9th Circuit Reverses Dismissal of Inmate's Complaint Over Exclusion of NOI Texts

In Jones v. Shinn, (9th Cir., Dec.14, 2022), the U.S. 9th Circuit Court of Appeals held that the district court should not have dismissed an inmate's claim that his rights under RLUIPA were violated when prison authorities denied him access to four texts by Elijah Muhammad. The court said in part:

[T]he district court erred in characterizing the religious exercise at issue as whether Jones was denied all Nation of Islam texts rather than whether the exclusion of the specific texts constitutes a substantial burden on his exercise of religion.... 

And because Jones provided evidence that all texts by Elijah Muhammad are “essential religious texts needed to practice the Islamic faith in accordance with the Nation of Islam,” he raised a triable dispute as to whether the exclusion of the texts constitutes a substantial burden on his exercise of religion.

However, the court affirmed the dismissal of plaintiff's 1st Amendment free exercise claims, because defendants showed the exclusion was reasonably related to a legitimate penological interest.

Prisoner's RLUIPA Suit Remanded for Consideration of Statute's "Safe harbor" Provision

 In Richardson v. Clarke, (4th Cir., Nov. 7, 2022), the U.S. 4th Circuit Court of Appeals held that a prison's former policy that required inmates to remove head coverings, including religious head coverings, in certain areas of the prison imposed a substantial burden on plaintiff's religious exercise. The court remanded the case to the district court for consideration of the applicability of RLUIPA's safe harbor that allows prisons to avoid liability under RLUIPA by changing the policy or practice that imposes a substantial burden or by providing exemptions from it.

5th Circuit: Confiscation Of Prisoner's Religious Material Upheld

 In DeMarco v. Bynum, (5th Cir., Oct. 4, 2022), the U.S. 5th Circuit Court of Appeals upheld the dismissal of a suit brought by an inmate who contended that confiscation of his religious material violated his First Amendment rights. The court said in part:

DeMarco concedes that he did not store his religious materials as required by AD-03.72. And this court has previously indicated that TDCJ policies regarding storage of personal property do not infringe on a prisoner’s right to free exercise of religion....

Bynum’s confiscation of DeMarco’s religious materials was reasonably related to a legitimate penological objective.... There is also an alternative way for DeMarco to exercise his First Amendment rights, by accessing religious reading materials through the prison chaplain. The impact of accommodating DeMarco’s constitutional rights on other prisoners, guards, and prison resources could be great, given the management and safety concerns underlying the policy....

Moreover, even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity because his actions were objectively reasonable.

7th Circuit: Muslim Inmate Entitled To Religious Exemption From Strip Searches By Transgender Guards

In West v. Radtke, (7th Cir., Sept. 16, 2022), the U.S. 7th Circuit Court of Appeals held that a Muslim inmate's rights under RLUIPA were violated when prison authorities refused to exempt him from strip searches conducted by transgender men. Wisconsin first argued that the inmate, Rufus West, should not care that he is searched by a transgender inmate because Islam equally condemns exposing the naked body to any guard, male or female. The court responded that:

The substantial-burden inquiry does not ask whether West’s understanding of his faith obligations is correct.

Prison authorities went on to argue that the burden on West's religious exercise was justified by the state's compelling interest in complying with the anti-discrimination requirements of Title VII which bars discrimination against its transgender guards. The Court said, however:

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees....

The prison’s Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)....

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches.

The Court also rejected the prison's equal protection defense. It remanded for further development the inmate's 4th Amendment claims. 

5th Circuit Upholds Qualified Immunity Defense Of Prison Officials Who Confiscated Hijab

In Taylor v. Nelson, (5th Cir., Aug. 2, 2022), the U.S. 5th Circuit Court of Appeals held that Texas prison authorities who confiscated a female inmate's hijab that exceeded the size permitted by prison policies can claim qualified immunity in a suit for damages against them. The court held that plaintiff failed to identify a clearly established right that officials violated and reasonable officials would not have understood that enforcing the policy on size of hijabs was unconstitutional.

Wisconsin Violated Archdiocese Rights In Excluding Clergy As COVID Precaution After Other Outsiders Were Allowed In

 As previously reported, last June a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID.  Now, in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., July 14, 2022), the same court issued a declaratory judgment and permanent injunction, concluding that once the prison system allowed some external visitors to enter correctional institutions, it was required to honor the clergy's statutory privilege to do so, and refusal to do so violated plaintiff's free exercise rights under the Wisconsin Constitution. CBN News reports on the decision.

European Court: Turkey's Refusal To Allow Congregational Muslim Prayer In Prison Violated Religious Freedom

In Yalçın v. Turkey, (ECHR, June 14, 2022), the European Court of Human Rights in a Chamber Judgment held that Turkey violated Article 9 (freedom of religion and belief) of the European Convention on Human Rights by refusing to make a room available for congregational Muslim Friday prayers (Jumuah) at a High-Security Prison. The Court said in part:

... high-security prisons, such as the one in which the applicant was placed, are subjected to a stricter set of rules, which may call for a higher degree of restrictions on the exercise of rights under Article 9 of the Convention. Nevertheless, that fact alone should not be construed as excluding any real weighing of the competing individual and public interests but should rather be interpreted in the light of the circumstances of each individual case....

... domestic authorities did not sufficiently assess whether the gathering of a certain number of inmates for Friday prayers may, in the individual circumstances of the case, generate a security risk that they should have been treated differently from the collective gatherings of inmates for cultural or rehabilitative purposes, which were permitted by law....

The Court issued a press release announcing the decision.

10th Circuit Affirms Dismissal Of Church's Complaint Regarding Sending Of Material To Inmates

 In Colorado Springs Fellowship Church v. Williams, (10th Cir., June 13, 2022), the U.S. 10th Circuit Court of Appeals rejected a church's challenge to prison rules that barred it from sending DVD's directly to inmates. Religious organizations could only send religious materials to the Bureau of Prisons which would them make them available to all inmates. The district court had dismissed the church's Establishment Clause claim. On appeal, the court refused to consider the church's argument that the Turner standard does not apply to free speech and free exercise claims brought by non-prisoners because the church had not made that argument to the district court below. The church had also failed to allege that it was treated differently than other religious groups.

11th Circuit: Jail's Procedure For Passover Participation Is Upheld

In Dorman v. Chaplain's Office BSO, (11th Cir., June 10, 2022), the U.S. 11th Circuit Court of Appeals upheld the procedures used by the Broward County, Florida jail that required inmates to register 45 days in advance in order to participate in Passover services and meals.  The court said in part:

First, the 45-day registration requirement did not constitute a substantial burden on Mr. Dorman’s exercise of his Jewish faith under the RLUIPA, and therefore it also did not violate the First Amendment’s more lenient reasonableness standard. Second, the electronic posting of the 45-day registration requirement on the Jail’s computer kiosk, which he and other inmates used to communicate with Jail staff, provided adequate notice of the registration requirement to satisfy due process.

Asatru Inmate Loses RLUIPA and Equal Protection Challenges

In Watkinson v. Alaska Department of Corrections, (9th Cir., May 2, 2022), the U.S. 9th Circuit Court of Appeals held that Alaska did not violate the rights of a prisoner who was a practitioner of Asatru when it prevented him from using firewood purchased through the Prison Welfare Fund (PWF) for religious purposes, and when it did not allow use of the Prison Welfare Fund for inmates to pool funds to purchase juice and honey in bulk. The court said in part:

RLUIPA does not require a state to facilitate or subsidize the exercise of religion or pay for devotional accessories.... ADOC policies do not deny Plaintiff access to any item necessary for his religious ceremonies, and Plaintiff may procure all necessary items without access to the PWF. Defendants’ policies thus did not substantially burden the exercise of Plaintiff’s religious practice...

The court also rejected plaintiff's 1st Amendment claim.  In addition it rejected his Equal Protection claim, even though prison authorities allowed a Native American cultural group to use PWF-purchased firewood at the prison sweat lodge. According to the court:

The prison director testified that the groups are not similarly situated because the sweat lodge is a cultural rather than a religious activity.

9th Circuit: Arizona's Free Exercise Statute Did Not Repeal Limit On Prisoner Suits

In Crespin v. State of Arizona, (9th Cir., March 3, 2022), the U.S. 9th Circuit Court of Appeals held that Arizona's Free Exercise of Religion Act did not repeal by implication a provision in Arizona's statutes that allows prisoners to sue for injuries suffered while incarcerated only if the inmate alleges serious physical injury.

9th Circuit: Qualified Immunity Requires Dismissal Of Inmate's Religious Meal Complaint

In Miller v. Acosta, (9th Cir., Feb. 25, 2022), a suit by an inmate, the U.S. 9th Circuit Court of Appeals held:

The district court properly determined that defendant Acosta was entitled to qualified immunity on Miller’s free exercise claim because Acosta’s conduct in refusing to provide Miller with his RMA [Religious Meat Alternative] meals when Miller did not show him a Religious Diet Card did not violate clearly established law.

10th Circuit: Muslim Terrorism Inmate Can Sue Under RFRA For Damages

In Ajaj v. Federal Bureau of Prisons, (10th Cir., Feb. 9, 2022), the U.S. 10th circuit Court of Appeals reversed a Colorado federal district court's dismissal of a religious freedom suit brought by an inmate who is serving a sentence of 114 years for terrorist acts related to the 1993 World Trade Center bombing. The court summarized its holding:

Ahmad Ajaj, a practicing Muslim, ... sued to obtain injunctive relief against BOP and damages from BOP officials [alleging] violations of his rights to free exercise of religion under the Religious Freedom Restoration Act (RFRA).... He contends that the district court erred by holding (1) that his claim against the BOP for denial of his right to group prayer was moot and (2) that RFRA did not provide a claim for damages against government officials in their individual capacities.... [W]e ... reverse the challenged rulings. The mootness ruling was based on a misconception of the evidence....  And the Supreme Court has now ruled in Tanzin v. Tanvir ... that damages claims are permissible under RFRA.... We reject Mr. Ajaj’s contention that the doctrine of qualified immunity is inapplicable to RFRA claims, but we decline to resolve whether the individual defendants in this case have shown entitlement to qualified immunity, leaving that matter to the district court in the first instance.

11th Circuit Undercuts State Attempt To Limit Inmate's Right To Sue

In a prisoner Free Exercise case, the U.S. 11th Circuit Court of Appeals has issued an opinion which bars a tactic by which prison officials might obtain dismissal of a prisoner suit without reaching the merits of the case.  The so-called "three-strike" provision in 28 U.S.C. § 1915(g) limits an inmate's ability to bring a suit in forma pauperis, i.e. without paying the usual filing fee, if the inmate has previously had three suits dismissed for lack of merit.  In Maldonado v. Baker County Sheriff's Office, (11th Cir., Jan. 25, 2022), a three-strike plaintiff (along with a co-plaintiff) filed suit in forma pauperis in Florida state court contending that they were prevented from attending Jummah prayer services. Defendants then removed the case to federal court and sought dismissal under the three-strike provision.  The court held

The plain and ordinary meaning of § 1915(g) is clear—it only applies to cases commenced in federal court by a prisoner who sought and was granted in forma pauperis status in that court.  As such, § 1915(g) does not apply to actions, like the one here, brought by a three-strikes litigant in state court that was removed to federal court by another party.

Nevada Prison's Ban On Prayer Oil Violates RLUIPA

In Johnson v. Baker, (9th Cir., Jan. 26, 2022), the U.S. 9th Circuit Court of Appeals held that the Nevada prison system violated RLUIPA when it banned a Muslim inmate from possessing a small amount of scented oil in his cell for use when he prayed, saying in part:

Given that Nevada’s prison regulation prevents Johnson from praying according to his faith, it has substantially burdened his religious exercise. Nevada also fails to show that its regulation is the least restrictive means of furthering its compelling interest....

Nevada argues that prison officials depend on their sense of smell to detect contraband and scented oil could be used to cover the smell of contraband, such as drugs....

Nevada’s prison regulations as to other scented products undermines the State’s argument. It’s undisputed that Nevada prisoners may keep many scented products in their cells....  [T]hese products all have “strong scents” and are available to purchase in larger quantities than the half-ounce of scented oil sought by Johnson.

9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

11th Circuit: Punitive Damages For Non-Physical Injuries Are Available To Inmate Under RLUIPA

In Mays v. Joseph, (11th Cir., Jan. 3, 2022), the U.S. 11th Circuit Court of Appeals held that a prisoner may recover punitive damages for violation of his religious exercise rights under RLUIPA in a suit against a prison warden in the warden's individual capacity.  In the case, plaintiff claimed that the Georgia Department of Corrections' grooming policy that barred him from growing his hair or a goatee longer than three inches violated his rights to express his religion. The court held that while an incarcerated plaintiff may not recover compensatory damages for mental or emotional injuries absent physical injury, he can recover punitive damages and nominal damages. Here plaintiff had waived his nominal damage claim.

8th Circuit: Buddhist Inmate Not Entitled To Separate Soto Zen Services

In Erdahl v. Pirc, (8th Cir., Nov. 18, 2021), the U.S. 8th Circuit Court of Appeals held that a Buddhist inmate's religious exercise was not substantially burdened by denying him separate Soto Zen religious services. He already can attend existing Buddhist services conducted by the minister he wanted for his separate services. The court concluded:

In the end, the prison only has to provide “a reasonable opportunity” for Erdahl to practice his faith.

6th Circuit: Prison Cannot Just Fail To Respond To Inmate's Religious Requests

In Byrd v. Haas, (6th Cir., Nov. 9, 2021),the U.S. 6th Circuit Court of Appeals reversed a Michigan federal district court's dismissal of RLUIPA, free exercise, equal protection and due process claims brought by an inmate who sought to worship with other inmates of the Ifa faith and to obtain certain religious items for worship. The court said in part:

Between his conversion to the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four requests for Ifa group services and nine items that he considers essential to the Ifa faith. These items include, among other things, a straw mat for prayer, herbs, and more beads. How did the Department respond to these requests? It didn’t. Not one made its way to McKee [Deputy Director of the Department of Corrections] for a final decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t fully resolved that request either....

... [A] government agency cannot simply end-run judicial review by sitting on its hands and allowing a claimant’s request to languish in a bureaucratic black hole. 

2nd Circuit Upholds Prison's Change In Schedule For Quaker Meetings

In Green Haven Prison Preparative Meeting of the Religious Society of Friends v. New York State Department of Corrections and Community Supervision, (2d Cir., Oct. 18, 2021), the U.S. 2nd Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction to plaintiffs who are individual and groups of Quakers who object to changes in the schedules for Quaker meetings at a maximum security prison. The court held that as to quarterly meetings attended by incarcerated as well outside Quakers, the non-incarcerated plaintiffs had not shown that under RLUIPA the schedule change had imposed a substantial burden on their exercise of religion. As to weekly meetings attended only by incarcerated Quakers, plaintiffs had not exhausted their administrative remedies as required by the Prison Litigation Reform Act.