GARY DAVID MORRISON, JR., Plaintiff-Appellee,
v.
DAVID A. GARRAGHTY, Chief Warden; M. C. MILLARD, Associate Warden, Defendants-Appellants,
and
RONALD J. ANGELONE, Director, Virginia Department of Corrections, Defendant.
UNITED STATES OF AMERICA, Movant.
No. 00-6540.
UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.
Argued: October 31, 2000.
Decided: February 7, 2001.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge. (CA-97-681-3)[Copyrighted Material Omitted]
COUNSEL: ARGUED: Pamela Anne Sergeant, Assistant Attorney General, Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Rebecca Kim Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Appellee. ON BRIEF: Mark L. Ear-ley, Attorney General, Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Rich-ard W. Ferris, Lydia L. King, Third-year Law Student, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Appellee.
Before TRAXLER and KING, Circuit Judges, and Alexander WILLIAMS, Jr., United States District Judge for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge King and Judge Williams joined.
OPINION
TRAXLER, Circuit Judge:
Gary David Morrison, Jr., an inmate incarcerated at Greensville Correctional Center ("GCC") in Virginia, filed this action under 42 U.S.C.A. S 1983 (West Supp. 2000), claiming that defendants David A. Garraghty, warden of GCC, and M.C. Millard, assistant warden of GCC, violated his rights under the Equal Protection Clause of the United States Constitution by treating him differently from other inmates based solely upon a racial classification. Specifically, Morrison alleged that defendants refused to consider his request to obtain Native American religious items because he is not of Native American heritage. The district court enjoined defendants from refusing to consider Morrison's request for a religious exemption from the personal property restrictions normally applicable to all inmates solely on the basis of Morrison's race. We affirm.
I.
In order to maintain prison security and order, the Virginia Department of Corrections strictly limits the possession of personal property by prison inmates in accordance with Department Operating Procedure ("DOP") 856. However, prison administrators may grant exemptions, on a case-by-case basis, from the personal property restrictions for religious personal property not specifically authorized by DOP 856. In order to evaluate a request for religious personal property, inmates are required to specify their claimed religion, the specific items needed, the purpose for which each item is used, why each item is necessary, and whether each item is mandated by their religion. A religious leader of the professed faith is contacted to verify the relevance of and need for the item, and prison officials take into account the sincerity of the inmate's professed beliefs and the security concerns of the prison in evaluating the specific request for an exemption.
Morrison is not a Native American Indian by birth, nor has he been adopted by a Native American tribe. He is, however, a member of a prisoner group known as HEART "Heritage Examined Around Redman Traditions." HEART is not a religion. The majority of its members at GCC are not Native Americans and, consequently, do not practice any particular tribal-based religion. Nor do HEART members demand to participate in Native American religious ceremonies. Rather, Morrison, like other HEART members, claims to hold beliefs similar to those held by Native Americans practicing a tribal-based Native American religion. For example, Morrison, like many Native American inmates, professes belief in "the creator, mother earth, the sacredness of all living things, that everything has a spirit and is connected." J.A. 92, 100. In other words, Morrison claims not to practice any specific Native American tribal religion, but rather to practice what he terms "Native American Spirituality."
Because Morrison's professed religious beliefs are similar to Native American beliefs, Morrison also wishes to practice rituals similar to those practiced by Native American inmates. To do so, Morrison wishes to possess a number of Native American sacred items which he asserts are as equally necessary for him to practice his religion as they are for Native Americans to practice their own tribal based religions. These items include sage, cedar, sweet grass, kinnikkinnik (sacred tobacco), other sacred herbs, shells, smoking pipes, feathers, beads, animal parts/hides (leather), and dream catchers.
The present controversy centers on a May 14, 1997, memorandum issued to all members of HEART, including Morrison, which reads as follows:
Effective immediately, requests for acquiring or maintaining existing articles of Native American faith will only be considered for those inmates who are bona fide Native Americans. Inmates requesting Native American faith items must be able to provide some type of supportive information to substantiate their heritage. Examples of verification may vary but should consist of one of at least the following:
Inmate should be on the tribal roll of a Native American tribe (specify tribe)
Inmate should have a blood relative who is a Native American (specify name and relation of blood relative to you and their tribe)
Inmate should have a BIA card
* * *
[O]nce you have authenticated your Native American heritage, all requests for articles of faith must be accompanied by a description of specifically how the items are essential to your ability to practice your religion. All items will be considered on an individual basis based on tribal requirements, DOP/IOP 856, and institutional security concerns.
J.A. 179 (emphasis added). The GCC policy could hardly be more plain: a DOP 856 request "for acquiring or maintaining existing articles of Native American faith will only be considered for those inmates who are bona fide Native Americans." J.A. 179. Once an inmate satisfies the threshold requirement of authenticating his Native American heritage, the request will then be considered under the typical, and universally applied, criteria for evaluating a religious exemption request. Consequently, although Morrison and other non-Native American practitioners of Native American religious practices have been allowed to possess at least some Native American religious items in the past, requests for such items are now only considered if the requesting inmate can satisfy the threshold requirement of proving Native American heritage.
Because Morrison could not prove that he is a "bona fide" Native American, his most recent request for Native American religious items was refused. The lack of the appropriate racial lineage was the only reason given for the denial of Morrison's request for a religious exemption from the personal property restrictions; neither security concerns nor a lack of sincerity on the part of Morrison was ever given as a reason. Indeed, in response to his grievance, Morrison was specifically informed that his "preference does not substitute for valid lineage even if it is noted in your inmate record. I applaud your sincerity but I still need documentation of your heritage." J.A. 189. And, defendant Millard admitted that sincerity of religious belief was a factor to be weighed only after Native American heritage had been proven.
After implementation of the GCC policy, and defendants' denial of Morrison's request for a religious exemption for various Native American spiritual items under the policy, Morrison filed suit pro se against Ronald Angelone, the Director of the Virginia Department of Corrections, Warden Garraghty and Assistant Warden Millard pursuant to 42 U.S.C.A. S 1983, alleging that the GCC policy of limiting the possession of Native American religious articles to inmates of Native American descent violated the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Among other things, Morrison sought injunctive relief from further application of the race-based policy to him.
The district court granted summary judgment to defendants in part, dismissing all claims against Angelone and dismissing the First Amendment claim and the claim for monetary damages against Garraghty and Millard. An evidentiary hearing was then held before a magistrate judge on Morrison's remaining equal protection claim against Garraghty and Millard, after which the magistrate judge recommended that "Defendants be enjoined from prohibiting Morrison from obtaining herbs and other religious items based solely upon his lack of membership in the Native American race." J.A. 264. The district court agreed in large part with the magistrate judge's report and recommendation, ultimately concluding that Morrison had established an equal protection violation and entering a narrow injunction prohibiting defendants "from refusing Morrison a religious exemption from the existing property restrictions, available to other inmates, solely on the basis of his lack of membership in the Native American race." J.A. 300. Taking care to point out that this was not tantamount to ordering defendants to allow Morrison to obtain the requested property, the district court emphasized that it was"simply enjoin[ing] the Defendants from using race as the only factor in their initial determination of whether Morrison is entitled to a religious exemption from the existing personal property restrictions." J.A. 300-01. Defendants Garraghty and Millard now appeal.
II.
The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, S 1. The Clause "does not take from the States all power of classification," Personnel Adm'r of Mass. v. Feeney,
Ordinarily, a state regulation or policy will be presumed to be valid and will be sustained if the classification is rationally related to a legitimate state interest. See City of Cleburne ,
Morrison contends that we must also apply strict scrutiny review to defendants' race-based prison policy. However, it has long been recognized that, within the prison environment, courts grapple with yet another set of special considerations -those dictated by the needs and problems inherent in a penitentiary. The Equal Protection Clause indisputably protects prisoners from arbitrary racial discrimination, see Turner v. Safley,
Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decision making process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration.
Id. at 89 (internal quotation marks omitted). This more deferential standard applies even when the alleged infringed constitutional right would otherwise warrant higher scrutiny, cf. Washington v. Harper,
Accordingly, while a prisoner does not forfeit his constitutional right to equal protection by the fact he has been convicted of a crime and imprisoned, prisoner claims under the equal protection clause, including those based upon a racial classification, must still be analyzed in light of the special security and management concerns in the prison system. See e.g., Jones v. North Carolina Prisoners' Labor Union, Inc.,
In determining whether a prison policy passes constitutional muster, we consider four factors: (1) whether there is a valid, rational connection between the policy and the penological interest; (2) whether an alternative means of exercising the right remains open to prison inmates; (3) the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources; and (4) the absence of ready alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests. See Turner,
III.
At the outset, we address defendants' assertion that because the district court granted summary judgment to them on Morrison's Free Exercise claim brought under the First Amendment, they should necessarily prevail on Morrison's Equal Protection claim brought under the Fourteenth Amendment. We disagree.
The Free Exercise Clause of the First Amendment forbids the adoption of laws designed to suppress religious beliefs or practices. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
Morrison's equal protection claim, in contrast, centers not on whether Morrison's religious exercise rights were violated by defendants' denial of his request. Rather, Morrison's equal protection claim rests upon defendants' decision to condition the mere consideration of his request for Native American religious items upon proof that he is of Native American race, without regard to whether he is sincere in his religious beliefs or whether the requested items pose a security risk for the prison. In other words, Morrison pursues not a constitutional right to obtain the religious items, but a constitutional right to be treated the same as Native American inmates requesting the same religious articles. The district court's injunction recognizes this distinction and narrowly tailors the injunction to the race-based conduct. Defendants are not required to allow Morrison to obtain the religious articles he has requested or which he may request in the future. Rather, the district court only enjoined the defendants from using race as the sole factor in their determination of whether Morrison would be granted an exemption from the personal property restrictions.
Also, Morrison need not prove that he would ultimately receive the items in order to obtain an injunction from further application of the race-based aspect of the policy to him. See Texas v. Lesage,
IV.
We now turn to the question of whether the GCC policy, which conditions consideration of Morrison's receipt of Native American spiritual articles upon proof that he is of Native American race, violates Morrison's right to equal protection of the laws under the United States Constitution. We conclude that it does.
A.
Our first inquiry is whether Morrison is being treated differently from others similarly situated to him; i.e., whether he is being intentionally or purposefully discriminated against on the basis of his race or national origin. If so, we must then determine whether the disparity in treatment based upon Morrison's race is justified by legitimate penological interests. See e.g., City of Cleburne,
1.
We agree with the district court's conclusion that Morrison has demonstrated that, under the GCC policy, he is treated differently from others with whom he is similarly situated and that this unequal treatment is the result of intentional or purposeful discrimination on the basis of his race. The language of the May 14, 1997 policy adopted by the GCC administrators draws a rather explicit racial distinction. GCC inmates seeking an exemption from the personal property restrictions to possess Native American spiritual items must be "bona fide Native Americans," able to document their "heritage." J.A. 179. The requirement is a necessary predicate to further consideration of the request for an exemption; no requests will be considered until the inmate "ha[s] authenticated [his] Native American heritage." J.A. 179.
And, it seems the policy was just so applied in Morrison's case. Morrison was not refused a religious exemption because he failed to meet the requirements applicable to all inmates requesting a religious exemption to the personal property restrictions. Rather, Morrison was denied an exemption, and was told that he was being denied an exemption, because he did not prove Native American heritage. The district court's findings in this regard enjoy overwhelming support in the record. See Pullman-Standard v. Swint,
Documentation of your Indian heritage was requested via memorandum in May but you have not submitted any info to me as of today's date. Your preference does not substitute for valid lineage even if it is noted in your inmate record. I applaud your sincerity but I still need documentation of your heritage.
J.A. 189.
Assuming that Morrison is a sincere practitioner of a Native American Spirituality religion, which in turn calls for similar religious personal property as tribal-based Native American religions, Morrison is similarly situated to Native American inmates who also request an exemption from the personal property restrictions for non-conforming Native American religious items. Because Morrison is not of Native American heritage, however, the GCC policy prohibits equal consideration of his request for a religious exemption. Morrison was denied the right to have his request considered on an equal footing with that of his Native American counterparts, and this differential treatment is the product of intentional and purposeful discrimination based on race.
2.
Defendants assert, in a rather circular fashion, that Morrison was not discriminated against on the basis of his race because DOP 856 is a neutral, legitimate policy designed to serve safety and security concerns and that Morrison's request was denied not because he is a non-Native American but because he failed to prove that he sincerely practices a Native American religion.
We have little doubt that DOP 856, which limits the possession of personal property by prison inmates, is designed to serve legitimate safety and security concerns of the Virginia prison system. But, defendants' argument obviously misses the point. Morrison does not dispute that DOP 856 applies to all inmates equally or that it serves such worthy goals; neither DOP 856, nor the typical procedure employed by prison administrators for evaluating inmate requests for religious items, is challenged in this appeal. Morrison challenges only the GCC prison administrators' policy of conditioning consideration of a request for permission to possess Native American spiritual items upon the inmate's proof of Native American heritage. It is this facially discriminatory policy adopted by the GCC administrators and its application to Morrison's request for Native American religious items in this case, not DOP 856 itself, that is the subject of Morrison's challenge under the Equal Protection Clause.
We are equally unpersuaded by defendants' claim that proof of heritage was merely a "useful tool" to assist the prison administrators to determine, as part of the DOP 856 exemption inquiry, the sincerity of Morrison's religious beliefs. Morrison's request was not denied because he lacked a sincere belief in the tenets of Native American theology, but because he was of the wrong, racial"lineage." J.A. 189. Indeed, the sincerity of Morrison's beliefs in the tenets of Native American spirituality was at least ignored or presumed, if not truly "applaud[ed]" as indicated in the response to Morrison's grievance. J.A. 189. In truth, defendants never evaluated the sincerity of Morrison's beliefs because he failed to satisfy the threshold, racial requirement imposed by the defendants upon such a consideration.
Nor are we persuaded by the similar claim that Morrison's request was not denied because he was of the wrong race, but rather because he failed to satisfy the requirement, imposed upon all, that the inmate specify his claimed religion, what items he needed, and why the items were needed. This assertion rests upon the position that there is no "Native American" religion per se, or Native American beliefs or rituals beyond those controlled by individual Native American tribes. Because only persons of Native American heritage, race, or tribal membership can embrace a Native American theology, so the argument goes, proof of one's tribal membership or possession of a BIA card is merely the means by which to specify or prove one's religion and the sincerity of one's belief in that religion.
Like the district court, we cannot endorse the proposition that an inmate's sincerity of religious beliefs in Native American spirituality can be defined solely by his race or heritage. In determining whether a particular professed faith is a religion, for First Amendment purposes, courts are to consider whether the faith"occupies a place in the lives of its members `parallel to that filled by the orthodox belief in God' in religions more widely accepted in the United States." Dettmer v. Landon,
The district court correctly recognized that defendants had "failed to present any convincing evidence for the broad proposition that race is a prerequisite for a sincere belief in Native American theology." J.A. 290. Native Americans themselves practice a diverse set of beliefs and practices depending upon their individual beliefs and tribal affiliations, but there has been no claim that the tribal-based religions practiced by "bona fide" Native Americans are not recognized religions. While Morrison admittedly does not practice a specific tribe-based Native American religion and does not seek membership into any particular Native American tribe, he does profess to practice a Native American spirituality that combines religious elements from a variety of tribal practices. His beliefs, and religious practices, have no race-based requirement.
In sum, we agree with the district court's conclusion that prison officials cannot measure the sincerity of Morrison's religious belief in Native American Spirituality solely by his racial make-up or the lack of his tribal membership. See Combs v. Corrections Corp. of America,
B.
Having determined that Morrison was subjected to intentional discrimination, we turn to the issue of whether the disparity in treatment based upon Morrison's race was justified by a legitimate penological interest. We conclude that it was not.
Defendants' primary contention is that the district court erred in enjoining them from implementing the policy because the items requested by Morrison and the other HEART members are per se dangerous in the prison environment and, therefore, that the prohibition of these items is rationally related to the legitimate penological interests of prison safety and security. The district court found that the items requested were indeed dangerous in nature. By way of example, sacred herbs have a pungent odor which can mask the smell of burning marijuana; marijuana can be hidden within the sacred herbs making it difficult to detect; security keys can be hidden in medicine pouches; abalone shells, animal claws, and deer hooves can be broken or sharpened and used as a weapon or to facilitate an escape; leather and furry backpacks can harbor vermin and be a health hazard; deer hide can be put over razor wire to facilitate an escape; dream catchers, medicine bags, and furry backpacks can be used to hide contraband and weapons; and feathers can be used to jam locking devices on doors, burned to mask other odors, and fashioned into blow darts. Defendants successfully pointed to some such instances of inmate abuse of religious items and argued that the potential dangers were compounded by the HEART members' refusal to allow security searches of their items; by the limited time, space and staffing available to deal with non-Native American requests to practice rituals with these items; and by the fact that the items are susceptible to being stolen by other inmates who can misuse them. Defendants also asserted a concern that some inmates have pretended to be Native American as a guise to strong-arm and rob inmates and that Native American inmates have been offended by the pretension of Native American status, engendering resentment and the potential for conflict and disruption.
Without question, prison safety and security is a legitimate, indeed compelling, penological interest. Cf. In re Long Term,
As an initial premise, we note that while defendants perhaps could have prohibited inmate possession of the requested items because they threaten prison safety and security, they have chosen not to do so. Instead, defendants have adopted a policy which allows consideration of requests for religious exemptions from the personal property restrictions submitted by Native American inmates for such items, but which unequivocally denies non-Native Americans, such as Morrison, the same consideration solely on the basis of their lack of membership in the Native American race. Consequently, the issue before us is not whether all inmates, or any particular inmate, can be denied possession of these potentially dangerous items based upon safety and security concerns. Rather, the issue before us is whether defendants' race based policy of denying possession of these items is rationally related to the goal of prison safety and security. Like the district court, we are satisfied that it is not.
First, as found by the district court, defendants have failed to demonstrate that the requested spiritual items are any less dangerous in the hands of a Native American inmate, as opposed to a non-Native American inmate who sincerely wishes to practice Native American spirituality. In fact, at least one Native American inmate, who was also a member of HEART, was allowed to possess these dangerous items in the past despite an extensive history of institutional infractions, whereas Morrison was denied the right to possess them despite the fact that he had not previously abused the privilege of doing so. Nor was there any evidence that one group, but not the other, has abused or misused such items in the past.
Second, defendants have failed to substantiate the claim that the policy promotes security because it appeases Native Americans who take offense to white inmates practicing their faith. As found by the district court, there was no evidence that any Native American inmates at GCC objected to the religious practices of HEART members and, on the contrary, the only Native American prisoner who testified stated that Native Americans at GCC encourage white inmates in their spiritual pursuits and are not offended by non-Native Americans who hold a sincere belief in Native American theology. At best, the evidence demonstrated that only a few Native Americans at another institution were offended by white inmates practicing Native American rituals.*
Finally, we appreciate defendants' desire to accommodate the religious requests of Native American inmates who are sincerely practicing their respective tribal religions, despite the dangerous nature of the items requested. And, we recognize that in light of the limited time, space, and staffing available in the prison environment, the GCC policy would serve to limit the total number of dangerous articles and, thereby, render their presence in the prison environment a controllable factor. However, given defendants' failure to substantiate a claim that the sincerity of one's belief in Native American theology is determined by the color of his skin or the origin of his birth, and concomitant failure to articulate a rational connection between an inmate's race and his propensity to misuse the items requested, it is patently impermissible to control the number of dangerous items by instituting a policy which arbitrarily makes race or heritage the threshold requirement for according an individual inmate the privilege of obtaining them.
V.
In conclusion, we hold that the district court has appropriately entered a narrow judgment, enjoining defendants"from refusing Morrison a religious exemption from existing property restrictions solely on the basis of his lack of membership in the Native American race." J.A. 283 (emphasis added); see 18 U.S.C.A.S 3626(a)(1)(A) (West 2000) ("Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs."). Like the district court, we reiterate that defendants are not required by our decision to allow Morrison or any other inmate to possess the requested Native American items. We likewise offer no opinion as to whether Morrison sincerely holds the beliefs he espouses; that is a factual matter left for resolution by the prison administrators in the first instance when exercising their discretion in evaluating such requests. Cf. Thomas,
If the number of inmates possessing a sincere, religious belief in the Native American religious practices and requesting the items at issue becomes so great as to render their presence in the prison environment uncontrollable or infeasible from a security standpoint, a different case may be presented. For present purposes, it is sufficient to hold that defendants' policy of measuring the sincerity of an inmate's belief in a Native American theology by whether he is of Native American blood, and conditioning the receipt of a benefit on that racial basis, runs afoul of the Equal Protection Clause of the Fourteenth Amendment.
VI.
For the foregoing reasons, the decision of the district court is therefore affirmed.
AFFIRMED
Notes:
Notes
We need not consider defendants' assertion that the district court failed to properly consider the district court ruling in Hernandez v. Angelone, No. 97-1329 (E.D. Va. Aug. 14, 1999), which it characterizes as contrary to the district court's decision in this case. The Hernandez decision, and other similar district court cases, see e.g., Mitchell v. Angelone,