United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION & ORDER
C. Hoppe United States Magistrate Judge
Brad Faver is an orthodox Sunni Muslim inmate incarcerated
within the Virginia Department of Corrections
(“VDOC”). Faver contends in this lawsuit that
Defendant Harold Clarke, the VDOC's Director, violated
his rights under the First Amendment to the United States
Constitution and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1
et seq., by implementing certain policies that substantially
burden Faver's religious beliefs and practices. Compl.
1-4, ECF No. 1; Mem. Op. 1-2, ECF No. 45. In particular, he
alleges “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, '” Mem. Op. 2,
because its Common Fare menu does not include “meat
that is ‘ritually slaughtered in the name of Allah,
'” id. at 13. See Compl. 2-4, 6.
On September 29, 2017, United States District Judge Elizabeth
K. Dillon entered an Order granting Clarke's motion for
summary judgment “as to Faver's First Amendment
claims and Faver's claims for damages against Clarke in
his official capacity and under RLUIPA, ” but denying
the motion “as to Faver's RLUIPA beard, prayer
oils, and diet claims.” Order on Summ. J. Mots. ¶
3, ECF No. 46. Faver's RLUIPA claims for equitable relief
against Clarke in his official capacity are set for a bench
matter is currently before the Court on Faver's Motion
under Rule 60(b)(6) of the Federal Rules of Civil Procedure.
ECF No. 50. Faver, who was representing himself when he filed
this motion, seeks relief from two Orders entered by Judge
Dillon on September 29, 2017.See Pl.'s Mot. 1-2,
5, 10-11 (citing Order Den. Pl.'s Mot. to Compel Disc.
¶¶ 2, 5, ECF No. 44; Order on Summ. J. Mots. ¶
3). First, he asks the Court to reconsider the portion of
Judge Dillon's Order granting Clarke summary judgment on
the merits of all three of Faver's First Amendment
free-exercise claims and to reinstate those claims for trial.
Id. at 2-4, 5-7, 8-10, 11. Second, Faver objects to
Judge Dillon's Order denying his requests that Clarke (1)
“admit to certain facts concerning policies Clarke
imposed or enforced when [he] worked in other jurisdictions,
” and (2) produce “all reports of prisoners
concealing contraband in their beards” and “all
reports of infractions for beard related gang
association.” Order Den. Pl.'s Mot. to Compel Disc.
¶¶ 2, 5; see Pl.'s Mot. 1-2. After
Faver filed this motion, counsel entered an appearance in
this case on Faver's behalf. ECF No. 60. On April 3,
2018, Faver's counsel moved to continue the bench trial
and to extend discovery. ECF No. 64.
Standard of Review
Faver's motion is styled as one seeking relief from a
final order under Rule 60(b), the orders he asks the Court to
reconsider are actually “interlocutory one[s] under
Rule 54(b), ” Gentry v. Hyundai Motor Am.,
Inc., No. 3:13cv30, 2017 WL 1289050, at *1 (W.D. Va.
Apr. 6, 2017), because Judge Dillon's rulings resolved
“fewer than all the claims” in this action,
Fed.R.Civ.P. 54(b). See, e.g., Murphy v. Inmate
Sys., 112 Fed.Appx. 882, 883 (4th Cir. 2004) (per
curiam) (order denying motion to compel discovery); Am.
Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d
505, 514 (4th Cir. 2003) (order granting partial summary
judgment). “Motions for reconsideration of
interlocutory orders are not subject to the strict standards
applicable to motions for reconsideration of a final
judgment” or final order under Rule 60(b), Am.
Canoe Ass'n, 326 F.3d at 514, because interlocutory
orders “may be revised at any time before the entry of
a judgment adjudicating all the claims and all the
parties' rights and liabilities, ” Fed.R.Civ.P.
54(b). See Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1469-70, 1472-74 (4th
Cir. 1991). Accordingly, the Court will evaluate Faver's
pro se motion under Rule 54(b), and not Rule 60(b)(6).
See Castro v. United States, 540 U.S. 375, 381-82
(2003); Appalachian Power Co. v. Nissen, No.
7:14cv535, 2015 WL 1538809, at *1 (W.D. Va. Apr. 7, 2015).
54(b) gives a district court “flexibility to revise
interlocutory orders before final judgment as the litigation
develops and new facts or arguments come to light.”
Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th
Cir. 2017) (emphasis omitted). But the court's discretion
“is not limitless, ” id., and
“[s]uch motions . . . should be granted sparingly,
” Wootten v. Commonwealth of Va., 168
F.Supp.3d 890, 893 (W.D. Va. 2016) (quotation marks omitted).
Relief under Rule 54(b) may be appropriate where the moving
party shows that the Court “patently misunderstood a
party” in reaching its decision, there has been
“a controlling or significant change in the law or
facts” since the Court issued its order, Above the
Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99,
101 (E.D. Va. 1983), or “the prior decision was clearly
erroneous and would work manifest injustice” if allowed
to stand, Am. Canoe Ass'n, 326 F.3d at 515
(quotation marks omitted). See Wootten, 168
F.Supp.3d at 893 (citing the same factors).
“[R]econsideration is not meant to re-litigate issues
already decided, provide a party the chance to craft new or
improved legal positions, highlight previously-available
facts, or otherwise award a proverbial ‘second bite at
the apple' to a dissatisfied litigant.”
First Amendment Claims
Free Exercise Clause of the First Amendment forbids the
adoption of laws designed to suppress religious beliefs or
practices, ” including correctional policies intended
to limit incarcerated persons' religious practices.
Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014).
“However, a neutral and generally applicable policy
that substantially burdens an inmate's sincere religious
exercise is constitutional if it is ‘reasonably adapted
to achieving a legitimate penological' interest.”
Snodgrass v. Robinson, No. 7:14cv269, 2015 WL
4743986, at *12 (W.D. Va. Aug. 10, 2015) (quoting
Wall, 741 F.3d at 499). In other words, the Free
Exercise Clause allows prison officials to restrict
inmates' “religious practices subject to a
‘reasonableness' test that accords substantial
deference to the professional judgment of correctional
officers.” Wall, 741 F.3d at 499 (citing
Overton v. Bazzetta, 539 U.S. 126, 132 (2003)).
Judge Dillon explained in her Memorandum Opinion, the VDOC
policies that Faver challenges in this lawsuit are
“reasonable and thus [constitutionally] permissible,
” id., if they satisfy the four factors
outlined in Turner v. Safley, 482 U.S. 78 (1987).
See Mem. Op. 4-5, 8-9, 11-12, 15-16. The
Turner test asks:
(1) whether 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 v. Lee, 472 F.3d 174, 200 (4th Cir. 2006)
(brackets omitted) (quoting Turner, 482 U.S. at
89-92). “The prisoner carries the burden of proof under
the Turner [test] to disprove the validity of the
prison regulation at issue.” Mem. Op. 5 (citing
Overton, 539 U.S. at 132).
order for Faver's constitutional free-exercise claims to
survive Clarke's motion for summary judgment, Faver had
to produce evidence that, when viewed in his favor as the
non-moving party, could persuade a reasonable jury that the
challenged VDOC policy (1) “substantially
burdens” Faver's “sincerely held religious
belief, ” and (2) is not “reasonably related to a
legitimate penological interest.” Mem. Op. 2, 4-5;
see Fed. R. Civ. P. 56(c), (e). As to the first
element, Judge Dillon found there was “no
dispute” that the VDOC's grooming policy
substantially burdens Faver's sincere religious belief
that he must maintain a fist-length beard and there was at
least “a genuine dispute” of material fact
whether the VDOC's single-vendor policy and Common Fare
diet substantially burdens Faver's sincere religious
beliefs or practices. Mem. Op. 8, 11, 15. Judge Dillon then
explained that Faver's constitutional claims faltered on
the second element because, after weighing the
Turner factors and considering Faver's arguments
and the available evidence, it was clear Faver had failed to
“disprove the validity” of any of the
challenged policies. See Id. at 6-9, 10-12, 13-16.
Accordingly, Judge Dillon concluded that there was no genuine
dispute whether the VDOC policies were reasonably related to
a legitimate penological interest and Clarke was entitled to
judgment as a matter of law on the merits of Faver's
First Amendment claims. Id. at 2, 9, 11-12, 15-16.
pro se motion to reconsider, in which he points to evidence
already in the record and repeats arguments Judge Dillon
specifically rejected in explaining why Faver had not
disproven the policies' validity, essentially seeks to
relitigate Clarke's summary judgment motion as to
Faver's First Amendment claims. See Pl.'s
Mot. 2-4, 5-7, 8-11; Mem. Op. 8-9, 11-12, 15-16. Faver does
not suggest that the Court “patently
misunderstood” his position on summary judgment, or
point to “a controlling or significant change in the
law or facts, ” Above the Belt, Inc., 99
F.R.D. at 101, since the Court issued its earlier order.
See generally Pl.'s Mot. 2-11. Nor does he
suggest that the “prior decision was clearly erroneous
and would work manifest injustice” if allowed to stand,
Am. Canoe Ass'n, 326 F.3d at 515. On the
contrary, Faver in effect urges the Court to disregard
binding legal authority and reinstate his First Amendment
free-exercise claims using the “more searching standard
of review, ” Lovelace, 472 F.3d at 186,
applicable to his parallel RLUIPA claims. See
generally Pl.'s Mot. 2-10 (discussing ...