United States District Court, W.D. Virginia, Roanoke Division
ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
Faver, a Virginia inmate proceeding pro se, filed a
civil action pursuant to 42 U.S.C. § 1983, alleging that
defendant Harold Clarke, the Director of the Virginia
Department of Corrections (VDOC), violated his religious
rights under the First Amendment and the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §
2000cc-1, et seq. The parties filed cross-motions
for summary judgment, and this matter is ripe for
disposition. For the reasons stated herein, the court
denies Faver's motion for summary judgment and grants in
part and denies in part Clarke's motion for summary
is a Muslim inmate housed at Augusta Correctional Center
(Augusta). He alleges that, in accordance with his religion,
he must grow a beard at least a fist's length, apply
perfumed oils for prayer, and eat a diet containing meat that
is “ritually slaughtered in the name of Allah.”
He also alleges that his religious beliefs “prohibit
the acquisition of religious accoutrements from a company
that sells swine and idols.” (Compl. 2, Dkt. No. 1.)
claims that VDOC Operating Procedure (OP) 864.1 prohibits him
from growing a fist-length beard; OP 802.1 requires him to
acquire his perfumed oils from Keefe Commissary (Keefe) which
“sells swine and idols”; and the VDOC does not
offer a diet that is consistent with his “religious
scruples.” (Compl. 2, 3.)
Motion for Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment “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.” “As
to materiality . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In order to preclude summary judgment, the dispute
about a material fact must be “‘genuine, '
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of
material fact “is merely colorable or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving
party. See, e.g., Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir. 1994). A plaintiff may not amend a
complaint through argument in a brief opposing summary
judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336
(4th Cir. 2009).
Limitation on Damages
Faver's claims for monetary damages fail at the outset.
Defendant Clarke is immune from damages claims for actions
taken in his official capacity. See Will v. Michigan
Dep't of State Police, 491 U.S. 58 (1989). Moreover,
RLUIPA does not authorize damages against a public official
under the Spending Clause of the United States
Constitution. See Sossamon v. Texas, 563 U.S.
277, 282 n.1, 293 (2011) (prohibiting damages claims against
state officials in their official capacity under the Spending
Clause); Rendelman v. Rouse, 569 F.3d 182, 189 (4th
Cir. 2009) (same for individual capacity). Therefore, the
court will grant summary judgment to Clarke on Faver's
claims for damages against Clarke in his official capacity
and for damages under RLUIPA.
First Amendment and RLUIPA
state a viable claim under the First Amendment or RLUIPA, a
plaintiff must demonstrate that the defendant prison
official's actions or policies place a substantial burden
on his free exercise of his sincere religious belief.
Thomas v. Review Bd. of Ind. Emp't Sec. Div.,
450 U.S. 707, 718 (1981) (First Amendment); Lovelace v.
Lee, 472 F.3d 174, 185 (4th Cir. 2006) (RLUIPA). A court
must decide the threshold question of whether a plaintiff
sincerely held the avowed belief and whether the belief is,
in a plaintiff's own scheme of things, religious.
United States v. Seeger, 380 U.S. 163, 185 (1965).
Only a personal practice that is both sincerely held and
rooted in religious belief is protected. Wisconsin v.
Yoder, 406 U.S. 205, 215-16 (1972).
substantial burden on religious exercise occurs when a
government, through act or omission, “put[s]
substantial pressure on an adherent to modify his behavior
and to violate his beliefs.” Lovelace, 472
F.3d at 187 (quoting Thomas, 450 U.S. at 718). The
plaintiff bears the initial burden of establishing that the
government's actions substantially burdened his exercise
of religion. See, e.g., Krieger v. Brown, 496 F.
App'x. 322, 324 (4th Cir. 2012). In conducting the
substantial burden inquiry, the plaintiff “is not
required . . . to prove that the exercise at issue is
required by or essential to his religion.” Id.
at 325 (citing Cutter v. Wilkinson, 544 U.S. 709,
725 n.13 (2005)). Nevertheless, “at a minimum the
substantial burden test requires that a . . . 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). No substantial burden
occurs 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).
First Amendment provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting
the free exercise thereof.” Although incarcerated, a
prisoner still “retains those First Amendment rights
that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 822
(1974). If the inmate establishes a substantial burden on his
sincerely held religious belief, the next inquiry is whether
the prison regulation is reasonably related to a legitimate
penological interest. Turner, 482 U.S. at 89.
Whether a regulation is reasonably related depends on:
(1) [W]hether there is a “valid, rational
connection” between the prison regulation or action and
the interest asserted by the government, or whether this
interest is “so remote as to render the policy
arbitrary or irrational”; (2) whether
“alternative means of exercising the right …
remain open to prison inmates, ” an inquiry that asks
broadly whether inmates were deprived of all forms of
religious exercise or whether they were able to participate
in other observances of their faith; (3) what impact the
desired accommodation would have on security staff, inmates,
and the allocation of prison resources; and (4) whether there
exist any “obvious, easy alternatives” to the
challenged regulation or action, which may suggest that it is
“not reasonable, but is [instead] an exaggerated
response to prison concerns.
Lovelace, 472 F.3d at 200 (citing Turner v.
Safley, 482 U.S. 78, 89-92 (1987)). In weighing these
factors, the court must “respect the determinations of
prison officials.” United States v. Stotts,
925 F.2d 83, 86 (4th Cir. 1991). The prisoner carries the
burden of proof under the Turner analysis to
disprove the validity of the prison regulation at issue.
Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
3 of RLUIPA provides that “[n]o government shall impose
a substantial burden on the religious exercise of a person
residing in or confined to an institution . . . even if the
burden results from a rule of general applicability, unless
the government demonstrates that” the burden is
“in furtherance of a compelling governmental interest
and is the least restrictive means of furthering that . . .
interest.” 42 U.S.C. § 2000cc-1(a). Once a
plaintiff produces prima facie evidence to support
the claim that the challenged practice or law substantially
burdens the plaintiff's sincere religious belief, the
government bears the burden of persuasion on whether the
practice or law is the least restrictive means of furthering
a compelling governmental interest. 42 U.S.C. §
2000cc-2(b). “The least-restrictive-means standard . .
. requires the government to show that it lacks other means
of achieving its desired goal without imposing a substantial
burden on the exercise of religion by the objecting
party.” Jehovah v. Clarke, 798 F.3d 169, 177
(4th Cir. 2015) (quoting Holt v. Hobbs, 135 S.Ct.
853, 864 (2015)).
RLUIPA must ‘be construed in favor of a broad
protection of religious exercise, ' it must be applied
‘with particular sensitivity to security
concerns.'” Couch v. Jabe, 679 F.3d 197,
201 (4th Cir. 2012) (internal citation omitted) (quoting
Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
“In this regard, ‘RLUIPA [is not meant] to
elevate accommodation of religious observances over an
institution's need to maintain order and
safety.'” Id. (alteration in original)
(quoting Cutter, 544 U.S. at 722. Prison officials
satisfy the “least restrictive” prong of RLUIPA
by demonstrating that they have considered and rejected less
restrictive alternatives to the challenged practice. See
Id. at 203. The court is required to give deference to
prison administrators' policy explanations. See
Lovelace, 472 F.3d at 182 (“We confirm
emphatically that any substantive explanation offered by the
prison must be viewed with due deference.”).
asserts that OP 864.1 prohibits him from growing his beard at
least a fist's length in accordance with his religious
beliefs. OP 864.1, Offender Grooming and Hygiene,
establishes uniform personal grooming standards for,
inter alia, beards of offenders incarcerated in the
VDOC, in order to facilitate the identification of offenders
and promote safety, security, and sanitation. (Russell Aff.
¶¶ 5-6, Dkt. No. 25, Attach. 1.) This OP prohibits
beards that could conceal contraband, promote identification
with gangs, create a health, hygiene, or sanitation hazard,
or could significantly compromise the ability to identify an
offender. (Id. at ¶ 6.) Pursuant to OP 864.1,
beards of one-quarter inch maximum length are permitted for
all offenders in all VDOC facilities in order to accommodate
religious, medical, and secular reasons for beards.
(Id. at ¶ 7.) Offenders who violate this policy
may be charged with Disciplinary Offense Code 133 (Refusal to
Obey an Order). (Id.)
support of Clarke's motion for summary judgment, Major
Russell submits an affidavit stating that in addition to
security concerns, positive identification of each offender
is important in the event of escape from confinement.
(Id. at ¶ 8.) Offenders with long hair and
beards can rapidly change their appearance so as to
compromise the need for rapid identification. (Id.)
Even inside the prison, positive, quick identification of
offenders facilitates the orderly operation of each facility.
(Id.) Security is of paramount importance in an
institutional setting. (Id.)
Russell also avers that beards that are longer than
one-quarter of an inch also provide the offender with an
additional place to hide contraband. (Id.) He states
that the VDOC has had instances where offenders have hidden
drugs or weapons in their beards, thereby placing staff and
other offenders at “serious risk.” (Id.)
He further states that shorter beards facilitate routine
searches of offenders by staff because the need to search the
beards of male offenders is essentially eliminated.
notes that this court has previously held, in Coleman v.
Jabe, Civil Action No. 7:11cv518, 2014 U.S. Dist. LEXIS
67971, at *13-15, 2014 WL 2040097, at *4 (W.D. Va. May 16,
2014), that the VDOC's grooming policy, as it pertains to
the one-quarter inch beard length maximum was valid. (Def.
Mot. Summ. J. 10-11, Dkt. No. 25.) In Coleman, the
court determined that the VDOC satisfied the least
restrictive means test by articulating how its grooming
policy furthered its compelling interest in safety and