United States District Court, W.D. Virginia, Roanoke Division
C. Hoppe, United States Magistrate Judge.
Brad Faver brings this action under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc-1, et seq. He alleges that
Defendant Harold Clarke, the Director of the Virginia
Department of Corrections (“VDOC”), through a
single-vendor policy, infringed on Faver’s religious
rights by depriving him of the opportunity to order prayer
oils from a vendor that conforms to his religious beliefs.
This matter is before me by the parties’ consent under
28 U.S.C. § 636(c), ECF Nos. 56, 57, following a bench
trial held on November 29, 2018, ECF No. 96. Having
considered the evidence presented by the parties at trial and
the arguments of counsel in their post-trial briefs, ECF Nos.
104, 105, I find that the VDOC’s single-vendor policy
does not violate Faver’s rights under RLUIPA and that
Faver is not entitled to relief.
Relevant Facts & Procedural History
times relevant to this dispute, Faver was an inmate in the
VDOC and was housed at the Augusta Correctional Center
(“ACC”). Compl. ¶ 3, ECF No. 1. Faver is a
practicing Orthodox Sunni Muslim. Bench Trial Tr.
10:22–23 (Nov. 29, 2018), ECF No. 102
(“Tr.”). His religious beliefs forbid him from
purchasing items from stores or vendors that sell
“idols, swine, or alcohol.” Tr. 12:3–5.
Idols, according to Faver, include any items associated with
a religion other than Islam. Tr. 13:3–10. This tenant
of his faith is particularly strict as it concerns the
purchase of religions items, such as prayer oils.
See Tr. 13:15–16.
according to Faver, “is legally responsible for all
policies being enforced in the VDOC.” Compl. ¶ 4.
Pursuant to VDOC Operating Procedure (“O.P.”)
802.1, inmates must purchase all religious items, other than
publications, from the facility commissary. O.P. 802.1 §
IV(B)(10), Joint Ex. 2, ECF No. 97-2. The facility commissary
for the VDOC is Keefe Commissary Network, LLC
(“Keefe”). See Tr. 45:4–13. Keefe,
according to Faver, sells both swine and idols. Compl. ¶
17. Because Faver’s religious beliefs require him to
use prayer oils while in a state of prayer, Faver contends
that VDOC policy violates his religious beliefs by forcing
him to choose between purchasing oils from Keefe or not using
oils while in prayer. Compl. ¶¶ 8, 33.
2016, Faver filed this lawsuit against Clarke alleging that
the VDOC’s policy requiring him to order prayer oils
from Keefe violated his sincerely held religious beliefs
under RLUIPA. Compl. ¶ 33. He asserted that there was
“no compelling reason for not allowing [him] to order
his oils from a lawful source” and there were
“less restrictive means to address any concerns”
VDOC may have about him purchasing oils from other vendors by
“naming one Islamically acceptable oil vendor.”
Compl. ¶ 34. He asked for relief in the form of a
“declaration stating that [O.P. 802.1] imposes a
substantial burden on the free exercise of his
religion” and that such policy violates RLUIPA. Compl.
¶¶ 45–46. He further asked this court to
“enjoin Harold Clarke, his successors, agents, and
assigns, to allow Faver” to acquire his prayer oils
from “at least one unobjectionable Muslim oil
vendor.” Compl. ¶¶ 45–46, 52.
November 29, 2018, the parties appeared before me for a bench
trial at which I heard testimony from Faver as well as Marie
Vargo, the Corrections Operations Administrator
(“COA”) for VDOC. Counsel for the parties agreed
to present closing argument via written briefs. ECF Nos. 104,
Summary of Bench Trial & Competing Evidence
of his case-in-chief, Faver called only himself and Vargo.
Faver testified that he was an adherent of “Sunni
Muslim Orthodox Islam.” Tr. 10:22–23. Among other
things, his religious beliefs require him to use prayer oils
during prayer so that he could “smell good and not
distract anybody around [him] in [their] state of
prayer.” Tr. 11:18–20. His religious beliefs
forbid him from purchasing religious items from any store or
vendor that sells idols, swine, or alcohol, as such items
would be considered “tainted in the sight of
Allah.” Tr. 12:3–5, 11–13. He first learned
that aspect of his belief around 2015, though he acknowledged
that he did not get a “clear understanding” of it
until 2016. Tr. 12:16–18.
there were other vendors acceptable to his religion from whom
Faver could purchase prayer oils, the VDOC permitted Faver to
purchase his religious oils only from Keefe. See Tr.
14:9–13. Once he came to fully understand the nature of
his beliefs in 2016, Faver stopped purchasing prayer oils
from Keefe. See Tr. 14:3–6. Faver did
continue to purchase other items from Keefe, such as hygiene
products and over-the-counter medication, but he acknowledged
that his religion was “not as strict” about the
purchase of non-religious items from such vendors.
See Tr. 13:15–16; 15:15–16:7.
also testified that for several months after he stopped
ordering oils from Keefe, he was able to procure oils from
another inmate named Yahya Gaston. Tr. 20:16–24;
22:13–19. According to Faver, Gaston got his oils from
Halalco, a vendor acceptable to Faver’s religion. Tr.
20:19–21; 22:7–10. Faver believed the VDOC
permitted Gaston to order from Halalco “for medical
reasons.” Tr. 22:21–23. Faver exchanged other
commissary items with Gaston for the oils, a practice that
Faver acknowledged was prohibited by the VDOC. Tr.
21:14–17. Around November 2015, Gaston left ACC after
being granted parole. See Tr. 22:14–16.
Afterwards, Faver rationed the remaining oil he had received
from Gaston and cut it with mineral oil “to make it
last longer.” Tr. 23:18–24. Faver acknowledged
that he did not know the source of the mineral oil, but he
maintained that as long as he did not know the source, he
could use the mineral oil with his prayer oil and not violate
his religious beliefs against obtaining prayer oil from a
vendor that sold prohibited items. See Tr.
24:2–27:14. Faver exhausted his supply of prayer oil
about two months before trial. See Tr. 23:1–4.
next called Vargo, who was also the only witness for Clarke.
She testified that as the COA for the VDOC, she was
responsible for coordinating with others in the VDOC to
recommend changes to policy, Tr. 39:13–5, including to
O.P. 802.1, also known as the VDOC’s
“single-vendor policy, ” see Tr.
45:4–14. The VDOC implemented the single-vendor policy
in 2013. Tr. 56:14–16. The single-vendor policy
provides that inmates must purchase all religious personal
property items through the facility commissary. O.P. 802.1
§ IV(B)(10)(a); see also Tr. 45:12–14.
Furthermore, any religious items offered for sale by the
facility commissary needed to be precleared by the
“Faith Review Committee” and listed on the
“Approved Religious Items” list. See
O.P. 802.1 § IV(B)(10). Any item that an inmate sought
to purchase that was not included on this list would need to
be submitted to the Facility Unit Head for approval.
Id. VDOC has entered into a products contract with
Keefe to effectuate the single-vendor policy. Tr.
to Vargo, the purposes of the single-vendor policy are to
bolster prison security and efficiently manage prison
resources. See Tr. 53:11–19. These purposes
are achieved largely because of the contractual relationship
between the VDOC and Keefe. Under the contract, the VDOC
controls key terms concerning both the products available for
purchase by inmates and the procedures for ordering and
delivering those products. Tr. 81:8–20; 85:15–24.
In controlling the items available for purchase, the VDOC can
create uniformity among products and avoid problems over
inmate property. See Tr. 94:24–25;
95:1–4. For example, Vargo testified that before the
VDOC implemented a single-vendor policy, inmates would get
into fights over different types of shoes or use shoe color
to affiliate with gangs. Tr. 94:15–95:2. Narrowing the
type of shoes-or other products-available for purchase
through Keefe helps prison officials manage these problems.
See Tr. 95:3–5. Moreover, the VDOC’s
contract with Keefe provides it with control over the
delivery process so that it can more easily screen deliveries
for contraband entering the facility. VDOC’s exclusive
relationship with Keefe makes the screening process more
predictable and efficient. See Tr. 99:1–17. As
a further precaution, Keefe does not know the identity of any
inmate who places an order, Tr. 89:3–8, and this blind
ordering process protects against inmates coordinating with
the vendor to have contraband delivered, Tr. 89:3–14,
90:13–15. Vargo noted that before the single-vendor
policy, inmates were able to collaborate with small vendors
to have contraband hidden in packages. Tr. 89:11– 14;
99:1–17. She testified that products sent to VDOC
facilities by Keefe have never contained contraband. Tr.
similar reasons, the VDOC’s single-vendor policy allows
the VDOC to operate more efficiently when searching and
processing products sent to its facilities. See Tr.
53:11–19. Specifically, Vargo stated that the
VDOC’s contract obligates Keefe to a “fiduciary
responsibility to procure items in a trustworthy
manner.” See Tr. 53:11–19. This
fiduciary relationship has in turn “reduced the amount
of time” prison staff would otherwise have to spend
“going through property coming from virtually
anywhere.” Tr. 53:14–19. As she explained, when a
product arrives from Keefe, VDOC officials know that it has
been purchased and preapproved and need only be searched and
sent to the facility. See Tr. 97:1–4. In
contrast, products submitted from multiple vendors would
require additional staff time because prison personnel would
need to check the product against the inmate’s order
and confirm that the inmate himself actually ordered and paid
for the product. Tr. 97:5–12. If the shipment from an
outside vendor were not approved, it would need to be
repacked and sent back to the vendor, which Vargo testified
“we used to do . . . quite a bit” before
implementing the single-vendor policy. See Tr.
97:16–23. Finally, using multiple vendors would also
create logistical complications because it would be more
difficult to anticipate when different shipments might
arrive. See Tr. 97:1–12.
also explained why the shipment of prayer oils from outside
vendors would pose unique safety and efficiency concerns.
Unlike some products, oils cannot be screened for contraband
merely by visual inspection, but instead must be tested for
flammability, viscosity, and dangerous substances.
See Tr. 100:7–12. Vargo testified that the
VDOC’s contractual relationship with Keefe, and the
attendant financial incentives, ensures that Keefe procures
the item in the correct container, that it has not been
altered or mixed with poisonous additives, and that it is not
highly flammable. Tr. 66:12–21. Alternatively, the VDOC
would need to individually test every shipment of oils
received from other vendors. Tr. 100:17–20. Vargo
specifically referenced an instance at a VDOC facility prior
to the single-vendor policy where an oil delivered to the
facility from an outside vendor was found to be highly
flammable. See Tr. 101:4–11. Vargo admitted
she was not aware of the vendor from which Keefe obtained the
prayer oils it offers for sale, but she did testify that
Keefe would provide that information if asked and that the
VDOC has “certification from Keefe” concerning
the prayer oils that Keefe receives from its vendor.
See Tr. 67:8–14; 69:8–10;
84:18–24. Additionally, Keefe offers for sale only
those prayer oils that meet the VDOC’s specifications.
See Tr. 85:11–86:12.
testimony, Vargo also discussed two significant exceptions to
the single-vendor policy. First, inmates may purchase
publications from vendors other than Keefe. Under this
policy, inmates can purchase publications from outside
vendors so long as the publication does not:
a. Pose a threat to the security, discipline, and good order
of the facility and is not detrimental to offender
b. Promote violence, disorder, or the violation of state or
c. Contain nudity or any sexually explicit acts, including
child pornography or sexual acts in violation of state or
d. Violate any of the Specific Criteria Disapproval
O.P. 803.2 § IV(A)(4)(a)–(d), Joint Ex. 3, ECF No.
97-4. The VDOC added this exception, according to Vargo,
because Keefe does not stock publications. See Tr.
58:2–4. Although publication vendors still need to be
approved by the VDOC under this policy, Vargo testified that
many of these vendors were on the approved list because of
longstanding relationships between the vendors and the VDOC.
Tr. 59:20–60:4. The VDOC does not, however, have a
contractual relationship with publication vendors like it
does with Keefe. See Tr. 60:9–10.
inmates can receive religious items from sources other than
Keefe if such items are donated to the facility, approved by
the Faith Review Committee, and listed on the Approved
Religious Items list. Tr. 50:10–16; see O.P.
841.3 § VIII(F), Joint Ex. 4, ECF No. 97-5. Outside
individuals and organizations could donate approved items at
any time, but inmates could receive them only once a year.
Tr. 75:9–25. Prayer oils are not among the items
approved for donation. See Tr. 66:7–11.
According to Vargo, prayer oil donated by outside sources
poses a security risk because the VDOC would have trouble
determining the oil’s contents, including its
flammability or viscosity. Id. In addition, items
approved for donation generally are non-consumable items that
are more appropriate for inmates to receive annually, such as
rugs or kufis. See Tr. 74:2–8.
Vargo discussed alternatives to the single-vendor policy that
the VDOC has considered. She noted that the VDOC’s
policy for inmates to order items from outside sources has
evolved over many years and moved towards adopting a
single-vendor policy. Tr. 63:5–11; 121:7–16.
Before 2013, the VDOC used commissaries at its facilities,
but it did not have a single vendor. Tr. 56:8–16.
Though inmates were generally required to order from the
commissary, individual facilities allowed inmates to order
items from outside vendors as an exception. See Tr.
57:1–5; 62:11–16; 64:12–16; 74:10–12;
91:24–92:3. In 2013, David Robinson, the VDOC’s
Chief of Corrections Operations, issued a directive requiring
that all items be ordered through a single vendor. Tr.
57:8–9; 59:2–5, 74:16–21. Vargo
acknowledged that the directive merely clarified an existing
policy rather than created a new policy altogether. Tr.
57:10–12. She also testified, however, that the VDOC
had allowed orders from outside vendors prior to 2013 and so,
in effect, a multi-vendor policy “had been
considered.” Tr. 62:21–25. Vargo did not know
whether the VDOC had considered adding a specific vendor,
“like Halalco, ” from whom prisoners could obtain
prayer oils. Tr. 70:7–17. The VDOC’s previous
experience using multiple vendors “wasn’t working
out as well” and led to the adoption of the
single-vendor policy. ...