UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. Waite
v. Civil No. 22-cv-071-SE-AJ Opinion No. 2024 DNH 085 Chaplain D. Hoyt, et al.
ORDER
New Hampshire Department of Corrections (“NHDOC”) prisoner Richard A. Waite filed
this action against the Northern New Hampshire Correctional Facility (“NCF”) Warden Corey
Riendeau, the NHDOC Commissioner Helen Hanks, the NCF Chaplain Dana Hoyt, and other
members of the NHDOC Religious Review Committee (“RRC”). Following this court’s
preliminary review of Waite’s Complaint (doc. no. 1), some of Waite’s claims were dismissed.
See Sept. 3, 2024 Order (doc. no. 29) (approving Jan. 5, 2024 R&R (doc. no. 8)). Waite’s
surviving claims include those identified in the January 5, 2024 R&R and a July 23, 2024
Superseding Endorsed Order as Claims 4(a)-(b) and 7(a)-(c), asserting violations of the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment’s Free
Exercise and Establishment Clauses, relating to his practice of Witchcraft.1 Waite filed two
overlapping motions for a preliminary injunction (doc. nos. 7, 16) based on Claims 4(a)-(b) and
7(a)-(c), which are presently before the court. Those motions seek two forms of preliminary
injunctive relief: (1) an order directing defendants to recognize Witchcraft as a distinct religion
that NHDOC should not lump into the “Pagan” group of faiths, and (2) an order directing
defendants to provide Waite with a diet that meets his religious requirements. Defendants object.
See doc. nos. 14, 39.
1 In this order and the record, Waite’s religion is sometimes called “Wicca” and sometimes called “Witchcraft.” He prefers the term “Witchcraft.” Preliminary Injunction Standard
A plaintiff seeking a preliminary injunction must establish that “‘he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.’” Glossip
v. Gross, 576 U.S. 863, 876 (2015) (citation omitted). The burden of proof is on the movant.
Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006). Courts “must give
substantial weight to any adverse impact on public safety or the operation of the criminal justice
system” in considering whether to grant requests for preliminary injunctions in prison-conditions
cases. Starbucks Corp. v. McKinney, 144 S. Ct. 1570, 1577 (2024) (citing 18 U.S.C.
§ 3626(a)(1)-(2)). The court may rule on a motion for a preliminary injunction without a hearing
where, as here, it has before it “adequate documentary evidence upon which to base an informed,
albeit preliminary conclusion,” and the parties have been afforded “a fair opportunity to present
relevant facts and arguments to the court, and to counter the opponent’s submissions.” Campbell
Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995) (internal quotation marks and citation
omitted).
Background
The NHDOC recognizes more than twenty separate religions or groups of religions
practiced by NHDOC prisoners. See doc. no. 14-3, at 2-3. Each prisoner is permitted to declare a
preference for only one recognized religion at a time.
Waite has declared Witchcraft to be his religious preference. His religious preference is
recorded as “Wicca” in the NHDOC’s system of prison records known as “CORIS,” but it is
treated by the NHDOC as part of the “Pagan/NeoPagan” (“Pagan”) religious “umbrella” group
for the purpose of NHDOC religious programming. The Pagan group is listed, but neither Wicca
2 nor Witchcraft is separately listed as one of the “recognized” religions in the official list
maintained by the NHDOC chaplains. See id.; see also Nov. 10, 2021 Resp. of Chap. D. Hoyt to
Nov. 3, 2021 Inmate Request Slip (“IRS”) (doc. no. 11-1, at 56).
The NHDOC Policy and Procedure Directive (“PPD”) 672, regarding religious
programming, allows the general prison population to attend regularly scheduled services
coordinated by the chaplain or an approved religious volunteer. PPD 672(IV)(A)(3) (doc. no.
14-2). When NHDOC staff or outside volunteers are unavailable, prisoners who are declared
members of particular religious groups may meet for congregate services, led by approved co-
religionist prisoners. See doc. no. 11-1, at 54-55; see also PPD 672(IV)(A)(3).
PPD 672 allows members of recognized religions to celebrate one feast per year that is
open only to prisoners who have declared that religion as their preference. PPD 672(IV)(A)(9).
Members of a recognized religion can choose to receive the religious diet approved for their
religion, and they can possess the religious property, books, and apparel that the NHDOC has
approved for their religion. PPD 672(V)(F). Chaplain Hoyt has stated that prisoners who
declare Wicca as their preference can attend the annual Pagan feast, and Waite’s declaration of
Witchcraft permits the Chaplain to allow him to receive the religious diets approved for the
Pagan religious group. See doc. no. 11-1, at 53, 58.
Prisoners seeking to add new faiths to the list of recognized religions, or new religious
practices and property to the lists approved for their religion, may submit a proposal to the RRC
for that purpose. PPD 672(V)(K). Waite submitted a proposal to the RRC in late November
2021, seeking to have his religion removed from the larger “Pagan” group, and asking for
separate, stand-alone recognition of Witchcraft. See doc. no. 11-1, at 4. The RRC denied Waite’s
proposal in February 2022. Id. Chaplain Hoyt explained, on behalf of the RRC, that the “Pagan
3 group at NCF is currently supported by a Wiccan priestess, who has also declared that Wicca
definitely falls under the Pagan umbrella.” Id.
Waite grieved the denial of his Witchcraft recognition proposal to the NCF Warden and
the NHDOC Commissioner. See doc. no. 11-1, at 1-3. Waite stated in his grievances and in his
underlying RRC proposal that all Witches are Pagans, but not all Pagans are Witches; that the
religious apparel and property needs for Witches and other Pagans are not identical; that the
prisoner-led Pagan services at NCF did not include the same rites and rituals that his religious
practice requires; and that the Pagan services at NCF occur less often than his religion requires.
Waites’ grievances were denied. See doc. no. 11-1, at 1; doc. no. 19-1, at 5.
Waite filed this lawsuit thereafter. He has requested preliminary injunctions to compel
the NHDOC to recognize Witchcraft as a separate religion, and to obtain a religious diet. Waite
bases those requests on his RLUIPA, Free Exercise Clause, and Establishment Clause claims
which allege that the failure to recognize Witchcraft separately denies his religion the
“protections” available to recognized religions, placing it at a relative disadvantage. He also
seeks preliminary injunctive relief on his religious diet claims, asserting violations of RLUIPA
and the Free Exercise Clause. Defendants have objected to both of Waite’s requests for
preliminary injunctions. See doc. nos. 14, 39.
Discussion
I. Recognition of Witchcraft
A. RLUIPA and Free Exercise Clause Claims
RLUIPA provides that “[no] government shall impose a substantial burden on the
religious exercise of a [prisoner] . . . even if the burden results from a rule of general
applicability,” unless the government demonstrates that the burden is “in furtherance of a
4 compelling governmental interest” and is “the least restrictive means of furthering that . . .
interest.” 42 U.S.C. § 2000cc-1(a). To obtain relief on his RLUIPA claims, Waite must show that
the NHDOC policy or practice of considering Witchcraft to be part of the Pagan religious group
has substantially burdened his religious practice. If Waite succeeds, the government may avoid
liability by showing that the policy imposing the burden furthers a compelling governmental
interest, and that the policy is the least restrictive means of achieving that interest. Ramirez v.
Collier, 595 U.S. 411, 425 (2022).
Waite’s pleadings assert that the NHDOC’s failure to recognize Witchcraft as a separate
religion has denied him the “protections” available to separately recognized religions and has
assigned a “Pagan” label to his religion that some people would consider to be insulting.
Although he has not specified precisely what protections are denied to his religion, Waite has
averred that NHDOC’s failure to recognize Witchcraft as a separate religion has burdened his
ability to obtain a religious diet, as well as his ability to attend religious services that satisfy the
frequency and ritual requirements of his religion. In particular, he stated that his religion requires
weekly, occasional, and holy day observances that are not currently offered (Esbat services at
least once and up to five times per lunar month, and Sabbats six or eight times per solar year);
the differences between his Witchcraft ritual requirements and the type of rituals in the prisoner-
led Pagan services at NCF; the absence of any religious diet offered to the Pagan group
consistent with his religious dietary needs for food treated with reverence; and the longstanding
recognition of Wicca or Witchcraft by other institutions including the Federal Bureau of Prisons.
See generally RRC Proposal, Nov. 24, 2021, doc. no. 11-1 at 5; see also doc. no. 11-1, at 56;
doc. no. 20, at 6. He has represented, without contradiction, that the Wiccan services officiated
by a volunteer Wiccan priestess occur three to four times per year, and that the more frequent
5 Pagan services led by prisoners at NCF do not include the same rites or rituals his religion
requires. See, e.g., [Jan.] 14, 2024 IRS to Chap. Hoyt (doc. no. 17-1, at 3) (“Hoyt 2024 IRS”);
“Pagan Group IFG” announcements (doc. no. 17-1, at 1, 2).
A substantial burden for the purpose of RLUIPA exists “[w]here the state conditions
receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies
such a benefit because of conduct mandated by religious belief, thereby putting substantial
pressure on an adherent to modify his behavior and to violate his beliefs.” Perrier-Bilbo v.
United States, 954 F.3d 413, 431 (1st Cir. 2020) (citation omitted). It also exists where a state
policy “coerces the inmate to modify his religious behavior significantly or to violate his
religious beliefs,” Farrow v. Stanley, No. 02-567-PB, 2005 DNH 146, 2005 WL 2671541, at *4,
2005 U.S. Dist. LEXIS 24374, at *14 (D.N.H. Oct. 20, 2005). A “[s]ubstantial burden requires
something more than an incidental effect on religious exercise” or inconvenience. Signs for Jesus
v. Town of Pembroke, 977 F.3d 93, 111 (1st Cir. 2020) (internal quotation marks and citation
Whether the government action or regulation imposes a substantial burden on an
adherent’s exercise requires a case-by-case, fact-specific inquiry. Adkins v. Kaspar, 393 F.3d
559 (5th Cir. 2004); Cryer v. Clarke, No. 09-10238, 2012 WL 6800791, at *9, 2012 U.S. Dist.
LEXIS 183568, at *9 (D. Mass. Sept. 7, 2012) (where prison had not completely banned
possession of Native American artifacts, and prisoner failed to explain how using presently
available artifacts forced him to modify his religious beliefs, prisoner did not show existence of
substantial burden). A prison’s failure to offer regular congregate worship services at the
frequency required by a prisoner’s religious practices can, but does not necessarily, amount to a
substantial burden. Compare Crawford v. Clarke, 578 F.3d 39, 44 (1st Cir. 2009) (plaintiffs had
6 shown substantial burden on their religious practice of congregate worship because they were
prohibited from participating in any weekly, group services), with Brooks v. Bishop, Civ. Action
No. PWG-17-3063, 2019 WL 1317227, at *12, 2019 U.S. Dist. LEXIS 47695, at *35-36 (D. Md.
Mar. 21, 2019) (prison’s denial of congregate daily prayer did not substantially burden prisoner’s
religious practice where daily group services were preferred but not mandated, and prisoner had
not been prevented from praying daily or attending weekly services).
The evidence in the record shows a likelihood that Waite’s inability to access his
religious diet and as many Sabbat or Esbat services as his religion requires places a burden on his
religious practice. But Waite must also show that the state action at issue—the failure to
recognize Witchcraft separately from the Pagan group—is causing those burdens; he must show
a likelihood of prevailing on the question of whether the challenged policy is itself a proximate
cause of the burdens at issue. Cf. Bader v. Wrenn, 675 F.3d 95, 99 (1st Cir. 2012) (no RLUIPA
violation shown as to transfer of prisoner that reduced his access to group worship and
counseling, where those religious “disadvantages” depended proximately on the lack of religious
volunteers and their decisions and actions not attributable to the prisoner’s transfer, standing
alone).
The evidence linking the number and type of religious services available to Waite and the
NHDOC’s failure to recognize Witchcraft as a distinct religion is weak. The terms of PPD 672,
concerning NHDOC religious programming, see doc. no. 14-2, provide limited support. PPD
672(IV)(A)(2) , in pertinent part, states as follows:
Once recognized by the NHDOC, the religious group will be allowed to meet together at least once a month to pursue congregate practice/worship, subject to the restrictions of their custody level, security concerns and the availability of NHDOC staff and volunteers to be present during the religious meeting.
7 PPD 672(IV)(A)(2) (doc. no. 14-2). In other words, even if NHDOC separately recognized
Witchcraft, Waite could not count on having access to the type of congregate services he requires
because the frequency of those services depends on the availability of volunteers and the absence
of security concerns.
The evidence before this court undermines any causal connection between NHDOC’s
refusal to recognize Witchcraft and any burden on Waite’s access to sufficient, appropriate
congregate services. A witch already officiates at Sabbats at NCF, though not as often as Waite
contends his religion requires. See doc. no. 11-1, at 54. There is no evidence suggesting that she
would come more frequently if the congregation consisted only of those prisoners declaring their
religion as Witchcraft, and not Pagan. Likewise, Waite offers no evidence suggesting that any
outside volunteer might officiate more frequently at NCF if Witchcraft were separately
recognized.
PPD 672 further provides that the NHDOC allows prisoners to become facilitators of
religious services if outside volunteers are not available. Prisoners lead services for other
prisoners identified as “Pagan” in the prison’s information system. There is no evidence
suggesting that any prisoners at NCF would lead Witchcraft-compliant rituals if Witchcraft were
separately recognized, or that they are presently prevented from doing so. Accordingly, upon the
evidence currently available to the court, Waite has not demonstrated a likelihood of success on
the merits. He has presented no evidence capable of establishing that the alleged burden on his
access to congregate services is caused by NHDOP’s failure to recognize Witchcraft as a
separate religion and not by the limited availability and interest of volunteers.
Waite further claims that official recognition of Witchcraft violates his rights under
RLUIPA because such recognition is a condition precedent to his ability to obtain a religious
8 diet. Waite’s argument in that regard lacks any evidentiary support. None of the prison officials
who denied Waite’s requests and grievances regarding his religious diet cited as a reason the lack
of separate recognition of Witchcraft. Moreover, there is some evidence that separate recognition
of Witchcraft did not affect Waite’s dietary request. When Waite requested a religious diet, the
Chaplain advised him to seek the approval of the RRC to add a new religious diet to those
offered to the Pagan group.
Waite has not yet shown a substantial likelihood of prevailing on his RLUIPA claim
challenging the absence of separate recognition of Witchcraft. As RLUIPA is more protective of
religious rights than is the First Amendment Free Exercise Clause, see Kuperman v. Wrenn, 645
F.3d 69, 79 (1st Cir. 2011), this court need not consider whether he has shown a likelihood of
success on his parallel Free Exercise claim.
B. Establishment Clause
In the claim this court has identified as Claim 7(c), Waite alleges that the failure to
recognize Witchcraft separately violates his rights under the Establishment Clause. Construed
liberally, Waite has asserted that there are advantages afforded to separately recognized religions
and that the Pagan label is insulting.
The Establishment Clause of the First Amendment prohibits any “law respecting an
establishment of religion.” U.S. Const. Amend. I. To determine whether government action
violates the Establishment Clause, the court must “refer[] to historical practices and
understandings.” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022). The record before
this court includes Waite’s representations and excerpts from publications he considers to be
reliable. They indicate that government officials at the time of the Framers frequently grouped
Witchcraft together with other non-Christian or non-monotheistic religious traditions, labelling
9 the group as Pagan and not affording them the same advantages as afforded some Christians.
Waite also points to more recent examples of institutions, like the Federal Bureau of Prisons and
state corrections departments, recognizing Wicca as a separate religion when administering
institutional accommodations of religious practices. These historical practices and
understandings suggest that Witches might find the Pagan classification offensive. But, that is
not the end of the inquiry.
“[C]onsistent with a historically sensitive understanding of the Establishment Clause,”
the government may not “make a religious observance compulsory”; “coerce anyone to attend
church”; or “force citizens to engage in formal religious exercise.” Id. at 537 (citations and
quotation marks omitted). No such compulsion or coercion is evident here. PPD 672(V)(G)
states that prisoners who declare a religion are not compelled to attend the services of their
declared religion. Waite has been allowed to self-identify as a Witch as long as he has been
incarcerated. His CORIS entry for his religion stands as “Wicca.” The evidence does not show
the existence of any compulsory observances, forced beliefs, or coerced exercises.
More than fifty years ago, the Supreme Court observed that the federal constitution does
not require identical facilities or personnel for every religious sect or group within a prison. Cruz
v. Beto, 405 U.S. 319, 322 n.2 (1972). A quarter of a century later, the Court emphasized that the
appropriate inquiry under the Establishment Clause is whether the subject policy or statute
“confers [any] privileged status on any particular religious sect, and singles out [any] bona fide
faith for disadvantageous treatment.” Cutter v. Wilkinson, 544 U.S. 709, 724 (2005).
The evidence before this court does not disclose any advantage to separate recognition of
a religion rather than recognition under a larger umbrella. Waite is identified as a member of the
Pagan group in some contexts, but is also able to identify himself in CORIS as Wicca, which
10 distinguishes his practices from other Pagan faiths. His religious group is served by a co-
religionist officiant volunteer. And, if the facilities and services available at NCF are insufficient,
he can, like a member of any other formally recognized religion, submit proposals to the RCC
and requests to the Chaplain. If he is still dissatisfied he can submit grievances to the highest
echelon of prison officials, seeking changes to the religious property list, a new religious diet,
and new practices associated with his own religious beliefs. The failure to officially recognize
Witchcraft does not appear to alter what he can ask for, or what he might receive. Upon this
record, Waite has not demonstrated a likelihood of prevailing on the merits of an Establishment
Clause claim. Because likelihood of success is the sine qua non of the court’s test for granting or
denying motions for a preliminary injunction, see Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2016), this court denies Waite’s motions
without examining the remaining factors.
II. Religious Diet – Likelihood of Success & Failure to Exhaust
Waite’s motions for a preliminary injunction also request a court-ordered religious diet
that treats his food with “reverence” by containing no artificial ingredients, no artificial
fertilizers, and no genetically modified organisms. Defendants object on the basis that Waite
failed to exhaust all of the administrative remedies available to him with respect to his religious
diet claims, as required by the Prison Litigation Reform Act (“PLRA”) 42 U.S.C. § 1997e(a).
Defendants contend that Waite’s failure to exhaust precludes a finding that he is likely to
succeed on the merits of his claims underlying that requested relief.
The PLRA provides, in pertinent part, that “[n]o action shall be brought with respect to
prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also
11 Woodford v. Ngo, 548 U.S. 81, 85 (2006). The PLRA’s exhaustion requirement applies to
RLUIPA claims as well as claims of constitutional violations arising under 42 U.S.C. § 1983.
See Cutter, 544 U.S. at 723 n.12; Stile v. Strafford Cty. Dep’t of Corr., No. 15-cv-494-SM, 2019
DNH 161, 2019 WL 4600380, at *6, 2019 U.S. Dist. LEXIS 161676, at *14 (D.N.H. Sept. 20,
2019). The PLRA requires proper exhaustion, and “it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218
(2007). Thus, to satisfy the PLRA, prisoners must use all of the available steps of the prison’s
administrative remedy process, in conformity with the prison’s deadlines and other critical
procedural rules. Woodford, 548 U.S. at 90-91. Claims for which a plaintiff has not exhausted
his available administrative remedies prior to filing suit are subject to dismissal. Medina-Claudio
v. Rodríguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002).
There is one exception to the PLRA exhaustion rule: administrative remedies must, in
fact, be “available” to the prisoner. Ross v. Blake, 578 U.S. 632, 642 (2016). Even optional
administrative remedy procedures must be exhausted, so long as they are “available.” See
Johnson v. Thyng, 369 F. App’x 144, 147-48 (1st Cir. 2010). Circumstances in which an
administrative remedy may be considered unavailable include when “it operates as a simple dead
end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates”;
when prison officials “thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation”; and when “rules are ‘so confusing that . . . no
reasonable prisoner can use them.’” Ross, 578 U.S. at 643-44 (citations omitted).
Since the failure to exhaust available remedies is an affirmative defense, see Jones, 549
U.S. at 216, defendants here have the initial burden of showing that the plaintiff failed to exhaust
prison remedies that were generally available. Next, “the burden shifts to the prisoner to come
12 forward with evidence showing that there is something in his particular case that made the
existing and generally available administrative remedies effectively unavailable to him.” Albino
v. Baca, 747 F.3d 1162, 1172 (2014) (burden-shifting in context of Rule 56 motion practice);
accord Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). Then, this court must address
whether Waite has demonstrated any likelihood of success on the merits of his pertinent claims,
given the evidence relating to the PLRA exhaustion defense. See, e.g., Anderson v. Prisoner
Health Servs., No. 10-cv-15154, 2011 WL 2143514, at *2, 2011 U.S. Dist. LEXIS 57663, at *5
(E.D. Mich. May 31, 2011) (prisoner who failed to exhaust his administrative remedies as
required by PLRA failed to show likelihood of success on merits).
Under the NHDOC’s administrative procedures, a prisoner seeking a specific religious
diet, whose declared religion falls within a recognized religious group that does not otherwise
make that diet available, may submit a proposal to the RRC to have that diet offered to members
of the prisoner’s religious group. See Decl. of Chap. Hoyt (Feb. 2, 2024) (“Hoyt Decl.”) ¶ 5 (doc.
no. 14-1); see also PPD 672 (doc. no. 14-2). In response to an October 31, 2021, IRS, in which
Waite asked to receive the “Kosher/Halal diet,” Chaplain Hoyt informed Waite that the Chaplain
lacked the authority to make that diet available to Waite since his declared religion was neither
Judaism nor Islam. But, he said, he could add Kosher/Halal meals to the diets available to
members of the Pagan religious group if Waite followed the RRC proposal process. Hoyt Decl.
¶¶ 6–7 (“‘You may pursue getting the Kosher option added to the Pagan list via an RRC
Proposal’”); see also Chap. Hoyt Nov. 2, 2021 Resp. to Oct. 31, 2021 IRS (doc. no. 14-4, at 2).
When Waite submitted a grievance related to Chaplain Hoyt’s response to his IRS, he was
informed that “what Chaplain Hoyt provided you for information is correct.” Grievance Form
Nov. 25, 2021 (doc. no. 1-1 at 34). Waite then sent another IRS to Chaplain Hoyt in December
13 2021 asking for religious dietary accommodations aligning with what he seeks in this lawsuit,
and Chaplain Hoyt responded that Waite could submit a proposal to the RRC. Chap. Hoyt’s Dec.
14, 2021 Resp. to Dec. 6, 2021 IRS (doc. no. 11-1, at 58) (Under PPD 672, “those who identify
as Pagan/Wicca are authorized [sic] the regular line food, No Pork, Veg with egg, or Veg No
Egg diets. You may submit a proposal to the RRC requesting a different diet, if you wish.”).
According to PPD 672, the RRC’s responsibilities include considering and making
recommendations to the NHDOC Commissioner regarding “the introduction of new religious
components to the [DOC] religious services program.” PPD 672(IV)(A)(2). To request
recognition of an additional religious practice for a recognized faith, the prisoner must submit his
proposal to the RRC through the facility Chaplain using the prescribed forms. PPD 672(V)(K).
Prisoners whose RRC proposals are denied once may seek reconsideration based on new
information. See PPD 672(V)(K)(4). If the RRC denies the proposal, the prisoner must follow
the NHDOC grievance procedures. PPD 672(V)(K)(4) (citing PPD 313.00).
The clerk’s office docketed Waite’s Complaint initiating this lawsuit on February 18,
2022. While Waite’s RRC proposal to have Witchcraft separately recognized as a religion listed
Waite’s religious diet requirements, he did not ask the RRC to make that diet available to him if
it did not otherwise approve his proposal. He never submitted a stand-alone religious diet
proposal for the RRC to consider before filing this lawsuit. See Hoyt Decl. ¶ 9. The weight of the
evidence in the preliminary injunction record establishes that Waite did not exhaust the RRC
proposal remedy by seeking to add a new religious diet to those available to members of the
Pagan religious group. The weight of the evidence also establishes that the process was generally
available to prisoners seeking religious diets not already authorized for their declared religions.
14 The record further shows that the RRC proposal process was “available” to Waite. The
process described in PPD 672 is not so opaque or confusing as to be unknowable. Chaplain Hoyt
provided clear guidance to Waite in November 2021 and December 2021 about how he could
use the process to request a religious diet. Also, Waite had used the RRC Proposal process in
May 2021, to request a type of natural prayer oil, and when he was dissatisfied with the outcome,
he grieved the RRC’s denial of his proposal to the Commissioner, yielding her response. See
doc. no. 1-1, at 19-20.
As to whether the RRC proposal process might be a dead end with prison officials
“unable” or “consistently unwilling” to grant a remedy, Waite argues, without evidentiary
support, that his attempts in 2024 at using the RRC process have been fruitless, that his proposals
were “lost” and never discussed in the meetings that happened just twice in 2024, and that a
necessary precedent to his obtaining any relief as to his religious diet proposal would have been
an NHDOC decision to recognize Wicca or Witchcraft as a religion separate from Paganism,
which he attempted to obtain once from the RRC, unsuccessfully. Waite has not shown why the
relative infrequency of RRC meetings made the process unavailable to him before he filed this
lawsuit, with respect to his religious diet claims. He offers no evidence that the proposals that he
thought were “lost” concerned any request for a religious diet. His suggestion that any proposal
was lost due to the bad faith of any prison official is both conclusory and speculative and cannot
establish that he is likely to succeed on the merits of establishing the unavailability of any
administrative remedy.
Moreover, there is no evidentiary support for his argument that he could not obtain any
RRC remedy relating to his religious diet until NHBOP recognized Witchcraft as an independent
religion. The evidence shows that NHDOC officials, including the defendant Chaplain Hoyt,
15 have considered Witchcraft a religion that falls under the mantle of the Pagan religious group.
There is no evidence disputing the Chaplain’s assertion in response to Waite’s pertinent IRSs
that the RRC could make a new diet suitable for Waite available to the Pagan group if the
proposal were approved. In any event, PPD 672 allows for grievances to the Commissioner if
RRC proposals are denied, and there is no evidence that the Commissioner is invariably
unwilling to override the RRC’s denial of a religious diet proposal. Under such circumstances,
Waite has not demonstrated that the RRC remedy was a dead end.
A plaintiff’s burden in demonstrating a likelihood of success on the merits is not light:
“To demonstrate likelihood of success on the merits, plaintiffs must show ‘more than mere
possibility’ of success – rather, they must establish a ‘strong likelihood’ that they will ultimately
prevail.” Sindicato Puertorriqueño de Trabajadores, SEIU Loc. 1996 v. Fortuño, 699 F.3d 1, 10
(1st Cir. 2012) (per curiam) (citations omitted). While a more developed record might lead the
court to reconsider its preliminary decision in this regard, defendants have shown upon the
evidence in the record at this time, that Waite did not, as required by the PLRA, exhaust all
available administrative remedies with respect to his religious diet claims (Claims 4(a)-(b))
before filing this lawsuit. And because Claims 4(a)-(b) form the basis of his preliminary
injunction motions relating to his religious diet, Waite has failed to meet his burden to show a
likelihood that he would succeed on the merits. Cf. Arborjet, 794 F.3d at 173 (“‘[I]f the moving
party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become
matters of idle curiosity.’” (citation omitted)). Accordingly, the court denies both of Waite’s
motions for preliminary relief (doc. nos. 7, 16).
16 Conclusion
For the foregoing reasons, Waite’s (first) and (second) motions for a preliminary
injunction (doc. nos. 7, 16) are DENIED.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
September 26, 2024
cc: Richard A. Waite, pro se Nathan W. Kenison-Marvin, Esq.