Starr v. Cox

2008 DNH 089

• Court: District Court, D. New Hampshire
• Decided: April 28, 2008
• Docket: 05-CV-368-JD
• Status: Published

Opinion

Starr v . Cox 05-CV-368-JD 04/28/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Darren Starr

v. Civil N o . 05-cv-368-JD Opinion N o . 2008 DNH 089 Dennis Cox, et a l .

O R D E R

Darren Starr is a prisoner housed at the New Hampshire

Department of Corrections’ Northern Correctional Facility

(“NCF”). He brings claims against various personnel at that

facility1 (“defendants”) alleging violations of the First

Amendment, the Equal Protection Clause of the Fourteenth

Amendment, and the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc-1 ("RLUIPA"). The defendants

move for summary judgment, and Starr has objected. The

defendants have filed a reply. Starr moves to strike the

defendants’ reply pursuant to Local Rule 7.1(e)(1). In the

alternative, Starr has requested leave to file a surreply motion,

1 Starr names as defendants in this action Major Dennis Cox, Chaplain Dana Hoyt, Warden Larry Blaisdell, Greg Crompton and former Commissioner Stephen Curry. At the time this action was filed, the defendants were all employees of the New Hampshire Department of Corrections. pursuant to L.R. 7.1(e)(3). The defendants objected to Starr’s

motion to strike but not to his motion to file a surreply.

I. Starr’s Motion to Strike and Motion to File a Surreply

A. Starr’s Motion to Strike

Starr argues that the defendants violated L.R. 7.1(e)(1)

because they did not provide him or the court with notice within

three days after they filed a reply and because the reply is more

than ten pages in length. In the defendants’ objection, they

state that they orally notified the clerk’s office of their

intent to file a reply but did not alert Starr. The defendants

argue that it would be “virtually impossible to provide [Starr]

with either oral notice, within or beyond the required three-day

time frame” because of Starr’s incarcerated status. Def. O b j . to

Starr Mot. S t . at 1-2. The defendants also argue that Starr

suffered no prejudice as a result of their failure to provide him

adequate notice.

According to L.R. 7.1(e)(1), “[a]bsent notice the

dispositive motion shall be deemed ripe when the objection or

opposition to the dispositive motion is filed.” In Bryne v .

Brunswick Corp., 2007 WL 1847309, at *2 (D.N.H. June 2 6 , 2007),

this court held that “the purpose of Local Rule 7.1(e) is to

2 establish a time when a motion is ripe for consideration by the

court. Failure to file a notice of intent to file a reply simply

results in the motion being ripe without waiting for a reply.”

In Bryne, the party that moved to strike based on Local Rule

7.1(e) provided no basis to strike the reply, and for this

reason, the court denied the motion. Id. Similarly, in this case, Starr has not explained how he was prejudiced and has

offered no basis to strike the defendants’ reply other than

citing to Local Rule 7.1(e)(1).

Starr also argues that the defendants’ reply should be

stricken because it is two pages over the page limitation

outlined in L.R. 7.1(e)(1). The defendants concede that the

reply exceeds the page limitation by two pages but argue that

striking the reply is too severe. They ask for leave of court to

exceed the page limitation, or in the alternative, to amend their reply to comply with the ten page limit.

The defendants’ reply is one page over the limit in

addition to the signature page. Leave is granted to exceed the

page limit under these circumstances. The court denies Starr’s

motion to strike.

3 B. Starr’s Motion to File Surreply

Pursuant to L.R. 7.1(e)(3), Starr moves to file a surreply

motion, arguing that a surreply is necessary because the

defendants have presented incorrect facts and legal argument in

their reply to Starr’s objection to summary judgment. Starr

filed his motion for leave to file a surreply within ten days of the defendants’ reply, but Starr did not attach a surreply

memorandum.

According to L.R. 7.1(e)(3), “[m]otions for leave to file a

surreply will only be granted under extraordinary circumstances.”

For example, in Tech. Planning Intern., LLC v . Moore North

America, Inc., 2003 WL 21228642, at * 11 (D.N.H. May 2 3 , 2003),

this court denied a motion for leave to file a surreply where the

party failed to demonstrate that the case presented

“extraordinary circumstances” warranting the relief it sought. In Starr’s motion for leave, he argues that the defendants

submitted facts in their reply that incorrectly describe the

teachings of the Jehovah’s Witnesses and that the defendants have

misrepresented Starr’s personal beliefs concerning this religion.

After carefully considering Starr’s objection to summary

judgment, where he explains the teachings of the Jehovah’s

Witnesses and his personal beliefs, and construing the facts in a

light most favorable to Starr (as the non-moving summary judgment

4 party), the court credits Starr’s description of this religion

and the nature of his personal beliefs. In addition, as

described more fully below, the court has concluded that Starr

has raised a dispute of material fact as to the sincerity of his

religious beliefs and as to whether practicing Tai Chi despite

following the tenets of the Jehovah’s Witnesses is part of a system of religious belief. For this reason, a surreply motion

further explaining the teachings of the Jehovah’s Witnesses will

not bolster the court’s understanding of this religion and will

not affect the outcome of the case. Therefore, Starr has failed

to establish that there are “extraordinary circumstances”

requiring a surreply on this issue.

Starr also argues that a surreply is necessary because the

defendants have presented mistaken legal arguments concerning

RLUIPA. In his objection to summary judgment, Starr has already presented a detailed and thorough legal analysis of RLUIPA. The

court has carefully reviewed RLUIPA, Starr’s objection, and the

defendants’ motion for summary judgment and reply, and has

determined that the defendants have not presented mistaken legal

arguments as to this statute. A surreply on this issue will not

alter the outcome of the case. Therefore, Starr has failed to

establish that there are “extraordinary circumstances” requiring

5 a surreply on this issue. For all of these reasons, Starr’s

motion to file a surreply is denied.

II. Summary Judgment

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

Background

A. Procedural History

On March 2 9 , 2006, Starr filed a motion for a preliminary

injunction, alleging that the defendants’ Tai Chi restrictions

6 violated RLUIPA and violated his rights under the constitution.

An evidentiary hearing on this motion was held before the

magistrate judge on April 2 0 , 2006. Starr, NCF’s Major Cox;

Vincent Ruel, a corrections officer at NCF; Dana Hoyt, the

Chaplain at NCF; and Betsey Foster, an experienced Tai Chi

instructor, all testified. The magistrate judge issued a report and recommendation denying Starr’s motion which this court

approved on June 5 , 2006.2 On June 1 5 , 2007, the defendants

filed a motion for summary judgment. This court terminated the

motion without prejudice because the defendants failed to address

two of Starr’s claims. On October 1 5 , 2007, the defendants filed

a revised motion for summary judgment which is presently before

the court.

B. Tai Chi

Starr’s claims relate to the practice of Tai Chi Chuan (“Tai

Chi”) which is a slow-motion, moving meditative exercise that

“promotes mental clarity and a healthy body.” Def. Summ. J., Ex.

D, “What is Tai Chi?” available at http://www.patiencetaichi.com

/what_is_tai_chi.htm. “Tai Chi is practiced for religious and

2 Starr appealed this order to the First Circuit on June 1 6 , 2006. On February 2 , 2007, by mandate, the First Circuit affirmed the order.

7 secular reasons.” Adams v . Stanley, 237 F. Supp. 2d 136, 139

(D.N.H. 2003). For example, in Adams, the court stated that:

According to the International Taoist Tai Chi Society, the health-enhancing qualities 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. Eventually, Tai Chi began to be practiced by people outside of the monastic community and became widespread as a martial art. It has, however, maintained a tenuous link to the more spiritual or religious facets found in Taoist training. Id. at 139-140 (internal quotation marks and citations omitted).

In addition to its spiritual application, Tai Chi is performed as a martial art.3 At the preliminary injunction

hearing, Betsey Foster, an experienced Tai Chi instructor,

explained that Tai Chi is an internal martial art because those practicing it focus on internal strength.4 Foster testified that

3 The term “Tai Chi” literally means “Supreme Ultimate Boxing.” Def. Summ. J., Ex. D, “What is Tai Chi?” available at http://www.patiencetaichi.com/what_is_tai_chi.htm. As originally conceived, Tai Chi is “a sophisticated method of fighting based on the reconciliation of dynamically interacting forces.” Id.

4 There are two types of martial arts: internal and external. Foster explained that Karate is an external martial art because those who practice it focus on achieving “hardness in the limbs.” April 2 0 , 2006, Hear., T r . at 185; see also Def. Summ. J., Ex. L , Tim Cartmell, “Internal v . External, What Sets Them Apart?” Inside Kung Fu Magazine, July 1992, available at http://www.shenwu.com/Internal_VS_External.htm.

8 when you combine an external martial art with the inner intensity

achieved by Tai Chi, the result “is exponential.” April 2 0 ,

2006, Hear., T r . at 184. Similarly, Ruel, a corrections officer

at NCF trained in the martial arts, testified that Tai Chi can be

combined with other martial arts and that the effect could be a

“knock-out to crippling, maiming, and death.” Id. at 151. Ruel explained that meditation in Tai Chi acts as a “force multiplier”

and that with the proper intent and focus, “it’s unbelievable

what you can accomplish.” Id. at 150.

C. NCF’s Policy on Tai Chi

After the court’s decision in Adams, 237 F. Supp. 2d 136,

in January of 2003, NCF recognized Taoism as a religion and

allowed Taoist followers to practice some forms of Tai Chi. NCF

does not recognize the practice of Tai Chi, by itself, as a

religion. NCF also does not allow any martial arts at the prison

besides Tai Chi. On February 1 3 , 2003, NCF issued a memorandum

allowing Taoist inmates to practice Tai Chi twice weekly in their

gym clothes during the group study times in the education suite

of the prison. The memorandum expressly prohibited any

“movements that could be deemed combat moves.” Def. Summ. J.,

Ex. P. In May of 2003, the policy was amended to allow inmates

the ability to practice Tai Chi in housing units and the prison

9 yard. Another memorandum was issued in August of 2004, that

prohibited combat moves including, “using a closed fist, facing

off, touching other participants, kicking, punching, or moving

toward other participants.” Def. Summ. J., Ex. R.

On May 2 7 , 2005, the policy was revised again. Taoist

inmates were allowed to practice Tai Chi during their group study times in the education suite. In addition, Non-Taoist inmates

were also allowed to practice Tai Chi, provided that they

obtained a Taoist card. Taoist card-holders were only allowed to

practice Tai Chi in the cell block where they lived. Also,

Taoist card-holders were required to coordinate their practice

with the Direct Supervision Officer (“DSO”) on duty. The May 27

memorandum outlined the previous prohibitions on certain

movements, but added the following: “Taoist Tai Chi is defined

(on the Taoist.org website) as gentle turning and stretching movements. Any movements that do not fit this criteria as

determined by the DSO are unauthorized and will result in a 39B

write-up, as a minimum.”5 Def. Summ. J., Ex. K. The memorandum

also notified inmates that they were only allowed to have

5 NCF allows inmates to practice the Taoist Tai Chi, which is derived from the Yang style. At the preliminary injunction hearing, Foster explained that there are five different styles of Tai Chi: Yang, Chen, W u , Hau, and Sun. The Yang style is “the most widely practiced style of Tai Chi.” April 2 0 , 2006, Hear., Tr. at 178.

10 practice materials in their possession that had been approved by

the Chaplain.

Major Cox testified regarding the rationale for NCF’s May 27

memorandum restricting the practice of Tai Chi at the prison.

Security was his foremost concern. He testified that in the

prison yard, there is only one correctional officer present to supervise up to 175 inmates and that conditions can become

violent within seconds.6 Given these circumstances, Cox

explained that allowing a martial art within a prison setting

presents additional security issues. For example, since allowing

Tai Chi, Major Cox testified that inmates were observed

practicing prohibited martial art moves, such as front snap kicks

and karate chops. He also stated that gang members, such as the

Brothers of White Warriors, were recently observed teaching take

downs and different martial art techniques. Ruel testified that he witnessed Starr practicing illegal moves and teaching them to

another inmate. Cox admitted that he did not believe Starr would

utilize Tai Chi to become violent but stated that he “had to look

at the overall safety of everyone, there are people in that

prison that would watch [Tai C h i ] , learn [Tai C h i ] , and they

6 He also noted that the prison was understaffed generally when the facility opened.

11 would kill someone one day, I will not be responsible for that.”

April 2 0 , 2006, Hear., T r . at 114-115.

Based on these concerns, Major Cox determined that Tai Chi

practitioners needed close monitoring and proper restrictions.

Specifically, the May 27 memorandum limited the practice of Tai

Chi on the blocks or in the education area to ensure that inmates could be closely observed. He also required inmates to alert the

DSO that they planned to practice Tai Chi so that the guards

would be aware when and where the martial art was being

practiced. Cox also explained that it was necessary to limit

practitioners to the Yang style because his officers were not

sufficiently trained in martial arts in order to distinguish

among the different styles. For this reason, it was too

dangerous to allow more than one style because a prisoner might

be able to practice combat moves without a guard noticing.

D. Starr’s Beliefs

In his affidavit submitted with his objection to summary

judgment, Starr states that he has practiced Tai Chi for over

twenty years as a form of moving spiritual meditation. For

Starr, Tai Chi “allow[s] [him] to connect to the divine, and

provide illustrative teaching for the betterment of [his] life.”

Starr O b j . , Ex. 7 , ¶ 6 . Starr states that his practice of Tai

12 Chi, “especially when practiced outside, provides [him] a means

to connect with God’s creation, His power, and spirit of life.”

Id.

Starr testified that he learned Tai Chi through studying

Taoism. In 1994, Starr admits that he was baptized as a

Jehovah’s Witness. At this time, he stopped studying Taoism because “of the scriptural admonition . . . which . . . says to

remove oneself from association with false religion.” Starr

O b j . , Ex. 7 , ¶ 5 . Starr did not reject all of the teachings of

Taoism, however. He considered Tai Chi to be one “of the areas

of spirituality that . . . did not violate [his] Christian

conscience, so [he] continue[s] to believe in and practice the

spiritual mediation of Tai Chi.” Id.

On May 2 4 , 2005, Starr submitted an inmate request slip

asking where he would be allowed to practice Tai Chi. He did not want to practice in the education center when the other Taoists

were present there. In response, the prison provided Starr with

a copy of the May 2 7 , 2005, memorandum. On May 3 1 , 2005, Starr

submitted a first level legal grievance in which he requested:

(1) permission to “practice Tai Chi, in any form and/or style of

my choice, within the limitation of refraining from the clearly

defined combat movements”; (2) to practice his Tai Chi outside in

the prison yard; and (3) to possess “instructional material on

13 Taoism and/or Tai Chi . . . as long as the material does not have

any clearly combative material.” Ex. 6 to Starr’s Complaint.

In June of 2005, Starr met with Chaplain Hoyt. He told the

Chaplain that he did not wish to declare himself a Taoist. For

this reason, he was not given a Taoist card. The Chaplain told

Starr that he could still obtain a Tai Chi card to practice in

the education center twice weekly with the other Taoists.

According to Starr, he refused this opportunity because it was

insufficient for his daily practice. Starr also told the

Chaplain that he wished to practice outdoors. Starr’s requests

and the additional grievances he filed in the summer of 2005 were

denied.

On April 1 3 , 2006, Chaplain Hoyt interviewed Starr in order

to gauge the sincerity of his belief that Tai Chi was a religious

exercise.7 According to Hoyt, Starr stated that “Tai Chi is a

form of meditation and prayer and I require it every day.” Def.

Summ. J., Ex. T . According to Starr, he told the Chaplain that

he “equated [Tai Chi] with prayer because it involved a

connection to God.” Starr O b j . , Ex. 7 , ¶10. The Chaplain asked

Starr whether he claimed to be a member of any religious group,

7 The Chaplain took notes from this meeting, which he later transcribed. Starr disputes the accuracy of the notes and provides his own depiction of the meeting in his affidavit accompanying his objection to summary judgment.

14 and Starr responded, “no follow-ship [sp] of any organized

religious that has to do with Tai Chi.” Def. Summ. J., Ex. T .

Next, the Chaplain asked Starr to demonstrate his sincerity in

his religious belief and to show that he was not practicing Tai

Chi “as a form of exercise of martial art.” Id. Starr responded

that one could tell that his Tai Chi was meditative and not just exercise if one watched him practice. According to Starr, he

also told the Chaplain that “unlike people who are practicing

martial arts, my movements are not tense, or quick, nor do[es]

[he] do the movements to mimic fighting.” Starr O b j . , Ex. 7 ,

¶10.

During the interview, Starr also discussed his problems with

NCF’s restrictions on Tai Chi. Specifically, Starr informed the

Chaplain that in order to practice his Tai Chi effectively, he

needed “outside ground contact,” that limiting his leg extensions “defeats part of the purpose of Tai Chi,” and that correction

officers were enforcing the rules inconsistently. Def. Summ. J.,

Ex. T . Starr also told the Chaplain that he was not taking

advantage of the opportunity to practice in the education center

because: (1) he wanted the ability to practice every day; (2) he

did not wish others to view him as a Taoist; and (3) if the

prison forced him to practice his Tai Chi during this time, it

would violate RLUIPA.

15 A week after the April 2006 interview, both Starr and Hoyt

testified at the preliminary injunction hearing. Starr testified

that he was not a Taoist and that he did not have a sincerely

held belief in Taoism. He stated that Tai Chi was a form of

meditation and prayer. Chaplain Hoyt testified that he was

“personally not convinced” that Starr possessed a sincerely held belief in Tai Chi as a religious exercise. April 2 0 , 2006,

Hear., T r . at 137. The Chaplain was concerned because Starr

refused the opportunity to practice Tai Chi twice a week in the

education center and because he was not aware of any member of

the Taoist group objecting to anyone else using the education

area to practice Tai Chi. Despite his concerns, “to err on the

side of liberty,” Chaplain Hoyt agreed to issue Starr a Tai Chi

card granting him the same rights and restrictions as the

Taoists.8 April 2 0 , 2006, Hear., T r . at 121. On April 1 4 , 2006, Chaplain Hoyt emailed staff informing them that “effective

immediately, inmate Darrin [sp] Starr is approved as a Tai Chi

practitioner . . . he is eligible to practice Tai Chi in

accordance with current policy, which includes daily practice on

his block.” Def. Summ. J., Ex. V .

8 The Tai Chi policy has been further modified to require that all inmates, including Taoists, who wish to practice Tai Chi, meet with Chaplain Hoyt so that he can assess whether the inmate possesses a sincerely held belief.

16 Since that time, Starr has held a temporary Tai Chi card.

Starr alleges that his Tai Chi card is temporary, that it will

expire after this lawsuit, and that he will be subject to NCF’s

policy that forbids non-Taoists to practice Tai Chi. The

defendants do not dispute that they will remove his Tai Chi card

if they win this lawsuit.

Discussion

Starr argues that the defendants’ policies that unduly

restrict his practice of Tai Chi violate his rights under the

First and Fourteenth Amendments to the United States

Constitution, and under RLUIPA. Concerning RLUIPA, the

defendants move for summary judgment on the following grounds:

(1) Starr has not established that Tai Chi, practiced apart from

Taoism, is part of a religious belief system; (2) Starr has not

established the sincerity of his religious beliefs; (3) the

prison’s restrictions do not place a substantial burden on

Starr’s practice; and (4) the prison has a compelling state

interest, prison security, achieved in the least restrictive

means, in limiting the practice of a martial art in a prison

environment. Starr argues that there are disputes of material

fact as to each of these issues, precluding summary judgment.

Concerning the constitutional claims, the defendants argue that

17 if Starr’s RLUIPA claim fails, it necessarily means that his

claims under the Free Exercise Clause, the Establishment Clause,

and the Equal Protection Clause all fail.

A. RLUIPA

RLUIPA states: “No government shall impose a substantial

burden on the religious exercise of a person residing in or

confined to an institution, as defined in 42 U.S.C. § 1997, 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 (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C.

§2000cc-1(a). A claim under RLUIPA includes four elements.

Spratt v . Rhode Island Dept. of Corrs., 482 F.3d 3 3 , 38 (1st Cir.

2007). “On the first two elements, (1) that an institutionalized

person's religious exercise has been burdened and (2) that the

burden is substantial, the plaintiff bears the burden of proof.”

Id. “Once a plaintiff has established that his religious

exercise has been substantially burdened, the onus shifts to the

government to show (3) that the burden furthers a compelling

governmental interest and (4) that the burden is the least

restrictive means of achieving that compelling interest.” Id.

18 1. Religious Exercise

The defendants argue that Starr cannot establish that Tai

Chi is part of a system of religious belief or that he has a

sincerely held belief in the religious nature of Tai Chi. Starr

argues that there are disputed material facts as to each of these

issues, precluding summary judgment. RLUIPA defines “religious exercise” to include “any exercise

of religion, whether or not compelled by, or central t o , a system

of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). Federal

courts are not to sit as “arbiters” of religious orthodoxy.

Thomas v . Review Bd. of Indiana Employment Sec. Div., 450 U.S.

707, 716 (1981). This reluctance is because “courts are poor

arbiters of questions regarding what is religious and what is

not.” Cloutier v . Costco Wholesale, 311 F. Supp. 2d 1 9 0 , 196 (D.

Mass. 2004); see also Fausto v . Diamond, 589 F. Supp. 4 5 1 , 461 (D.R.I. 1984)(“A determination as to what is or is not religious

is at best a most delicate question.”)(internal quotation marks

and citations omitted). With this in mind, courts have construed

RLUIPA to require a plaintiff to show that the exercise of

religion is part of a (1) system of belief and (2) that the

plaintiff holds a sincerely held belief in the religious

exercise. Guzzi v . Thompson, 470 F. Supp. 2d 1 7 , 26 (D. Mass.

2007).

19 a. System of Belief

The defendants argue that Starr has failed to establish that

Tai Chi was part of a system of religious belief because he has

submitted no authority equating Tai Chi with prayer and because

practicing Tai Chi without following Taoism is a decision

personal to Starr and not a form of religion. Starr maintains that he has established that Tai Chi is spiritual meditation that

is part of a system of religious belief, or at the very least, a

disputed fact remains on this issue.

By its terms, RLUIPA is to be construed broadly to favor

protection of religious exercise. 42 U.S.C. § 2000cc-3(g); see

also Simpson v . Wrenn, 2008 WL 304890, at *3 (D.N.H. January 3 1 ,

2008) (report and recommendation) (“The phrase ‘religious

exercise’ is to be construed liberally.”). Therefore, to fall

within the protection of the statute, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others.”

Guzzi, 270 F. Supp. 2d. at 27 (quoting Thomas, 450 U.S. at 7 1 4 ) .

Religious beliefs are not to be afforded protection, however, if

they are “so bizarre [or] so clearly nonreligious in motivation

as not to be entitled to protection under the Free Exercise

Clause.” Thomas, 450 U.S. at 715.

Despite the liberal definition of religious exercise, there

are limitations. “The broad definition of a religious exercise

20 in the RLUIPA does not require that the practice be a core tenet

of that religion, but it does require the existence of some

belief system from which the practice is derived.” Guzzi, 470 F.

Supp. 2d at 26 (emphasis supplied). Personal beliefs, grounded

solely on subjective ideas as to what a religion requires,

however, “will not suffice” because courts need some reference point to assess whether the practice is indeed religious.9 Id.

(emphasis supplied)(citing Wisconsin v . Yoder, 406 U.S. 205, 215-

16 (1972)(recognizing for purposes of a First Amendment inquiry

that individuals are not free to define religious beliefs solely

based upon individual preference)).

For example, in Guzzi, an “Orthodox Catholic” inmate brought

a motion for injunctive relief after the prison failed to honor

his request to keep kosher. There, the court noted that “the

complication in this case is that Guzzi does not allege that he follows Judaism. He describes himself as an Orthodox Catholic.

While keeping kosher within the practice of various sects of

Judaism constitutes a religious exercise, keeping kosher itself

is not a religion.” Guzzi, 470 F. Supp. 2d at 25-26. The court

9 “The need for some organic system of belief beyond a purely subjective and isolated construction is not an attempt to limit protected religious activities but to limit a factfinder's role in deciding which activities are deserving of such characterization.” Guzzi, 470 F. Supp. 2d at 2 6 .

21 denied injunctive relief because Guzzi did not provide support

beyond his subjective belief that keeping kosher was religious

except “a general cite to Chapter 15 of the Acts of the Apostles

. . . that reference[d] dietary laws typically associated with a

kosher diet.” Id. at 2 7 . The court decided that this lone cite

was insufficient and that “it is not this Court's role to perform Biblical interpretation.” Id.

Similar to situation described in Guzzi, Starr wants to

practice Tai Chi while denying that he is Taoist. The question

here, therefore, is whether Starr has established a material

factual dispute as to whether the practice of Tai Chi separate

from Taoism is a protected religious exercise.

In the materials that Starr submitted with his objection to

summary judgment, Starr has offered excerpts from several books

to support the notion that the practice of Tai Chi is separate from Taoism and that it is a spiritual practice even for its Non-

Taoist followers. For example, Starr offers an excerpt from Tai

Chi Classics that outlines the history of Tai Chi and that

defines Tai Chi, without mentioning Taoism, as the “ultimate . .

. It means improving and progressing toward the unlimited; it

means the immense existence and the great eternal.” Starr O b j . ,

Ex. 2 , Waysun Liao, Tai Chi Classics, at 5 (Shambhala 2001). The

excerpt from Tai Chi Classics also states that “an important

22 factor affecting the practice and progress of one’s Tai Chi study

is the discipline of the essence and spirit” and that the

“physical movements of the external body will assist in raising

the essence and spirit.” Id. at 111. In addition, Starr offers

an excerpt from Tai Chi as a Path of Wisdom, written by a Zen

priest, that discusses the meditative and spiritual qualities of Tai Chi without any mention of Taoism. The excerpt from Tai Chi

as a Path of Wisdom states that “Tai Chi is an opportunity to

open to the spiritual rhythm that is present in every moment.

. . . The spiritual rhythm flows deep and through every one of

us. It flows through every moment of life. In the [T]ai [C]hi

form, each moment is pregnant with [spiritual rhythm].” Starr

O b j . , Ex. 3 , Linda Myoki Lehrhaupt, Tai Chi as a Path of Wisdom,

at 184 (Shambhala 2001). 10

With these authorities, Starr has offered support beyond his subjective opinion that Tai Chi, separate from Taoism, has

spiritual application. Therefore, construing these authorities

in a light most favorable to Starr, they show a disputed material

10 This view that Tai Chi has spiritual application beyond the Taoist community is supported by Adams, 237 F. Supp. 2d at 139-140. (“Tai Chi began to be practiced by people outside of the monastic community and became widespread as a martial art.”).

23 fact as to whether the practice of Tai Chi, separate from Taoism,

is part of a system of religious belief.

b. Sincerity of Belief

The defendants argue that Starr cannot establish that his

beliefs are sincere because: (1) he has rejected Taoism as a

religion and instead follows the tenets of the Jehovah’s Witnesses which forbid the practice of Tai Chi; (2) he failed to

take the opportunity to practice Tai Chi in the education center;

and (3) he failed to explain to the Chaplain how his beliefs are

religious in nature. Starr contends that he has established that

his beliefs are sincere, or in the alternative, that his

sincerity cannot be decided at the summary judgment stage.

“Although RLUIPA bars inquiry into whether a particular

belief or practice is central to a prisoner's religion . . . the

Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity.” Cutter v . Wilkinson, 544 U.S. 709, 725

n.13 (2005)(internal quotation marks and citations omitted).

“The relevant inquiry is not what others regard as an important

religious practice but what the plaintiff believes.” Levie v .

Ward, 2007 WL 2840388, at *14 (W.D. Okla. Sept. 2 7 , 2007) (citing

Cutter, 544 U.S. at 725, n . 3 ) ) . “Individuals have the right to

exercise their faith in unique and nontraditional ways.” Coronel

v . Paul, 316 F. Supp. 2d 8 6 8 , 881 (D. Ariz. 2004). Therefore,

24 under RLUIPA “it matters not whether the inmate’s religious

belief is shared by ten or tens of millions. All that matters is

whether the inmate is sincere in his or her own views.” Levie,

2007 WL 2840388, at *14 (internal citations omitted).

Courts considering whether an inmate’s belief is sincere

face a “difficult” task. Blount v . Johnson, 2007 WL 1577521, at *6 (W.D. V a . May 3 0 , 2007); see also Singh v . Goord, 520 F. Supp.

2d 4 8 7 , 500 (S.D.N.Y. 2007) (the “[c]ourt is conscious of the

difficulty of assessing the sincerity of an individual's

religious beliefs”). For this reason, and because determining

whether an inmate’s beliefs are sincere requires assessing the

credibility of the inmate, courts have held that the sincerity of

an inmate’s belief should almost never be decided at the summary

judgment stage.11 C f . Kay v . Bemis, 500 F.3d 1214, 1219 (10th

Cir. 2007)(“The inquiry into the sincerity of a free exercise plaintiff’s religious beliefs is almost exclusively a credibility

11 In the context of Title V I I , the First Circuit has stated a similar reluctance to assess the sincerity of a religious belief at the summary judgment stage. E.E.O.C. v . Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 4 9 , 56 (1st Cir. 2002)(“Credibility issues such as the sincerity of an employee's religious belief are quintessential fact questions. As such, they ordinarily should be reserved for the factfinder at trial, not for the court at summary judgment.”)(internal citations omitted).

25 assessment, . . . and therefore the issue of sincerity can rarely

be determined on summary judgment.”)(internal citations omitted).

In this case, Starr considers Tai Chi to be one “of the

areas of spirituality that d[oes] not violate [his] Christian

conscience,” so [he] continue[s] to believe in and practice the

spiritual mediation of Tai Chi.” Starr O b j . , Ex. 7 , ¶ 5 . The defendants argue that Starr’s belief cannot be sincere because he

has rejected Taoism as a religion and instead follows the tenets

of the Jehovah’s Witnesses which forbid the practice of Tai Chi.

“The fact that an individual’s understanding of the origins or

reasons for a particular religious practice may be mistaken,

incomplete, or at odds with the understanding of other followers

and even experts of his stated religion is beside the point when

determining whether his personal belief is sincere.” Blount,

2007 WL 1577521, at *5 (internal quotation marks and citations omitted). Therefore, Starr could have a sincerely held belief in

Tai Chi as a religious practice even if this belief is at odds

with the beliefs of other followers of the Jehovah’s Witnesses.

See id.

In addition, the defendants argue that Starr cannot

establish his beliefs are sincere because he failed to adequately

explain his beliefs to Chaplain Hoyt. For example, Chaplain Hoyt

testified that after his two meetings with Starr, he did not

26 consider Starr’s beliefs to be sincere because: (1) he did not

take the opportunity to practice Tai Chi twice a week in the

education center; (2) Starr failed to state how Tai Chi was

religious in nature; and (3) when the Chaplain asked Starr to

demonstrate how his beliefs were sincere, Starr simply stated

that one could tell it was meditative by watching him practice. The defendants argue that the Chaplain’s conclusion warrants a

finding that Starr has failed to satisfy his burden on the

sincerity of his beliefs.

Starr disputes Hoyt’s conclusions and argues that he has

provided sufficient evidence to show that he considers Tai Chi as

a form of spiritual meditation that helps him connect with God.

He points to the fact that he has practiced Tai Chi for over

twenty years and that his original teachers taught him that the

practice was for spiritual meditation. In his affidavit, Starr states that Tai Chi is a “method and means of spiritual

improvement. The movements themselves provide a spiritual moving

meditation, allow [him] to connect to the divine, and provide

illustrative teaching for the betterment of [his] life.” Starr

O b j . , Ex. 7 , ¶ 6 . Starr states that his practice of Tai Chi,

“especially when practiced outside, provides [him] a means to

connect with God’s creation, His power, and spirit of life.” Id.

27 Starr also argues that his sincerity is a credibility

determination that should not be decided on summary judgment.

The relevant inquiry in this case is what Starr believes.

He has offered evidence, by way of his affidavit and his

testimony, demonstrating that Tai Chi is a spiritual exercise and

that he has a sincerely held belief in i t . This evidence, construed in a light most favorable to Starr, raises a dispute of

material fact as to whether his beliefs are sincerely held.

2. Substantial Burden

The plaintiff also bears the burden of persuasion to

establish that the defendants’ policy substantially burdens the

plaintiff’s exercise of religion. Spratt, 482 F.3d at 3 8 . The

First Circuit has recently noted that it had “not yet had the

opportunity to define what constitutes a ‘substantial burden’

under RLUIPA.” Id. The court assumed arguendo that the

following standard from Thomas, 450 U.S. at 7 1 8 , applies: a

substantial burden is one that puts “substantial pressure on an

adherent to modify his behavior and to violate his beliefs.”12

Id.; see also Lovelace v . Lee, 472 F.3d 1 7 4 , 187 (4th Cir. 2006);

12 This definition is based on the Supreme Court’s definition of substantial burden in the related context of the Free Exercise Clause.

28 Farrow v . Stanley, 2005 WL 2671541, at *4 (D.N.H. Oct. 2 0 , 2005). 13

Courts “have little difficulty in concluding that an

outright ban on a particular religious exercise is a substantial

burden on that religious exercise.” Greene v . Solano County

Jail, 513 F.3d 9 8 2 , 988 (9th Cir. 2008). If the prison affords

an inmate an opportunity to practice religion with some

limitation that makes the inmate’s religious practice more

“difficult” or inconvenient, there is no substantial burden

because there is no tendency to coerce. Hudson v . Dennehy, ---

F. Supp. 2d ---, 2008 WL 587967, at *5 (D. Mass. Mar. 5 , 2008);

see also Smith v . Allen, 502 F.3d 1255, 1279 (11th Cir. 2007)

(limiting religious practices to a secure location “did not place

more than an incidental burden on his practice” because “inmate

remained free to engage in his religious observances . . . albeit

limited to a secure, rather than an open, area of the

13 Not all circuits are in agreement as to this definition of substantial burden. Washington v . Klem, 497 F.3d 2 7 2 , 279-280 (3d Cir. 2007). The Eighth Circuit requires significant infringement on a “central tenet” or “fundamental” activity of religious practice. Murphy v . M o . Dep't of Corrs., 372 F.3d 979, 988 (8th Cir. 2004). In the Fifth Circuit, a restriction is a substantial burden “if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.” Adkins v . Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).

29 prison”)(internal citation omitted); Couch v . Jabe, 479 F. Supp.

2d 569, 585 (W.D. V a . 2006) (no substantial burden where

restriction “diminished the overall spiritual experience”).

In this case, Starr contends that his religious practice has

been substantially burdened because NCF’s restrictions on Tai Chi

interfere with his spiritual meditation and his ability to connect with God. He challenges NCF’s restrictions on the

materials that he may possess and NCF’s policies that require him

to obtain permission before he practices Tai Chi on his block,

that prohibit him from practicing Tai Chi outside in the prison

yard, and that limit the style or form of Tai Chi that he may

practice. The defendants argue that Starr has the same rights

and restrictions on his Tai Chi practice as the Taoists and that

Starr has not established how the restrictions burden his

spiritual exercise.

a. Tai Chi Instructional Materials

Starr argues that the prison’s restrictions on the

instructional materials that he may possess places a substantial

burden on his religious exercise because it restricts his ability

to grow in his form and understanding of Tai Chi. Specifically,

he complains that NCF's policy limits him to the possession of

Tai Chi instructional materials that were drawn by Anthony Lim,

30 another NCF inmate. Starr contends that Lim is not accredited as

a Tai Chi instructor and that Lim’s drawings only depicted the

Yang style basic movements. Starr contends that he should not be

limited by these drawings because his study of Tai Chi should be

broad and diversified.

It is undisputed that NCF’s policy requires inmates to seek approval to possess Tai Chi materials through Chaplain Hoyt.

According to Chaplain Hoyt, Anthony Lim was the only inmate who

had submitted materials that have been approved and that Starr

can submit additional materials if he desires. Chaplain Hoyt

also testified that there are a dozen books in the prison library

about Tai Chi. According to Starr, he submitted a book for

approval, Complete Tai Chi, but he admits it was rejected by

Chaplain Hoyt because it contained the words punch, parry, and

strike. NCF has not banned all Tai Chi literature and has provided Starr with the opportunity to supplement Lim’s drawings

as long as they do not depict combative moves. Therefore, Starr

has failed to raise a material factual dispute as to whether the

defendants’ instructional material policy substantially burdens

his religious exercise.

31 b. DSO Permission

Starr also complains that he should not have to inform the

DSO on duty if he wants to practice Tai Chi on the block, that

the DSOs have “unfettered” discretion to deny inmates permission

to practice Tai Chi, and that certain shifts of correction

officers allowed kicking motions, while others did not. Despite making these complaints, Starr has not explained how asking for

permission from a DSO substantially burdens his religious

exercise, and he has not offered any evidence showing that DSOs

have arbitrarily denied his requests to practice Tai Chi.

Therefore, Starr has failed to raise a material factual dispute

as to whether NCF’s permission requirement substantially burdens

c. Restrictions on Form/Outside Practice

Starr argues that the defendants’ policy restricting his Tai

Chi practice to indoors substantially burdens his religious

exercise because he must practice Tai Chi outside in order to

properly “ground” so that he is able to properly meditate and

connect to the earth’s “Chi.” Starr also argues that NCF’s

prohibitions on leg extensions and limiting his practice to only

the Yang form substantially burdens his religion by interfering

with his spiritual meditation. The defendants argue the outdoor

32 prohibition and the restrictions on form do not substantially

burden Starr’s religious beliefs because under the current rules,

he can still accomplish his meditative goals and because Starr’s

insistence on practicing outside is a matter of personal

preference not a religious mandate.

The defendants rely on Betsey Foster’s testimony that Tai Chi involves imagery and visualization and the concept of “Chi,”

a type of energy that is a directed by the mind. According to

Foster, because “Chi” can be directed by the mind, meditation can

be achieved even when there are restrictions on movement and

form. She also testified that the visualization process called

“rooting” -- which means envisioning part of the body rooting

deep into the center of the earth –- can be practiced in a small

area, inside or outside, and that it is a matter of personal

preference. Starr disputes Foster’s conclusions about meditation and the

channeling of energy. First, he contends that the physical

movements in Tai Chi are designed to aid in the movement of Chi

and that NCF’s prohibition on leg extensions inhibits his flow of

Chi which interferes with his meditation. As support for this

argument, Starr offers materials that discuss generally that the

physical movements aid in meditation by helping to “channel” the

energy through the body. Second, Starr also claims that the Yang

33 form restriction limits his ability to “grow and learn more about

the universe, and by extension, limits [his] connection to God

and his creation.” Starr O b j . , Ex. 7 , ¶ 7 .

In addition, Starr disagrees with Foster’s conclusions about

outdoor practice. Starr claims that “the practice of [T]ai [C]hi

outside allows [him] to directly connect with the earth’s [C]hi, and by extension, all of God’s creation.” Starr O b j . , Ex. 7 , ¶ 7 .

Starr argues that there is a difference between “rooting,” which

can be accomplished inside, and “grounding” which must occur

outside. At the preliminary injunction hearing, Starr testified

that “one of the fundamental teachings of Tai Chi is proper

grounding” and that the most “beneficial way [to ground] is to

actually be outside in direct contact with the earth.” April 2 0 ,

2006, Hear., T r . at 8 . When further pressed by defense counsel,

however, Starr admitted that there is no “must” requirement for outdoor practice in any of the authorities that he submitted.

Id. at 3 2 . Instead, Starr testified that outside practice

produces the optimal results. Similarly, in his objection to

summary judgment, Starr asserts that Tai Chi is “best practiced”

outside, but he does not say that it is required. Starr O b j . at

10 (emphasis supplied).

Taking the facts in a light most favorable to Starr, he has

failed to show a material factual dispute as to whether the

34 prison’s outdoor prohibition substantially burdens his religious

exercise because he has not demonstrated that outside practice is

a requirement of Tai Chi. Specifically, Starr has not raised a

material factual dispute on this issue because he failed to rebut

Foster’s testimony that the decision to practice outside versus

inside is a personal decision, rather than a religious one. Similarly, Starr has failed to establish a dispute of material

fact as to whether the defendants’ restriction on the form of Tai

Chi substantially burdens his religious exercise. Starr failed

to rebut Foster’s testimony that Tai Chi meditation is not

diminished when certain movements are restricted. The materials

that Starr offers only discuss how the movements in Tai Chi aid

in channeling energy through the body, and none of the materials

say that limitations on certain movements or form inhibit

meditation. By limiting the type of Tai Chi instructional materials that

inmates may possess, by requiring inmates to check in with DSOs

prior to practicing Tai Chi, and by restricting the form of Tai

Chi and the location where it is practiced, the defendants have

not completely banned Tai Chi. At worst, NCF’s Tai Chi policies

may “diminish the overall spiritual experience” for Starr or may

have made it more difficult for him to practice his religion.

Either way, Starr has failed to create triable issue as to

35 whether the restrictions in place rise to the level of a

substantial burden.

To avoid summary judgment on his RLUIPA claim, Starr bore

the burden of showing a material factual dispute as to whether

his religious exercise has been burdened by the defendants and

that the burden is substantial. Although Starr met part of his burden by showing a material factual issue as to whether Tai Chi

is part of a system of religious belief and whether he has a

sincerely held belief in his Tai Chi practice, he failed to show

a material factual issue as to whether the defendants’

restrictions impose a substantial burden on his practice of Tai

Chi. Even if Starr were able to raise a triable issue as to

whether his religious exercise is substantially burdened, as

described below, the defendants have carried their burden of

demonstrating that its Tai Chi restrictions serve a compelling state interest using the least restrictive means.

3. Compelling Interest and Least Restrictive Means

Under RLUIPA, the defendants bear the burden of proving that

their Tai Chi restrictions further a compelling governmental

interest that is the least restrictive means of achieving that

compelling interest. Spratt, 482 F.3d at 3 8 . Because the

defendants are both the moving party and the party with the

36 burden of proving at trial that their Tai Chi restrictions serve

a compelling state interest using the least restrictive means,

they must carry their burden of proof with conclusive evidence.

See Union Independiente de la Autoridad de Acueductos y

Ancantarillados de P.R., 279 F.3d at 5 5 ; see also Walls v .

Schiro, 2008 WL 544822, at *10 (D. Ariz. Feb. 2 6 , 2008)(in RLUIPA burden-shifting scheme, “when the party moving for summary

judgment will also have the burden of proof at trial, to prevail

on summary judgment it must show that the evidence is so powerful

that no reasonable jury would be free to disbelieve it.”)

(internal quotation marks and citations omitted). Evidence is

conclusive i f : “1) the moving party initially produces enough

supportive evidence to entitle the movant to judgment as a matter

of law (i.e., no reasonable jury could find otherwise even when

construing the evidence in the light most favorable to the non- movant), and (2) the non-movant fails to produce sufficient

responsive evidence to raise a genuine dispute as to any material

fact.” Murphy v . Franklin Pierce Law Ctr., 882 F. Supp. 1176,

1180 (D.N.H. 1994)(citing Fitzpatrick v . City of Atlanta, 2 F.3d

1112, 1115-17 (11th Cir. 1993)).

37 a. Compelling State Interest

The defendants argue that the current Tai Chi policy that

restricts the form and the location where it is practiced is

necessary for security concerns. Starr argues that he should be

allowed to practice Tai Chi without any restrictions on form

because the prison allows contact sports such as basketball. He also points to other activities that could potentially lead to

danger, such as horseshoes or the use of razor blades during

hobby crafts. As for outdoor practice, Starr claims that the

defendants have waived their argument that the outdoor

restriction serves a compelling interest because Cox testified at

the preliminary injunction hearing that Tai Chi “would be allowed

to be practiced in the general yard.” Starr O b j . at 1 3 .

RUILPA is not intended to “elevate accommodation of

religious observances over an institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722. Security concerns

require “particular sensitivity” and are a compelling state

interest. Id. at 723; see also Hudson, 2008 WL 587967, at * 5 .

While “prison officials are to be accorded substantial deference

in the way they run their prisons, this does not mean that we

will rubber stamp or mechanically accept the judgments of prison

administrators.” Spratt, 482 F.3d at 40 (internal quotation

marks and citations omitted). “Merely stating a compelling

38 interest does not fully satisfy [the prison’s] burden on this

element of RLUIPA; [the prison] must also establish that prison

security is furthered by [the restrictions in place]. Id. at 3 9 ;

see also Keesh v . Smith, 2007 WL 2815641, at *21 (N.D.N.Y. Sept.

2 5 , 2007) (merely raising the “specter” of security is not

sufficient to outweigh the inmates’ interests). In this case, the defendants are not merely raising the

specter of a security concern. Instead, the defendants have

presented undisputed evidence that Tai Chi poses a unique danger

in a prison environment, making it different from basketball and

the other prison activities cited by Starr. While other

activities may present a risk of accidental injury or misuse of

equipment, the defendants offered testimony from an expert and

from officials at NCF that Tai Chi is a martial art with moves

that are potentially dangerous, especially when combined with other martial arts. For example, Major Cox and Ruel testified

that they have witnessed inmates at the NCF practicing prohibited

Tai Chi moves, including moves that incorporate movements from

Karate. They also observed gang members practicing take downs

and other dangerous martial art maneuvers. Cox also testified

39 that Tai Chi is limited to indoor areas because conditions in a prison yard can become violent in a matter of seconds.14

Based on the testimony provided by Cox, Foster, and Ruel,

the defendants have produced convincing evidence that their Tai

Chi restrictions serve a compelling governmental interest, prison

security. Other than pointing to the fact that the prison allows contact sports and that other activities may present a risk of

accidental injury or misuse of equipment, Starr has failed to

produce sufficient responsive evidence to rebut the defendants’

evidence and has failed to raise a genuine dispute of material

fact on this issue. Therefore, the defendants have carried their

burden of proof on this issue with conclusive evidence.

b. Least Restrictive Means

The defendants argue that they have offered undisputed

evidence that the restrictions they have placed on the practice

of Tai Chi are the least restrictive possible. Starr disputes

14 When asked a hypothetical question by Starr, Cox testified that he would allow Tai Chi to be practiced outside in a designated area of the prison yard if the court ordered it or if the Taoists or a Tai Chi card holder asked for i t . Cox never said that Tai Chi would be allowed outside without restriction, and his testimony as a whole clearly establishes why the defendants’ current policy restricts Tai Chi to indoor areas. Therefore, Starr’s assertion that the defendants have waived their argument that the outdoor prohibition serves a compelling interest has no merit.

40 this, arguing that the defendants have not considered lesser

restrictive means because each of the defendants’ policy

memoranda contain the exact same restrictions as the memorandum

it replaced.

“A ‘least restrictive means’ is one that does not sweep

‘more broadly than necessary to promote the government’s interest.’” Hudson, 2008 WL 587967, at *6 (quoting Casey v . City

of Newport, 308 F.3d 106, 114 (1st Cir. 2002)). “A prison cannot

meet its burden to prove the least restrictive means unless it

demonstrates that it has actually considered and rejected the

efficacy of less restrictive measures before adopting the

challenged practice.” Spratt, 482 F.3d at 41 (internal quotation

marks and citations omitted). RLUIPA does not “require prison

administrators to refute every conceivable option to satisfy the

least restrictive means prong . . . [but] their rejection [of competing alternatives] should generally be accompanied by some

measure of explanation.” Id. at 41 n . 11 (internal quotation

marks and citations omitted).

Specifically, “all or nothing” approaches by prison

officials are usually not the least restrictive means. See

Spratt, 482 F.3d at 4 1 ; see also Johnson v . Martin, 2005 WL

3312566, at *7 (W.D. Mich. Dec. 7 , 2005)(“total ban on Melanic

Literature is not the least restrictive means available to assure

41 prison security”). Where a prison allows some means for its

inmates to practice the religion in question, however, it weighs

against a finding of a RLUIPA violation. See Ulmann v . Anderson,

2004 WL 883221, at *10 (D.N.H. April 2 6 , 2004)(no RLUIPA

violation where prison disallowed candles and glass but allowed

inmate option of celebrating Hanukkah with a rabbi and lighting an electronic menorah).

In this case, the defendants demonstrated that they have

not taken an “all or nothing” approach in restricting Tai Chi

because Tai Chi is allowed to be performed indoors where it can

be properly supervised in a controlled setting. In addition, the

defendants have shown that they have considered other options and

they have explained why the restrictions are necessary. For

example, Cox testified that the restriction limiting inmates to

only the Yang form is necessary because it would be impossible for his officers to learn all of the different styles in order to

be able to differentiate the prohibited moves from those that are

allowed. Cox also testified that Tai Chi is limited to indoor

areas rather than outside in the prison yard because martial arts

activities need close supervision and because conditions in a

prison can become violent in a matter of seconds.

Starr’s argument that the policy memoranda never changed is

incorrect. For example, in May of 2003, the prison allowed Tai

42 Chi to be practiced outside, but after inmates were observed

practicing prohibited moves, outdoor practice was later banned in

May of 2005. The defendants have offered undisputed and

persuasive evidence that they have not completely banned Tai Chi,

that they have considered other alternatives, and that they have

explained the rationale for the restrictions in place. Starr has failed to rebut the evidence provided by the defendants in order

to create a dispute of material fact as to this issue.

Therefore, the defendants have provided conclusive evidence on

this issue and have satisfied their burden of proof.

To summarize, the defendants are entitled to summary

judgment on Starr’s RLUIPA claim because he has failed to raise a

triable issue as to whether the defendants’ Tai Chi policies

substantially burden his religious exercise. Even if Starr could

raise a dispute of material fact on this element of claim, the defendants would still be entitled to summary judgment because

they have carried their burden with conclusive evidence that

their policies serve a compelling state interest using the least

restrictive means.

B. Free Exercise Clause Claim

In Starr’s complaint, he alleges that the defendants

interfered with his First Amendment rights by creating a policy

43 which prohibits him from “engaging [in] his religious exercise of

Tai Chi.” Starr Complaint, ¶46. The Free Exercise Clause of the

First Amendment requires that the government respect and not

interfere with the religious beliefs and practices of those

protected by the United States Constitution. Cutter, 544 U.S. at

719. Under the Free Exercise Clause, the practice of a prisoner’s sincerely held religious belief must yield to prison

regulations that are “reasonably related to legitimate

penological interests.” Turner v . Safely, 482 U.S. 7 8 , 89

(1987).

The Free Exercise Clause provides less protection to

religious practice, however, than RLUIPA. Ulmann, 2004 WL

883221, at *10 n . 17 (citing Madison v . Riter, 355 F.3d 3 1 0 , 315

n.1 (4th Cir. 2003)). If there is no RLUIPA violation, there

will be no Free Exercise Clause violation. See id. In this case, as determined in the context of Starr’s RLUIPA

claim, the court has concluded that Starr failed to establish a

dispute of material fact as to whether the defendants’ Tai Chi

restrictions substantially burden his religious exercise. The

court also concluded that the defendants have satisfied their

burden with conclusive evidence that their Tai Chi policies serve

a compelling state interest using the least restrictive means.

Because there are no triable issues as to a RLUIPA violation,

44 which imposes a stricter burden on the defendants than the Free

Exercise Clause, then there necessarily are no triable issues as

to Starr’s Free Exercise Clause claim.

C. Establishment Clause & Equal Protection Clause Claims

In Starr’s complaint, filed in 2006, he alleges that the

defendants violated the Equal Protection Clause of the Fourteenth

Amendment and the Establishment Clause of the First Amendment by

not granting him a Tai Chi card. Since that time, however, the

defendants have provided Starr a Tai Chi card with the same

restrictions on the time and location of practice as the Taoists.

Starr argues that his Tai Chi card is temporary, that it will

expire after this lawsuit, and that he will be subject to NCF’s

policy of forbidding non-Taoists from practicing Tai Chi. Starr

claims that if the defendants remove his card, they will be in

violation of the Establishment Clause because he will be forced

to choose between following the tenets of the Jehovah’s Witnesses

and following the Taoist religion, to which he does not adhere,

in order to obtain a Tai Chi card. He also claims that his Equal

Protection rights will be violated because the defendants will be

treating him differently from others who practice Tai Chi.

The defendants do not dispute that if Starr loses this

lawsuit, they will deny him the privilege of practicing Tai Chi.

45 The defendants argue, however, that if they remove Starr’s Tai

Chi card, there is no Establishment Clause or Equal Protection

violation, arguing that if Starr does not prevail in the current

lawsuit, that would “necessarily involve the court’s

determination that his rights are not being violated.” Def.

Reply at 1 1 . In considering Starr’s RLUIPA claim, the court concluded

that Starr succeeded in demonstrating that there is a genuine

issue of material fact as to whether his Tai Chi practice is part

of a system of religious belief and whether he has a sincerely

held belief in this practice. Summary judgment is appropriate,

however, because Starr failed to create a triable issue as to

whether the defendants’ current Tai Chi restrictions

substantially burden Starr’s religious exercise. Even if Starr

could raise a triable issue as to the substantial burden element, the defendants satisfied their burden in demonstrating with

conclusive evidence that the current Tai Chi restrictions serve a

compelling state interest using the least restrictive means.

Although the defendants’ current restrictions - which allow Starr

to practice Tai Chi without declaring himself a Taoist, albeit

with certain place and time restrictions - do not create any

triable issues as to a RLUIPA violation, the court has not made

any determination as to whether Starr’s rights would be violated

46 if the defendants place additional restrictions on Starr’s Tai

Chi practice or if they ban Starr’s practice outright.

The defendants are ill advised in announcing what their

future action will be concerning Starr’s Tai Chi card before they

have had the opportunity to assess, with great care, this court’s

rulings and this opinion which sets forth the reasons for those rulings. Because Starr has a Tai Chi card and because there are

no triable issues as to whether the current restrictions, as they

apply to Starr, violate RLUIPA or the constitution, Starr’s claim

based on what may happen in the future raises a ripeness issue.

See City of Fall River, Mass. v . F.E.R.C., 507 F.3d 1 , 6-7 (1st

Cir. 2007). Federal courts do not have jurisdiction to give

advisory opinions. Cotter v . City of Boston, 323 F.3d 1 6 0 , 173

(1st Cir. 2003). The court will not decide Starr’s prospective

claim at this time, as the consequences he expects may not occur as he anticipates or may not occur at all. See City of Fall

River, Mass., 507 F.3d at 6-7.

47 Conclusion

For the foregoing reasons, Starr’s Motion to Strike the

defendants’ Reply (document n o . 87) is denied, Starr’s Motion for

Leave to File a Surreply is denied (document n o . 8 8 ) , and the

defendants’ motion for summary judgment (document n o . 80) is

granted. The clerk of court shall enter judgment accordingly and close the case.

SO ORDERED.

V j Joseph A. DiClerico, Jr. United States District Judge

April 28, 2008

cc: Mary E. Maloney, Esquire Darren Starr, pro se