Adams v. Stanley, et al. CV-02-480-B 12/18/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Marc Richard Adams
v. Civil No. 02-480-B Opinion No. 2002 DNH 216 Phil Stanley, et al.
REPORT AND RECOMMENDATION
The plaintiff, Marc Richard Adams, is an inmate at the New
Hampshire Department of Corrections ("NHDOC"), Northern New
Hampshire Correctional Facility ("NCF"). He alleges in his
complaint that the defendants have denied him his right to the
free exercise of his religion guaranteed by the First and
Fourteenth Amendments to the United States Constitution.1
Before the Court for consideration is Adams' motion for
interim injunctive relief enjoining NCF from depriving him of the
ability to hold Taoist religious celebrations, initiatory rites,
and festivals. Additionally, Adams seeks an order reguiring NCF
to permit him to obtain certain religious articles, a religious
1Named as defendants in this action are the following officers and employees NHDOC and NCF: Phillip Stanley, Commissioner of the NHDOC; John Vinson, Esq., Counsel to the Commissioner; Bruce Cattell, NCF Warden, Susan Young, NCF Administrator of Programs, Ross Cunningham, NCF Captain; Daniel Smith, NHDOC Director of Chaplaincy ("Chaplain Smith"); and Jane and John Doe, Correctional Officers. diet, and an exemption from the prison shaving requirement.
Adams also seeks an order requiring NCF to allow him to practice
Tai Chi Chuan ("Tai Chi").
After considering the testimony and other evidence presented
at the hearing, and the relevant authorities, I find that the
evidence does not support Adams' contention that NCF is currently
violating his constitutional rights. Accordingly, I recommend
that Adams' motion for interim injunctive relief be denied.
STANDARD OF REVIEW
"The purpose of a preliminary injunction is to preserve the
status quo, freezing an existing situation so as to permit the
trial court, upon full adjudication of the case's merits, more
effectively to remedy discerned wrongs." CMM Cable Rep., Inc. v.
Ocean Coast Prop., Inc., 48 F.3d 618, 620 (1st Cir. 1995) (citing
Chalk v. U.S. Dist. C t . Cent. Dist. of Cal., 840 F.2d 701, 704
(9th Cir. 1988); Am. Hosp. Ass'n v. Harris, 625 F.2d 1328, 1330
(7th Cir. 1980)). Thus, if the court ultimately finds for the
movant, a preliminary injunction provides the court with a method
for preventing or minimizing any current or future wrongs caused
by the defendant. CMM Cable Rep., 48 F.3d at 620.
2 A district court may grant a plaintiff's request for a
preliminary injunction if the plaintiff satisfies a four-part
test: (1) the plaintiff is likely to succeed on the merits; (2)
the plaintiff will suffer irreparable harm if the injunction is
not granted; (3) the injury to the plaintiff outweighs any harm
which granting the injunction would inflict on the defendant; and
(4) the public interest will not be adversely affected by the
granting of the injunction. See Lanqlois v. Abinqton Ho u s .
A u t h ., 207 F.3d 43, 47 (1st Cir. 2000); Public Serv. Co. of N.H.
v. Patch, 167 F.3d 15, 25 (1st Cir. 1998). A party seeking
injunctive relief must independently satisfy each of the four
factors. Auburn News Co. v. Providence Journal Co . , 659 F.2d
273, 277 (1st Cir. 1981); Mass. Coalition of Citizens with
Disabilities v. Civil Def. Agency & Off, of Emergency
Preparedness of Com, of Mass., 649 F.2d 71, 74 (1st Cir. 1981) .
In the First Circuit, the key issue in determining whether
injunctive relief should be granted is whether the plaintiff can
demonstrate a likelihood of success on the merits. See Philip
Morris, Inc. v. Harshbarqer, 159 F.3d 670, 674 (1st Cir. 1998);
Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). With this
standard in mind, the relevant facts are discussed below.
3 BACKGROUND
A thumbnail sketch of Taoism is helpful to understand
Adams' claims. The word Tao may be translated into English as
path, roadway or the way and "refers to a power which envelopes,
surrounds and flows through all things, living and non-living."2
Since early times the word Tao has taken on a spiritual and
transcendent meaning for the same reasons that people refer to
the Way of Christ or the Way of Buddha. See Introduction to The
Illustrated Tao Te Chinq at 15-16 (Man-Ho Kwok et al., trans.,
Element Books Limited 1993). "It is the natural use of the image
of a path or roadway which leads us to something beyond
ourselves." Id. Although commonly thought of as merely a
philosophy, Taoism has been practiced as a religion for at least
several centuries.
The study of Tao originated in China: its history spans thousands of years. Its methods, doctrines, and practices have evolved into a sprawling and complicated system that cannot be grasped even with a lifetime of study. Some individuals try. Initiates into religious Taoism, having both the calling and opportunity, follow an arduous and devout life.
Deng Ming-Dao, Everyday Tao: Livinq with Balance and Harmony at
viii (HarperSanFrancisco 1996).
2See "History of Taoism," posted by ReligiousTolerance.org and available at http:// www.reliqioustolerance.orq/taoism.htm.
4 Adams claims that NCF is depriving him of a meaningful
ability to engage in Taoist religious practices. He seeks an
order reguiring NCF to allow him to obtain certain religious
articles for his personal use3 and for temple practice.4
In addition, Adams seeks an order permitting him to practice
Tai Chi, which he refers to as "moving meditation." Similar to
Taoism, Tai Chi is practiced for religious and secular reasons.
3Adams seeks to obtain the following items for personal use: a meditation/prayer mat; a meditation/prayer cushion; a gourd; a bamboo flute; amulets; talismans made of natural materials; a robe; a wand; miniature statuettes for a shrine/alter; a singing bowl; herbs and herbal supplements; herbs to make teas; natural prayer oils for purification; an alter cloth; bowls constructed of natural materials; a box for the shrine; a drinking chalice; a scrying mirror; divination tools; uncensored religious literature; sacred journals; pens and markers for use with the sacred journals; stones and crystals; feathers; a headpiece; bags and wrapping for crystals and stones; Tai Ji balls; sandals; malas; non-animal product hygiene items; cords and sashes; Tai Ji literature and materials necessary for its practice; and Mandala posters for meditation. Plaintiff's Proposed Order at 1-3.
4Adams seeks to obtain the following items for temple practice: inks; feathers; stones/crystals; paper and natural parchment; pens and markers; divination tools; a scrying mirror; staffs; flags and banners; a drinking chalice; bowls; wooden boxes; cloth; altar/temple cloth; candles; candle holders; incense; incense holders; purification/prayer oils; herbs; singing bowls; gongs; Mandala posters; statutettes; prayer mats and cushions; an alter/shrine; a wand; ceremonial garb; amulets; talismans; gourds; flutes; chimes; clappers; fur; drums; buffalo horn; cauldron; lamps; sandals; videos and digital video disks; audio tapes and compact disks; office supplies; computer access; journals, tomes; head piece; cords and sashes; literature; and a storage space. Plaintiff's Proposed Order at pp. 4-6.
5 According to the International Taoist Tai Chi Society, "[t]he
health-enhancing gualities of Tai Chi Chuan are founded in the
lore of religious Taoism. Over a period spanning almost two
millennia, various sects of Taoism have developed and perfected
health exercises as part of their religious cultivation."5
Eventually, Tai Chi began to be practiced by people outside of
the monastic community and became widespread as a martial art.6
It has, however, "maintained a tenuous link to the more spiritual
or religious facets found in Taoist training."7
The defendants deny that they are depriving Adams of his
constitutional rights. Defendants make the following contentions
in response to Adams' claims: Adams has refused to comply with
the prison's legitimate efforts to substantiate his claims that
the certain religious items are essential to the practice of his
religion; Adams has not completed inmate reguest forms specifying
the religious ceremonies, festivals, and initiatory rites that he
seeks to perform; NCF places reasonable limits on the practice of
5 See "A Taoist Lineage," available on the Internet at ht t p ://www.taoist.orq/About_Us/Taoist_Lineaqe/taoist_lineaqe.h t m .
6Id .
7I d . Master Alfred Huang provides a similar historical account of the evolution of Tai Chi in the book Complete Tai-Chi at 45 (Charles E. Tuttle Publishing Co., Inc.) (1993).
6 Tai Chi in that inmates are prohibited from practicing martial
arts moves for security reasons; and NCF is providing Adams a
religious diet.
DISCUSSION
I. Likelihood of Success on the Merits
A. Section 1983 Claims
Section 1983 creates a cause of action against those who,
acting under color of state law, deprive individuals of "any
rights, privileges or immunities secured by the Constitution and
laws" of the United States. See 42 U.S.C. § 1983; Parratt v.
Tavlor, 451 U.S. 527, 535 (1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986); Rodriquez-Cirilo v.
Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In order to be held
liable for a violation under § 1983, a defendant's conduct must
have been a cause in fact of the alleged deprivation. See Monell
v. Dep't of Soc. Serv., 436 U.S. 658, 692 (1978); Soto v. Flores,
103 F .3d 1056, 1061-62 (1st Cir. 1997).
The premise of Adams' § 1983 claim is that the defendants,
acting under color of state law, have wrongfully hindered the
free exercise of his religion and denied him egual protection of
the laws in violation of his rights under the First and
7 Fourteenth Amendments to the United States Constitution. It is
undisputed that the defendants' actions were taken under the
color of state law, so I do not address that element further.
B . Free Exercise of Religion in Prison
"Lawful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system."
Price v. Johnston, 334 U.S. 266, 285 (1948). However, a prisoner
"retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological
objectives of the corrections system." Pell v. Procunier, 417
U.S. 817, 822 (1974); see also. Bell v. Wolfish, 441 U.S. 520,
545 (1979) ("prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement in
prison."). The retained rights include the right to the free
exercise of religion. Cruz v. Beto, 405 U.S. 319, 322 (1972) .
Prisons must provide all inmates reasonable opportunities to
exercise their religious freedom. I d . at 322, n.2. When a
prisoner raises Free Exercise Clause claims, the prisoner must
"establish that a challenged policy restricts the inmate's free
exercise of a sincerely held religious brief." See, e.g.. Brown- El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Barnett v. Comm'r,
N.H. Dept. of Corr., No. Civ. 98-305-JD, 2000 WL 1499490 (D.N.H.
A p r . 2 6, 2 0 0 0).
The Supreme Court has held that a prisoner's sincerely held
religious beliefs must yield if contrary to prison regulations
that are "reasonably related to legitimate penological
interests." Turner v. Safely, 482 U.S. 78, 89 (1987); see also,
O'Lone v. Shabazz, 482 U.S. 342, 351-352 (1987) (finding that the
Constitution does not reguire the prison to sacrifice legitimate
penological objectives to satisfy an inmate's desire to exercise
his religion so long as an inmate is not deprived of all forms of
religious exercise).8 A prison regulation must have a logical
connection to the legitimate governmental interests invoked to
justify it. Turner, 482 U.S. at 89-90. That connection may not
be "so remote as to render the policy arbitrary or irrational."
Id.
8In City of Boerne v. Flores, 521 U.S. 507, 536 (1997), the Supreme Court held that the Religious Freedom Restoration Act of 1993 ("RFRA"), codified at 42 U.S.C. § 2000bb et seq. , is unconstitutional as applied to the states. Therefore, the standards enumerated in the RFRA are inapplicable to Adams' claims against NHDOC and NCF. See Kikumura v. Hurley, 242 F.3d 950, 958 (10th Cir. 2001) (recognizing that the RFRA is invalid as applied to the states, but holding that the plaintiff, a federal prisoner, could pursue his RFRA claim against the federal defendants) . C. NCF's Recognition of Religious Taoism
Adams alleges that the defendants have refused to recognize
religious Taoism, and have denied him a meaningful opportunity to
freely practice the religion. At the preliminary injunction
hearing. Chaplain Smith testified that NHDOC recognizes Taoism as
a religion, and recognizes that Adams has a sincerely held belief
in that religion. Thus, for the purposes of Adams' motion for
injunctive relief, the relevant issue is whether NCF is providing
Adams reasonable opportunities to practice his religion.
Adams makes two primary arguments in support of his claims.
First, he argues that NCF is discriminating against the Taoists
by reguesting that a representative of their group complete an
eleven-point religious guestionnaire, which is not reguired of
other groups. See Def. Ex. 11. Second, he argues that he is
being denied the same forms of religious items that inmates of
other faiths are allowed to obtain. See PI. Ex. DD. Adams
contends NCF's actions evince a specific intent to discriminate
against the members of the Taoist group. As discussed below, I
find that the evidence adduced at the preliminary injunction
hearing shows that NCF is making reasonable efforts to afford
Adams adeguate opportunities to practice his religion.
10 1. Religious Practices
Chaplain Smith testified that NHDOC places limits on
inmates' exercise of religion in prison. One of those limits is
that an inmate must be able to substantiate a claim that a
particular religious practice or article is essential to his
religion through a verifiable outside source. See NHDOC Policy
and Procedure Directives ("PPD") 7.17, V ( J ) (1) ("The Chaplain
shall schedule celebration of the sacramental rituals necessary
to meet minimal reguirements of a given religious faith.").
The evidence adduced at the hearing showed that on July 5,
2001, Chaplain Smith reguested that NCF Inmate Travis Richardson
answer the following guestions on behalf of the Taoist group:
1. What is the official name of the faith group?
2. Who is the head of the faith group in the United States ?
3. What is the address and telephone number of the faith group? [H]eadguarters in the United States?
4. What are the basic teachings of the faith group? Please provide titles or attach particular reference material which would be useful for researching this group.
5. Does the faith group have ministers or teachers?
6. Are ministers available to visit incarcerated members of the faith group?
11 7. Are there religious holidays to be observed by members? If so, when are the holidays and what religious practices are necessary for the observance?
8. Are there any necessary religious items and what is the religious significance of each?
9. Are there time and place reguirements for the group?
10. Are you aware of related faith groups or other groups with similar practices?
11. Is the religion open to all inmates?
Def. Ex. 11. Chaplain Smith testified that he derived the eleven
guestions from a Federal Bureau of Prisons guestionnaire
regarding new or unfamiliar religious groups.
Adams makes several complaints specific to Chaplain Smith's
11-point guestionnaire. He argues that his egual protection
rights are being violated because he is not aware of any other
group that has been asked to complete the guestionnaire, and the
guestionnaire is not referenced in the NHDOC PPDs. Adams
contends that completion of the guestionnaire would violate the
very nature of Taoism since the practice of Tao is specific to
the individual. Adams also contends that he is opposed to
Chaplain Smith's attempts to define his religious practices
because those definitions would be used by NHDOC as a basis for
12 placing limits on other Taoists.
It is not appropriate for the court to attempt to identify
the essential practices of an unfamiliar religion where the
plaintiff has not done so himself. See Africa v. Com, of Pa.,
662 F.2d 1025, 1030 (3d Cir. 1981) ("Judges are not oracles of
theological verity, and the Founders did not intend for them to
be declarants of religious orthodoxy."); see also. Natal v.
Christian and Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir.
1989) (finding that civil courts cannot adjudicate disputes
turning on religious doctrine and practice). Unlike
Christianity, Judaism, or Islam, religious Taoism has relatively
few adherents in the United States.9 While the Court might
recognize that Easter, Passover, or Ramadan, are observances that
are considered "essential" to their respective religions, the
Court is unfamiliar with any such practices for religious Taoism.
The evidence presented at the injunction hearing shows that Adams
has not complied with the prison's reasonable attempts to
substantiate his claim that the practices he seeks to engage in
are essential to the practice of his religion.
9ReligiousTolerance.org estimates that Taoism has about 20 million followers worldwide only 30,000 of which live in North America. See http://www.religioustolerance.org/taoism.htm.
13 A fundamental aspect of Adams' claim is that he desires to
be free from any limitations imposed by the prison with respect
to the number of religious articles he requires, or with respect
to the definitions of Taoist religious ceremonies or festivals.
"Religious observances need not be uniform to merit the
protection of the first amendment." Thomas v. Review Bd. of Ind.
Employment Sec. Div., 450 U.S. 707, 715 (1981). But the law does
not require NCF to permit Adams to have any religious article,
ceremony or festival as he, and he alone, sees fit. See Africa,
662 F.2d at 1031 (finding that the concept of ordered liberty
precludes allowing any single person a blanket privilege "to make
his own standards of conduct in which society as a whole has
important interests.") quoting Wisconsin v. Yoder, 406 U.S. 205,
215-16 (1972). Rather, the law requires NCF to allow Adams a
reasonable opportunity to exercise his religion comparable to the
opportunity afforded to other inmates. Cruz v. Beto, 405 U.S. at
322. Adams has not demonstrated that he is being deprived of any
specific practices that he has demonstrated are essential to the
practice of religious Taoism.
While certain questions in the Chaplain's religious
14 questionnaire may be inapplicable to the Taoist group,10 prison
officials unfamiliar with the practices of a particular religion
must be given some latitude to determine its legitimacy. See
0'Lone, 482 U.S. at 352 (finding that the courts should not
substitute its judgment for that of prison administrators even on
claims involving difficult and sensitive matters of institutional
administration); see also, Frazee v. 111. Dept, of Employment
Sec., 489 U.S. 829, 833 (1989) ("States are clearly entitled to
assure themselves that there is ample predicate for invoking the
Free Exercise Clause."). Following the injunction hearing, Adams
submitted as exhibits several pages from Internet websites
discussing various Taoist religious practices. See Pi. Ex. 0-S.
There is no evidence that Adams provided this information to NCF
prior to the hearing.11
10For example, the questions pertaining to the "head" of the faith group in the United States and to the U.S. headquarters may assume the existence of entities that do not exist. The absence of such entities, however, would not necessarily mean that Taoism is not a religion. See generally Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (recognizing Taoism as a religion); Kalka v. Hawk, 215 F.3d 90, 99 (D.C. Cir. 2000) (same); Eduardo Penalver, The Concept of Religion, 107 Yale L. J. 791, 795 (1997) (discussing the lack of a constitutional definition of the term "religion," and highlighting the problem of western bia s ) .
11I note that Adams contends that he relied on materials submitted to the Chaplain and NCF by inmate Travis Richardson, whom Adams contends was appointed the representative of the
15 There is plenty of evidence that NCF is providing Adams
opportunities to practice his religion. Taoist inmates at NCF
have been scheduled for two to four hours of meeting time per
week since the group was first recognized. Def. Ex. 1. The
group meetings were briefly suspended over concern that the group
was practicing martial arts, but subject to a restriction on
physical contact the group was permitted to keep meeting. The
amount of group time permitted to Taoists is comparable to other
religious groups. Adams argued at the injunction hearing that
the Christians are permitted many more hours of meeting time per
week. Based upon my review of the Chapel Schedule, however, it
is clear that Adams fails to differentiate between the various
sects within the Christian faith. It is readily apparent that
the time allocated for the Jehovah Witnesses group, the Catholic
group, and the Spanish Bible group, for example, should not all
be counted together because the inmates within those various
groups have different religious needs.
Taoist group because NCF did not want to respond to inguiries from multiple inmates. This is Adams' lawsuit, however, and he has not submitted to this Court the evidence of any specific religious practices or articles that Richardson demonstrated to NCF are essential to the practice of religious Taoism.
16 Susan Young, the NCF Administrator programs, testified that
NCF plays no role in how the Taoists use their meeting time. The
inmates themselves chose the name "Taoist Study Group" for the
Chapel Schedule. Inmates are permitted to bow, kneel on mats,
perform moving meditation, and read religious literature as they
see fit during their time.
The evidence showed that Chaplain Smith inguired of nine
Taoist organizations regarding items necessary to practice
religious Taoism. Def. Ex. 9. In his letters. Chaplain Smith
wrote, "Property [at NHDOC] is strictly controlled. I was
wondering if you could give me an idea of what items may be
necessary to conduct group religious meetings, and what religious
items would a Taoist need to keep in their cell?" Id. Only
three organizations responded. Each provided a different answer.
Def. Ex. 10. One individual stated that some basic items
included candles, incense, a gong or bowl with a wooden clapper,
a text of the Tao Te China or other text of Taoist sages.
Another stated that the inmates would need an altar with three
statues representing air, earth and water. A third individual
stated that no implements were necessary.
Chaplain Smith testified that he proposed approving for
17 temple practice for the Taoists an altar with three statues, as
recommended by one of the outside individuals who responded to
his inquiry. The group found this unacceptable. Rather than
accepting items that have been substantiated and working to
substantiate the need for others, the members of the Taoist group
have taken an all or nothing approach that has left them
completely unsatisfied.
NHDOC policy requires that religious services be conducted
by the Chaplain or an approved religious volunteer. See NHDOC
PPD 7.17, V ( C ) . Chaplain Smith testified that he attempted to
locate a volunteer for the Taoist group, but one individual
identified by the inmates, Dennis Furry, declined. Chaplain
Smith also testified that the prison refused to allow Tay Boon
Hoe, a Taoist master in the United States on a temporary visa
from Singapore, to be an NCF volunteer because he violated the
NHDOC Rules for Volunteers. Def. Ex. 7.12 I find, based on my
review of the evidence, that NCF has provided Adams reasonable
opportunities to practice his religion.
12In particular, NCF found that Tay Boon Hoe provided false information on his application, lives in Adams' mother's household, had prohibited phone contact with inmates after being warned against it, and accepted money from inmate Travis Richardson.
18 2. Tai Chi
A specific religious practice that Adams seeks to engage in
is Tai Chi. Adams complains that his practice of moving
meditation has been stunted by the NCF correctional officers. I
take judicial notice that Tai Chi is practiced in virtually every
park in every Chinatown in the United States, and is practiced in
particular by older people for health reasons. But it is also
clear from the evidence, including that submitted by Adams, that
Tai Chi has martial arts applications. See Pi. Ex. K.
The evidence at the hearing established that, for security
reasons, the prison prohibits any form of activity that would
reguire face-to-face confrontation between inmates, which the
prison refers to as "facing off." This would include delivering
blows, kicks, physical contact, or any offensive or defensive
maneuver to an opponent. In October 2001, NCF halted the
meetings of the Taoist group because the correctional officers
were concerned that the inmates were practicing martial arts
moves. The group meetings were allowed to resume when the
restrictions were clarified to the group and to the staff.
The undisputed evidence shows that NCF now allows breathing
exercises and meditation involving physical movement so long as
19 the participants comply with the restrictions. See Pi. Ex. C C .
Adams contends that the NCF clarification on Tai Chi needs
further clarification in order to avoid further disputes between
Taoists and correctional officers.
I find that the prison has articulated a reasonable
penological interest for its restrictions on Tai Chi. Adams is
free to work within the prison's administrative process to
propose reasonable clarifications to the Tai Chi policy.13
3. Religious Articles
Property is strictly controlled at NCF. See NHDOC PPD 9.2.
The prison puts limits on the types and amounts of property that
prisoners may have to control contraband, minimize conflicts
between inmates over particular items, promote cleanliness and
eliminate fire hazards. Prisoners are provided Religious
Property Cards that indicate approval for prisoner's possession
of property deemed essential to the religious practice. See Def.
Ex. 13. Adams argues that NCF discriminates against the Taoists
13Adams also identified "sexual alchemy" as a specific religious practice he sought to engage in. Adams did not define the specifics of the practice, but he did testify that it reguires a partner of opposite sex. See Pi. Ex. D, G. Susan Young testified that to the extent that "sexual alchemy" involves physical sexual contact, the practice would violate the prison's regulations restricting physical contact during inmate visits.
20 because he is not permitted to have certain religious items that
are similar to items permitted to members of other religious
groups.
The evidence at the injunction hearing showed that as of May
7, 2001, the following five items have been approved for personal
use for Taoists at NCF: one religious medallion; one set of Malas
(prayer beads); one set of Boading Balls; one meditation journal;
and one meditation bag. Def. Ex. 5, 13. Taoists may order and
possess religious literature and cassette tapes pursuant to the
NHDOC PPD 9.2, subject to limitations on the property.
Chaplain Smith testified that he looks for generally
accepted practices in determining what religious items are
approved for each religious group. The evidence showed that the
number of religious articles permitted to Taoists is similar to
most other religious groups, with the exception of the Neo-Pagan
group. That group is permitted to possess thirteen different
religious articles. Chaplain Smith explained this discrepancy by
stating that the pagan group has been in existence for eight or
nine years and has had a particularly active leader who has been
able to substantiate the need for the religious items. It is
undisputed that the Taoist group at NCF was not established until
21 April 2001 at the earliest. See Def. Ex. 8.
Chaplain Smith testified that a prisoner is not permitted to
retain religious articles from faiths other than their own. I
find the prison's policy with respect to possession of religious
items reasonable. If it were otherwise, a prisoner could place
an undue burden of prison resources. While I agree with Adams'
contention that the law does not permit NCF to arbitrarily limit
him to five religious items, he has not shown that he was denied
permission to obtain religious items that he has substantiated
are essential to religious Taoism.
4. Religious Diet
Adams complains that he is being denied a religious diet
consistent with his Taoist beliefs. See generally NHDOC 7.1
(establishing the policy and procedure for medical and religious
diets). Adams testified at the injunction hearing that his
religion prohibits him from eating beef, pork, fish, poultry, or
eggs. He claims that he should be provided wheats, oats, barley,
millet, rice, seeds, and vegetables. Adams submitted a page from
the book Eating in the Light in support of his claim. See Pi.
Ex. B. The evidence at the hearing showed that NCF has provided
Adams a vegetarian-no egg diet since June 29, 2001. Def. Ex. 6,
22 12. This diet does not require Adams to eat anything that is
contrary to his beliefs. To the extent that Adams complains
about the specific portions of grains or vegetables that he
receives, I find that his complaint is without merit. The
evidence at the injunction hearing further showed that, contrary
to Adams' contention, he has neither been required to eat holiday
meals that are prepared for members of other religious faiths,
nor has he identified and substantiated any Taoist special meal
days. I find that no injunction is warranted based on Adams'
complaint about the food he receives at NCF.
5. Shaving Pass
The prison limits inmates' growth of facial hair based on
contraband control and concern pertaining to alteration of
physical appearance in the event of escape. However, the prison
issues shaving passes, which are exemptions from the regular
facial requirements, for religious participants if their religion
requires it. Adams complains that NCF has denied his request for
a shaving pass, but has permitted passes to Muslim inmates. He
seeks an exemption because he argues that shaving is not natural
to his essential being. Chaplain Smith testified that NCF denied
Adams' request because Adams did not show that facial hair is
23 required or central to religious Taoism. Adams has not presented
any evidence to the contrary. I find, therefore, that no
injunction is warranted based on this allegation.
II. Irreparable Harm
In order to be entitled to a preliminary injunction, Adams
must demonstrate that he is likely to suffer irreparable harm
absent relief. Irreparable harm is a substantial injury that is
not accurately measurable or adequately compensable by money
damages. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102
F.3d 12, 18-19 (1st Cir. 1996); Auburn News C o ., supra, 659 F.2d
at 277; Sierra Club v. Larson, 7 69 F. Supp. 42 0, 422 (D. Mass.
1991). "To establish irreparable harm there must be an actual,
viable, presently existing threat of serious harm." Sierra Club,
769 F. Supp. at 422 (citing Massachusetts Coalition, supra, 649
F .2d at 74).
With respect to the irreparable harm requirement, Adams
argues that he has been unable to conduct any religious services,
celebrations, initiations, or festival days and that these
deprivations are continuing. The evidence showed that Taoists
are being scheduled Chapel time in the same amounts as other
religious groups. The defendants take no role in the
24 determination of how Taoists use their scheduled time. To the
extent that Adams claims that he cannot properly practice his
religion without certain articles, he has not demonstrated that
he provided outside verification to Chaplain Smith that shows
that the items are essential to his religion. Chaplain Smith
indicated at the injunction hearing that he is willing to
consider any materials or reference sources that Adams may to
provide. Accordingly, I find that Adams has not demonstrated
that he will suffer irreparable harm absent injunctive relief.
Since I have found that Adams neither demonstrated that he
is likely to succeed on the merits, nor that he is likely to
suffer irreparable harm absent relief, I do not consider the
remaining preliminary injunction factors.
III. Motion for a Protective Order
I recommend that Adams' reguest for a protective order be
denied as the evidence he provided at the injunction hearing does
not establish that a protective order is warranted. Adams
submitted documentary evidence after the injunction hearing to
support his allegation that NCF has retaliated against him for
filing this lawsuit by firing him from his position as a law
clerk. Adams states in an affidavit he submitted in support of
25 his motion that "Angela Rouleau did terminate my employment as
the NCF Law Clerk for B-Shift by placing me on Reduced pay status
("RPS") for alleged disrespect to staff and for allegedly
socializing." No evidence has been presented by the defendants
to rebut Adams' allegation. While Adams may have a cognizable
retaliation claim, I find that he has not presented sufficient
evidence that he is likely to suffer future harm absent relief.
CONCLUSION
For the reasons set forth above, I recommend that Adams'
reguest for interim injunctive relief and for a protective order
be denied.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court's order. See Unauthorized Practice of
Law Comm, v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).
James R. Muirhead United States Magistrate Judge Date: December 18, 2002
26 cc: Marc Richard Adams, pro s e . Nancy J. Smith, Esq.