Lead Opinion
BOGGS, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. MOORE, J. (pp. 407-411), delivered a separate opinion dissenting in part.
OPINION
Douglas Spies appeals the dismissal of his First Amendment prisoner’s rights action, which alleged that (1) various prison regulations violated his free exercise rights, and (2) prison officials retaliated against him for filing this lawsuit. Spies claims that the district court’s determination that various prison policies that allegedly burden his right to free exercise of religion were reasonably related to legitimate penological interests, pursuant to the four-part standard in Turner v. Safley,
I. FACTS AND PROCEDURAL HISTORY
Douglas Spies is an inmate at North Central Correctional Institution (“NCCI”) in Marion, Ohio. He was ordained as a Zen Buddhist in December 1994, and was given the religious name of Gunaratna Sarika. After his ordination, Spies attempted to organize formal Buddhist worship at NCCI, and presented a formal request to the prison chaplains to start a group “chanting practice.” He and another inmate were given permission by the chaplains to use the prison chapel on a weekly basis in order to meditate. The chaplains claim that they instructed the two inmates not to talk to or interact with each other during these meditative sessions; Spies claims that they were never so instructed.
Spies claims that from the time of his ordination through early 1996, he meditated with one or more fellow Buddhists in the chapel on a regular basis. He was given permission to use several religious articles during these meditative sessions, including a small statute of Buddha, an altar cloth, a picture of Buddha, a wooden sculpture of a fish, and incense. Spies kept some of these articles in his cell; others were stored on his behalf by the chaplains.
Spies also inquired several times to one of the chaplains about getting a community leader to come in and instruct those interested in Buddhism. The chaplain responded that, pursuant to prison policy, an outside leader could not come to NCCI to lead formal religious services until there were at least five Buddhist inmates at the facility. This prison policy was commonly referred to as the “rule of five.” The chaplain, however, told Spies that he was permitted to have “a personal minister come in to instruct him.” Hawley gave
In mid-1995, Spies filed a grievance with prison officials alleging that, because he was a Buddhist, the prison was required to provide him with a vegan
In early 1996, a prison chaplain indicated to Spies that the Buddhists’ meditation sessions in the chapel, which consisted in part of group chanting, were in fact group worship services (ie., not simply several inmates meeting in the chapel to meditate independently and silently) and, thus, would have to cease until five Buddhist inmates at the facility were interested in having formal services. If five Buddhist inmates were to become interested, formal services could commence at NCCI as soon as a religious leader from outside the facility could be found to lead services.
This same chaplain told Spies a few weeks later that Spies’s religious articles could not be stored in his cell or by the chaplains, because the articles (1) presented a security risk; (2) could create liability concerns for the prison if stored by the chaplains; and (3) might spark other inmates to make allegations of favorable treatment towards Spies. Spies alleges that the chaplain said to him, “This is what you wanted with your lawsuit, isn’t it?”
Spies subsequently amended his complaint, adding a claim alleging retaliation by prison officials that stemmed from the filing of his lawsuit. The district court granted defendants’ motion for summary judgment on the ground that the regulations enforced by the prison officials (the “rule of five,” prohibition of inmate-led groups, prohibition on possessing certain religious articles, and non-provision of vegan meals) did not violate his free exercise rights because they were reasonably related to legitimate penological interests and, thus, constitutional under Turner v. Safley,
II. ANALYSIS
A. Spies’s First Amendment challenges to various prison regulations
Spies claims that five policies at NCCI are unconstitutional because they violate his First Amendment right to free exercise of religion. He challenges NCCI policies
We review the district court’s grant of summary judgment de novo. EEOC v. University of Detroit,
The Supreme Court has instructed that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley,
As a preliminary matter, we note that a trial court is not required to weigh evenly, or even consider explicitly, each of the four Turner factors. See Scott v. Mississippi Department of Corrections,
By creating the Turner test, the Supreme Court surely did not intend to pro
Thus, we need not remand Spies’s free exercise claims to the district court to require the court to consider whether there are ready alternatives available to the regulations in question that fully accommodate the prisoner’s rights at de min-imis cost to valid penological interests. First, as we have just explained, a trial court is not required to weigh evenly, or even consider, each of the four Turner factors. Second, to require the trial court to do so would constitute a classic example of “unnecessary intrusion of the judiciary into problems particularly ill suited to resolution by decree” that the Supreme Court has warned against. O’Lone,
Finally, and most importantly, the “ready alternatives” part of the Turner test
is not a “least restrictive alternative” test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de min-imis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.
Turner,
Therefore, the district court did not err in failing to consider, with regard to some of the regulations at NCCI, whether “ready alternatives” to the regulations existed. However, because we review both the facts and law behind a grant of summary judgment de novo, we shall mention the Turner factors, when necessary, and briefly state why none weigh in favor of the plaintiff with regard to any of the prison regulations.
1. Group-of-five rule
NCCI policy requires that five documented members of a faith be interested in forming a faith group before such a group can be formed. In analyzing this regulation pursuant to Turner, we first agree with the district court that the group-of-five rule has a valid, rational connection to legitimate government interests in maintaining security and allocating prison resources. Second, we note that Spies had alternative means of exercising his free exercise rights; he was permitted to meditate privately in the chapel, correspond with fellow believers, and consult
Third, we agree with the district court’s finding that full accommodation of Spies’s alleged free exercise right — allowing a group of any size to demand the use of limited prison resources — would have an adverse impact on the allocation of prison resources. Prison officials, no doubt, have an interest in regulating equitably the use of the prison chapel. Spies has failed to proffer any evidence that demonstrates that allowing any group, however small, to demand group services would not adversely impact the allocation of prison resources. Lastly, Spies has not pointed to the existence of ready alternatives available to the regulation in question that fully accommodate his rights at de minimis cost to valid penological interests, and it is not this court’s job to speculate about every conceivable alternative method of accommodating the claimant’s constitutional complaint. Thus, the consideration of the Turner factors leads us to conclude that NCCI’s regulation requiring five documented members of a faith to be interested in forming a faith group is reasonably related to legitimate penological interests and, thus, constitutionally valid.
2. Religious articles
NCCI officials prohibited Spies from possessing certain religious articles in his cell on the ground that these articles could (1) be fashioned into a weapon or (2) be used to cover up illegal activity (e.g., the burning of incense). Spies was prohibited from keeping the articles in the chapel, according to prison officials, because doing so would create safety concerns, liability issues, and would spark allegations by other prisoners that Spies was receiving favorable treatment by prison officials.
First, in light of the fact that the Supreme Court has counseled that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators,” Rhodes v. Chapman,
We further note that courts have barred prisoners from having items in their cells or on their persons that have similar or greater constitutional significance than the items in question here. See Hall v. Bellmon,
3. Need for a religious leader (no inmate-led groups)
NCCI’s prohibition on inmate-led groups necessarily exists to avoid the risks that would arise from unsupervised inmate activity and the creation of an alternate, inmate-led power structure in the prison
Spies argues that the existence of an Arabic class led by an inmate, but supervised by a chaplain, demonstrates that NCCI’s ban on inmate-led groups is selectively enforced.
4. Use of religious name
Spies claims that prison officials violated his First Amendment rights by refusing to use his religious name. We need not even analyze this claim in light of Turner, for it is established in this circuit that Spies has no
constitutional right to dictate how prison officials keep their prison records. As we see this issue, the present question of name change usage relates to prison administration. Absent unusual allegations such matters are for state prison officials to resolve. Intervention by the federal courts should only be in the very unusual case.
Imam Ali Abdullah Akbar v. Canney,
5. Religious diet
Spies’s last claim is that NCCI’s refusal to provide him with a vegan meal violates his First Amendment rights. We likewise need not analyze this claim in light of all four Turner factors, for we conclude that Spies has no First Amendment right to a vegan meal in this instance — he admits that “a vegan diet is not a requirement for Zen Buddhist practice.” The prison has provided Spies with the vegetarian meal he is required to eat under Buddhist practice. As we noted in the unpublished case of Williams v. Wilkinson, No. 96-3715,
The dissent states, at page 409, that “[i]t is not our role to determine whether a particular practice is a ‘required’ aspect of a religion.” This contention is irrelevant, for two reasons. First, Spies admits that adherence to a vegan diet is not required under Zen Buddhist practice. See Appellant’s Brief at 30. Thus, we need not make this determination in this case. Second, we note that Spies is only required to maintain a vegetarian (and not vegan) diet solely because it establishes that the prison has provided him an “alternative means of exercising” his religion under factor (2) of the Turner test. In other words, in pointing out" that veganism is not required of Zen Buddhists, we are not stating that Spies’s veganism is not a sincerely-held religious belief. Rather, we are stating that because the prison has already provided him with a vegetarian meal, we believe, in this instance, that the prison’s decision to deny him a vegan meal is reasonably related to legitimate penological interests.
As we noted earlier, the Supreme Court’s creation of the Turner standard was motivated by a desire to “ensuref ] the ability of corrections officials to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration, and avoid[J unnecessary intrusion of the judiciary into ;problems particularly ill suited to resolution by decree.” O’Lone v. Estate of Shabazz,
B. Retaliation
Spies also claims that prison officials retaliated against him for the filing of his lawsuit. However, the trial court never ruled on the retaliation claim before it dismissed Spies’s complaint. Since the district court never ruled on the merits of Spies’s claim, we must remand it to the trial court, which should consider Spies’s retaliation claim in light of our recent en banc decision in Thaddeus-X v. Blatter,
III. CONCLUSION
The trial court’s grant of summary judgment on Spies’s free exercise claim is AFFIRMED. The trial court’s grant of summary judgment on Spies’s retaliation claim is REVERSED and REMANDED for further proceedings.
Notes
. A vegan diet is a strict vegetarian diet pursuant to which the adherent consumes no animal-based food products, including dairy and egg products.
. At oral argument, counsel for appellees indicated that formal Buddhist services began at NCCI in the spring of 1997, when a fifth Buddhist inmate at the facility indicated an interest in having services.
. At oral argument, appellant’s counsel contended that several other groups at NCCI are also led by inmates. There is no evidence in the record, however, to back this assertion.
Dissenting Opinion
dissenting in part.
Neutral prison regulations that are reasonably related to legitimate penological interests are permissible even if they infringe on an inmate’s religious practices. See O’Lone v. Shabazz,
I concur in the results reached by the majority with respect to the retaliation claim, the “rule of five,” and use of Sari-ka’s new name. I believe, however, that Sarika has proffered evidence sufficient to raise a genuine issue of material fact as to the reasonableness of the refusal to provide a vegan diet, the confiscation of his religious objects, and the ban on inmate-led groups.
The standard articulated in Turner is that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner,
One aspect of Turner that the majority seems to dislike is that the inquiry it demands is often, of necessity, a fact-intensive one. While our review of prison rules is deferential, it is not a “toothless” review that merely requires the government to articulate some rationale for a rule. See Abbott,
Finally, the majority’s discussion of the “ready alternatives” factor indicates that it is Sarika’s obligation to point to a specific method for accommodating his complaint. I agree that it makes sense to expect the plaintiff to propose an accommodation. Once the plaintiff has done so, however, “it is the defendant’s burden to establish affirmatively that accommodation of sincerely held religious beliefs is administratively impracticable.” Kent v. Johnson,
Diet
The majority rejects Sarika’s request for a vegan diet on the grounds that his Buddhist beliefs do not require him to abstain from eating animal products. Courts are ill-equipped to act as arbiters of the tenets of religious faith. It is not our role to determine whether a particular practice is a “required” aspect of a religion. See Hernandez v. Commissioner,
Obviously, a prisoner cannot succeed in challenging a prison regulation merely by asserting that it violates a religious belief. Whether the belief is religious and is sincerely held is a factual question that can be resolved in court. The Turner analysis can then take into account the degree of infringement on religious practice as compared to the burden that accommodating the practice would place on the prison. In this analysis, it is not necessary for courts to classify religious tenets as “required” or “not required.” Indeed, a prison regulation can be valid under Turner even if it does prevent a prisoner from engaging in a required religious practice. See O’Lone,
NCCI has a legitimate interest in keeping down the costs of providing special meals to particular prisoners, and the pris
The defendants’ sole defense to Sarika’s claim that he is entitled to a vegan diet is that veganism is not a “requirement of his faith group.” Appellees Br. at 36. This defense is inadequate as a matter of law, and a prison official has admitted that NCCI provides special religious meals to an inmate of another faith. Sarika is entitled to demonstrate that accommodation of his own sincerely held beliefs would also not be an unreasonable burden on prison resources.
Religious Articles
Sarika would like to use the following objects in his religious practices: a small statue of the Buddha, an altar cloth, a pillow, a wooden fish, and a picture of the Buddha. He would also like to burn incense on occasion. The prison has forbidden him from keeping his worship items in his cell and has also refused to store them in the prison chaplain’s office. Prison officials assert that the items present potential security risks and that storing the items could lead to accusations of favoritism from other inmates.
Here, too, evidence of discrimination creates a factual question about the explanations for denying Sarika these items. NCCI has about ten inmates who practice Native American religions and who engage in weekly ceremonies that involve the burning of sweet grass or incense. J.A. at 479-80, 498 (Hawley Dep., Karlen Dep.). The grass or incense is provided by the institution, and the inmates are allowed to keep cigarette lighters, which they use to light it. J.A. at 480 (Hawley Dep.). Each inmate is also allowed to keep a headband, a medicine bag, tobacco, and a pipe. J.A. at 480 (Hawley Dep.).
Even with all possible deference to the expertise of prison officials, it is extremely difficult to see how an altar cloth or a small pillow poses a security threat but a lighter or a headband does not. The majority opinion simply relies on the defendants’ assertion that Sarika’s articles raise security concerns without taking into account the treatment of other prisoners or the particular facts of Sarika’s situation. I could well understand deferring to the judgment of prison officials who opposed allowing inmates to have lighters among their personal possessions; some of the other items kept by NCCI inmates could also reasonably be prohibited. Cf. Hall v. Bellmon,
Rule of Five
I agree with the majority’s conclusion that the “rule of five” does not itself violate Sarika’s right to exercise his religion. The prison clearly needs to have some system for allocating space and time in the religious services area. Declining to organize
Inmate-Led Groups
Before the arrival of a fifth Buddhist and identification of a volunteer outside leader, Sarika and his fellow Buddhists sought to organize their own worship and study sessions. It appears that although they now have formal services, they would like to be able to meet more frequently and under their own leadership. The defendants say that such meetings would violate their rule against inmate-led group activities.
The majority accepts the defendants’ argument that the ban on inmate-led groups is necessary “to avoid the risks that would arise from unsupervised inmate activity and the creation of an alternate, inmate-led power structure in the prison.” Ante at 406. I must first point out that Sarika has not asked for the right to engage in unsupervised activity. He compares his desired activities to an Arabic class led by Muslim inmates but supervised by Hawley, who does not speak Arabic. J.A. at 480-81 (Hawley Dep.). Like the Muslim inmates in the class, Sarika and the other Buddhists seek the opportunity to help each other with their religious development in the absence of an outside leader but under the supervision of prison staff.
There is some merit to the majority’s argument that NCCI could reasonably distinguish between an academic setting and a religious one, as the latter may be more conducive to establishing some inmates in positions of authority over others. Whether that distinction is operative in this case, however, is a close issue and one that I believe should be determined by a fact-finder. Although the Arabic class is in some sense an academic setting, it is clearly linked to religion — the participants are Muslim, apparently interested in learning Arabic for religious purposes, and the classes take place in the religious services center. Any security risk inherent in this arrangement is enhanced by the fact that the prison official supervising the activity does not understand the language being spoken. In addition, Muslim inmates are permitted to conduct their own weekly prayer service if their outside leader is absent. J.A. at 480 (Hawley Dep.). This evidence concerning NCCI’s treatment of another religious group is sufficient to raise a question of fact regarding whether its restrictions on Buddhist worship and study are unreasonable.
Conclusion
I would reverse the grant of summary judgment on Sarika’s claims regarding diet, religious articles, and inmate-led groups and remand for further proceedings consistent with this opinion. Therefore, I respectfully dissent in part from the majority opinion.
. Although the complaint styles the plaintiff "Douglas Spies aka Gunaratna Sarika,” his allegations about the defendants’ failure to use his new name and his own usage in his brief and deposition indicate that he prefers to be known as Sarika.
. To the limited extent that the three cases cited by the majority support this proposition in theory, they contradict it in application. The Ninth Circuit case merely noted the possible existence of a factual dispute but held that summary judgment was nonetheless appropriate because the Turner test was satisfied even if one assumed the dispute would be resolved favorably to the plaintiffs. See Casey v. Lewis,