United States District Court, E.D. Virginia, Richmond Division
RAHEEM S. AL-AZIM, et ai, Plaintiffs,
J. EVERETT, et al., Defendants.
REPORT AND RECOMMENDATION
Roderick C. Young United States Magistrate Judge
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.
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.
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 ("Defendants") remain as
defendants in this action.
Summary of Allegations and Remaining 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 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") by failing to provide a diet
reasonably consistent with How To Eat To Live. (Id.
(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 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.)
deny that they have violated Plaintiffs' rights under the
First Amendment or RLUIPA. (Answer, ECF No. 37, ¶ 12.)
provides,  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;
(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 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).
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).
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
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)); 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
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
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.
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.
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))).
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.
Findings of Fact
on the evidence and testimony presented at the evidentiary
hearing, the Court makes the following findings of fact.
Findings of Fact Pertaining to the Nation of Islam
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,
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.)
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.)
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.)
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.)
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.)
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.)
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,
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.)
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.)
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.)
"The Restrictive Laws of Islam" (Pis.' Ex. 5)
list the ...