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Faver v. Clarke

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

April 11, 2018

BRAD FAVER, Plaintiff,
v.
HAROLD CLARKE, Defendant.

          MEMORANDUM OPINION & ORDER

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff 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 trial.

         The 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.[1]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.

         I. Standard of Review

         Although 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).

         Rule 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.” Id.

         II. Discussion

         A. First Amendment Claims

         “The 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)).

         As 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).

         In 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.[2] Id. at 2, 9, 11-12, 15-16.

         Faver's 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 ...


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