Farrow v . Commissioner NH DOC CV-02-567-B 02/05/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Prayer Feather Farrow
v. Civil N o . 02-567-B Opinion N o . 2004 DNH 029 Phil Stanley, et a l .
REPORT AND RECOMMENDATION
The plaintiff, Prayer Feather Farrow, is an inmate at the
New Hampshire Department of Corrections (“NHDOC”), who is being
housed at the Northern New Hampshire Correctional Facility
(“NCF”). He commenced this civil rights action alleging that the
defendants1 have violated his rights under the First Amendment’s
free exercise clause and under the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et
seq. (“RLUIPA”).
Before the Court for consideration is Farrow’s Motion for a
Temporary Restraining Order and a Preliminary Injunction
(document n o . 8 ) enjoining the Defendants from depriving him of
certain religious items and allowances, which he claims are
1 The named defendants are Phil Stanley, the former commissioner of NHDOC, Bruce Cattell, NCF Warden, Susan L . Young, NCF Administrator of Programs and John Vinson, Esq., staff attorney for NHDOC (collectively referred to as “Defendants”). necessary to the meaningful practice of his religion as a member
of the Native American Sacred Circle (“NASC”). Defendants filed
an objection. The motion was referred to me for review and to
prepare a report and recommendation.
The Court held an evidentiary hearing on the Plaintiff’s
motion on October 1 6 , 2003. Farrow testified on his own behalf,
and supported his motion with affidavits from Donald Newell, a
Penobscot elder, and Jermie Kline, an NCF inmate. See P l . Ex. 1-
2. The affidavits were entered into evidence without objection.
Warden Cattell, Chaplin Michael Shaulis, and Susan Young
testified on Defendants’ behalf. Defendants submitted
documentary evidence pertaining to NHDOC Policy and Procedure
Directives (“PPD”) on the issuance and control of resident
property and religious programming, the NCF Chapel Services
Calendar, and memorandums on the policies for inmate donations
and for NCF Native American feasts. See Def. Ex. A-J.
After considering the evidence, and the relevant
authorities, I find that Farrow has not demonstrated that he is
likely to succeed on the merits of his claims. Therefore, I
recommend that his motion for injunctive relief be denied.
2 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. v . Ocean
Coast Prop., 48 F.3d 6 1 8 , 620 (1st Cir. 1995) (citing Chalk v .
U.S. Dist. C t . Cent. Dist., 840 F.2d 7 0 1 , 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.
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. Langlois v . Abington Hous. Auth.,
207 F.3d 4 3 , 47 (1st Cir. 2000); Public Serv. C o . v . Patch, 167
3 F.3d 1 5 , 25 (1st Cir. 1998). In the First Circuit, the “sine qua
non” of the preliminary injunction analysis is whether the movant
can demonstrate a likelihood of success on the merits. Weaver v .
Henderson, 984 F.2d 1 1 , 12 (1st Cir. 1993). To warrant
preliminary injunctive relief, the movant’s showing on the
likelihood of success must be substantial. See I.P. Lund Trading
ApS v . Kohler Co., 163 F.3d 2 7 , 33 (1st Cir. 1998); TEC Eng’g
Corp. v . Budget Molders Supply, 82 F.3d 5 4 2 , 544 (1st Cir. 1996)
(same). However, a party seeking injunctive relief must
independently satisfy each of the four factors. Auburn News C o .
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, 649 F.2d 7 1 , 74 (1st
Cir. 1981). The Court applies this standard in reviewing
Plaintiff’s motion for injunctive relief.
BACKGROUND
I. Farrow’s Allegations
Farrow alleges that he was adopted by an elder of the Lakota
Sioux Nation, and that as such he assumed obligations associated
with the practice of that nation’s religion. He claims that the
Defendants have denied him the following religious items or
4 allowances that he needs to meaningfully practice his religion:
(a) tobacco;
(b) a sweat lodge;
(c) certain medicines and herbs;
(d) scheduled time for daily communal prayer;
(e) traditional foods for various special religious days;
(f) permission to wear feathers at all times; and
(g) separate scheduled meeting times for members of the various Nations in NASC
Farrow alleges that he has exhausted the administrative
grievance procedures available to him with regard to the above-
listed requests, but the Defendants have refused to accommodate
his concerns. Farrow claims that the Defendants have caused him
to experience continuing emotional and spiritual pain because he
is unable to meaningfully practice his religious beliefs.
II. NCF Regulations That Affect NASC
Warden Cattell testified that NCF attempts to allow all
inmates to practice their religion on a “reasonable and
necessary” basis. Inmates are provided a controlled, systematic
time for religious services that allows the institution to
monitor what is occurring. Religious groups are scheduled for
two hour blocks for services and separate two hour blocks for
5 religious education. Inmates may request additional programming
time when necessary. Warden Cattell testified that security is
required whenever inmates are moved within the facility, and that
checks are required during group activities.
Inmate property, including religious property, is strictly
regulated at NCF. See PPD 9.2, Def. Ex. A . The prison puts
limits on the types and amounts of property inmates may have to
control contraband, minimize conflicts between inmates, promote
cleanliness and eliminate fire hazards. The prison also needs to
prevent nuisance, escape paraphernalia, and items that could be
used as weaponry.
NFC attempts to substantiate the practices and religious
items that are necessary for a faith group through the chaplain.
Michael Shaulis,2 who works at NCF part-time, advises management,
leads worship services, and provides pastoral counseling to
inmates and their families regardless of religion. See NHDOC PPD
7.17, V(I)(1) (“The Chaplain shall schedule celebration of the
sacramental rituals necessary to meet minimal requirements of a
2 Shaulis testified that he is a Catholic Chaplain of Native American ancestry. He testified that his great grandmother is a full-blooded Cree and that his grandfather was an Abenaki. Shaulis gained additional familiarity with Native American religions while serving on a Blackfoot reservation as a member of the military. He has worked for NHDOC since March 1998.
6 given religious faith.”). Shaulis also works with outside
religious volunteers and oversees programs.3
Shaulis is responsible for working with the members of NCF’s
religious groups to help meet their religious needs. Inmates
direct requests to the chaplain for services that are not being
provided. Shaulis testified that he confers regularly with
Native American practitioners Chief Pouliot, who works with the
federal and state prison systems in Massachusetts, and Peter
Newell, who is chief of a New Hampshire tribal counsel, in making
recommendations to NCF regarding policies that affect NASC.
Cattell and Young testified that NCF does not support any
specific religion by buying religious items. The chaplain
attempts to find sources for donations for items requested by
inmates. M s . Shirley Bear of Hooksett, N.H., has agreed to be a
benefactor of NASC. M s . Bear has sent sweet grass, sage,
kinnikinick, videos, and books for chapel use.
III. Defendants’ Response to Farrow’s Complaints
Defendants argue that Farrow has been allowed all of the
items, services and practices that are mandated or central to his
3 Susan Young testified that volunteers for NASC have been rare. NASC is treated differently from other groups to its benefit in that they are allowed to have group meetings even without a volunteer.
7 religion. NASC has been scheduled time each week for communal
religious activity and education. NASC members are allowed to
participate in community smudging and community prayer, which
includes the use of a ceremonial pipe. NASC is allowed to hold
its ceremonies in a small confined area in front of the prison
that has been designated off limits to the general population.
It is undisputed that NCF allows Farrow, and NASC as a
group, to possess a number of religious items.4 The group items
are stored in a locker under the chaplain’s direction. NASC
members were previously allowed access to tobacco for religious
purposes, but NHDOC and NCF have changed their policies and now
prohibit the use of tobacco in the prison. However, NASC members
are allowed to use kinnikinick in their religious services as a
tobacco substitute.
Farrow admits that some traditional Native American foods
4 Individual NASC members are allowed to possess a native choker, a beaded necklace, feathers, a bandana, and a medicine bag with personal items. See Def. Ex. B , Attach. C , p . 1 . As a group, NASC is allowed to possess assorted sticks, beans, a blanket, cedar, cedar bark, cotton fabrics, cups, dream catchers, dried corn, a drum, drum beaters, leather, a leather medicine wheel, mandellas, native blue corn, a partial hawk wing, pictures, a pipe bundle, prayer flags, sage, shells, sinew, song books, spoons, squash seeds, sweet grass, talking sticks, tin with cedar, a turkey feather, and bitter root. See Def. Ex. B , Attach. C , p . 3 .
8 are part of the regular menu of foods provided to inmates at the
NCF including beans, corn and squash. He further admits that NCF
holds four feasts per year for NASC members related to the winter
solstice, spring equinox, summer solstice and the fall equinox.
See Def. Ex. B , Attach. C , p . 1 .
Defendants argue that there are legitimate penological
interests supporting the denial of Farrow’s specific requests,
and that his requests pertain to items or allowances that are not
necessary to the practice of his religion. Additional facts
pertaining to Farrow’s claims are contained in the discussion.
DISCUSSION
I. Section 1983
Farrow filed his complaint under 42 U.S.C. § 1983. To state
a claim under § 1983, a plaintiff must allege two elements: (1)
that a right secured by the Constitution or laws of the United
States has been violated, and (2) that the violation was
committed by a person acting under color of state law. See West
v . Atkins, 487 U.S. 4 2 , 48 (1988). 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. 6 5 8 , 692 (1978); Soto v . Flores,
9 103 F.3d 1056, 1061-62 (1st Cir. 1997).
The premise of Farrow’s § 1983 claim is that the defendants,
acting under color of state law, have violated his rights under
the First Amendment’s free exercise clause,5 as applied to the
states through the Fourteenth Amendment, and that they have
violated his rights under the RLUIPA. There is no reasonable
dispute that Defendants’ actions were taken under the color of
state law, so I do not address that element further.
II. Free Exercise of Religion Claim
“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. 8 1 7 , 822 (1974); see also, Bell v . Wolfish, 441 U.S. 5 2 0 ,
545 (1979) (“prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement in
5 The relevant provision of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. Amend. I (hereinafter “Free Exercise Clause”).
10 prison.”). Those 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. Id. at 3 2 2 , 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.” Brown-El v . Harris, 26 F.3d
6 8 , 69 (8th Cir. 1994); Barnett v . Comm’r, N.H. Dept. of Corr.,
N o . Civ. 98-305-JD, 2000 WL 1499490 (D.N.H. Apr. 2 6 , 2000).
Even a sincerely held religious belief, however, must yield
if contrary to prison regulations that are “reasonably related to
legitimate penological interests.” Turner v . Safley, 482 U.S.
7 8 , 89 (1987); see also, O’Lone v . Estate of Shabazz, 482 U.S.
342, 351-352 (1987) (finding that the Constitution does not
require 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). A
regulation must have a logical connection to the legitimate
governmental interests invoked to justify i t . Turner, 482 U.S.
at 89-90. That connection may not be “so remote as to render the
policy arbitrary or irrational.” Id.
11 Defendants do not challenge the sincerity of Farrow’s
religious beliefs. Therefore, for the purposes of Farrow’s Free
Exercise Clause claims, the relevant issue is whether NCF is
providing Farrow a reasonable opportunity to practice his
religion. Plaintiff’s claims are examined in that context.
A. Access to Tobacco
Farrow asserts that he is not able to meaningfully practice
his religion because the Defendants have denied him access to
tobacco, which Farrow alleges he would use to make prayer ties,
prayer flags, and in pipe ceremonies.6 Cattell and Shaulis
testified that tobacco is no longer allowed at NCF, however,
because the prison has had numerous problems attempting to
control its use. Previously when inmates were allowed to use
tobacco for religious purposes, there were numerous instances of
theft of tobacco and resale on the prison’s black market. With
kinnikinick, the prison does not need to have an officer watching
over the ceremony the entire time because there are far fewer
instances of stealing.
Shaulis testified that his consultations with Native
American practitioners showed that kinnickinick is an acceptable
6 Shaulis testified that the pipe ceremony and smudging are common threads between all Native American religious services.
12 substitute for tobacco for Native American religious services.
Shaulis testified that kinnikinick has a very low tobacco base
and is less likely to be abused by inmates. According to
Shaulis, tobacco is not essential to the practice of Farrow’s
religion since “the creator looks at the intent in the prayer not
the offering in one’s hand.”
Donald Newell’s affidavit on Native American traditions,
submitted in support of Plaintiff’s motion, does not necessarily
contradict Shaulis’ testimony.7 In his affidavit, Newell stated
that “the elimination or inability to produce an acceptable
substitute” for certain items, would deny a person the
opportunity to properly practice Native religion. Newell Aff. at
1 , P l . Ex. 2 . Newell listed tobacco and kinnikinick among the
items of concern. Newell does not address in his affidavit
whether kinnikinick may be considered an acceptable substitute
for tobacco. The Court finds that Farrow has not demonstrated by
substantial evidence that the Defendants have denied him a
meaningful opportunity to practice his religion by requiring him
to use kinnikinick as a substitute for tobacco in religious
practices.
7 It is unclear whether there is any relationship between Donald Newell and Peter Newell, with whom Shaulis consulted.
13 B. Sweat Lodge
Donald Newell states in his affidavit that a sacred sweat
lodge is used to cleanse the body and renew the spirit. He
further provides that the sweat lodge “can be a place of healing
and reflection and is an integral part of most Native religions
from East to West.” Newell Aff. at 2 , P l . Ex. 2 . Farrow asserts
that Defendants’ security concerns regarding a sweat lodge at NCF
are unwarranted or unjustified because at least thirty other
prisons in the United States maintain sweat lodges.
Warden Cattell testified that the creation and maintenance
of a sweat lodge is a great burden on a prison’s resources and
raises a number of security concerns. Among the security
concerns that Cattell testified to were the need for inmates to
use tools to cut wood for the sweat lodge. Once inside the sweat
lodge, inmates are completely out of the sight of staff members
and in a state of undress. Cattell further testified that he is
aware from his twenty years of experience working in the Arizona
prison system that assaults have occurred inside sweat lodges,
and in particular he recalls a serious stabbing occurring in a
sweat lodge in Arizona.
In addition to the prison’s security concerns, Shaulis
14 contradicted Plaintiff’s evidence regarding whether a sweat lodge
is integral to the practice of his religion. According to
Shaulis, a sweat lodge is more important to some nations than to
others, and not all tribes use a sweat lodge. He testified that
the traditions in the Eastern nations rely less on a sweat lodge.
The Court finds the evidence on the necessity of a sweat
lodge to the practice of Farrow’s religion inconclusive. Neither
side presented evidence that specifically pertained to the
religious practices of the Native American nation into which
Farrow has been adopted. Because the evidence presented at the
hearing was inconclusive and contradictory, the Court finds that
Farrow has not demonstrated by substantial evidence that the
Defendants have denied him a meaningful opportunity to practice
his religion by refusing to allow a sweat lodge on the facility.
Furthermore, the Court finds that Defendants have articulated
sufficient reasons why Farrow’s Free Exercise Clause right to the
use of a sweat lodge is overborne by the detrimental effects on
the prison’s legitimate penological objectives.
C. Access to Medicines and Herbs
Farrow argues that he has been deprived medicines and herbs
that he needs for ceremonial religious use including red willow
15 bark, osha root, bitter root, yerba santa, pinion, desert sage,
balsam and camomile. See Newell Aff., p . 1 , P l . Ex. 2 .
Farrow acknowledges that many of the herbs that he seeks would be
used in prayers to treat common physical ailments such as stomach
ailments and sore throat.
Shaulis testified that many of the herbs Plaintiff seeks
have medicinal but not religious significance. NCF allows herbs
that are the most common across the board in Native American
traditions. The evidence showed that members of the NASC have
been approved for the following items, among other things: cedar,
cedar bark, dry corn, sage, shells, sinew, squash seeds, sweet
grass and bitter root. Shaulis testified that he made
recommendations to NCF as to the items that were necessary after
consulting with Native American practitioners. The additional
items that Farrow seeks may be used as part of ceremonies, but
they are not necessary. Shaulis further testified that some of
the items Plaintiff seeks could be physically harmful if used
inappropriately. NCF allows inmates to possess over-the-counter
medicines and herbs.
In light of the contradictory evidence on the necessity of
the additional herbs and medicines that Farrow seeks, and the
16 health concerns articulated by the Defendants, the Court finds
that Farrow has not demonstrated by substantial evidence that the
Defendants have denied him a meaningful opportunity to practice
his religion by denying access to the additional herbs and
medicines that he requests.
D. Daily Communal Prayer
Farrow complains that NASC is not scheduled for daily
communal prayer. As addressed above, NASC is scheduled religious
service and education time consistent with that provided to other
faith groups. Susan Young testified that it would not be
possible to provide daily communal prayer for every religious
group given the scheduling needs of the facility. In addition,
Shaulis testified that communal prayer on a daily basis is not
essential to the practice of Farrow’s religion. The evidence
further showed that Farrow could engage in communal prayer during
his free time if he and other NASC members desired. The Court
finds that Farrow has not demonstrated by substantial evidence
that the Defendants have denied him a meaningful opportunity to
practice his religion by denying his request to schedule daily
communal prayer for NASC.
17 E. Traditional Foods and Special Religious Days
Farrow complains that NASC members are deprived of
traditional foods and institutional recognition of special
religious days. In particular, Farrow testified that buffalo is
particularly important as a spiritual food and that NASC was
formerly able to obtain buffalo meat from a company that supplied
it before NHDOC changes its rules. He argues that NCF’s policy
is unreasonable because the members of NASC have offered to pay
for the foods they seek.
Shaulis testified that the foods that are eaten in Native
American feasts are the foods that are prevalent in the region at
the time of year. However, feasts are very common in Native
American culture and traditional foods are not necessary to the
practice of religion. Still, NCF holds four religious feasts for
NASC each year, which the evidence showed includes traditional
Native American foods. Farrow did not provide any evidence at
the hearing to support his claim that the number of religious
days scheduled for NASC are insufficient.
Susan Young testified that NASC is the only group that has
been allowed to bring personal food items for their feasts. NCF
has moved to relying on the prison’s culinary arts menu to
18 eliminate outside food coming into the prison to cut down on
contraband and for health reasons. Neither inmates, nor their
family members, are allowed to make donations to religious groups
inside the prison. Young testified that donations are prohibited
because they create the risk of coercion of inmates who are
unable to donate to contribute in other ways. For example, an
inmate could be pressured to serve as a runner for contraband.
The Court finds that Farrow has not demonstrated by
reasonable opportunity to practice his religion by denying NASC
special religious days and traditional food. Farrow has neither
demonstrated the number of religious feasts scheduled for NASC is
inadequate, nor that NASC has been denied a reasonable amount of
traditional foods.
F. Permission to Wear Feathers at all Times
Farrow complains that he is not permitted to wear feathers
at all times, but rather only during ceremonies. Shaulis
testified that while feathers are integral to Native American
religion, wearing them is not. Feathers are used in prayer and a
feather acts as a fan for smudging. Feathers are also commonly
used as adornment. Shaulis testified that an inmate could keep a
19 feather in his prayer or pipe bundle. The evidence showed that
NCF’s restriction on feathers is consistent with the policy
applied to members of other faith groups. Inmates who have
medallions or medicine bags, for example, are required to keep
them in or under their clothing. The Court finds that Farrow has
not demonstrated by substantial evidence that Defendants are
denying him a reasonable opportunity to practice his religion by
refusing to permit him to weather feathers at all times.
G. Separate Meeting Times for Various Nations
Farrow complains that NCF does not allow the opportunity for
the various Nations in the NASC group to meet separately, an
opportunity provided to the various separate denominations of
Christianity. He asserts that the Lakota, Abenaki and Mic Mac
members are all forced to be part of the same group. Farrow
testified that it is important that the members of the different
Native American nations have their own prayer and culture time
because the different nations have different languages and songs.
In response, Defendants contend that there is a relatively small
number of inmates who participate in NASC, as compared with other
faith groups, and that the religious practices of the members
within NASC are similar enough that a single group is sufficient.
20 Although the Plaintiff’s argument has merit, there is not
substantial evidence in the record to support his claim. Farrow
did not argue or present any evidence that demonstrates that his
own religious needs are going unmet. As Farrow is only
prosecuting this case on his own behalf, I do not find, based on
the current record, that Farrow has demonstrated that the
Defendants are denying him a reasonable opportunity to practice
his religion by recognizing only a single faith group for Native
American religious practices at NCF.
As discussed above, I do not find from the evidence that
Farrow has demonstrated that he is likely to succeed on the
merits of any of his Free Exercise Clause claims. Therefore, I
find that injunctive relief is not warranted on those claims.
III. RLUIPA Claim
Farrow raises the RLUIPA as another basis for granting him
injunctive relief. 42 U.S.C. § 2000cc-1 states in relevant part:
(a) General Rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person –
(1) is in furtherance of a compelling governmental interest; and
21 (2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application. This section applies in any case in which –
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance;8 or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
Thus, “RLUIPA protects prisoners and other institutionalized
people from government infringement on their practice of
religion.” Mayweathers v . Newland, 314 F.3d 1062, 1065 (9th Cir.
2002), cert. denied, 72 U.S.L.W. 3235 (U.S. Oct. 6, 2003) (No.
02-1655). In order to establish a claim for violation of the
RLUIPA, Farrow must demonstrate that the regulation in question:
(1) imposes a substantial burden; (2) on the “religious
exercise;” (3) of a person, institution, or assembly. Grace
United Methodist Church v . City of Cheyenne, 235 F. Supp. 2d
1186, 1193-94 (D. Wyo. 2002), citing Murphy v . Zoning Comm’n, 148
F. Supp. 2d 173, 187 (D. Conn. 2001). If Farrow meets his
burden, Defendants must show that the regulations further a
8 Defendants stipulated that NHDOC receives federal funding.
22 compelling state interest by the least restrictive means.
Charles v . Verhagen, 220 F. Supp. 2d 9 3 7 , 944 (W.D. Wis. 2002),
aff’d, 348 F.3d 601 (7th Cir. 2003).
Defendants argue that there is a substantial question
regarding whether the RLUIPA is constitutional and that the
RLUIPA ought not be used as a basis for granting Farrow
preliminary injunctive relief. See Cutter v . Wilkinson, 349 F.3d
257, 268-269 (6th Cir. 2003) (finding that the RLUIPA violates
the Establishment Clause); Al Ghashiyah v . Dep’t of Corr., 250 F.
Supp. 2d 1016, 1034 (E.D. Wis. 2003) (same). 9 There is no
controlling First Circuit precedent on this issue.10
Defendants argue that even if the RLUIPA is constitutional,
the Court should not find in Farrow’s favor because he has not
demonstrated that Defendants have created a “chilling effect” on
his exercise of religion. Defendants argue that they have
recognized NASC as a faith group, and have provided its members
9 Another case Defendants cite as support, Madison v . Riter, has been reversed. See 240 F. Supp. 2d 582 (W.D. V a . 2003), rev’d and remanded by, -- F3d –-, N o . 03-6362, 2003 WL 22883629 at *9 (4th Cir. Dec. 8 , 2003 10 Farrow has not responded to Defendants’ arguments pertaining to the constitutionality of the RLUIPA. The Court notes, however, that the United States Attorney’s Office might wish to intervene in this case to defend the constitutionality of the statute. See Fed. R. Civ. P. 24(c).
23 substantial and reasonable opportunities to practice their
religion. Defendants further argue that compelling state
interests support the specific denials in question.
The first element that Farrow must demonstrate in order to
succeed on his RLUIPA claim is that the regulations enforced by
the Defendants have imposed a substantial burden on the practice
of his religion. Since the term “substantial burden” is not
defined in the RLUIPA, courts have looked to the language used by
courts in discussing “substantial burdens” in other contexts.
See Murphy, 148 F. Supp. 2d at 188 (analyzing cases). Such cases
have alternatively inquired whether a state “put[s] substantial
pressure on an adherent to modify his behavior and to violate his
beliefs,” Thomas v . Review Bd. of Indiana Employment Sec. Div.,
450 U.S. 7 0 7 , 718 (1981), whether a person is required to “choose
between following the precepts of her religion and forfeiting the
benefits, on the one hand, and abandoning the precepts of her
religion . . . on the other,” Sherbert v . Verner, 374 U.S. 3 9 8 ,
404 (1963), or whether state action “prevent[s] him or her from
engaging in conduct or having a religious experience that is
central to the religious doctrine,” Bryant v . Gomez, 46 F.3d 9 4 8 ,
949 (9th Cir. 1995). In Charles v . Verhagen, the court found
24 persuasive the liberal definition of substantial burden employed
by the Seventh Circuit in considering a claim under the Religious
Freedom Restoration Act (“RFRA”): 11
a substantial burden on the free exercise of religion . . . is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.
Charles, 220 F. Supp. 2d 9 3 7 , 944-945 quoting Mack v . O’Leary, 80
F.3d 1175 (7th Cir. 1996), judgment vacated and remanded by
O’Leary v . Mack, 522 U.S. 801 (1997). The Seventh Circuit found
it appropriate to give the term “substantial burden” a “generous
definition” to avoid making judges “arbiters of religious law.”
Mack, 80 F.3d at 1179.
The Court finds that the “chilling effect” standard advanced
by Defendants defines the court’s inquiry too narrowly. A
generous definition of “substantial burden” as discussed in Mack
appears to be required, particularly in light of the express
language in the RLUIPA that a religious exercise need not be
“compelled by or central to a system of religious belief” in
order to be covered by the statute. 42 U.S.C. § 2000cc-5(7)(A).
11 The RFRA is the predecessor to the RLUIPA. The Supreme Court held that the RFRA is unconstitutional as applied to the states in City of Boerne v . Flores, 521 U.S. 507 (1997).
25 Even using a liberal definition of “substantial burden,”
however, the Court finds that Farrow has not demonstrated that
the Defendants have imposed a substantial burden on his religious
exercise except with regard to his request for access to a sweat
lodge. Though perhaps not a central tenet of Farrow’s religion,
the evidence shows that the use of sweat lodge is a widely-
practiced Native American religious exercise. Defendants have
not contested that Farrow’s request for access to a sweat lodge
emanates from a sincerely-held religious belief. Therefore, the
Court must consider whether the Defendants have articulated a
compelling state interest for denying Farrow’s request.
Defendants have refused to provide a sweat lodge citing the
heavy institutional burden of its construction and maintenance,
and the need for intensive monitoring. These concerns are not
insubstantial. The evidence demonstrated that a sweat lodge
would have to be constructed on land designated off limits to the
rest of the prison population, with specific dimensions, and
under the supervision of a competent Native American
practitioner. Defendants contend that the wood used in a sweat
lodge is usually not precut, which would require inmates to have
access to tools that would create security concerns. While using
26 the sweat lodge, inmates would be in a state of undress, and
completely out of sight of the prison’s security staff. This
raises concerns about potential inappropriate behavior. The
Court finds these countervailing interests compelling.
Farrow argues that the maintenance of sweat lodges at as
many as thirty others prisons shows that Defendants’ security
concerns are overstated. He argues that all of the raw materials
for the sweat lodge could be donated, and that the prison already
employs a person on its staff who could oversee its construction.
Farrow further argues that the inmates could go into the sweat
lodge wearing gym shorts, which would eliminate any concern about
indecent exposure, and that the members of NASC could reasonably
be expected to behave appropriately inside of the sweat lodge.
Notwithstanding the reasonableness of these arguments, Farrow has
not produced substantial evidence to support his assertions.
The Court finds that further development of the record on
the costs and security risks in maintaining a sweat lodge, and
whether there are less restrictive alternatives to complete
denial of access, is required. Therefore, the Court recommends
that Farrow’s request for interim injunctive relief on his RLUIPA
claims be denied.
27 CONCLUSION
For the reasons set forth above, I recommend that Farrow’s
Motion for a Temporary Restraining Order and a Preliminary
Injunction (document n o . 8 ) be denied. I further recommend that
the court notify the Attorney General of the United States that
the Defendants have challenged the constitutionality of the
RLUIPA in this action, and invite the United States to intervene
pursuant to 28 U.S.C. § 2403 and Fed. R. Civ. P. 24(c).
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 1 1 , 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: February 5 , 2004 cc: Prayer Feather Farrow, pro s e . Michael K. Brown, Esq.