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Faver v. Clarke

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

September 30, 2019

BRAD FAVER, Plaintiff,


          Joel C. Hoppe, United States Magistrate Judge.

         Plaintiff 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.

         I. Background

         A. Relevant Facts & Procedural History

         At all 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.

         Clarke, 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.

         In June 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.[1] 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.

         On 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, 105.

         B. Summary of Bench Trial & Competing Evidence

         As part 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.

         Though 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.[2] 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.

         Faver 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.[3] 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.

         Faver 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”[4] 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. 45:4–11.

         According 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. 99:18–20.

         For 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.

         Vargo 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.

         In her 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 rehabilitation
b. Promote violence, disorder, or the violation of state or federal law
c. Contain nudity or any sexually explicit acts, including child pornography or sexual acts in violation of state or federal law
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.

         Second, 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.

         Finally, 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. ...

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