7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.

10th Circuit Reverses Dismissal Of Inmate's 1st Amendment Claims

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court's sua sponte dismissal of a federal pre-trial detainee's pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains' refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

10th Circuit: Inedible Vegan Diet Burdened Buddhist Inmate's Religious Exercise

In Blair v. Raemisch, (10th Cir., March 2, 2020), the U.S. 10th Circuit Court of Appeals held that a Buddhist inmate's complaint about the vegan diet he was served adequately stated a claim under the 1st Amendment's free exercise clause and under RLUIPA. According to plaintiff's complaint, on 19 out of each 28 days, he was served a vegan patty made at the prison from left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked. He alleged that these were inedible, and caused him to vomit. This forced him to go hungry or purchase vegan food from the commissary. The court concluded that, if true, this substantially burdened plaintiff's sincerely held religious beliefs and put pressure on him to abandon them. Colorado Politics reports on the decision.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan's refusal to recognize prison inmates' Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

... [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays....

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” ... Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”... The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

5th Circuit: Court Should Not Agree To Use Pronoun Requested By Litigant

In United States v. Varner, (5th Cir., Jan. 15, 2020), the U.S. 5th Circuit Court of Appeals denied a motion by a transgender female inmate for a name change on the inmate's judgement of confinement.  Petitioner wanted the male name on her judgment changed to reflect her later name change to that of a female.  In addition, petitioner sought to require the courts to refer to her using female pronouns. The majority and the partial dissent disagree on whether this motion refers to the district court, or only to the Court of Appeals. In rejecting this request, the majority said in part:

[I]f a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality. Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A).... In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” ... Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.... Even this appearance of bias, whether real or not, should be avoided....

A Washington Post op-ed discusses the decision.

3rd Circuit: Deprivation of Chaplain Visits Did Not Substantially Burden Inmate's Free Exercise

In Quiero v. Ott, (3rd Cir., Jan. 9, 2020), the U.S. 3rd Circuit Court of Appeals held that a prisoner's free exercise of religion was not substantially burdened by being deprived of chaplain visits for ten days.

Denial of Name Change Did Not Burden Inmate's Free Exercise

In In re the Application of: Hollis John Larson for a Change of Name, (MN App, Dec. 30,2019), a Minnesota state appellate court upheld a trial court's denial of a name change petition from an inmate who has been indeterminately civilly committed to the Minnesota Sex Offender Program as a sexually dangerous person. Petitioner sought to change his name to "Better Off Dead."  He claimed his religious belief involving Hinduism, Taoism, Buddhism, and Agnosticism motivates his petition. He contended that he believes to achieve reconciliation with the divine he must escape the cycle of birth, life, death, and rebirth by being and remaining dead. In rejecting petitioner's free exercise claim, the appeals court said said that the trial court had concluded that petitioner's asserted religious belief was not sincerely held and "state regulation cannot burden an insincere belief." Minneapolis Star Tribune reports on the decision. The court also rejected petitioner's free speech claim.

Prison's Denial of Access To Religious Services As Discipline Is Invalid

In Greenhill v. Clarke, (4th Cir., Dec. 6, 2019),the U.S. 4th Circuit Court of Appeals held that, absent further justification, a prison disciplinary policy which denied a Muslim inmate television access to view weekly Jum'ah services violates his free exercise rights protected by RLUIPA and the 1st Amendment. The court said in part:

The VDOC’s Step-Down Program appears to be a sophisticated, well-conceived program to better inmates’ behavior and their confinement, as well as to improve safety and the overall operation of the prison. But holding inmates’ religious exercise hostage to incentivize their participation in the Program is impermissible under RLUIPA. Access to bona fide religious exercise is not a privilege to be dangled as an incentive to improve inmate conduct, and placing such religious exercise in the category of privilege to be earned is fundamentally inconsistent with the right to religious exercise that RLUIPA guarantees to prisoners.....

The court also held that the prison's grooming policy that precludes growing of a 4-inch beard imposes a substantial burden on the Muslim inmate's religious exercise. [Thanks to Will Esser via Religionlaw for the lead.]

Imam's Interpretation of Halal Held Relevant To Sincerity of Inmate's Beliefs

In Russell v. Pallito, (D VT, Nov. 25, 2019), a Vermont federal district court refused to exclude the testimony of Taysir Al-khatib, the main imam of the Islamic Society of Vermont, who was to be presented as an expert on Islamic dietary laws.  The issue arose in a suit by Justin Russell, a Muslim pre-trial detainee who claimed that Department of Corrections policies fail to provide him and similarly situated inmates a diet that meets their religious requirements. According to the court:

Russell contends that Al-khatib’s expert testimony regarding Islamic dietary law is irrelevant because the proper inquiry for purposes of his claim is whether his beliefs regarding Islamic dietary law are sincerely held, not whether they are correct as a matter of religious doctrine....

More specifically, according to Russell, “[t]he question of whether Muslims may properly subsist on a kosher diet is essentially a question of religious interpretation,” and “the validity of such interpretation is not a fact of any consequence in determining the action, and is therefore irrelevant.”

The court went on to hold:

The Court recognizes Russell’s concern regarding conflation of the sincerity and verity of his religious beliefs, and remains cognizant of its duty to refrain from adjudicating intra-faith disputes.....

But that fact alone does not render Al-khatib’s testimony about Islamic dietary requirements irrelevant as a matter of law.... Rather, evidence that some members of Russell’s religious community hold a contrary interpretation of Islamic dietary requirements may be valuable to a jury in assessing the sincerity or religious nature of Russell’s beliefs as well as whether Defendants’ actions substantially burdened those beliefs.

RLUIPA Allows Inmate To Grow Fist-Length Beard

In Sims v. Inch, (ND FL, Aug. 23, 2019), a Florida federal district court, in a 19-page opinion, extended the U.S. Supreme Court's 2015 holding in Holt v. Hobbs which allowed a Muslim inmate to grow a half-inch beard for religious reasons.  In the case decided last week, the district court held that RLUIPA similarly entitles a Muslim prisoner to grow a fist-length beard (and trim his mustache) when his religious requires it. The court concluded that "a fist-length beard can be accommodated as easily as a half-inch beard-- or nearly so." [Thanks to Glenn Katon for the lead.]

9th Circuit Dismisses Suit After Prison Recognizes Humanism As Faith Group

In Espinosa v. Dzurenda,  (9th Cir., Aug. 22, 2019), the U.S. 9th Circuit Court of Appeals dismisse as moot a challenge to a prison’s failure to recognize Humanism as a Faith Group. While the appeal was pending, the prison changed its policy and permanently recognized Humanism on an equal basis with other faith groups.  Nevada Independent reports on the decision.

Money Damages Unavailable Under RFRA

In Ajaj v. United States, (SD IL, Aug. 13, 2019), an Illinois federal district court, passing on an issue on which several circuits are split, held that money damages are not available in suits under the Religious Freedom Restoration Act against federal officials in their individual capacities. The suit was brought by a Muslim inmate who claims prison officials burdened his religious practices. The court said in part:

[T]he Religious Land Use and Institutionalized Persons Act (RLIUPA)—RFRA’s “sister statute” that applies against the states ... contains nearly the exact same operative language as RFRA....But the Supreme Court has already held that damages against the states were not “appropriate relief” under that statute because Congress must “give clear direction that it intends to include a damages remedy” against a State for one to be available.....

While Ajaj says that the Court should treat RLIUPA and RFRA differently because Congress enacted RLIUPA under the Spending Clause, that looks like a red herring. “Given that RFRA and RLUIPA attack the same wrong, in the same way, in the same words, it is implausible that ‘appropriate relief against a government’ means something different in RFRA, and includes money damages.”

Georgia's Prisoner Grooming Policy Struck Down

In Smith v. Dozier, (MD GA, Aug. 7, 2019), (on remand from the 11th Circuit) a Georgia federal district court in an 18-page opinion held that the Georgia Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act. The state's policy allows inmates only to grow a beard up to one-half inch in length. No religious exemption from the requirement is provided.  The court went on to hold that for inmates who qualify for a religious exemption, the state must allow beards up to three inches in length. In its opinion, the court examined and rejected several justifications offered by the state for its challenged policy. Law.com reports on the decision.

11th Circuit: Inmate's Complaint About Halal-Compliant Food Can Move Ahead

In Robbins v. Robertson, (11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate's 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

6th Circuit Affirms Jury's Damage Award To Muslim Inmates

In Heard v. Finco,(6th Cir., July 15, 2019), the U.S. 6th Circuit Court of Appeals affirmed a jury's damage  award totaling $900 to four Nation of Islam inmates whose religious exercise rights were infringed when prison officials reduced the amount of calories they were served in their Ramadan meals. The inmates argued, however, that they suffered spiritual damage in excess of this amount because their hunger made it difficult for them to focus on prayer and Quran readings. The court said:

Here, the jury heard the inmates’ testimony and saw their medical records. The inmates also had two experts—a nutritionist and an Islamic studies scholar—testify about the harms (both physical and spiritual) that the inmates suffered. The jury weighed all this evidence and concluded that each inmate suffered $150 worth of harm for each Ramadan the prison officials disrupted. The district court had no good reason to second-guess this determination, and neither do we.

[Thanks to Tom Rutledge for the lead.] 

5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah's Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen's opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

Arkansas Supreme Court OKs Limits On Leaders of Prison Religious Services

In Mutaqim v. Lay, (AR Sup. Ct., June 6, 2019), the Arkansas Supreme Court rejected challenges by a Nation of Islam inmate to two separate prison policies. The Court upheld the denial in 2013 to 2015 of several issues of the NOI publication The Final Call because they suggested that readers "rise up and strike out at their oppressors." These were censored to protect prison safety and security. The court also upheld a policy barring religious services from being led by inmates, and allowing them to be led by outsiders only if they are credentialed volunteers who are responsible for the orthodoxy of the religion or sect. NOI volunteers could not be found.  The Court said in part:

During the hearing, ADC’s chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence.  As indicated above, prison security is the most compelling government interest in the prison setting.

4th Circuit: Inmate Fails To Prove Causation In His RLUIPA And Free Exercise Claims

In Wright v. Lassiter, (4th Cir., April 17, 2019), the U.S. 4th Circuit Court of Appeals rejected a Rastafarian inmate's claims that his rights under RLUIPA and the 1st Amendment were infringed when prison officials rejected his request to celebrate four annual religious holidays through communal feasts and three others that do not include feasts. The court, holding that "plaintiff must show that the prison's policies imposed a substantial burden on his exercise of sincerely held religious beliefs," concluded that plaintiff failed to show the required causation:

...Wright’s causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument that he was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings.... There was no testimony showing that any other Rastafarian at Central Prison or any other North Carolina prison had joined in his requests to celebrate in the manner he requested or would attend his gatherings if they were held....

Recent Prisoner Free Exercise Cases

In Smith v. Drawbridge, (10th Cir., March 18, 2019), the 10th Circuit affirmed the dismissal of an Orthodox Jewish inmate's complaint that he received only a cold sack meal rather than a hot meal at the conclusion of the Fast of Tammuz.

In Newsome v. Fairley, 2019 U.S. Dist. LEXIS 39138 (SD MS, March 12, 2019), a Mississippi federal district court adopted in part a magistrate's recommendations (2019 U.S. Dist. LEXIS 40431, Jan. 28, 2019) and allowed an inmate who professed the Natsarim Faith to move ahead against two defendants on his complaint that he was denied a yeast free diet during Passover, and was denied immersion baptism and religious counseling.

In Wilson v. Virginia Department of Corrections, 2019 U.S. Dist. LEXIS 41528 (ED VA, March 13, 2019), a Virginia federal district court dismissed a hearing impaired inmate's contention that his religious exercise was substantially burdened when officials refused to permit him to purchase a larger TV set so he can view religious programming with large closed captioning. His equal protection claim was not dismissed.

In Howard v. Polley, 2019 U.S. Dist. LEXIS 41696 (D NV, March 13, 2019), a Nevada federal district court dismissed an inmate's complaint about different treatment of Muslim prisoners growing out of a shortage of imams to conduct Jumu'ah services in multiple housing modules.

In Arboleda v. O'Banion, 2019 U.S. Dist. LEXIS 41907 (ED CA, March 14, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that on one occasion he was denied access to a Jehovah's Witness religious service.

In Abreu v. Farley, 2019 U.S. Dist. LEXIS 42801 (WD NY, March 15, 2019), a New York federal district court dismissed the portion of an inmate's 531 paragraph complaint claiming that he is Jewish and is entitled to be served "Kosher loaves." The court concluded that plaintiff's beliefs were not sincerely held.

In Brandon v. Royce, 2019 U.S. Dist. LEXIS 42807 (SD NY, March 15, 2019), a New York federal district court rejected an inmate's claim that his free exercise rights were infringed when he did not receive a purportedly promised feed-in meal in exchange for his voluntarily not attending an oversubscribed Eid Celebration.

In Carawan v. Solomon, 2019 U.S. Dist. LEXIS 43609 (ED NC, March 18, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that his requests were denied for congregational prayer beyond just Friday Jumu'ah services. The court dismissed his complaint that the prison had no Zakat fund that would eliminate the administrative fee for him to done funds to charity.