United States District Court, E.D. Virginia, Alexandria Division
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.
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.
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
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].
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.
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].
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." [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].
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].
Standard of Review
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).
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. [Dkt. No. 60].
The defendants contend that the RLUIPA claims are moot
because Hicks challenges only ...