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Hicks v. Pixley

United States District Court, E.D. Virginia, Alexandria Division

September 20, 2019

Deonta Jerome Hicks Plaintiff,
Wendall W. Pixley, et al., Defendants.


         Deonta Jerome Hicks, a Virginia inmate proceeding pro se, has filed a civil rights action alleging violations of his religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), see 42 U.S.C. § 2000cc-2, and the First Amendment, see 42 U.S.C. § 1983. The defendants filed a Second Renewed Motion for Summary Judgment, supported by a legal memorandum in which they incorporate by reference a previously filed supporting affidavit with exhibits (entitled "enclosures"). [Dkt Nos. 47-1, 71-72]. Plaintiff received the notice required by Local Rule 7(K) and Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). [Dkt. No. 73]. Plaintiff filed a response, supported by an affidavit, opposing the defendants' motion. [Dkt. Nos. 77-78]. This matter is therefore ripe for adjudication. For the reasons stated below, the defendants' Second Renewed Motion for Summary Judgment will be granted as to both First Amendment claims and to the RLUIPA claim contained in Count 6 of plaintiff s Amended Complaint [Dkt. No. 10], the remainder of plaintiff s RLUIPA claims will be dismissed as moot, and this action will be dismissed.

         When Hicks filed this lawsuit, he was incarcerated at Sussex II State Prison (SUSP). Although he has since transferred facilities, all of his claims stem from activities that occurred while incarcerated at SUSP. He brings six claims under RLUIPA. He alleges that (1) he could not pray in the recreation pod individually or as part of a group; (2) he could not attend religious services while housed in the Structured Living Unit (SLU); (3) he was denied visitation on Islamic holidays; (4) he could not roll up his pants above his ankles; (5) he could not wear a kufl (an Islamic head covering) everywhere within the prison; and (6) he was denied a request to obtain a thaub (an Islamic prayer robe). He also brings two claims under the First Amendment. First, he alleges that from April 1, 2013, through August 1, 2016, the Virginia Department of Corrections (VDOC) had a policy prohibiting inmates from growing a partial, one-quarter inch beard. Second, he reiterates his claim that he was unable to obtain a thaub. He claims that these two actions have interfered with his ability to practice Islam.

         I. Background

         Hicks's RLUIPA and First Amendment claims stem from VDOC rules of general applicability as well as SUSP-specific practices. The general applicability policies are part of VDOC Operating Procedure (OP) related to grooming, property, recreation, housing, and visitation. Additionally, the current warden, Tracy Ray, has submitted an affidavit attesting to those policies and their implementation at SUSP. [Dkt. No. 47-1]. The facts outlined below are undisputed except as noted otherwise.

         Hicks first points to OP 864.1, which governs grooming standards. [Ray Aff. Enclosure D]. Before August 1, 2016, the policy required beards to "cover the entire facial hair area." [Ray Aff. ¶ 12; Ray Aff. Enclosure D]. If an inmate could not grow a beard covering the entire facial-hair area, the beard was prohibited as a partial beard. [Ray Aff. ¶ 12]. Hicks declares that when this policy was in place, he was required to maintain a shaved face because he could not grow facial hair throughout his entire facial-hair area. [Hicks Aff. ¶¶ 15-16]. That policy was amended effective August 1, 2016 to allow one-quarter inch beards that cover "those areas in which the offender is able to grow facial hair, " so long as no shapes or designs are cut into the beard. (Ray Aff. ¶ 12; Ray Aff. Enclosure D). The current policy, effective November 7, 2017, allows one-half inch beards. [Ray Aff. ¶ 13].

         Other relevant VDOC policies govern offender property, including personal and religious clothing. Ray attests that rules governing inmate attire are implemented to prevent inmates from affiliating with gangs or from concealing weapons and other contraband. [Ray Aff. ¶ 15]. OP 802.1 requires all personal clothing to be purchased through the commissary. [Ray Aff. Enclosure E]. Further, clothes must "fit properly as determined by facility staff." [Ray Aff. Enclosure E]. As a result, SUSP did not allow Hicks to roll up his pants above his ankles. [Ray Aff. ¶ 15]. Additionally, OP 841.3 explicitly lists particular faith objects inmates may purchase and keep as personal property. [Ray Aff. Enclosure A], Kufis are on this list but are subject to the same facility-specific restrictions as other non-religious head coverings. (Ray Aff. ¶ 6; Ray Aff. Enclosure A]. Accordingly, at SUSP kufis (like other head coverings) may be worn during outside recreation (where they are subject to search) but not in other specified areas unless the inmate is participating in an authorized religious program. [Ray Aff. ¶ 6]. Thaubs, however, are not on the list of permitted religious property. [Ray Aff. Enclosure A]. For objects not explicitly listed, inmates may request to obtain a particular item. [Ray Aff. ¶ 16]. The VDOC Faith Review Committee denied Hicks's request for a thaub based on security concerns. [Ray Aff. ¶ 16; Ray Aff. Enclosure F].

         Concerning prayer, Ray attests that, for security reasons, inmates may not gather in small groups during pod recreation, thus preventing group prayer. [Ray Aff. ¶ 7]. Instead, inmates are permitted to gather for religious services in supervised, designated areas. [Ray Aff. ¶ 7]. Ray further declares that security reasons underlie Hicks's inability to use his prayer mat for individual prayer during pod recreation. [Ray Aff. ¶ 7]. Otherwise, Ray says, during pod recreation Hicks is permitted to pray individually, in an upright position, without his mat. [Ray Aff. ¶ 7]. Hicks disputes Ray's statement about group gatherings during pod recreation, attesting that inmates frequently convene to play games and watch television. [Hicks Aff. ¶ 5].

         Hicks also points to OP 841.7, the rules for the SLU-a housing unit for "offenders whose behavior indicates a need for a more structured living environment than provided in General Population."[1] [Ray Aff. Enclosure B]. Ray attests that these rules prohibit those housed in the SLU from mingling with general population inmates. [Ray Aff. ¶ 9]. As a result, Ray says, when Hicks was housed in the SLU, he could not attend religious services outside of that housing unit. [Ray Aff. ¶¶ 8-9]. Ray further attests that OP 841.7 allows SLU inmates to request religious counseling and visitation from the institutional chaplain. [Ray Aff. ¶ 9]. Hicks disputes that there was a rule prohibiting SLU inmates from mingling with inmates housed in general population. [Hicks Aff. ¶ 10].

         Finally, OP 851.1 governs visiting privileges. [Ray Aff. Enclosure C]. Visitation for general population inmates is Saturdays, Sundays, and all state-recognized holidays. [Ray Aff. Enclosure C]. Virginia does not recognize Islamic holidays as state holidays. [Ray Aff. ¶ 10]. But OP 851.1 allows inmates to request special visits from members of the clergy. [Ray Aff. Enclosure C].

         II. Standard of Review

         The Court will grant a motion for 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." Fed.R.Civ.P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party, " and "[a] fact is material if it might affect the outcome of the suit under the governing law." Hupp v. Cook, 931 F.3d 307, 317 (4th Cir. 2019) (internal quotation marks and citations omitted).

         III. Analysis

         A. RLUIPA Claims

         After Hicks was transferred out of SUSP, the Court asked the parties to address whether his RLUIPA claims for injunctive and declaratory relief had become moot.[2] [Dkt. No. 60]. The defendants contend that the RLUIPA claims are moot because Hicks challenges only ...

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