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Al-Azim v. Everett

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

March 3, 2017

RAHEEM S. AL-AZIM, et ai, Plaintiffs,
v.
J. EVERETT, et al., Defendants.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge

         This matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) as to Claims 1(a) and 1(b) of the Amended Complaint (ECF No. 36). The Court held an evidentiary hearing, and this matter is ripe for disposition. For the following reasons, the Court RECOMMENDS that Claims 1 (a) and 1 (b) be DISMISSED WITH PREJUDICE.

         I. Procedural History

         Raheem S. Al-Azim, Charles X, and Victor X ("Original Plaintiffs"), Virginia inmates proceeding pro se, submitted this civil action. By Memorandum Opinion and Order entered on August 3, 2015 (ECF Nos. 42 & 43), the Court dismissed a number of the Original Plaintiffs' claims. See Al-Azim v. Everett, No. 3:14cv339, 2015 WL 4634456, at *7-8 (E.D. Va. Aug. 3, 2015). By Memorandum Opinion and Order entered on August 23, 2016 (ECF Nos. 64 & 65), the Court granted Defendants' Motion for Summary Judgment in part, dismissing Claims 2 through 4, and referred the remaining claims, Claims 1(a) and 1(b), to the undersigned for further proceedings, including an evidentiary hearing. See Al-Azim v. Everett, No. 3:14cv339, 2016 WL 4472964, at *11 (E.D. Va. Aug. 23, 2016). Because Plaintiff Charles X was dismissed as a plaintiff with respect to Claims 1(a) and 1(b) (see Al-Azim v. Everett, 2015 WL 4634456, at *6), and only Claims 1(a) and 1(b) remain after the Court's August 23, 2016 Memorandum Opinion and Order (see Al-Azim v. Everett, 2016 WL 4472964, at *9-ll), Charles X was effectively terminated as a plaintiff in this action on August 23, 2016, as reflected in the Court's Memorandum Opinion of August 23, 2016 describing Claims 1(a) and 1(b) (see Al-Azim v. Everett, 2016 WL 4472964, at *1), and as noted in the Court's Order of November 15, 2016 (ECF No. 76). Accordingly, only Plaintiffs Al-Azim and Victor X ("Plaintiffs") remain as plaintiffs in this action.

         Seven defendants were named in the Amended Complaint. All claims against defendants Abernathy and Shear were dismissed by the Memorandum Opinion and Order issued on August 3, 2015 (ECF Nos. 42 & 43). All claims against defendants Puryear and Robinson were dismissed by the Memorandum Opinion and Order issued on August 23, 2016 (ECF Nos. 64 & 65). Accordingly, only Harold Clarke, Director of the Virginia Department of Corrections ("VDOC"), VDOC Regional Administrator Wendy S. Hobbs, and former Assistant Warden V. M. Washington[1] ("Defendants") remain as defendants in this action.

         II. Summary of Allegations and Remaining Claims

         Claims 1(a) and 1(b) of the Amended Complaint, the only claims remaining, allege as follows:

(a) "Defendants Clarke, ... Hobbs, ... and Washington violated [Victor X's and Al-Azim's] First Amendment[2] right to practice their religion by refusing to provide them a diet reasonably consistent with How To Eat To Live, Volumes 1 and 2, by the Most Honorable Elijah Muhammad." (Am. Compl. 1.)
(b) Defendants Clarke, Hobbs, and Washington violated Victor X's and Al-Azim's rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA")[3] by failing to provide a diet reasonably consistent with How To Eat To Live. (Id. at 10.)

(See Al-Azim v. Everett, 2016 WL 4472964, at *1.) Plaintiffs allege that they are "sincere students and followers of 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." (Am. Compl. ¶ 3.) They also allege that their "dietary tenets are outlined in How To Eat To Live[4] by the Most Honorable Elijah Muhammad, " that How To Eat To Live requires them to train themselves to eat only one meal every twenty-four hours and to eat no meat or marine life, that much of the food served on the "regular daily menus" at Greensville Correctional Center "is forbidden by How To Eat To Live, " that How To Eat To Live forbids Plaintiffs from consuming food that is contaminated by pork or its byproducts, and that the "so-called Common Fare diet" is "completely unacceptable" to Plaintiffs. (Am. Compl. ¶¶ 1-14.) Plaintiffs also allege that Defendants have been informed that "the Common Fare diet is totally unacceptable under How to Eat To Live, " but Defendants refuse to provide a diet reasonably consistent with How To Eat To Live, thus violating Plaintiffs' rights under the First Amendment and RLUIPA. (Am. Compl. ¶¶ 15-17.)

         Defendants deny that they have violated Plaintiffs' rights under the First Amendment or RLUIPA. (Answer, ECF No. 37, ¶ 12.)

         III. Applicable Law

         RLUIPA provides, [5] in pertinent 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-l(a). Plaintiffs bear the initial burden of showing by a preponderance of the persuasive evidence[6] that Defendants' conduct imposes a "substantial burden" on their religious exercise. Once Plaintiffs meet their initial burden, Defendants bear the burden of persuasion on whether their conduct is the least restrictive means of furthering a compelling governmental interest. Lovelace v. Lee, 472 F.3d 174, 185 (4th Cir. 2006).

         To make the determination regarding Plaintiffs' prima facie case, the Court must answer two questions: "(1) Is the burdened activity 'religious exercise, ' and if so (2) is the burden 'substantial'?" Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004); see Couch v. Jabe, 679 F.3d 197, 200-01 (4th Cir. 2012) (employing similar two-part inquiry).

         "RLUIPA defines the term 'religious exercise' broadly to include 'any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'" Couch, 679 F.3d at 200 (quoting 42 U.S.C. § 2000cc-5(7)(A)). Plaintiffs' RLUIPA claim implicates one activity: eating a diet consistent with How to Eat to Live by the Most Honorable Elijah Muhammad (Claim 1(b)). Defendants do not dispute that selecting a diet for religious purposes qualifies as a religious exercise. See Lovelace, 472 F.3d at 198-99.

         RLUIPA does not define the term "substantial burden, " see Couch, 679 F.3d at 200, but the United States Court of Appeals for the Fourth Circuit has determined that the Supreme Court's jurisprudence interpreting the Free Exercise Clause provides guidance on the issue. See Lovelace, 472 F.3d at 187. Thus, the Fourth Circuit has explained that a substantial burden

is one that put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs, or one that forces a person to choose between following the precepts of h[is] religion and forfeiting [governmental] benefits, on the one hand, and abandoning one of the precepts of h[is] religion... on the other hand.

Couch, 679 F.3d at 200 (alterations and omission in original) (quoting Lovelace, 472 F.3d at 187). In the substantial burden inquiry, a plaintiff "is not required ... to prove that the exercise at issue is required by or essential to his religion." Krieger v. Brown, 496 F.App'x 322, 325 (4th Cir. 2012) (citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)). Nevertheless, "at a minimum the substantial burden test requires that a RLUIPA plaintiff demonstrate that the government's denial of a particular religious ... observance was more than an inconvenience to one's religious practice." Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007) (citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004));[7] see Krieger, 496 F.App'x at 326 (affirming grant of summary judgment where inmate failed to "show that the deprivation of an outdoor worship circle and the requested sacred items modified his behavior and violated his religious beliefs" (citing Lovelace, 472 F.3d at 187)). Thus, no substantial burden exists if the government action merely makes the "religious exercise more expensive or difficult, " but fails to pressure the adherent to violate his or her religious beliefs or abandon one of the precepts of his religion. Living Water Church of God v. Charter Twp. of Meridian, 258 F.App'x 729, 739 (6th Cir. 2007).

         Two recent cases from the Fourth Circuit illustrate a plaintiffs responsibility with respect to demonstrating a substantial burden. In Couch v. Jabe, the plaintiff "testified that the primary religious texts of Islam command that he grow a beard and that the refusal to maintain a beard is a sin comparable in severity to eating pork." Couch, 679 F.3d at 200. The VDOC's grooming policy prohibited inmates from growing beards and enforced this rule by placing a noncompliant inmate in a program that restricted or limited the inmate's "access to personal property, movement rights, the right to eat and associate with others, recreation time, and visitation time." Id. at 199. The Fourth Circuit concluded that VDOC's grooming policy and enforcement mechanism, "fit squarely within the accepted definition of 'substantial burden'" because it placed substantial pressure on the plaintiff to modify his behavior and violate his beliefs. Id. at 200-01 (citing Warsoldier v. Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005)).

         In Krieger v. Brown, the Fourth Circuit declined to find an inmate had demonstrated a substantial burden where prison officials denied "his requests for an 'outdoor worship circle' and certain 'sacred items' related to his religious practice of Asatru." Krieger, 496 F.App'x at 322. The plaintiff "asserted that deprivation of the outdoor worship circle would require him to pray indoors, and that the 'Blot' ceremony is 'best performed outdoors.'" Id. at 325 (emphasis added). The Fourth Circuit concluded that the mere denial of the optimal manner for performing the "Blot" ceremony could not demonstrate a substantial burden where the plaintiff "failed to offer any explanation regarding the reason why indoor worship would compromise his religious beliefs." Id. Similarly, the inmate failed to demonstrate a substantial burden with respect to the denial of additional sacred items when he simply made the "blanket assertion" that "the sacred items were 'necessary' to perform 'well-established rituals.'" Id. at 326. The Fourth Circuit noted that plaintiff "did not identify those rituals, or explain why the absence of the sacred items had an impact on the rituals and violated his beliefs." Id.

         Krieger illuminates another consideration in conducting the substantial burden inquiry. The availability to an inmate, in the most general sense, of other means to practice his or her faith is not relevant to the RLUIPA substantial burden inquiry. Al-Amin v. Shear, 325 F.App'x 190, 193 (4th Cir. 2009). "Nevertheless, courts properly consider whether the inmate retains other means for engaging in the particular religious activity, such as the "Blot" ceremony, in assessing whether a denial of the inmate's preferred method for engaging that religious exercise imposes a substantial burden." Shabazz v. Va. Dep't Corr., 3:10CV638, 2013 WL 1098102, at *7 (E.D. Va. Mar. 15, 2013) (citing Krieger, 496 F.App'x at 326; Coleman v. Governor of Mick, 413 F.App'x 866, 875-76 (6th Cir. 2011)). Thus, an inmate failed to demonstrate the denial of additional group study time imposed a substantial burden upon his religious exercise where prison officials already provided three hours of group study and worship time and allowed the inmate to study in his cell. See Van Wyhe v. Reisch, 581 F.3d 639, 656-57 (8th Cir. 2009). Similarly, the United States Court of Appeals for the Sixth Circuit concluded that prison policies that limited inmates' access to religious radio and television broadcasts failed to substantially burden the inmates' religious exercise because the inmates "may receive religious literature via the mail and may receive visitors at the prison to discuss their religious beliefs." Coleman, 413 F.App'x at 876.

         Moreover, RLUIPA does not "preclude inquiry into 'the sincerity of a prisoner's professed religiosity.'" Lovelace, 472 F.3d at 187 n.2 (quoting Cutter, 544 U.S. at 725 n.13; cf. Gillette v. United States, 401 U.S. 437, 457 (1971) ("The 'truth' of a belief is not open to question; rather, the question is whether the objector's beliefs are 'truly held.'" (internal quotation marks and citation omitted))).

         If a plaintiff demonstrates a substantial burden on his religious exercise, then the Court must determine whether the prison officials can establish that (1) the denial of the plaintiffs request, i.e., the imposition of the burden, was in furtherance of a compelling governmental interest, and (2) the imposition of the burden "is the least restrictive means of furthering that compelling governmental interest." Couch, 679 F.3d at 201-02 (citing 42 U.S.C. § 2000cc-l(a)(1)(2)). To show that a policy is "the least restrictive means" of furthering a compelling governmental interest, prison officials must demonstrate that they have "consider[ed] and reject[ed]" less restrictive alternatives to the challenged practice. Id. at 203.

         IV. Findings of Fact

         Based on the evidence and testimony presented at the evidentiary hearing, the Court makes the following findings of fact.

         A. Findings of Fact Pertaining to the Nation of Islam Diet

         1. Plaintiffs are practicing members of the National of Islam ("NOI") under the leadership of the Most Honorable Elijah Muhammad and Minister Louis Farrakhan. (Tr. 56:14-17, 110:11-16.)

         2. Plaintiffs believe that their religion requires them to obey Elijah Muhammad and Louis Farrakhan and to follow the Guiding Rules of Conduct (Pis.' Ex. 4). (Tr. 56:18-24, 62:13-63:5, 64:13-65:9, 110:17-23, 119:5-120:10.)

         3. Elijah Muhammad set forth what Plaintiffs refer to as dietary "requirements" for members of the NOI in How To Eat To Live. (Tr. 12:10-11, 57:8-17, 111:2-12; Pis.' Ex. 3; Pis.' Ex. 7.)

         4. Plaintiffs contend that How To Eat To Live requires Plaintiffs to "train [them]selves to eat one meal a day, " with no snacks between meals, "to train [them]selves to eat no meat and no fish, " and to eat the foods approved by How To Eat To Live. (Tr. 12:7-17, 22:21-24:15, 121:18-122:18; Pis.' Ex. 3; Pis.' Ex. 7.)

         5. Plaintiffs contend that How To Eat To Live prohibits Plaintiffs from eating foods that are "contaminated with pork." (Tr. 12:24-15:14, 16:10-19:7; Pis.' Ex. 3; Pis.' Ex. 7.)

         6. How To Eat To Live is supplemented by "The Restrictive Laws of Islam" and an edition of The Final Call entitled, "Vegetarianism is best" (Tr. 10:25-11:3, 20:20-21:24; Pis.'Ex. 5; Pis.'Ex. 6.)

         7. How To Eat To Live includes the following statements regarding food choices: "vegetables, milk and butter are the right foods to eat, when they are pure;" "[v]irtually all vegetables are good to eat except collard greens and turnip salad;" "[c]abbages are good, ... but not the green leaves;" "[e] at some spinach, but do not become an habitual spinach eater;" "[e] at rutabaga-a little every now and then;" "[y]ou may eat as much garlic and onion as you like, but no sweet potatoes and no white potatoes;" "[t]here are many more vegetables you will find edible or forbidden to eat in this book;" eat no peas, no beans, except "the small navy [bean];" "[v]irtually all fruits are good, " except "processed dried grapes;" "[e] at whole wheat, but not the whole grain ... [and] never white flour;" do not "eat half cooked bread;" and "[e] at the best food you can obtain." (Pis.' Ex. 3, at 20, 77; Pis.' Ex. 7, at 4, 5, 6.)

         8. How To Eat To Live includes the following statements about foods to be avoided, including: "foods such as pig, nuts, white flour, meats (of course, we eat some meats), the wrong kind of peas, the wrong kinds of breads, half-cooked breads, too many starchy foods, and too much sweets;" (Pis.' Ex. 3, at 10; Pis.' Ex. 7, at 29-30); swine is a "divinely-prohibited flesh;" (Pis.' Ex. 7, at 12, 13, 17, 69, 105; Pis.' Ex. 3, at 19, 37); "[i]t is not a sin for you to eat meat, but it is a sin for you to eat the hog-meat." (Pis.'Ex. 3, at 78.)

         9. The dietary guidance for the followers of the NOI has evolved over time, and a review of How To Eat To Live, as supplemented, indicates that there are numerous inconsistencies. Plaintiffs contend that they may not eat meat or marine life, but there are statements to the contrary in How To Eat To Live, for example:

• "Stay away from eating a lot of meats and do not eat too much fish that is weighing from 20 to 50 pounds. You should eat fish weighing a half pound to ten pounds." (Pis.' Ex. 3, at 67.)
• Compare "[c]hickens are not fit to eat" with "Eat meat? If so, eat clean, fresh meat whether it is beef, lamb or chicken. Change sometimes, and have fish for your meal." (Pis.'Ex. 7, at 11, 25.)

         Other inconsistencies exist, for example:

• Compare "eat ... no white potatoes" with "do not eat those white potatoes at every meal; they are full of starch." (Pis.' Ex. 7, at 4, 25.)
• Compare "Allah forbids us to eat peas" with "I have said to eat no peas. At that time, I did not think about what we call sweet peas, which grow into pods. They can be eaten, but not field peas." (Pis.' Ex. 7, at 4, 88.)

         10. How To Eat To Live states that the "eating regulations ... are a 'must' ... and that the NOI followers should "[b]egin at once." But Elijah Muhammad "recognizes that because black people in America, particular[ly] his followers, have grown-grew up eating meat, we grew up eating flesh, he told us to use a process of gradualism and stop eating meat, stop eating fish." (Tr. 39:9-16.) "Vegetarianism is best" (Pis.' Ex. 6) states that "[gradualism is a universal principle of Divine Law found in nature" and that "these steps must be taken gradually" (Pis.' Ex. 6, at 1-2), but it also states that "vegetarianism must be the accepted and usual standard" and that "that day has arrived." (Pis.'Ex. 6, at 2.)

         11. "The Restrictive Laws of Islam" (Pis.' Ex. 5) list the ...


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