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Faver v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

September 29, 2017

BRAD FAVER, Plaintiff,



         Brad 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.[1] 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 judgment.

         I. BACKGROUND

         Faver 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.)

         Faver 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.)


         A. Motion for Summary Judgment Standard

         Federal 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).

         B. Limitation on Damages

         Some of 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.[2] 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.

         C. First Amendment and RLUIPA

         To 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).

         A 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).

         The 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).

         Section 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)).

         “Although 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.”).

         D. Beard

         Faver 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.)

         In 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.)

         Major 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. (Id.)

         Clarke 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 ...

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