety and security at KSP while a new policy was being formed and implemented. (See Erwin Aff., DN 32-2, p. 3.) On July 13, 2010, Defendant Roberts issued a memorandum to Ralph Baze and the other death-row inmates explaining the new interpretation and application of KDOC and KSP policy. (See Mem. of July 13, 2010, DN 1-1, p. 12.) Roberts was clear that "clergy visits will not be approved as a regularly scheduled visit has been in the past." (Id.) This change was necessary because the policies "do not allow for such visits to occur in the context as previously done."
(Id.) For future visits by clergy, Roberts offered two solutions: clergy members could join the volunteer chaplains' program at KSP or a prisoner could list the individual on his visitation list. (Id.) As pointed out by the Plaintiffs, neither of these solutions allowed the same access to clergy as previously granted. Some clergy members only wanted to visit a select number of inmates and did not want to become volunteer chaplains for the prison as a whole. Further, and most restrictive, the applicable version of CCP 16.1 restricted a visitor to only one inmate's visitors list. Thus, if Ralph Baze listed Pastor Hale as his visitor, Pastor Hale could not be placed on Plaintiff Haight's list and would be barred from visiting him. In addition to reinterpreting IPP 16-01-01 so as to bring it into compliance with CPP 16.1, Defendant Roberts and the policy review committee recommended that the above-quoted language be removed from IPP 23-01-03. (Roberts Aff., DN 32-2, p. 11.) This deletion removed the clergy visitation language from IPP 23-01-03 and made it so that all visits to KSP, whether by clergy or others, were governed solely by CCP 16.1 and IPP 16-01-01. After exhausting KSP's grievance procedures, Plaintiffs Haight and Wilson filed the instant suit alleging that the new interpretation of CPP 16.1 and IPP 16-01-01, and the deletion from IPP 23-01-03, violated their Free Exercise rights and RLUIPA by not granting them access to the clergy member of their choice. They ask the Court to enjoin the Defendants from implementing the new policy interpretations and also seek money damages for the period in which clergy visits were temporarily suspended. B.Facts Concerning the Sweat Lodge KSP maintains an "Institutional Religious Center" where members of various faiths may congregate in order to conduct religious services. At no time has this facility been used as a sweat lodge for Native American religious ceremonies, and KSP does not maintain any other facility for use as a sweat lodge. In fact, KSP readily admits that a sweat lodge has never been constructed, used, or made available at the facility. Plaintiffs Robert Foley, Roger Epperson, and Vincent Stopher, espousing Native American beliefs, claim that access to and use of a sweat lodge is integral to their faith. Beginning on September 6, 2009, these Plaintiffs requested that KSP construct or otherwise provide a sweat lodge for use in their religious practices. (Letter of Sept. 6, 2009, DN 1-6, p. 2; Foley Aff., DN 1-5, p. 18.) Receiving no response to their request, the Plaintiffs filed a grievance on November 12, 2009, requesting a sweat lodge. (See Grievance Number 09-11-018-G, DN 1-6, p. 1.) The grievance proceeded through the appropriate process at KSP, ultimately resulting in Warden Parker denying the Plaintiffs' request. (See Warden's Review, DN 1-6, p. 8.) Warden Parker reasoned that the sweat lodge would be denied because KDOC "has not approved . . . a sweat lodge at other prisons, so this would be a first if granted.
More to the point, whatever is decided on your grievance would likely set precedent for other prisons in [KDOC]." (Id.) Warden Parker informed the Plaintiffs that they could appeal his decision "to the Commissioner which will allow a more systemic review, including impacts, of this religious practice in the prison system as a whole." (Id.) Following Warden Parker's advice, the Plaintiffs appealed to Defendant LaDonna Thompson, the Commissioner of KDOC, on February 1, 2010, seeking approval for and installation of a sweat lodge. (See Grievance Appeal Form, DN 1-6, p. 9.) On February 25, 2010, Commissioner Thompson responded to the Plaintiffs' appeal. As to the Plaintiffs' request for a sweat lodge, she stated: I have reviewed your grievance. The Department is reviewing the request of inmates on Death Row concerning the use of a sweat lodge to practice their religion. A final decision has not been made yet and this issue needs to be investigated further. A decision on this matter will be rendered in the near future and inmates in this grievance will be notified of the outcome. No further response necessary.
(Comm'r's Resp., DN 1-6, p. 10.) Because no response was forthcoming, the Plaintiffs sent Commissioner Thompson a letter on August 2, 2010, inquiring into the status of their grievance. (See Letter of Aug. 2, 2010, DN 1-6, p. 11.) On August 9, 2010, the Plaintiffs received another response indicating that "no final decision has been made[,]" and that "an answer should be forthcoming in the near future." (Letter of August 9, 2010, DN 1-6, p. 12.) As of the date the Plaintiffs filed this suit, no response had issued from Commissioner Thompson. Plaintiffs Foley, Epperson, and Stopher allege that Warden Parker's denial of a sweat lodge at KSP and Commissioner Thompson's continued refusal to respond to or otherwise accommodate their request violates their Free Exercise rights and RLUIPA. They seek an affirmative injunction and order from this Court requiring KSP to construct a sweat lodge and money damages to compensate for their previous deprivation. C.Facts Concerning Traditional Foods at the Powwow In exercising their religious beliefs, inmates at KSP are permitted to hold religious ceremonies and other observances. Plaintiffs Foley, Epperson, Stopher, and other inmates have, on occasion, been permitted to hold a powwow in furtherance of their Native American spiritual beliefs. A powwow is simply a "day of traditional dancing, speaking, and praying in word, song, and music for all that lives. The gathering of inmates . . . symbolizes a renewal of unity in the Spirit." (See Excerpt from Federal Bureau of Prison, Inmate Practices & Beliefs 14 (2003) (attached hereto as Exhibit 1).) In filing this suit, the Plaintiffs do not allege that they were prohibited from holding a powwow. Rather, they claim that KSP officials did not permit them to obtain the foods necessary for a traditional meal that normally accompanies a powwow. As the Federal Bureau of Prison's publication on inmate religious practices and beliefs states, "A feast of traditional, familiar foods (such as fry bread, corn pemmican, and buffalo meat) is seen as central to the [powwow]." (Id.) Evidence in the record shows that the Plaintiffs were allowed to have "fry bread" at their powwow but that their request for other foods, like buffalo meat, was denied. They claim that not being permitted to have a complete traditional meal in conjunction with their powwow violates their Free Exercise rights and RLUIPA.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The plaintiff may accomplish this by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c)(1). Mere speculation will not suffice to defeat a motion for summary judgment; "the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate."
Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).
A.Analysis of Clergy Visits Claim
By reinterpreting and altering KSP's visitation policy, Plaintiffs Haight and Wilson argue that the Defendants violated their Free Exercise rights and RLUIPA. They seek injunctive relief and money damages under both as a means of correcting these alleged wrongs. 1.Injunctive Relief for Clergy Visits under Free Exercise and RLUIPA The Plaintiffs ask the Court to enjoin the Defendants from implementing the clergy visitation policy described above. Specifically, they object to the policy because it requires members of the clergy to be listed on an inmate's visitors list and once appearing on one inmate's visitors list, the clergy are not permitted to visit other inmates and cannot be included on their visitors list.
The Plaintiffs' arguments in favor of injunction are now moot. Since the filing of this case, the Kentucky Department of Corrections has revised CPP 16.1 in order to resolve the Plaintiffs' objections. (Thompson Aff., DN 32-2, p. 1; Erwin Aff., DN 1-1, p. 3.) In particular, revised CPP 16.1 provides that clergy may be placed on more than one inmate's visitors list, and doing so does not take away from the total number of visitors an inmate is permitted to include on his visitors list. (See Kentucky Department of Correction, Revised CCP 16.1, pp. 3-4 (attached hereto as Exhibit 2).) Accordingly, clergy members may now visit with multiple inmates so long as they are included on the inmates' visitors lists. (Id.) Additionally, the clergy may visit with multiple inmates during a single trip to KSP so long as the clergy receives prior approval from the warden. (Id. at p. 4.) As a result of the revisions to CPP 16.1, the Plaintiffs' claims for injunctive relief under the Free Exercise Clause and RLUIPA have been ameliorated and are now moot.
2.Money Damages for Clergy Visits Under Fee Exercise and RLUIPA
The Plaintiffs also seek monetary damages for the period they were denied clergy visits while KSP officials reviewed CPP 16.1 and revised IPP 16-01-01. Because the availability of monetary damages is evaluated using different standards under the Free Exercise Clause and RLUIPA, the Court considers the monetary causes of action separately. a. Money Damages and Free Exercise As previously explained by the Court, in a § 1983 claim asserting violations of the First Amendment's Free Exercise Clause, monetary damages may only be recovered from the Defendants in their individual capacities. (See Mem. Op. & Order of Sept. 26, 2011, DN 6, p. 6.) A prisoner "alleging that the actions of prison officials violate his religious beliefs must show that 'the belief or practice asserted is religious in the person's own scheme of things' and is 'sincerely held.'" Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (quoting Kent v. Johnson, 821 F.3d 1220, 1224 (6th Cir. 1987)). The Defendants have not challenged the sincerity of Plaintiffs Haight and Wilson's beliefs. Nor have the Defendants argued that temporary suspension of clergy visits was not a "substantial burden" on the Plaintiffs' religious exercise. Accordingly, the Court assumes that the Plaintiffs' beliefs were sincerely held and that temporary suspension of the clergy visits was a substantial burden on the exercise of that belief.
As such, the Court is left to determine whether the temporary restriction on their right to visit the clergy of their choosing was "reasonably related to a legitimate penological interest."
In Turner v. Safley, 482 U.S. 78, 84 (1987), the Supreme Court held that regulations infringing on an inmate's constitutional rights are subject to rational basis review. In other words, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interest." Id. at 89. After establishing rational basis as the standard of review, the Court set forth a four-part test for determining whether a prison's restrictions on a constitutional right, such as Free Exercise, are reasonably related to a legitimate penological interest. First, "there must be a 'valid rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second, in determining whether a restriction is reasonable, the court must ask "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90. Third, the court must also consider "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Id. Finally, the Court instructed that "the absence of ready alternatives is evidence of the reasonableness of a prison regulation," but that "[b]y the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable." Id. (citation omitted). As the Sixth Circuit has noted, "a trial court is not required to weigh evenly, or even consider explicitly, each of the four Turner factors."
Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999) (citations omitted). Rather, "[t]he four Turner factors are . . . simply 'relevant' to the ultimate inquiry a court must undertake 'when a prison regulation impinges on inmates' constitutional right': determining whether a prison regulation is 'reasonably related to legitimate penological interests.'" Id. (quoting Turner, 482 U.S. at 89)). For an example of the Supreme Court's application of the Turner factors to a Free Exercise case, see O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). Applying the Turner test to the facts of the present case, the Court finds that the temporary suspension of clergy visits while the Defendants brought KSP visitation policy into compliance with CPP 16.1 was rationally related to a legitimate penological interest. First, KSP temporarily suspended clergy visits because its institutional policy did not comply with the governing policy established by KDOC. Thus, the "valid rational connection" between temporary suspension of clergy visits and the prison's interest was two-fold. Not only were the visits temporarily suspended because they did not comply with policy, but they were also suspended because non-compliance created potential security risks at the prison. As Deputy Commissioner Erwin notes in an affidavit submitted with the Defendants' motion for summary judgment, "Wardens have the responsibility of maintaining the safety and security of their institutions." (Erwin Aff., DN 32-2, p. 3.) By temporarily suspending clergy visits at KSP while the institutional policy was brought into compliance with departmental policy, officials at KSP were merely ensuring the safety and security of the institution. Second, no alternative measures existed that would have continued clergy visits while the KSP visitation policy was revised.
While this normally would cut against the reasonableness of a prison regulation, this is not the usual prison regulation case. The Defendants temporarily suspended clergy visits while an improper institutional policy was revised so that it would comply with departmental policy. Temporary suspension of clergy visits as improperly practiced was the only available alternative to KSP officials while they corrected their institutional policy and learned how to understand and apply the departmental policy. This fact also weighs in favor of the fourth Turner factor. Finally, the Court must consider any impact that accommodation of the Plaintiffs' Free Exercise rights during the temporary suspension of clergy visits would have had on "guards and other inmates, and on the allocation of prison resources generally." Turner, 482 U.S. at 90. Temporary suspension of clergy visits impacted both death row inmates, like the Plaintiffs, and the general prison population at KSP. (Thompson Aff., DN 32-2, p. 1; Parker Aff., DN 32-2, p. 5.) The suspension was not solely aimed at the Plaintiffs but applied to all inmates at KSP. Accommodation of the Plaintiffs alone could have fostered resentment among other inmates at KSP and potentially caused unrest and increased security risks. Furthermore, during the period of suspension, guards at the facility lacked any applicable policy to guide inmate visits with clergy, and accommodation for the Plaintiffs would have merely created additional and unnecessary confusion regarding visitation policies and procedures.
In all, the Court finds that temporary suspension of clergy visits while IPP 16-01-01 was brought into compliance with CPP 16.1 was rationally related to a legitimate penological interest in safety and security and the conservation of prison resources. As such, temporary suspension of clergy visits did not violate the Plaintiffs' right to Free Exercise.
b. Money Damages and RLUIPA
The Plaintiffs also allege that temporary suspension of clergy visits was a compensable violation of RLUIPA. Their argument fails as a matter of law. In Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009), the Sixth Circuit held that RLUIPA "does not contain a clear indication that Congress unambiguously conditioned receipt of federal prison funds on a State's consent to suit for monetary damages." As a result, RLUIPA plaintiffs may not recover monetary damages from defendants in their official capacities. See id. at 799-802. The Cardinal Court did not consider whether money damages were available against defendants in their individual capacities, however, and as noted in Heard v. Caruso, 351 F. App'x 1, 13 n.5 (6th Cir. 2009), the Sixth Circuit "has not . . . ruled on whether RLUIPA authorized suits for monetary damages against state officials in their individual capacities."
Another court of this district has addressed the issue, however. Froman v. Ky. Dep't of Corr., No. 3:08CV-P234-H, 2010 WL 1416682, at *2 (W.D. Ky. Mar. 31, 2010) (Heyburn, J.), followed precedent from several circuits considering the issue and held that "RLUIPA . . . does not authorize a claim for damages against state employees in their individual capacities."
Because Froman already considered and decided the issue in this district, this Court adopts the reasoning of that case. Accordingly, the Plaintiffs have failed to state a claim for money damages under RLUIPA because such damages are not recoverable from the Defendants in their official or individual capacities.
B.Analysis of Sweat Lodge Claim Plaintiffs Foley, Epperson, and Stopher argue that KSP's refusal to build a sweat lodge to accommodate their Native American beliefs and KDOC's continued refusal to respond to their grievance on the subject constitutes a violation of their Free Exercise rights and RLUIPA. They seek an order from this Court directing KSP to build a sweat lodge and money damages as compensation for their prior deprivation.
1.Injunctive Relief and Money Damages for a Sweat Lodge under Free Exercise The Defendants first argue that neither monetary nor injunctive relief should be granted to the Plaintiffs because they have not proven that their Native American religious beliefs are sincerely held. See Flagner, 241 F.3d at 481. The Court makes no finding as to the sincerity of the Plaintiffs' religious beliefs. Assuming the Plaintiffs' beliefs are sincerely held and that prohibition of a sweat lodge is a "substantial burden" on those beliefs, the Court holds that the decision to prohibit the use of a sweat lodge at KSP is "reasonably related to a legitimate penological interest" and is not, therefore, a violation of the Plaintiffs' right of Free Exercise. Turner, 482 U.S. at 89. Application of the four-part Turner test to the facts of this case supports this outcome.
Under the Turner's first prong, "there must be a 'valid rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (citation omitted). Here, the Defendants denied Plaintiffs access to a sweat lodge because its use would jeopardize the safety and security of inmates, guards, and others at KSP. As described in the Defendants' motion, a sweat lodge creates a number of substantial security risks. As proposed in this case, the steam in the lodge would be created by pouring water over an electric heating element located inside of the lodge. This heating element would be exposed and readily accessible to inmates in the lodge and could be used to inflict substantial injuries on others. Additionally, the creation of the steam combined with low-lighting in the lodge would make it difficult for guards to monitor inmates during lodge use. The Plaintiffs have offered to allow prison officials to place a camera inside of the sweat lodge, but the presence of a camera in a dimly lit and steamy room would not resolve the Defendants' concerns about observation and monitoring during the sweat lodge ceremony. These concerns are magnified by the fact that the inmates requesting the sweat lodge are death-row inmates with violent criminal pasts who are subject to KSP highest security restrictions. Accordingly, it is abundantly clear that there is a "valid rational connection" between prohibition of the sweat lodge and safety and security concerns, the legitimate governmental interest put forward to justify the prohibition. The Turner test also directs that a court should consider "whether there are alternative means of exercising the right that remain open to prison inmates" in light of the restriction. Turner, 482 U.S. at 90. If alternative means exist, "courts should be particularly conscious of the 'measure of judicial deference owed to correction officials . . . in gauging the validity of the regulation.'" Id. (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)). A sweat lodge is a combination of a physical location and a religious ceremony that can be experience individually or in congress. It is unique to the extent that the heat, steam, and other elements of the ceremony occur in a confined space, and there is likely no readily available alternative or substitute for it.
That said, the Plaintiffs can access and use the Institutional Religious Center at KSP for congregational worship and other ceremonies. While not a perfect substitute for a sweat lodge, the availability of an alternative location for religious practices weighs in favor of the reasonableness of the prohibition on the sweat lodge. Turner's third prong counsels that the reasonableness of a restriction on a constitutional right in the prison context must be measured by "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Id. Where "accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of correctional officers." Id. Construction and use of a sweat lodge at KSP will have significant "ripple effects" on the facility and the Kentucky Department of Corrections as a whole. First, KSP is a facility with limited space and resources. Creating a sweat lodge will necessarily consume both to the exclusion of other inmates. Unlike the Institutional Religious Center, which is used by inmates of multiple faiths, a sweat lodge would only be used by and beneficial to inmates adhering to Native American traditions. Additionally, ceremonies in a sweat lodge can last for several hours. Prison guards would need to be present throughout any such ceremony, naturally drawing them away from other duties and obligations at KSP. Second, as noted by the Defendants, sweat lodges are not currently in place at other KDOC correctional facilities. Implementation of a sweat lodge at KSP would set precedent for the use of a sweat lodge at other KDOC prisons, further diverting the department's limited resources. The impacts of accommodating the Plaintiffs' request for a sweat lodge weigh in favor of the prohibition's reasonableness.
Turner's final prong instructs that "the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id. "But if an inmate can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interest, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." Id. at 90. Here, the Plaintiffs have not pointed to an alternative that would reasonably accommodate their request for a sweat lodge. As the Defendants argue, the basic elements of a sweat lodge -- generation of steam through an electric heating element, high heat, dim lighting, and confined space -- cannot be altered or modified without raising the same substantial safety and security risks associated with the sweat lodge as requested. Accordingly, the absence of an alternative weighs in favor of the reasonableness of the prohibition. In all, the Defendants' prohibition on a sweat lodge at KSP is reasonably related to their legitimate penological interest in safety and security. As a result, the Plaintiffs' causes of action for an injunction against the Defendants in their official and individual capacities and their claim for money damages against the Defendants in their individual capacities fail. Prohibition of the sweat lodge does not violate the Plaintiffs' Free Exercise rights. See Tart v. Young, 168 F. Supp. 2d 590, 592-94 (W.D. Va. 2001) (denying prisoner access to a sweat lodge did not violate Free Exercise principles).
2.Injunctive Relief and Money Damages for a Sweat Lodge under RLUIPA RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to [a prison] . . . 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). RLUIPA creates a private right of action that may be asserted separate from or in addition to a Free Exercise claim. See 42 U.S.C. § 2000cc- 2(a); Sossamon v. Texas, 131 S. Ct. 1651 (2011). Plaintiffs Foley, Epperson, and Stopher allege that denial of the sweat lodge is a substantial burden on their religious exercise in violation of RLUIPA.
RLUIPA "expands the First Amendment protections accorded prisoners with respect to their religious beliefs." Hayes v. Tenn., 424 F. App'x 546, 554 (6th Cir. 2011). "The strict- scrutiny standard mandated by [42 U.S.C. § 2000cc-1(a)] altered the frame work for evaluating inmates' Free Exercise claims that had prevailed since the [Supreme] Court's decision in O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)." Cutter v. Wilkinson, 423 F.3d 579, 583 (6th Cir. 2005) ("Cutter II"). To establish a violation of RLUIPA, "[a]n inmate . . . must first produce prima facie evidence demonstrating that his religious exercise was substantially burdened." Hayes, 424 F. App'x at 554 (citing 42 U.S.C. § 2000cc-2(b); Barhite v. Caruso, 377 F. App'X 508, 511 (6th Cir. 2010)). A restriction or regulation by a prison "will be classified as a substantial burden when that action forced an individual to choose between following the precepts of [his] religion and forfeiting benefits or when the action in question placed substantial pressure on an adherent to modify his behavior and to violate his beliefs." Barhite, 377 F. App'X at 511 (brackets original) (quotations omitted). Once a substantial burden has been established, "[t]he government then bears the burden of persuasion that any substantial burden on the inmate's exercise of his religious beliefs was 'in furtherance of a compelling governmental interest' and imposition of the substantial burden on the inmate is 'the least restrictive means of furthering that compelling governmental interest.'" Hayes, 424 F. App'x at 555 (quoting 42 U.S.C. §§ 2000cc-2(b), 2000cc-1(a)-(2)). The bottom line difference between a Free Exercise and a RLUIPA claim is that once a substantial burden is established, RLUIPA "employs a less deferential standard -- the least restrictive means of furthering a compelling governmental interest -- than the standard applied to religious exercise First Amendment claims, a uniform rule having a reasonable relation to legitimate penological interests." Id. Assuming that the prohibition on a sweat lodge at KSP is as a substantial burden on the Plaintiffs' religious exercise, their cause of action under RLUIPA fails because the prohibition furthers the government's compelling interest in safety and security at a maximum security prison, and even though the prohibition is absolute, it is carried out in the least restrictive means possible. In coming to this conclusion, the Court was guided in substantial part by Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008), a case in which, after examining facts similar to those sub judice, the Eighth Circuit held that an absolute prohibition on a sweat lodge did not violate RLUIPA.
In Fowler, the plaintiff was serving a life sentence in a maximum security prison operated by the Missouri Department of Corrections. Id. at 933. Although he and other adherents to Native American spiritual practices held congregational meetings and practiced their religion in various other ways, Fowler was adamant that he could not properly exercise his religion without access to a sweat lodge. Id. He brought suit against state officials under RLUIPA seeking construction of a sweat lodge at the prison. Id. Throughout the suit, prison officials did not question the sincerity of Fowler's beliefs nor did they dispute that an absolute prohibition on a sweat lodge substantially burdened the exercise of his religion. Id. at 934. Rather, they presented "a myriad of reasons why they believe[d] Fowler's request for a sweat lodge compromise[d] security at [the prison] to an unacceptable degree." Id. at 935. It should be noted that the type of sweat lodge Fowler requested varied from the one sought by the Plaintiffs in this case. Fowler wanted access to a traditional sweat lodge where the internal steam was generated by pouring water of rocks that had been heated in a wood fire outside of the lodge. Id. at 934. It also involved access to items that could be used as dangerous weapons, such as shovels and deer antlers. Id. Regardless of the type of sweat lodge, however, the safety concerns were the same as those present in this case. First, the sweat lodge created the "risk of sexual misconduct, physical assault, and drug use, as well as fire and heat related safety concerns." Id. at 935. Second, the "sweat lodge would consume considerable institutional finance and personnel resources and expend many institutional hours." Id. Finally, extending the unique privilege of the sweat lodge to "one group of inmates to the exclusion of others [could] create a risk of resentment among the inmate population leading to the potential for unrest and disturbance." Id. And much like the present case, officials determined that installing a security camera in the lodge would not deter inappropriate conduct because "the interior of the lodge was dark and . . . steam from the rocks would fog a security camera's lens." Id. at 936.
In the process of dismissing Fowler's RLUIPA action, the court thoroughly discussed the compelling governmental interests at play as well as whether an absolute prohibition on a sweat lodge could be a "least restrictive means" within the meaning of the statute. First, the court found that the state's interest in safety and security at a prison "is always compelling." Id. at 939. In addition to safety and security, the court found "a sweat lodge's drain on prison security manpower over the 6-7 hour duration of the sweat lodge" as well as the consumption of other resources was another compelling interest. Id. Second, the court found that an absolute prohibition on a sweat lodge was "the least restrictive means by which to further the [prison's] compelling interest in safety and security." Id. at 942. Relying on the Supreme Court's decision in Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) ("Cutter I") the court found that substantial deference is due "to the experience and expertise of prison and jail administrators in construing RLUIPA." Id. at 941. Where prison officials had determined that absolute prohibition of a sweat lodge was the only means of ensuring safety and security at the prison, the court found that this did not violate RLUIPA's least restrictive means test.
Aside from minor factual differences between the type of sweat lodge at issue in Fowler and the sweat lodge sought here, the legal and policy analysis in Fowler is substantively indistinguishable from the present case. First, the Defendants have shown that absolute prohibition of the sweat lodge furthers their compelling interest in safety and security at KSP, while preserving resources and allocating them in a way that benefits the whole prison population and not just a select few. The materials needed for the sweat lodge, like the heating element, could easily become weapons in the inmates' hands. The lodge would be dimly lit and full of steam, making monitoring and observation exceedingly difficult, and a camera in the lodge would not remedy these problems. Second, because of the substantial deference due to prison administrators in ensuring safety at the prison, absolute prohibition of the sweat lodge has "presented [the Court] with the unusual situation where the government has satisfied the least restrictive means prong by demonstrating that other less restrictive alternatives are not acceptable to plaintiff . . . ." Id. at 938 (quoting Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996)).
So as to be clear, the Supreme Court in Cutter I repeatedly directed that "prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this area." Cutter I, 544 U.S. at 725 n.13. In this case, the Defendants claim that the sweat lodge proposed by the Plaintiffs must be prohibited entirely because it would create safety and security concerns that are too great to accommodate at the prison. Giving due deference to their statements and the evidence in the record, the Court concludes that the absolute prohibition of a sweat lodge at KSP is the least restrictive means of furthering KSP's compelling interest in safety and security. Accordingly, the Defendants have not violated RLUIPA in their individual or official capacities in regards to the requested sweat lodge.
C.Analysis of Traditional Foods at the Powwow Plaintiffs Foley, Epperson, and Stopher assert that their Free Exercise rights and RLUIPA were violated when they were only permitted to have fry bread instead of a traditional meal of buffalo meat and other items in conjunction with their powwow at KSP. In analyzing the Plaintiffs' other claims in this case, the Court has not considered whether the other restrictions were "substantial burdens" on the Plaintiffs' religious practices. The Defendants essentially admitted as much and instead argued that the restrictions were either reasonably related to a legitimate penological interest or were carried out in the least restrictive manner possible.
Unlike the other religious practices at issue in this case, the Defendants argue that the Free Exercise Clause and RLUIPA have not been violated because the limitation on the powwow meal is not a "substantial burden" on the Plaintiffs' religious practices. The Court agrees.
"[W]hen faced with both a Free Exercise claim and a RLUIPA claim, a court must, as a threshold matter, inquire as to whether the prison has placed a 'substantial burden' on the prisoner's ability to practice his religion." Gladson v. Iowa Dep't of Corr., 551 F.3d 825, 833 (8th Cir. 2009) (citing Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). "If the prisoner fails to put forth evidence that his ability to practice his religion has been substantially burdened, then the court need not apply the Turner test to the Fee Exercise claim and the strict scrutiny test to the RLUIPA claim." Id. As stated previously, a restriction or regulation will only rise to the level of "substantial burden 'if it forced an individual to choose between following the precepts of [his] religion and forfeiting benefits or when the action in question placed substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Hays, 424 F. App'x at 554-55 (quoting Barhite, 377 F. App'x at 511). Stated another way, "[a] governmental practice, decision or regulation imposes a 'substantial burden' on the exercise of religion 'if it truly pressures the adherent to significantly modify his religious behavior and significantly modify his religious beliefs.'"
Horacek v. Wilson, No. 07-13822, 2009 WL 861248, at *3 (E.D. Mich. Mar. 30, 2009) (quoting Adkins v. Kaspar, 393 F.3d 559, 569-70 (5th Cir. 2004)). "[A] substantial burden on religious exercise 'is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenant of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs.'" Civil Liberties for Urban Believers v. City of Chicago, 343 F.3d 752, 761 (7th Cir. 2003) (quoting Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir. 1996)).
In the face of the Defendants' motion for summary judgment, the Plaintiffs have not shown that the restrictions on the powwow meal are a "substantial burden" on their religious beliefs. Relying the Inmate Practices and Beliefs manual created by the Federal Bureau of Prisons, and substantially adopted by KDOC, the Plaintiffs claim that fry bread, corn pemmican, and buffalo meat are required for a powwow meal. The manual states that "a feast of traditional, familiar food (such as fry bread, corn pemmican, and buffalo meat) is seen as central to the [powwow]." (Excerpt from Federal Bureau of Prison, supra, at 14.) Nothing in this language mandates that KDOC provide the exact foods listed. Furthermore, it appears that fry bread has been provided for the Plaintiffs at previous powwows. There is no evidence tending to show that denial of the requested powwow foods pressured the Plaintiffs to "modify [their] religious behavior or significantly modify [their] religious beliefs," or caused them to "refrain from religiously motivated conduct," or compelled them to act "contrary to [their] beliefs." As such, the Plaintiffs have failed to show how a limited powwow meal is a substantial burden on their religious beliefs. In the absence of a substantial burden, the Plaintiffs' claims under Free Exercise and RLUIPA fail as a matter of law.
Finally, Plaintiff Haight alleges that he and others were retaliated against in violation of the First Amendment for filing prison grievances. His retaliation claim only relates to the alleged denial of clergy visits at KSP. As stated in the Plaintiffs' response to the motion for summary judgment, they allege "that [the Defendants] covertly retaliated against them when they challenged and gave voice about the administration of [KPS] denying them Pastoral visitation according to Correctional and Institutional Religious and visiting policy." (Pls.' Resp., DN 42, p. 21.) The Plaintiffs have not alleged retaliation for filing prison grievances related to the sweat lodge or the powwow. As such, the Court only analyzes Haight's retaliation claim as it relates to grievances he filed concerning clergy visits at KSP. To state a prima facie claim for First Amendment retaliation a plaintiff must show three elements:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two - that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 379, 394 (6th Cir. 1999) (en banc) (plurality opinion) (citations omitted). "An inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf." Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (citing Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir.1996)). To the extent that Plaintiff Haight filed a prison grievance related to the denial of clergy visits, the Court finds that he engaged in conduct protected by the First Amendment. Haight's retaliation claim fails, however, because he has not shown that an adverse action was taken against him.
An adverse action is one that "would deter a person of ordinary firmness from continuing to engage in [the protected conduct]." Thaddeus-X, 175 F.3d at 394. Neither Plaintiff Haight nor the other Plaintiffs have identified any adverse actions that were taken against them as a result of grievances concerning clergy visits. They claim that Ralph Baze was "discriminated against" when "they denied [clergy] visitation . . . but then approved it for another inmate . . . ." (Pls.' Resp., DN 42, p. 22.) Ralph Baze is not a party to this suit, and the Plaintiffs do "not have an independent right to help [Baze] with [his] legal claims." Thaddeus-X, 175 F.3d at 395 (citing Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993)). Accordingly, the Plaintiffs may not maintain a retaliation claim for allegedly adverse actions taken against Ralph Baze. The Plaintiffs also allege that the Defendants took an adverse action against them by taking twenty-one days to response to their grievances concerning clergy visits. Although the response time may have taken slightly longer than that prescribed by KSP's grievance policy, nothing in the delay "would deter a person of ordinary from continuing to [file prison grievances]." Id. at 394. In fact, the record shows that the Plaintiffs continued to file other grievances despite the delay in the grievance procedure. Therefore, the delay simply cannot be described as an "adverse action" against the Plaintiffs.
Having failed to show that the Defendants took an adverse action against the Plaintiffs as a result of their grievances, the Plaintiffs' First Amendment retaliation claim fails as a matter of law.
The Defendants moved the Court for summary judgment on the Plaintiffs' various claims arising under the First Amendment and the Religious Land Use and Institutionalized Persons Act.
For all of the foregoing reasons, the Defendants' motion is GRANTED.
A separate order shall follow.
U.S. Department of Justice
Federal Bureau of Prisons
OPI: CPD NUMBER: T5360.01
DATE: 3/27/2002 SUBJECT: Practical Guidelines for Administration of Inmate Religious Beliefs and Practices
Religious Beliefs and Practices TRM
PRACTICAL GUIDELINES FOR ADMINISTRATION OF
INMATE BELIEFS AND PRACTICES
This Technical Reference Manual (TRM) on Practical Guidelines for Administration of Inmate Beliefs and Practices has been written to assist chaplains and administrative personnel to appropriately facilitate the religious beliefs and practices of inmates within a correctional environment.
With the complexity of religious issues faced by Bureau chaplains today and the large number of religions represented in the inmate population, this Technical Reference Manual will assist chaplains in implementing the mission of the Chaplaincy Services Branch in the institutions they serve. The mission is as follows:
The mission of the Chaplaincy Services Branch is to accommodate the free exercise of religion by providing pastoral care to all Federal inmates and facilitate the opportunity to pursue individual religious beliefs and practices in accordance with the law, Federal regulations and Bureau of Prisons policy. The staff chaplain will provide religious worship, education, counseling, spiritual direction, support and crisis intervention to accommodate the diverse religious needs of inmates. When appropriate, pastoral care and subject matter expertise may be extended to staff.
The purposes of this Technical Reference Manual are:
1. To accommodate the provision of religious worship services and programs for the faith groups represented in the inmate population of the Bureau of Prisons.
2. To provide guidance to institution chaplains and administrators in making informed decisions concerning religious issues which surface regularly so that the needs of both the correctional environment and the "free exercise" clause of the First Amendment are met.
3. To encourage consistency of practice Bureau-wide given the mission and level of security of the institutions.
4. To provide enough information about each religion for the readers to receive a general understanding of its basic tenets.
The Technical Reference Manual must be read in conjunction with the latest version of P.S. 5360, "Religious Beliefs and Practices," other applicable Program Statements, Operations Memoranda and specific directives which may be issued as needed. The suggested recommendations to issues raised in each chapter follow a "best practices" guide which takes the correctional environment and the "free exercise" clause of the First Amendment into account. Final program decisions rest with the Warden.
The Technical Reference Manual follows the same outline for each chapter. The information is divided into two sections, Tab A and Tab B. The practical issues of each religion are placed in the front of the chapter and are placed behind Tab A. Tab B includes the history, theology and recommended resources. If necessary, glossary and appendices are attached to the chapters. The format for each chapter is as follows:
a. Required Daily Observances
b. Required Weekly Observances
c. Required Occasional Observances
a. Personal Religious Items
b. Congregate Religious Items
3. Requirements for Membership
8. Organizational Structure
a. Location of Headquarters
11. Glossary (if warranted)
12. Appendices (if warranted)
The Tab on Personal and Congregate Religious Items is a compilation of the lists of personal and congregate religious items found in each chapter.
The Tab on Religious Diets are excerpted from the chapters and compiled for ready reference.
As additional chapters on the faith traditions are completed, they will be added to this Technical Reference Manual. These chapters will be published periodically until all the religions which have been approved for practice by inmates in the Bureau of Prisons are included.
OUTLINE FOR RELIGIOUS FAITH GROUPS
NATIVE AMERICAN (SECTION A)
A. REQUIRED DAILY OBSERVANCES
A devout practitioner may desire to pray by holding his personal pipe. Lighting and smoking the pipe are ordinarily not permitted in housing units. These are limited to the Chapel or Outdoor Worship Area. The practice of smudging with smoke, used for ritual cleansing or purification, is also not permitted in the housing units. Smudging is limited to the Chapel or Outdoor Worship area.
B. REQUIRED WEEKLY OBSERVANCES
Sweat lodge ceremonies are generally conducted on a weekly basis in a correctional setting. If the Native American population is rather large, two separate sweat lodge ceremonies may be conducted on a weekly basis to accommodate all participants. Further, talking circles, other educational opportunities, or ceremonial song/drum practices are allowed weekly as time and space permit.
While Native Americans of some tribes or bands in the wider community may be nude when they participate in the ceremony, nudity is NEVER authorized in the correctional setting. Inmates and visitors participating in sweat ceremonies are required to wear appropriate outerwear, i.e., sweat pants, or shorts. Local policy (I.S.) should clearly delineate the modesty/security requirement.
When institutional counts are necessary during the sweat, participants should be respectfully notified of the count by the staff member responsible for supervision of the ceremony. The participants may be given a few moments to finish the round and open the door for the count. At that point the participants will exit the lodge for the count. Staff should not cross the area between the fire and the lodge but should walk around the fire or behind the lodge when a ceremony is in progress.
C. REQUIRED OCCASIONAL OBSERVANCES
1. Annual Spiritual Gathering (Pow-wow). Depending on the security level of the institution, the Pow-wow may include visitors from the inmates' official visiting lists. If visitors are allowed to participate, the Pow-wow will ordinarily be held in the institution's Visiting Room.
2. Depending on local tribal traditions, seasonal equinoxes and solstices are observed. These observances are usually accommodated at the next scheduled sacred sweat lodge ceremony.
American Indian Days, September 24-25.
# These holy days were established by the Federal
Government. These days are days free from work. Since there are so many different tribes, and each tribe observes holy days which have religious significance for its members, it is difficult to find common ground in establishing religious holy days.
Some tribes, for example, often ask to memorialize the "trail of tears" in late December or the Battle at Little Big Horn, June 25th. To encourage specific needs in the institution, it is recommended that opportunities to sweat in mourning may be appropriately accommodated. These days, however, should not be days of work proscription.
Because of the large variety of tribal beliefs represented in the inmate population, it is very difficult to be more specific than this. As requests are made of the chaplains, the institution chaplains are encouraged to contact the Regional Chaplaincy Administrator for further assistance.
A. PERSONAL RELIGIOUS ITEMS
1. Medicine bag (worn around neck);
2. Spiritual bundle containing: