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Smith v. United States Congress

United States District Court, E.D. Virginia, Richmond Division

March 6, 2015

JOHNATHAN LEE X SMITH, Plaintiff,
v.
UNITED STATES CONGRESS, et al., Defendants.

MEMORANDUM OPINION

RODERICK C. YOUNG, Magistrate Judge.

Johnathan Lee X Smith ("Mr. Smith"), a Virginia inmate, has submitted this civil action. The matter is proceeding on Mr. Smith's Fourth Amended Complaint ("the Complaint, " ECF No. 47). In the Complaint, Mr. Smith raises the following claims:[1]

Claim 20 Defendants Clarke, Jabe, Cei, Jones Express Music, Garman, Dillman, Faith Review Committee, Dabb, and Gray deprived Plaintiff of an opportunity to purchase and receive compact discs of sermons by Minister Farrakhan at Green Rock Correctional Center from August 11, 2009, until January 21, 2010, in violation of the [(a)] First Amendment[2] and [(b)] [the Religious Land Use and Institutionalized Persons Act "RLUIPA"].[3]

(Compl. 1.)[4]

Claim 21 Defendants Clarke, Jabe, Cei, Jones Express Music, Garman, Dillman, Faith Review Committee, Dabb, and Gray discriminated against Plaintiff by granting other prisoners the right to purchase and receive musical compact discs... and denying him an opportunity to purchase and receive compact discs of sermons by Minister Farrakhan at Green Rock Correctional Center from August 11, 2009, until January 21, 2010, in violation of the [(a)] Fourteenth Amendment[5] and [(b)] [RLUIPA].

(Id. at 4.)

Claim 22 Defendants Clarke, Jabe, Jones Express Music, Cei, Faith Review Committee, Dillman, Gray, Dabb, and Garman have withheld from Plaintiff five (5) books by the Most Honorable Elijah Muhammad and eight (8) cassette tapes by Minister Farrakhan from around June 27, 2009, until the present time in violation of the [(a)] First Amendment and [(b)] [RLUIPA].

(Id. at 5.)

Claim 23 Defendants Clarke, Jabe, Jones Express Music, Everett, Hinkle, Cei, Faith Review Committee, and Washington deprived Plaintiff of an opportunity to purchase and receive compact discs of sermons by Minister Farrakhan at Greensville Correctional Center from January 21, 2010, until April 30, 2010, in violation of the [(a)] First Amendment and [(b)] [RLUIPA].

(Id. at 7.)

Claim 24 Defendants Clarke, Jabe, Hinkle, Cei, Faith Review Committee, Jones Express Music, Everett, and Washington discriminated against Plaintiff by denying him an opportunity to purchase and receive compact discs of sermons by Minister Farrakhan and allowing other prisoners to purchase and receive musical compact discs from Jones Express Music at Greensville Correctional Center from January 21, 2010 until April 30, 2010 in violation of the [(a)] Fourteenth Amendment and [(b)] [RLUIPA].

(Id. )

Claim 25 Defendants Jones Express Music, Clarke, Cei, Faith Review Committee, Jabe, Washington, Hinkle, and Everett deprived Plaintiff of an opportunity to purchase and receive compact discs of sermons by Minister Farrakhan by implementing unconstitutional memoranda at Greensville Correctional Center from April 30, 2010, until the present time, in violation of the [(a)] First Amendment and [(b)] [RLUIPA].

(Id. at 8.)

Claim 26 Defendants Clarke, Robinson, Cei, Faith Review Committee, Washington, Jabe, Everett, Hinkle, and Jones Express Music are discriminating against Plaintiff by denying him the right to purchase and receive sermons by Minister Farrakhan directly from The Final Call, Inc., while allowing other prisoners to purchase and receive newspapers, magazines, catalogs, pamphlets, etc., from ANY legitimate mail order source of the prisoners' own choosing in violation of the [(a)] Fourteenth Amendment and [(b)] [RLUIPA].

(Id. at 12.)

Claim 27 Defendants Clarke, Robinson, Cei, Faith Review Committee, Washington, Jabe, Everett, Hinkle, and Jones Express Music are discriminating against Plaintiff by authorizing prisoner Alonzo Muhammad (a.k.a. Alonzo X Hunter) #1027160, to purchase and receive compact discs of sermons by the Honorable Minister Farrakhan directly from The Final Call, Inc., while denying Plaintiff this same right, in violation of the [(a)] Fourteenth Amendment and [(b)] [RLUIPA].

(Id. )

Mr. Smith demands monetary damages and injunctive relief. Defendants[6] have moved for summary judgment. Mr. Smith has responded to Defendants' Motion for Summary Judgment and filed his own motions for partial summary judgment.

By Memorandum Order entered on October 27, 2014, the Court granted in part Defendants' Motion for Summary Judgment (ECF No. 53) and dismissed Mr. Smith's demands for monetary damages with respect to his RLUIPA claims. The Court further noted that the summary judgment record revealed that Defendants have ceased much of the conduct that gave rise to Mr. Smith's RLUIPA and Free Exercise claims. Accordingly, the Court directed Mr. Smith to submit any authority or evidence demonstrating that his claims, demanding declaratory and injunctive relief with respect to Defendants' past conduct, are not moot. Additionally, by Memorandum Order entered on October 27, 2014, the Court directed that Mr. Smith demonstrate why summary judgment should not be granted with respect to his Free Exercise and RLUIPA claims on the ground that he fails to demonstrate that Defendants imposed a substantial burden on his religious exercise. Mr. Smith responded to that order by submitting a number of affidavits and some grievance materials.

Finally, by Memorandum Order issued on February 11, 2015 (ECF No. 72), the Court directed Defendants to file affidavits or other admissible evidence regarding the current "arrangement with Gracelnside, or some other entity, that allows offenders to donate money so that audio recordings can be purchased and maintained in the Chaplain's library at Greensville for offender use, " and to provide specific information with respect to The Final Call. Mr. Smith was advised that, "within the same time period, he may submit a sworn statement setting forth his personal knowledge as to the [same] matters." (ECF No. 72, at 3-4.) Defendants filed a response and an affidavit from R. Myers, President of Gracelnside. (ECF No. 75.) On February 24, 2015, Mr. Smith filed, inter alia, a Motion for Partial Summary Judgment (ECF No. 81), a Motion for Leave to File Accompanying Supplemental Memorandum in Support of Motion for Partial Summary Judgment (ECF No. 82), a Motion to Strike (ECF No. 86), and three more sworn statements (ECF Nos. 79, 80, 82-2).[7]

I. Standard For Summary Judgment

Summary judgment shall be rendered "if 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). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion and to identify the parts of the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

In reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party... upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.' Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials....").

In support of their Motion for Summary Judgment, Defendants submitted affidavits from: A. David Robinson, Chief of Correctional Operations for the Virginia Department of Corrections ("VDOC") (Mem. Supp. Mot. Summ. J. Ex. 1, "Robinson Aff., " ECF No. 54-1); John Jabe, the former Deputy Director of the VDOC, ( id. Ex. 2, "Jabe Aff., " ECF No. 54-2); Valerie Gray, the Institutional Operations Manager at Green Rock Correctional Center ("GRCC") ( id. Ex. 3, "Gray Aff., " ECF No. 54-3); Louis B. Cei, the Operations Support Manager for the VDOC, Chairman of the Publications Review Committee ("PRC"), and Chairman of the Faith Review Committee ( id. Ex. 4, "Cei Aff, " ECF No. 54-4); and, Paul Beighley, the institutional Chaplain at the Greensville Correctional Center ( id. Ex. 5, "Beighley Aff., " ECF No. 54-5). Defendants also have submitted a number of VDOC memos. Additionally, in their Response to Court Order (ECF No. 70), Defendants submitted the affidavit Elisabeth M. Thornton, the Operations Manager for the VDOC ("Thornton Aff., " ECF No. 70-2). Finally, in response to the Court's Memorandum Order entered on February 11, 2015, Defendants submitted the affidavit of R. Myers, the President of Gracelnside, Virginia's prison chaplain service. ("Myers Affidavit, " ECF No. 75-1).[8]

In response to Defendants' Motion for Summary Judgment, Mr. Smith directs the Court to his Fourth Amended Complaint, to which he swore under oath.[9] In addition, Mr. Smith submitted: an Affidavit in Response to Affidavit of Robinson ("Smith Aff. #1, " ECF No. 57-1); an Affidavit in Response to Affidavit of Jabe ("Smith Aff. #2, " ECF No. 57-2); an Affidavit in Response to Affidavit of Cei ("Smith Aff. #3, " ECF No. 57-3); a declaration from Alonzo X Hunter ("Hunter Decl., " ECF No. 57-1, at 7-8 (as paginated by the Court's CM/ECF docketing system)); and, an affidavit from Willie X ("Willie X Aff., " ECF No. 57-4).[10] Additionally, Mr. Smith has submitted three more recent affidavits ("Smith Aff. #4, " ECF No. 63; "Smith Aff. #5, " ECF No. 68; "Smith Aff. #6, " ECF No. 71). Finally, on February 24, 2015, Mr. Smith submitted three more affidavits ("Smith Aff. #7, " ECF No. 79; "Smith Aff. #8, " ECF No. 80; "Smith Aff. #9, " ECF No. 82-2).[11]

In light of the foregoing submissions and principles, the following facts are established for purposes of the Motion for Summary Judgment.

II. Summary Of Pertinent Facts

A. Mr. Smith's Religious Beliefs

Mr. Smith is "a sincere Muslim and a sincere believer in the religion of Islam as taught by the Most Honorable Elijah Muhammad, ... under the leadership of the Honorable Minister Louis Farrakhan, the National Representative of the Most Honorable Elijah Muhammad and the Nation of Islam." (Compl. ¶ 1.) According to Mr. Smith, "his religious tenets [require that he] possess and... carefully study sermons by Minister Farrakhan to acquire a proper knowledge and understanding of the religion of Islam as taught by Minister Farrakhan...." (Id. ¶ 2.) "Minister Farrakhan has ordered his incarcerated followers, including Plaintiff, to possess and study audio recordings of his weekly sermons and to purchase them directly from The Final Call, Inc., or from some other vendor under his leadership." (Id. ¶ 4.)[12]

Mr. Smith states that he must "continually purchase, receive, and study Minister Farrakhan's weekly sermons...." (Smith Aff. #6 ¶ 8.) Mr. Smith insists that "[w]ithout access to these weekly sermons, [he is] unable to conduct or participate in Nation of Islam Fruit of Islam training as mandated by Minister Farrakhan and by [his] religious tenets." (Id. ) Mr. Smith notes that the lack of access to these recordings makes it difficult "to stay abreast of the evolution of Minister Farrakhan's teachings.... [and] teach and train [his] prison co-religionists. These are religious obligations of [his] as a student and follower of Minister Farrakhan." (Id. )

"Prior to August 11, 2009, the VDOC permitted [Mr. Smith] to purchase, receive, and possess compact discs and cassette tapes of Minister Farrakhan's weekly sermons." (Compl. ¶ 8.)

B. VDOC's August 11, 2009 Policy

Over time there have been several changes to the VDOC policy regarding CDs and DVDs. ( See Robinson Aff. ¶¶ 5-6.) On August 11, 2009, Defendant Jabe issued "a Memorandum advising the Wardens and Superintendents that all non-music CDs would be prohibited for purchase or possession by offenders. This included, but was not limited to, books, speeches, and educational and religious materials." (Jabe Aff. ¶ 4.) The Memorandum provided that:

[i]nstitutional Chaplains could possess approved non-music CDs and DVDs in religious libraries to be reviewed by offenders under the direct supervision of the Chaplain or other staff. If the Chaplain did not have a particular CD or DVD, the offender could ask him to order a copy for the library.

(Id. )

Defendant Jabe explains that "[t]his change in policy was done after the Publication Review Committee expressed concern about reviewing the non-music CDs as well as written publications. The Publication Review Committee had a serious concern with the amount of time it would take to review the non-music CDs." (Id. ¶ 5.)[13]

By Memorandum dated November 2, 2009, Defendant Jabe stated that "offenders who already possessed non-music CDs, documented as approved personal property, would be allowed to have that specific CD grandfathered in, and it would not be considered contraband." (Id. ¶ 6.)

From January 30, 2009 until January 21, 2010, Mr. Smith was confined in Green Rock Correctional Center. (Smith Aff. #2 ¶ 5.) On two occasions, Mr. Smith asked to listen to a compact disc or view a DVD sermon by Minister Farrakhan. (Id. ¶ 7.) "On each occasion the Chaplain and his inmate clerks informed [Mr. Smith] that the Chaplain's Library did not possess such discs." (Id. ¶ 8.) On January 6, 2010, in response to Mr. Smith's complaints about his lack of access to Minister Farrakhan's CDs, Defendant Garman informed him that that the VDOC " is currently working on establishing a process with [the] Chaplain Service to allow offenders to access approved faith-based, non-music CDs." (Smith Aff. #2 Ex. A, at 1 (emphasis added).)

C. VDOC's April 30, 2010 Policy

On April 30, 2010, Defendant Jabe issued another memorandum, stating that:

the VDOC would allow religious non-music CDs to be purchased and possessed by offenders under certain conditions: CDs were to come from the VDOC's approved vendor which, at that time, was Jones Music Express ("JEM"); they were to be pre-approved by the Faith Review Committee; and no longer than an hour in length. The memorandum also indicated that the pre-approved list would be updated periodically based on recommendations from the Faith Review Committee.

(Jabe Aff. ¶ 7.)

D. VDOC's Current Policy

Under the current policy:

All CDs - music and non-music - may be ordered from the VDOC contract vendor only. If an offender wants a CD that is not listed in the vendor's catalog, then he must write a letter to the vendor to request a price quote. If the vendor is unable to locate the requested CD, the order is not filled. If the CD is listed as disapproved by the Publication Review Committee, it is denied. Nevertheless, there are alternatives to ordering CDs. For example, if ...

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