*1
Lynchburg College, 535 U.S.
man v.
8, 122
114 &
(2002). noted, ad the construction As contrary operators coal runs
vanced Act to primary purpose
to a of the Coal private-financing the continued
ensure miners. In ef
health benefits retired
fect, overpayment million $25.5 in a Benefit Plans resulted wind
UMWA operators coal some
fall for the shifted paying burden of for benefits under
of the private Act from entities to Medi
the Coal Accordingly, in of clear
care. the absence unambiguous statutory language, and history to legislative definitive
without statute, up the I read the word
clear would ex consistently
“reimbursement” with the purposes of Act and affirm
press the Coal per application
the Commissioner’s
beneficiary premium under section (2) (i).
9704(b) (A)
Leroy LOVELACE, A. Plaintiff-
Appellant, LEE; Lester, Shinault; K.
Jack Gene
Defendants-Appellees.
No. 04-7797. Appeals, States
United Court
Fourth Circuit.
Argued: March
Decided: Dec.
OPINION MICHAEL, Judge: Circuit Leroy an inmate at Keen Lovelace was (Keen Mountain Correctional Center prison), Virginia pris- state Mountain on, in 2002 and 2003. He is a member of In 2002 Keen Moun- the Nation of Islam. to accommodate in- adopted tain Ramadan, seeking to observe mates holy fasting prayer. month of Islamic in the Ramadan ob- participated Lovelace days in program roughly for six servance being removed November before (the “pass partici- from the list” list pants) allegedly breaking for the fast. He consequently special barred from the Rama- participants meals for fast and from congregational prayers dan for the remain- Ramadan, twenty-four der of a total of days. He filed action Warden Lee, Shi- Jack Assistant Warden Gene nault, K. and Correctional Officer Lester (the defendants), alleging violations of the Amendment, the Fourteenth Amend- First ment, Religious and the Land Use (RLUIPA), Act Persons Institutionalized seq. 2000cc et §§ district U.S.C. Victor, Anthony to the granted summary judgment ARGUED: Matthew court L.L.P., Victor, & Helgoe, ap- Charles- on all claims. Lovelace Victor defendants ton, Appellant. for Mark and two of Virginia, summary judgment West peals Davis, Attorney rulings. Ralph procedural Senior Assistant court’s the district General, Attorney General Office of follow, we vacate For the reasons Richmond, Virginia, Appel- Virginia, Les- summary judgment favor Officer Jagdmann, BRIEF: Judith W. lees. ON capacity on the RLUI- ter his individual General, Richmond, Virginia, for Attorney claims, vacate PA free exercise and we Appellees. *8 judgment in favor of Warden summary him in against on the claims asserted Lee WILKINSON, MICHAEL, and Before affirm the re- capacity. his official We MOTZ, Judges. Circuit rulings. court’s mainder of the district part, in part, Affirmed in vacated agrees dissenting colleague Judge Our by published opinion.
remanded may proceed against in that Lovelace’s case opinion, wrote the which MICHAEL pre has “Lovelace joined. Officer Lester because Judge Judge WILKINSON MOTZ fact as to wheth an issue of triable concurring in the sented separate opinion wrote a intentionally officer Lester dissenting part. in er correctional judgment part in liberty,” I. and “RLUI- violated his of action to redress provides PA a cause infringement.” Post at 38. type A. however, with our disagrees, The dissent 22, 2002, September Lee On Warden for further consider-
decision to remand policy RLUIPA and constitu- issued a to accommodate Keen ation of Lovelace’s in against Warden Lee tional claims seeking during inmates to fast Mountain A on these capacity. official remand holy month of Ramadan. Observant claim, claims, especially the RLUIPA Muslims fast between dawn and sunset prison satis- necessary to ensure that the during thirty days of Ramadan. Ac- it has not obligation obligation fies its —an policy, inmates cording to the warden’s justify the Ra- yet attempted to meet—-to approved participate the fast received of reli- policy’s madan broad restrictions (5:00 a.m.) 5:50 special pre-dawn liberty. The dissent nevertheless gious (6:00 post-sunset p.m.) to 7:30 meals two “use Keen Mountain’s charges [ ] we dining fasting reserved for inmates of halls from which platform Dining various Islamic denominations: an assault on state correction initiate Community Hall # 1 for “World of Islam” “approach that our exhib- institutions” and # 2 Dining inmates and Hall for Nation of prison ... of state officials. its distrust” (NOI) Prayer Islam inmates.1 J.A. 27. These statements are a Post at 46-47. were held either before or after services indictment, we trust the dissent harsh but special meal in each reserved breakfast thinking them to be true. will be alone dining participating hall. Because inmates straight come from RLUI- Our directions expected were to adhere to the rules of the PA, Congress enacted because which fasting period by as outlined the World prisons found that some have restricted NOI, Community they could not eat liberty egregious “in and unnec- regular during cafeteria meals offered ways.” Cong. (July Rec. S7775 essary daytime. Lee Warden instructed secu- 2000) (joint of Sen. Hatch statement rity and food service staff to submit Thus, Kennedy). according to and Sen. report any participant incident fast RLUIPA, substantially when a bur- taking tray during daylight seen a meal religion, an inmate’s dens exercise imposing Any must demonstrate hours. inmate who violated the compelling government burden serves a would be removed from the Ramadan ob- by interest and does so the least restrictive list, pass servance which meant that he claim respect means. With to Lovelace’s participating would be barred from in the warden, the thrust of our re- and, extension, by morning prayer fast simply requires mand Keen Mountain to sessions. 2002 the month of Ramadan make that demonstration. We confirm through extended from De- November any explana- emphatically substantive cember 4. must be viewed tion offered Lovelace, an NOI member and NOI liai- deference, notwithstanding the with due Mountain, among approx- son at Keen claim that have abandoned dissent’s we imately seventy deference,” approved NOI inmates pretense post “even the participate the 2002 Ramadan fast. As *9 Community a phrase 1. The "World of Islam” in sects are Sunni and Shi'a. NOI is denomi- policy presumably to the nation in the United States that con- refers worldwide founded community, a form of Islam. Muslim of which the two main siders itself formally no- 12 Assistant Warden liaison, prison staff Shinault had met with he NOI writing that he was discuss the Rama- tified Lovelace began fast before menu al- in Ramadan” propose possible “participation barred from menu and dan suggested the example, previous day. he infraction the For because of his ternatives. juice for Kool-Aid be- of real had been in- Proceeding substitution as he J.A. drink which is “an artificial structed, complaint cause Kool-Aid Lovelace filed teachings of conflict with the in direct Shaw, program super- Mike the treatment offi- faith.” 144. Prison J.A. Islamic] visor, [the on November 12 or 13. Shaw or his At rejected suggestions. these cials on November 13 that colleague responded 11, roughly six on November breakfast will be left to the Chap- “[t]his [matter] fast, and other fast into the Lovelace days lain.” 35. Lovelace filed two addi- J.A. “the milk be- that participants discovered with the warden and complaints, tional one beyond was its served ing [to them] warden, Novem- one with the assistant on 17. As expiration date.” J.A. stamped emphasized Lovelace the com- ber 13. liaison, informed the kitchen Lovelace NOI emergency griev- had in the plaints, as he accept “refusal to about the inmates’ staff ances, being right that denied his he was staff milk.” Id. The breakfast expired Ramadan observance. participate seventy-five seventy to replaced then 14 Lovelace met with On November expired milk with servings of individual suggested that Shinault and Shaw inter- milk. Lovelace describes his fresh to correct they review certain evidence and notes staff as “contentious” action with and reinstate Lester’s misidentification Lester was that Correctional Officer pass list. This Lovelace to the assigned to the kitchen security officer (sur- security cafeteria evidence included Roughly twelve morning. J.A. 181. that veillance) the afternoon of No- tapes from later, spe- Lovelace was refused hours many twenty wit- vember 11 and as that meal. He was informed evening cial willing to attest that who were nesses list pass from the he had been removed housing unit Lovelace had never left because, report an incident according to day. told during lunchtime that Shinault Lester, he had taken by Officer submitted ruling on the com- that Lovelace before tray approximately 12:35 a lunch meet with Lester and he would plaint, (The afternoon, incident November card,” photo- “face him Lovelace’s show record, and Lovelace is not report inmate, every “to kept on file for graph it.) never seen has of [Love- confirm Lester’s identification grievances emergency filed two Lovelace following day, No- J.A. 79. The lace].” following morn- evening and two Lovelace summoned vember Shinault had not received a asserting that he ing, that Lovelace meeting and reiterated entered the tray lunch and had not even in the Rama- ineligible participate on Novem- during fasting hall hours dining report, of Lester’s program because dan of these denied each ber 11. The staff (that is, con- Lester had “verified” which several hours grievances within firmed). Shinault, however, had J.A. 34. (1) did not grievances grounds he had the face card as not shown Lester (imme- “emergency” meet the definition had he reviewed he would. Nor said injury or personal of serious diate risk witnesses, as security tapes or interviewed harm) (2) that Lovelace irreparable urged. Lovelace had further com- any “address instead should grievance on No- filed a formal Lovelace complaint/re- “inmate by using the plaints” Lee re- 2002. Warden vember 20 or On November system. J.A. 37-40. quest” *10 (the summary in a letter dated December 4 Shinault and Lester moved for sponded Ramadan) 10, 2003, judgment September before day that Lovelace’s last process. They Lee was served with at- grievance “unfounded.” J.A. 30. The was tached to their motion an unexecuted affi- warden’s letter stated two officers had davit from In Lester. this affidavit Lester Lester, spoken “posi- who said he was acknowledged for the first time—more tive that that he ob- [Lovelace] was than nine months after the end of Rama- eating a non-Ramadan meal. served” J.A. dan—that he had in- misidentified another I appealed 30. Lovelace this Level re- mate as Lovelace. Lester said that director, sponse regional asserting to the tray inmate who took the lunch on Novem- officials and staff had failed to 11, 2002, ber “resembled another inmate respond timely judicious in a and manner Lovelace, longer named who no was thereby irreparable injury. him and caused institution,” only and that he realized this Regional Larry upheld Director Huffman mistake “after the fact.” In J.A. 60. his Level I mini- Warden Lee’s decision with response challenged Lovelace Lester’s affi- mal comment. Huffman’s Level II re- being “unsigned davit for and unnotarized” 4, 2003, sponse January dated one in summary therefore inadmissible Thus, month after the end of Ramadan. judgment proceedings. J.A. 66-67. In prevented fasting Lovelace was addition, Lovelace submitted evidence to participating congregational in the NOI discredit the affidavit’s contents. This evi- prayers twenty-four of Ramadan’s thir- (1) dence included staff member’s state- ty days, evening from the November ment, search, based on a data that no through evening of December 2002. other inmate named Lovelace had been in in years prior
housed the five (2) 22, 2003, September Lovelace’s B. statement, own penalty per- made under Having exhausted his administrative jury, “deeper that a search revealed no required Litiga- remedies as the Prison other Lovelace ever detained at [the Keen Act, 1997e(a), tion Reform U.S.C. facility.” J.A. 68 n. 1. Lovelace Mountain] Lovelace filed an action in the U.S. Dis- further asserted that Lester’s account of trict Court for the Western District of innocently mistaking identity his was in- Virginia pro on June se credible because Lester was familiar with complaint alleged Lovelace that Warden Lovelace. In particular, participat- Lester Lee, Shinault, (with Assistant Warden and Offi- ed in a shakedown of Lovelace’s cell present) cer Lester violated his First Amendment Lovelace prior about six months 11, 2002; many November Lester on rights, free exercise his Fourteenth occasions monitored the “chow hall line process rights, Amendment due and his ... verbally where [Lovelace had] identi- RLUIPA, statutory rights under roughly fied himself’ from a distance of §§ seq. sought U.S.C. 2000cc et Lovelace feet; two Lester had “numerous instances relief, declaratory injunctive judgment, of incidental interaction with [Lovelace] punitive damages, damages for emotional daily the course of normal move- inmate injuries, ap- distress other and the ment”; and Lester worked for three pointment complaint, of counsel. The months in the control booth Lovelace’s entirety, read its indicates that Love- housing unit. J.A. lace sued Lester in his individual capacity 17, 2003, and sued Lee and Shinault their official On October Lester submitted a second, capacities. and individual affidavit in executed which he still *11 misidentifying judgment. granted The district court Lovelace but admitted changed explanation. say- time, Instead of Lee’s motion enlargement his confused ing that he had Lovelace his summary judgment deemed motion to inmate named Lovelace who was timely filed, another be and denied Lovelace’s mo- prison, no at the Lester claimed longer judgment. tion for default ... mis- that he had made “honest granted The district court summary by confusing Lovelace with “anoth- take[ ]” Lee, Shinault, judgment to and Lester on institution that looked like er inmate at the September 2004. The court concluded 159. Lester acknowl- Lovelace.” J.A. that the entitled to quali- defendants were edged inmates to that several had “come fied immunity on the RLUIPA claim and (as during early Ramadan as No- [him]” that “no constitutional violation occurred 12, 2002, according to Lovelace’s vember to relation the free exercise claim [be- evidence) identification, in- dispute the actions of defendants were neg- cause] had sisting that Lovelace remained his ligent rather than intentional.” J.A. 168. during period the entire lunch housing unit The court did not address Lovelace’s due Id. on November Yet Lester process a timely ap- claim. Lovelace filed again as he had his first affida- alleged, peal assigned subsequently was coun- vit, not realize his until that he did mistake sel. over,” “after when “someone pointed out to Id. inmate Lovelace [him].” II. objected to Lester’s affi- Lovelace second it grounds untimely davit that was on A. from the first. “wholly different” J.A. first We consider Lovelace’s RLUIPA took the district court second affidavit provides claim. Section 3 of RLUIPA that objec-
into
over Lovelace’s
consideration
government
impose
shall
“[n]o
substan-
tion.
tial burden on the
exercise of a
meantime,
Lovelace made several
person residing in or confined to an insti-
to locate
attempts
unsuccessful
and serve
tution ...
if
results
even
the burden
Lee,
no
process
longer
who was
War-
on
general
a rule of
applicability,” unless the
longer
den
Mountain and no
em-
at Keen
that the
government demonstrates
burden
Department
ployed by
Virginia
of Cor-
compelling govern-
“in
is
furtherance of a
ultimately
rections.
Marshals
served
mental
and is “the least
interest”
restric-
February
although
Lee
on
that ...
furthering
tive means of
interest.”
...
... whether
was served
[he]
“unclear
Religious
and Institutionalized
Land Use
directing
response
with a summons
3(a),
2000, §
Persons Act of
U.S.C.
Lee
complaint.”
J.A. 97.
did not re-
2000cc-l(a).
§
“Government”
includes
spond,
again
served him
on
and marshals
any
“State, county, municipali-
official of a
May 4,
not respond
2004. Lee did
within
entity
ty,
governmental
or other
created
May
and on
moved for
time allowed
authority
any
under the
of a State” and
time,
an enlargement of
which Lovelace
person
under color of
“acting
other
State
opposed.
the district
ruled
Before
court
2000ce-5(4)(A).
law.”
Once
motion,
U.S.C.
on
Lee filed a motion for
facie
plaintiff produces prima
“a
evidence
in-
summary judgment
paralleled
a violation”
support
alleging
a claim
corporated by reference Shinault and Les-
RLUIPA,
shall bear the
government
“the
ter’s
motion. Lovelace countered
earlier
any
persuasion
burden of
element
had defaulted and therefore
Lee
claim,
plaintiff
summary
except
shall
standing
lacked
move for
persuasion
expertise
jail
bear the
on whether
ence and
of prison
burden
ad-
ministrators”).
challenged practice or
substan-
[the
law]
*12
tially
plaintiffs
of
burdens
exercise
heightened
RLUIPA’s
protection
2000ec-2(b).
§
religion.”
particu-
Id.
Congress’s recognition
stemmed from
that
lar,
prove
must
that
government
(and
right
of inmates
other institution
the least
question
burden
restrictive
persons)
practice
alized
to
faith
their
is “at
furthering
compelling govern-
means of
mercy
running
of those
the institu
2000cc~l(a).
§
mental interest.
Id.
27,
tion.”
Cong.
(July
146
Rec. S7775
2000) (joint statement of Sen. Hatch and
Congress
crafted RLUIPA
re
Kennedy).
Sen.
Supreme
As the
Court
sponse
Supreme
holding
to
Court decisions
stressed,
subject
has
inmates are
to “a
general applicability
that laws of
that inci degree
[governmental]
of
unparal
control
dentally
religious
burden
conduct do not
society
severely
leled
civilian
disabl
offend the First Amendment. See Madi
Cutter,
ing
private religious
to
exercise.”
(4th
Riter,
310,
son v.
355 F.3d
314
Cir.
720-21,
Smith,
1595).
494 U.S. at
financial
42
§
assistance.
U.S.C.
2000cc-
Congress
just
by passing
that
did
RLUI- 1(b)(1);
Cutter,
see also
broad 42 exercise.” § 2000cc-3(g). Congress, U.S.C. in other argues Lovelace inability his words, provide pro “intended to as much twenty-four observe Ramadan for of its possible prisoners’ tection as religious thirty days specifically, inability — rights” overly encumbering prison without during day-light fast hours and to attend operations. Murphy Dep’t of Corr., v. Mo. congregational NOI prayers and ser (8th Cir.2004); see also imposed a substantial burden on his vices— Wilkinson, 709, 723, 125 Cutter v. religious broadly exercise. RLUIPA de 2113, 161 (2005) L.Ed.2d 1020 (noting “religious fines “any exercise” to include supporting lawmakers RLUIPA “an of religion, exercise whether or not com ticipated apply to, that courts would pelled by, the Act’s system central of reli 2000cc-5(7)(A). standard experi- with due deference to the gious belief.” U.S.C. Ramadan, or ... man precepts [tends the Is- to] Lovelace’s observance conduct”); holy fasting prayer, lamic month San date[] Jose under this “religious as exercise” qualifies Hill, City Morgan v. Christian Coll. Kaspar, Adkins (9th Cir.2004) (“a definition. See signifi F.3d (5th Cir.2004) (holding F.3d 567-68 cantly or onus great upon restriction [reli holy “easily activities day that Sabbath and exercise”); gious] Civil Liberties Ur under ... qualify ‘religious exercise’ v. City Chicago, ban Believers F.3d definition”). generous RLUIPA’s (7th Cir.2003) (“[a 752, 761 burden] direct, necessarily primary, bears and fun We next consider whether *13 responsibility damental for reli rendering substantial. RLUIPA itself burden was gious effectively ... impractica exercise burden,” not “substantial but does define ble”). the Supreme likewise follow We the has defined term the Court guidance in the Free Exercise Court’s in the context of the Free Exercise related that, Clause context conclude Court, and to a According the “sub Clause. RLUIPA a “put[s] purposes, one substantial burden burden” is that sub stantial modify to on pressure religious adherent exercise occurs when a state stantial beliefs,” to his his behavior and violate act government, through or local or omis v. Bd. Ind. Employ Thomas Review sion, pressure substantial on an “put[s] of Div., 707, 718, 101 450 ment Sec. U.S. S.Ct. modify to behavior to adherent and 1425, (1981), 624 or one that 67 L.Ed.2d Thomas, violate at his beliefs.” person a to forces “choose between follow 718, 101 1425.2 S.Ct. religion of her
ing
precepts
the
forfeit
Lovelace’s removal from the Rama
benefits, on the
ing [governmental]
one
pass
Keen
dan observance
list at
Mountain
hand,
abandoning
the precepts
one of
qualifies as a
under
substantial burden
hand,”
... on
other
religion
of her
the
pass
RLUIPA.
from
Once removed
the
Verner,
398, 404,
v.
374
83
Sherbert
U.S.
list,
special
Lovelace was excluded from
(1963).
S.Ct.
4. Our conclusion
Lovelace’s
particular religious practices.”
rights
substantially
were
burdened
each inmate’s
ercise
Again,
analysis .deals with
our
application
policy barred him
Post at
when the
prison
practices
prayers
well
to the
congregational
and
is
established
known
services
"second-guessing
remotely
to a
authorities.
akin
court
this standard with “due deference to
They
the mental interest.
assert simply a “le
experience
expertise
prison
jail
and
gitimate
in removing
interest
inmates from
in establishing necessary
administrators
religious dietary programs
in
where the
regulations
procedures
to maintain mate
prison
flouts
rules reasonably estab
order,
good
security
discipline,
consis-
lished
order to accommodate the pro
tent with consideration of costs and limited gram.”
They
J.A. 57.
do not elaborate
resources.”
Id. at
The dissent repeatedly that we clude that the asserted interest compel ignore our own ... give] “exhortation[ ] [to ling as a matter of law. due experience deference and exper- jail tise of administrators.” The dissent contends we “fail[ ] (Quotation Post at 211. marks and cita- recognize compelling governmental [the] omitted); also, e.g., tions see post at 211 interest^]” here. Post at 211. Specifical (labeling majority’s position “major- as the ly, we are failing faulted for to appreciate ity’s approach” no-deferenee or the “ma- matters such as “the number of inmates view”). jority’s no-deference our While Keen Mountain administrators su approach suggest does that a court should pervise, budgetary they restrictions stamp not rubber or mechanically accept *16 under, labor the staffing problems they judgments prison administrators, the encounter,” post at or what they risks see Washington, Shimer v. in controlling face prison dining the rooms (7th Cir.1996), our approach under- releasing and inmates from their cells be scores that judgments those must never- fore dawn and after dark. We discuss theless through be viewed the lens of due none of these matters because none of Here, job deference. the first is to require them are by prison advanced the in the Keen Mountain to take the unremarkable policy justifications or elsewhere as for the step of providing explanation an for the policy’s religious burdens on exercise. policy’s restrictions that takes into account short, the dissent’s assertion that the Ra any institutional good need to maintain policy madan safety was “enacted with order, security, discipline or to control security center,” considerations front and explanation, comes, costs. That when it post at is by any not verified state will be afforded due deference. placed ment into summary the judgment The defendants have not ade by record a Keen Mountain official. This quately demonstrated on this record that shortcoming distinguishes this case from the Ramadan is Banks, the least U.S. -, restrictive Beard v.
means of furthering
compelling govern
(2006)
a
delves into why as
up with own reasons in- necessary to are policy’s restrictions purports as Lovelace Insofar could, If a security. court safety sure in their official to sue Lee and Shinault it, explana- would have offer as dissent issuing text for whose capacities own, be prisons then would RLUIPA, only tions its ais claim there violates responsibilities Lee, of their effectively relieved As not against Lee. It Warden funda- Shinault, under Or what more RLUIPA. who issued the sistant Warden mental, court-generated explanations challenged policy as official the Com in- severely just against Congress’s cut For reasons dis would monwealth. greater pro- cussed, summary judg provide tent to inmates with survives Lovelace official-capacity exercise. tections in the area of ment on the merits claim, against Lee. On this Lovelace
claim
declaratory
injunctive
relief
seeks
damages. Damages are not
money
aswell
potential
all
cul-
insists that
dissent
in anoth
recoverable on
claim because
inability to
today,
Lovelace’s total
court
pability
opinion
filed
our
holds
er
any
immunity
communal reli-
participate in
form of
Amendment
a state’s Eleventh
during
damages
Ramadan lies
is not waived
gious observance
from suit for
But
did
Lester alone.
Lester
Madison v. Commonwealth
with Officer
RLUIPA.
06-6266,
services,
Va.,
nor did
No.
2006 WL
regular
NOI
cancel
(4th Cir.2006)(Madison II). The
observing the
he
that inmates not
decide
Lee
claim
will nev-
official-capacity
participate
be not able to
fast would
*19
is,
non-monetary
833, 848-49,
proceed
ertheless
because
(1998).
qualified immunity
Adoption
relief
and
is
B. officials; liability for negligently inflicted categorically harm is beneath the thresh- old” of protections. constitutional Id. at Having addressed Lovelace’s terrain, S.Ct. 1708. In such claim that as violates issued very step long would be to sanction RLUIPA, we now consider claim that negligence suits under RLUIPA. As we applied the defendants viola Lester, observed Pink v. tion of RLUIPA. Lovelace asserts this (4th Cir.1995), a process due and First claim the defendants in their indi contrary Amendment case: in- “Absent vidual capacities, not as of officials Congress, struction from arewe reluctant above, Commonwealth. As noted RLUI already steady to increase the stream of PA liability only exists when a defendant litigation produced in prison] setting [the (1) statutory fits “govern- definition of by sanctioning negligence suits serve (which ment” includes state officials and expression no constitutional ends.” This law) those acting under color of and state applies equal reluctance with force to (2) imposes a “substantial on an burden” because, RLUIPA cases inmate’s religious compel- exercise without “[ljawmakers explained, Court supporting justification. ling meet defendants were urgency mindful of the “government,” they definition order, discipline, safety, security arguably imposed a substantial burden Cutter, penal institutions.” 544 U.S. at justification without compelling they when Congress intended barred Lovelace from Ramadan observ- applied for RLUIPA to be “in an appropri- exercise, ance and other as indi- ately way,” balanced with “due deference To cated earlier. hold lia- the defendants experience to the expertise individuals, ble as Lovelace must further (internal jail quo- administrators.” Id. prove they requisite acted with the omitted). tation marks Although intent. RLUIPA itself contains Allowing negligence proceed standard, no state-of-mind suits un- require- a fault der ment RLUIPA would undermine this defer- Congress’s purpose consistent by exposing ence must officials to an incorporated customary be from tort course, unduly high judicial scrutiny. level of principles. spectrum Of tort law’s of fault ranges negligence to inten- Turning from high the low end to the tionality. culpability spectrum, end of the we con-
We that simple negligence, conclude clude that RLUIPA at reaches least inten- “lowest customary common denominator of tional conduct because that is what tort liability,” does suffice to meet the Exercise Free Clause reaches. See Em- fault requirement Smith, under ployment section 3 of Div. v. 494 U.S. at County 1595; Winston, RLUIPA. Sacramento Lew- 110 S.Ct. Shaheed v. *20 (ED.Va.1996). an inmate As we fied who resembled another F.Supp. Keen Mountain inmate named Lovelace. earlier, to passed RLUIPA Congress said Lovelace, response, in a verified asserted pro- persons greater give institutionalized that a data search revealed that no other exercise than what the tection inmate had named Lovelace ever been the Consti- affords. Because Constitution facility. housed at the Lester then sub on free intentional burdens prohibits tution affidavit, changing mitted his second minimum, exercise, must, aat RLUIPA that he explanation simply to state had Here, as well. prohibit these burdens Lovelace another inmate. confused with alleges con- that the defendants’ Lovelace George’s County, Vathekan Prince need Cf. intentional. therefore duct was We Cir.1998) (4th (noting today whether RLUIPA reach- decide sworn contradiction between witness’s to Free Exercise Clause beyond es ques and unsworn statements “creates conduct, deliberate indif- prohibit such as credibility”). tion about his ference, but is less than intentional out, As it turns Lester was familiar with negligent. than more he what Lovelace when made he claimed by misidentifying was an honest mistake him. had Lester searched Lovelace’s cell presents enough evi Lovelace presence approximately in Lovelace’s six to Les culpability survive Officer dence prior to Ramadan incident on months judgment on the summary motion for ter’s he mon- November had often claim. The evidence raises hall line itored the chow where Lovelace in genuine question Lester acted whether required identify himself close was in of his tentionally depriving Lovelace addition, range. Lester had worked rights. free exercise housing booth in Lovelace’s the control on was correctional officer Lester unit, and two had interac- had routine con- during Lovelace’s contentious duty many if Lester tion occasions. Even with kitchen over the ex- frontation staff had been with Lovelace unfamiliar pired morning milk on the of November had uncer- time of the incident and been day, Lester 2002. Later that submit- identification, could sim- tain about the he identifying report wrongly ted an incident inmate’s suspect have I.D. ply checked receiving tray. as a lunch As Lovelace carry I.D. card the cafeteria. Inmates next away dwindled over the (accord- times, with them at all cards weeks, repeatedly Lester insisted several Lovelace) procedure “standard ing had take a lunch that he seen Lovelace of an security personnel demand tray questioned when Assistant Warden I.D. in order to retrieve inmate his card officers, Shinault, He and inmates. fellow prior I.D. name and number the inmate’s wavered, once even when faced never report.” J.A. 79. an incident writing might from that he other inmates evidence questioned by fellow officers When incident, he It not until faced days following have erred. inmates in the September more than nine easily lawsuit have checked Love- Lester could Ramadan, evidence, months after the end of card on file or other lace’s face finally videotapes He sub- the af- admitted his error. as cafeteria Lester such unexecuted) (the Instead, Lester two affidavits first ternoon of November mitted possibility in- to entertain the giving “refused even September October mistakenly another He that he had identified for his error. explanations consistent inmate Lovelace.” J.A. 147. identi- mistakenly first claimed that he had *21 officers, evidence inten- proffered inquiries This indicates of two who had earli- conduct, surely tional sufficient to which a questioned er Lester result of Love- A reason- establish fault under RLUIPA. lace’s insistence that Lester had erred. could that Lester able fact-finder conclude Lester assured these officers that he was intentionally, perhaps acted mali- even “positive” he had seen Lovelace eat a non- misidentifying in ciously, in Lovelace and Ramadan meal. J.A. 30. failing during to correct his error the re- Shinault’s While and Lee’s efforts to
mainder
of Ramadan
We therefore
accuracy ultimately proved
ensure
inade-
hold
is not
to sum-
that Lester
entitled
quate
misidentification went uncor-
—the
mary
on the
judgment
merits
they
for
suggest only
rected
months —
claim.
negligence, not
conduct
intentional
with
contrast,
Lovelace’s evidence
respect
Lovelace’s
exercise
does not
that As
support
determination
is,
rights. That
their decision to trust
sistant
Shinault and
Lee
Warden
Warden
Lester’s
confirmation reflects
most a
requisite
culpabil
acted
degree
with the
respect
failure
take due
with
care
ity
in
to be
liable
their individual
held
that
risk
Lester was mistaken or de-
capacities under RLUIPA. Shinault and
ceptive. Summary judgment
in favor of
Lee at
not
negligently by
most acted
rein
and
capac-
Shinault
Lee
their individual
stating
pass
Lovelace
the Ramadan
list.
on
proper
ities was thus
the RLUIPA
Shinault met with Lovelace on November
claim.
14,
grievances,
listened to his
and later
day
that
or
next
confirmed with Lester
C.
that he had indeed seen Lovelace retrieve
question
remains whether
the lunch tray
Although
on November 11.
Officer Lester
is entitled to summary
promised
Shinault had
Lovelace that he
judgment
qualified immunity grounds.
on
would
a face card to confirm
show Lester
Qualified immunity is an affirmative de
identification,
Shinault’s failure to do
public
perform
fense
shields
officers
so
prove
deprive
does not
intent to
Love
ing discretionary
“liability
from
duties
lace of
rights.
exercise
It
damages
civil
insofar as their conduct does
simply reveals that Shinault was satisfied
clearly
not violate
statutory
established
identification
Lester
Lester’s
after
rights
constitutional
which reasonable
“again confirmed” that he
“seen
had
person would have known.”
eating a
Harlow v.
meal.”
[Lovelace]
[lunchtime]
800, 818,
34,
Lee,
turn,
Fitzgerald, 457
J.A.
U.S.
102
reviewed the
(1982).7
2727,
Here,
73 L.Ed.2d
griev
documents attached to Lovelace’s
396
granted
ance. He concluded that
district court
grievance
erroneously
Lester
based on
qualified immunity
“unfounded”
this review and
premise
on the
(and
2006) (same),
Goord,
open)
7. Lester has not raised
we leave
v.
No.
Orafan
OOCV2022,
21972735,
damages
the issue of whether RLUIPA allows
2003 WL
at *9
(N.D.N.Y.
11, 2003) (same)
Aug.
state
local
their
officials sued in
with Gooden
Crain,
split
("RLUIPA
capacities.
individual
District
are
F.Supp.2d
courts
v.
405
723
Moore,
question. Compare
on this
contemplate recovering
Shidler v.
damages
does
(N.D.Ind.2006)
individuals!.]”),
Neet,
F.Supp.2d
409
1071
Boles v.
(recognizing
(D.Colo.2005) (same),
F.Supp.2d
RLUIPA claims for individual
money
damages),
Verhagen,
v.
Haley,
F.Supp.2d
Charles
v.
Smith
(W.D.Wis.2002) (same),
F.Supp.2d
(M.D.Ala.2005)
(expressing
doubt as to
Ferrero,
11:03-CV-02481-RWI,
Daker v.
No.
whether RLUIPA authorizes individual dam-
Feb.13,
(N.D.Ga.
ages).
2006 WL
at *8
uncertainty
by relying
RLUIPA’s
barrier
on its
Spending
there was
about
constitutionality
alleged
powers,
at the time of the
rather
Commerce Clause
than
powers
its
section
violation.
remedial
under
5 of the
as it
Fourteenth Amendment
had
two-step analysis
apply
We
Madison,
RFRA.”
Riter,
(W.D.Va.
566,
F.Supp.2d
240
582
Anderson,
640,
sense.”
483
at
107
2003), rev’d,
(4th Cir.2003).
199
A.
its most
and RLUIPA
ercise Clause
form,
“clearly
has a
prisoner
elemental
Lovelace
contends
...
a diet
right to
consistent
established
rights
Ramadan
violated his
scruples,” including
...
under the Free Exercise
“Prison
Clause.
v.
during Ramadan. Ford
food
proper
do
form a
separating
walls
barrier
(2d Cir.2003);
McGinnis,
582, 597
protections
prison inmates from the
McEachin,
F.3d at
&
also
203-04
see
Turner v. Safley,
Constitution.”
482 U.S.
cases).
(collecting
A
official 78, 84,
n. 7
mental constitutional
prison
A
Lovelace
ing
right
...
open
remain
objec
an
“fail[s] meet
inmates,”
inquiry
broadly
asks
tively
required
reasonable standard” as
whether
deprived
inmates were
of all
under Turner.
J.A. 21. Lovelace chal
forms of
they
exercise or whether
lenges
policy’s
provi
broad removal
were able to
participate
other observ-
sion, which reads: “Inmates who are ob
(3)
faith;
ances of
impact
their
what
served at other meals will be removed
desired accommodation would have on se-
from participation.” J.A. 27. He focuses
staff, inmates,
curity
and the allocation of
on the restrictions on
exercise
resources;
(4)
whether there
that flow from removal from the Ramadan
“obvious,
any
exist
easy alternatives” to
program. These
imposed
restrictions
the challenged regulation
action,
which
substantial burden on Lovelace’s right to may suggest
reasonable,
is “not
but
practice
religion,
as we have made
an exaggerated response
[instead]
H.A.I.,
clear in part
supra.
See also
Turner,
prison concerns.”
201
(“Just
‘deprivation’
id. at
sug
see
76
denial,
an
gests
‘abridge
intentional
an
the defendants’ state
next consider
We
ment’ connotes a conscious act [rather
Lovelace
removing
mind
of
one].”).
merely negligent
than a
Both
him.
failing
and in
to reinstate
pass list
Pink and
arose
con
Daniels
rightly concluded that
The district court
text, and
in Pink
we stressed
that absent
un
only intentional conduct
actionable
Congress,
be
directive from
courts should
the Free Exercise Clause. To
der
wary
interfering
with the
operations
end,
noted
42
the district court first
that
penal
by
state
institutions
“sanction
for
the basis
Lovelace’s
U.S.C.
ing^
negligence suits that serve no
1983]
claim,
not include
First Amendment
does
impose
constitutional ends” but
substantial
requirement.
independent
state-of-mind
(including unduly inhibiting
social costs
Daniels,
329-30,
474
106 S.Ct.
See
U.S.
by
in their
in
government officials
duties
require
state-of-mind
662. Section 1983’s
creasing
liability).
of monetary
their fears
by
underly
is instead controlled
ment
Pink,
Anderson,
(citing
at 77
483
F.3d
allegedly infringed.
ing
right
constitutional
3034).
638, 107
U.S.
S.Ct.
330, 106
id. at
S.Ct.
See
In Daniels the
Court held
The district court extended the
impli-
act does not
negligent
an official’s
analysis
Pink
in Daniels and
to Lovelace’s
Due
Id. at
cate the
Process Clause.
claim,
First
free
rea
Amendment
exercise
Pink,
662;
defendants’
from
and the
if
of alterna
(3)
gence
procedures;
and not from intentional action.”
tive
additional
interest,
state’s
correctly
including
the function in
J.A.
The court
assessed the
(in
volved and the fiscal and administrative
against
evidence
Shinault and Lee
their
safeguards.
burdens of added
(citing
Id.
capacities),
individual
but it underestimat-
319, 335,
v.
Eldridge,
Mathews
U.S.
strength
against
ed the
of the evidence
(1976)).
S.Ct.
47 L.Ed.2d
facts,
This
light
taken in
Lester. The
most
encompasses
third factor
Lovelace,
the state’s inter
genuine
favorable to
raise a
dis-
prison management,
est in
particularly in
pute
intentionally in
whether Lester acted
allocating scarce resources and in main
depriving Lovelace of his free exercise
order,
taining
security,
discipline.
See
reason,
rights.
summary
this
judg-
For
2396-97,
2384;
id. at
125 S.Ct.
see also
ment
in favor of Lester on the First
McDonnell,
539, 556,
v.
418 U.S.
Amendment claim was error.
Wolff
(1974)
2963, 41
(recog
S.Ct.
L.Ed.2d 935
sum,
summary
we vacate the
judg-
nizing that there must be “mutual accom
ment in
favor of Lester
his individual
modation” between institutional needs and
capacity and
favor of Lee
his official
protections).
inmates’ constitutional
Addi
capacity on the free exercise claim.10
tionally,
§
liability
establish
under
Lovelace must show that
the defendants
B.
acted intentionally
depriving
him of his
challenges
Lovelace also
protected
protec
interest. Because the
procedural
on
due
tions of the Due Process Clause are not
process grounds. To
succeed
this
triggered by the “mere
failure
take
claim, Lovelace must show that: he was
care,” negligent
reasonable
deprivations
a liberty
protected by
denied
interest
Pink,
are not actionable under
Clause,
Due Process
an interest
that can
75;
Daniels,
F.3d at
see also
arise either from the Constitution itself or
330-31,
125 S.Ct.
2396.
TV.
this court
The dissent would have
con-
process
Lovelace’s due
sider
dismiss
Finally,
challenges
Lovelace
two of the
in his
against
official
claim
the warden
procedural
district
rulings.
court’s
Love-
even
the district court did
capacity,
though
argues
lace first
that
the district court
Lovelace’s
pro-
not address
claim.
due
in granting
enlarge-
erred
Lee’s
motion
fail,
might ultimately
cess claim
but for ment of
respond
complaint,
time to
to the
that
now we should be “mindful
we are
6(b), and in denying
Fed.R.Civ.P.
his own
Cutter,
review,
court of
not of first view.”
Lee,
judgment against
motion for a default
at 718 n.
Sever-
55(b).
Fed.R.Civ.P.
Lee stated in his mo-
rejec-
al considerations counsel
our
that
tion
he and counsel “had some diffi-
this claim
the benefit of
tion of
without
culty establishing contact with each other”
court consideration.
second
district
that
delay
“further
occurred” when he
factor instructs a
Eldridge
Mathews
tried to
when he
counsel
determine
of an
court to consider “the risk
erroneous
process.
was
103. Lee
served
J.A.
procedures
...
deprivation
through the
28, 2004,
May
filed
four
this motion
value,
used,
if
probable
any,
and the
days
response
after his
to Lovelace’s com-
procedural
additional
substitute
safe-
Finding
plaint
“ha[d]
was due.
that Lee
guards.”
U.S. at
S.Ct. 893.
good
his
file a
shown
cause for
failure to
Here,
when Lovelace filed
unsuccessful
timely
complaint,” the dis-
response to the
complaints, prison
grievances
officials
granted
trict
Lee’s motion for en-
court
inquiry
determining
limited their
largement of time and denied Lovelace’s
standing
Lester
behind his
Officer
was
judgment.
motion for a default
J.A.
that he
Lovelace
report
had seen
break
suggests
the fast.
dissent
court
A district
has discretion
Lovelace, however,
inquiry was sufficient.
mo
grant
enlargement
“upon
time
urged prison officials to take additional
expiration
speci
tion
after the
made
steps
among
things,
at the time:
other
he
to act
period
fied
... where
failure
requested officials to view
cafeteria
neglect.”
excusable
Fed.
result of
period
lunch
tapes for the
surveillance
6(b).
find no
of discre
R.Civ.P.
We
abuse
and to
card
question
show Lovelace’s face
had a reason
tion here. The district court
to Officer Lester
an effort
determine
(or
finding good
excus
able basis for
cause
correctly
whether Lester had
identified
neglect)
delay, given
able
for Lee’s
steps
These
were not tak-
him.
additional
difficulty establishing
had
contact with
en,
Lee
and the
has not discussed their
*28
value,
value,
counsel and filed a motion for an extension
probable
or lack of
to the
days
respon-
within four
after his
officials
provided
time
have
them with
separate
was due.
meals at nonstandard
pleading
sive
times.
Somehow,
majority
finds that even
challenges
also
the dis
Lovelace
may
enough.
this
not have been
To make
trict
to consider
court’s decision
Lester’s
worse, it
enlight-
matters
finds that
second,
grounds
affidavit on
that
executed
ened
which fortunately ex-
—one
“untimely
...
in
the affidavit was
[and]
religious
ceeds the level of
accommodation
face.” J.A. 190. Lee
credible on its
sub
routinely
in
provided
prisons
other
—is
affidavit on
mitted his executed
October
questionable
only
under RLUIPA but
roughly five weeks after he sub
grounds.
on two different constitutional
summary judgment
for
mitted his motion
result,
majority
With this
has turned
first,
along with his
unexecuted affidavit.
high congressional
command of reli
A
has discretion to
an
accept
district court
gious accommodation into an administra
untimely affidavit. See Fed.R.Civ.P.
6(b),
nightmare
penal
tive
for state
institutions
6(d).
puzzling
While it is
that Lester did
and district courts alike. Disregarding the
any
not offer
explanation
his five-week
historically
deference
accorded
ad
delay,
say
we cannot
that the district court
ministrators, see,
Banks,
e.g.,Beard v.
in considering
abused its discretion
U.S. -,
126 S.Ct.
that of state prisons. WILKINSON, Judge, Circuit I am the first to agree plaintiff concurring judgment part may Lovelace’s liberties have dissenting part: impermissibly been infringed. But Religious Land Use and Institution- infringement occurred as a result of the alized Persons Act of possibly U.S.C. errant and malicious actions of a (2000), expression 2000ce et is an seq. prison guard. The majority rightly holds our nation’s commitment to presented free- that Lovelace has an issue of dom. precisely This case involves triable fact as to offi- whether correctional type intentionally RLUIPA seeks fos- cer Lester violated his reli- ter: because observing gious liberty, Muslim inmates provides that RLUIPA hours, during daylight Ramadan must fast type cause of action to redress this *29 short, mountain out of a molehill but also Lovelace should rein- infringement. adage good to his forces the that no and will the chance vindicate old deed have liberty goes unpunished. the right religious majority’s federal court. Under to view, the progressive enlight- most majority cannot content. But the rest prison a policy imaginable, policy ened that side, to the protestations Its endless every religion every way, accommodates only appro- idea this case need await that by would be a question single called into prison’s to the Ramadan priate deference policy Forcing prison violation. officials to completely policy on remand overlooks pay progressive steps for their own to never policy fact that has once been protect religious liberty runs counter majority’s as- question. drawn into precise statutory and constitutional benign remand surances about its little provisions majority purports that thus the issue. Moun- presuppose Keen I enforce. therefore concur the judg- not at here prison policy tain’s is issue remanding ment the case for further pro- accommodate, not to because it seeks to Lester, ceedings defendant I but burden, religious policy freedom. The is respectfully majority’s dissent from the keyed it not because is to what the issue RLUIPA, exercise, process and due free may us a policy Court has told as to the it- policy determinations a rightly keyed sincerity to: be self. belief, religious rather than its truth. The policy not at issue because it cannot be is I. in- alleged
said have caused Lovelace’s jury indeed, injury by that an caused — A. alleged Finally, pris- violation. policy govern- that provides “[n]o safety on makes clear on its face the ment shall a impose substantial burden on that security concerns somehow elude religious person residing exercise of a only that majority underlie the institution,” in or confined to an unless the on the placed policy’s sole limitation ac- government demonstrates that the burden commodation of inmates who are released is the “least restrictive means” of further- participate from their cells to in Ramadan: ing “compelling governmental a interest.” they sincere. be 2000ec-l(a). § U.S.C. as- majority’s Thus the remand must be serts removal from the “Lovelace’s seen it is: an precisely what invitation pass Ramadan observance list Keen judicial finetune qualifies Mountain aas substantial burden perch. prison policy may a well be While Maj. Op. under RLUIPA.” at 187. To called question imposes into where a appellant’s the extent that the removal was freedom, religious on substantial burden reported predicated on false information a case. It plaintiff is not such Lester, there correctional officer indeed prove must stat- Lovelace who under the genuine a of fact as to exists issue whether policy, opposed ute that the to Lester’s imposed as an Lester individual substan- it, imposed somehow violation of a substan- RLUIPA. See tial burden in violation exercise, tial upon burden 2000cc-5(4). 42 U.S.C. begun he to do has not even so. To en- large But the further. involving essentially majority goes a case indi- It as- upon poli- vidual act into a wholesale attack serts Keen Mountain’s no policy, cy may imposed sound on than itself have substantial fewer grounds, only plaintiffs three different makes a burden exercise. *30 206 Lyons, 461 may City Angeles have done so Los v. exactly policy this
How
of
(1983).
majority utterly
ne-
something that the
675
is
103 S.Ct.
75 L.Ed.2d
Missing
step,
is a crucial
explain.
to
glects
case, majority
any
upon
In
the
has taken
of how the substantial
the determination
plaintiff
to create a claim for the
itself
by Lovelace arose from
burden suffered
favor,
it in
all the while
then to decide
his
prison policy
the
itself.
of
precisely articulating
never
the nature
that,
by
majority
the
is all the
claim. All that is clear
accord-
This failure
the
is
Lovelace,
it is
majority,
more evident because
of a
ing
flagrant
to the
abuse
Corrections, that bears
Department of
prison policy by one individual somehow
proving a substantial bur-
the burden of
impugns
policy
itself.
2000ce-2(b).
42
The
den. See
U.S.C.
majority
The
defines a “substantial bur-
just fail to meet this
appellant here did not
‘put[s]
pres-
den” as “one that
substantial
burden;
alleged
ever
it is unclear that he
modify
sure on an adherent to
his behavior
created a substantial bur-
policy
” Maj.
atOp.
and to violate his beliefs.’
And, indeed, in
place.
den
the first
(quoting
187
Thomas v. Review Bd.
Ind.
sense, I am not even convinced that
strict
Div.,
707, 718,
Employment Sec.
standing
equitable
Lovelace has
to seek
(1981)).1
L.Ed.2d 624
It
S.Ct.
injury
to the
relief. His
is traceable not
impossible
imagine
to
how
Keen
policy
prison guard
to a
who acted
is
but
See, e.g.,
it.
derogation
policy
anything
total
Allen
Mountain Ramadan
does
737, 751,
Wright, 468 U.S.
S.Ct.
occupies
of the
kind. The
fast
(1984);
E. Ky.
L.Ed.2d 556
Simon v.
special place as one of the central tenets of
26, 41,
Org., 426 U.S.
Rights
holy
Muslim
Islam. Prescribed
Welfare
(1976) (Article
accommodation.
*31
spects
importance
the
of the Ramadan fast
B.
of
tenet[s]
as one of the “essential
Islam.”
See J.A. 30. Over a month before Rama-
only
Not
is
policy
the Keen Mountain
begin,
dan was scheduled to
the warden
clearly
religious
accommodation rather
informing prisoners
a memorandum
issued
burden,
than a
it
keyed precisely
but
is
to
describing
of
of the dates
Ramadan
what
Supreme
the
Court has said such
special arrangements
that would be
policies may take into account: the sinceri
wishing
participate
made for
to
“[i]nmates
ty
religious request.
of an inmate’s
in
had
this event.”
J.A.
Prisoners
policy
Keen Mountain
accommodates Ra
request
by
over three weeks to
inclusion
only
madan observance
for those inmates
notifying
Chaplain,
“place
who would
actually
who
observe the Ramadan fast.
names on Master Pass List to be
[their]
sincerity requirement
way
Such a
is in no
by Security
utilized
and Food Service.”
religious
a substantial burden on
exercise.
fast,
Id.
the month of the
Muslim
During
contrary,
inquiry
To the
it is the threshold
to
prisoners
permitted
were
leave their
any religious
of
claim.
accommodation
congregate
special
cells to
for
meals “be-
Supreme
in
long recognized
Court has
fore sunrise and after sunset.”
Id. To the free
context that
exercise
“while the
religiously required eat-
accommodate this
‘truth’ of a
not open
question,
belief is
to
schedule,
ing
prison opened
dining
two
significant question
there remains
belonging
halls—one for inmates
to the
‘truly
whether
is
held.’ This is the
(NOI)
Nation of
and another for
Islam
question
sincerity
threshold
of
which must
belonging to the
inmates
World Communi-
every
be resolved
case.” United States
non-
ty
group
of Islam —for
meals
163, 185,
Seeger,
85 S.Ct.
pm.
standard hours of 5:00 am and 6:00
added);
(1965)(emphasis
How this
could
a “substan-
Cutter,
at 725 n.
authentic.”
upon religious
tial burden”
exercise is
... can
itself,
Even that a so it is not in its readiness to accommodating exercise as find fault ma- that the burden, impose could lack jority’s apparent. this one a substantial of deference is One plaintiffs poli- claim in vain for any appreciation still fails because looks narrowly cy compelling tailored to a of inmates number Keen Mountain government supervise, budgetary interest. See U.S.C. administrators 2000cc-l(a). give they under, staffing does restrictions labor encounter, prisoners right problems they an unfettered or what other Rather, accommodation. the statute man- religious practices they may required be experience dates “due deference to the One accommodate. needs no remand to jail expertise administra- understand these in a prison facts life Cutter, Somehow, tors.” setting. majority’s theo- And, adopts compel- judicial universe, while the Act retical considerations standard, ling governmental “con- insignifi- interest such as these have into melted They text matters of that application significant cance. are highly (internal quotation however, Id. marks prison administrators, standard.” because *34 omitted). they practical are the and often intractable daily with
difficulties
which officials must
A.
majority’s unwillingness
deal. The
to dis-
ameliorative,
particular,
cuss the
fea-
often
with,
begin
majority’s approach
To
the
tures of Keen
is com-
Mountain’s
deference,
Al
exhibits not
but distrust.
pounded
equally
its
adamant refusal
though due
is nowhere more
deference
acknowledge
even to
constraints
than in
appropriate
the context of
state
setting in
the policy
imple-
which
must be
order,
prison program that
safe
implicates
Cutter,
723,
Compare
mented.
544
at
U.S.
Madison,
ty,
security,
at
and
see
355 F.3d
(“[CJontext
211
“context,”
prison
Maj.
atOp.
majority’s
tain’s
189
The
no-deference
today
view
Cutter,
723,
also conflicts with our
(quoting
precedent.
U.S. at
and where
Virginia’s allegations
“RLUIPA’s
experience
“due deference to the
and ex-
compelling interest
test will bind [the
pertise
jail
prison
administrators”
“hamstring
Commonwealth’s] hands” and
Cutter,
given,
(quoting
must be
id.
ability
of the Commonwealth’s correc-
2113).
Compare
U.S.
tional officials to ensure order
safety
(“The
Beard,
judgment for that of officials.” Id. order, good institutional need to maintain “just at 370. This what the security, discipline and or to control costs.” Court Congress and have against.” warned Maj. Op. at 191. But a number of those omitted). (original emphasis Id. The ma “institutional are clear from the need[s]” jority today makes the same mistake: face of the policy: policy en- invites lower courts to substitute their own safety security acted with and consider- judgment for that of officials. ations front and center. See J.A. 188. fails to com the inmate with, programs” for or- where policy provided begin
To rules, J.A. evinces ply program with of after-hours meals. derly administration security other interests —name for these and expected, Inmates were J.A. See order, func discipline, and the effective ly, for and on time prompt to be example, are Mountain. Nowhere tioning of Keen were not to be participants meals—late than in the compelling in- more safety security and such interests admitted. Id. prisoners from their after-hours release of policy just in are as inherent terests Brown-El, F.3d at 69 Ra- See Indeed, of the cells. purpose evident. (“[Pjrison night and staff is reduced provide was to Pass List madan Master dark.”). (in- escape risks increase after inmates participating the names released from their would be mates who I that administrative conven- recognize activities dur- group in participate cells to normally a rational or ience is seen as hours) security ing nonstandard interest, compelling not a one. legitimate Inmates were “out- staff. Id. food service however, how these imagine, It is hard to Id. The every after meal. counted” interests, when ad- administrative general and sched- that meal times provided also setting, could be other in the vanced Security be “altered” ules could sufficiently the more than intertwined with in “to meet the needs Supervisor order security so safety in serious interests Fi- Id. of the institution.” operation compelling. As the as to render them charged security staff were nally, prison Cutter, it is recognized Supreme Court at other inmates observed reporting prison’s simply impossible to divorce Opera- to the Assistant Warden meals security safety compelling interests tions. Id. internal administration and order. Cutter, short, main- 544 U.S. at need to See the “institutional order, security, discipline” good tain inmates and their out- by keeping track of large releases a The Ramadan not be more evident. of-cell activities could from their cells at non- number of inmates compelling inter- Maj. Op. at 15.
See pray- meals and group standard hours for majority purports to demand that the est might hope good for de- er. While one the four corners plainly contained within released, it of those portment part on the very policy question. it calls into animosi- guaranteed. cannot be Personal Indeed, compelling inter- Keen Mountain’s may exist and ties and rivalries security, and cost control safety, ests gatherings. Some spill over into these majority. The insti- escape no one but inmates, in- may think other example, for escape certainly did not tutional interests insufficiently observant and view mates Lovelace, petition who plaintiff advantage of the taking unfair them adminis- noted that Keen Mountain appeal offered accommodation. Some *36 steadfastly “adamantly had and trators taking are may believe that others inmates plain- that them actions maintained food, particu- than their fair share of more intentional, purposeful, and neces- tiff were where, here, they fast- larly as have been (em- security.” J.A. 188 sary to maintain Tempers can ing day hungry. all and are added). phasis someone cut- simple flare from the act of hope that such ting ex in line. We would “generat[e] One need not therefore altercations, in erupt would not to see that differences planations,” Maj. Op. at Dining rooms we cannot be sure. “legitimate interest but the Commonwealth’s rowdy environ- dietary occasionally prove to be religious removing in inmates from schools, camps and not to men erations. J.A. 27. And policy ments for the further setting, even prisons. protects wrongful tion this volatile inmates from removal rudimentary of caution by specifying the most dictates that reports may be filed recognize compelling as suggest only by staff, that we security and food service not the need to administer the Keen Mountain by other inmates. Id. in a program Ramadan safe and secure however, majority protests, The that the simply say
fashion. It is
no answer to
provision
removal
is “broad” and “far
explored by
all of
be
the district
this will
reaching”
it
because
excludes inmates who
precisely
court on
it is
the
remand because
violate the tenets of
prayer
Ramadan from
judicial finetuning
by re
sort of
invited
Maj. Op.
services as well as meals.
at
mand that
Court has re
But,
earlier,
17.
group
as noted
meals
See,
Cutter,
peatedly deplored.
e.g.,
accompanying prayers
and
single
are a
723, 125
U.S. at
accommodation,
religious
separate
respect
tailoring,
events. With
to narrow
C.
moreover,
the distinction between meals
any
I
disagree
suggestion
also
group prayer
is one without a differ-
Virginia policy
narrowly
is not
tailored.
Freeing
during pre-dawn
ence.
inmates
2000cc-l(a).
See U.S.C.
It is indeed
post-sunset
may
security
hours
entail
imagine
narrowly
difficult to
a more
tai-
regardless
risks
of whether inmates are
policy
Virginia
lored
than the one
now has.
released from their
group
cells to attend
policy
religious
The Ramadan
tracks the
prayer or to receive a meal. See
Walker
rules of Ramadan itself and “removes from
(5th
Blackwell,
Cir.1969)
procedures only
worshippers
those
(“The
people
movement of
after the sun is
to
the fast.” See
who choose
break
Second,
presents
problem.”).
down
Brown-El,
28 attend Court made clear RLUIPA does not C.F.R. religious group’s per ceremonial meal “elevate accommodation of one ob- just year). policy Such is not servances an calendar over institution’s need to achieving safety,” an means of Keen maintain appropriate order and compelling Mountain’s interests restrict- and that RLUIPA ing maintaining not inmate movement does courts from their normal relieve Spavone, order. See 420 habits of and deference in proper restraint aspect F.Supp.2d poli- settings, at 240. This most of id. at sensitive cy' policy Cong. the as whole—honors and S.Ct. 2113 Rec. (quoting S7775 —like 27, 2000) (July (joint desire of Muslim inmates to of respects the statement Sen. policy Kennedy)). Ramadan fast. The Hatch and only observe the Sen. One need recognizing however, the of by majority’s opinion, does this occasion read the to practice deep religious the fast as a of discover it for the lower that means court significance, not an exercise in who can to conduct inquiry a fact-intensive into ev- spend ery meal or time prison policy sneak an extra more conceivable Keen might adopted. out of a cell. Mountain have The ma- jority quite is clear on this when says the accepting policy Rather than for the that Keen policy Mountain’s Ramadan is generous it is attempt- accommodation “arguably restrictive not least means” ing policy imposes how the explain Maj. prison available to authorities. Op. burden, the majority substantial offers a added). (emphasis at 192 Gone is even the help remand. The remand offers no what- remand, pretense of deference: on bur- court or litigants. soever to the lower prison dened personnel must now field only majority gives is instruction questions many about how and what kind court on the district should decide might of possibly alternative means exist policy “least remand whether is the holding for providing hearings. meals or way” furthering prison restrictive inter- approach remanding This individual Maj. Op. Restating ests. at 193. See grievances hearings speculatively on standard, however, legal provides guid- no superior general policies prison will have ance, majority and the thus invites an their tails. chasing administrators Thus open-ended potentially wide-ranging does the the least remand wield restrictive inquiry prison into administration. This means test a tool which lower courts require approach may well extensive testi- may endlessly second-guess prison offi- mony prison part on the administrators Hoevenaar, cials. See F.3d may proverbial into a devolve battle (finding court had “improperly the lower the experts. say It is no answer to judgment prison substituted for that of its might ultimately district court decide officials”). “just Supreme This is what the uphold remand: remand is against.” Court and Congress have warned to the district court to itself instruction omitted). (original See id. emphasis into minute details. delve Second, tailoring in narrow D. what context cannot mean I not suggests. quite agree majority’s quarrel understand and real personal that RLUIPA directs administra- Lovelace’s but with inability employ tors the “least restrictive Ramadan. But observe to re- 2000cc-l(a)(2). quire policies every means.” See U.S.C. to accommodate set Cutter, just only But individual last term circumstances creates
215
morass;
places
constitutionally pro-
it also
seem an awkward and
an administrative
on a collision course
blematic task. The duration of
prison administrators
some ob-
agreed upon.
in the Establish-
servances is not even
with the values embodied
holiday,
example, might
core federalism Easter
for
un-
ment Clause and with
be
period
derstood to comprise the
from the
principles.
of
beginning
Sunday,
Lent
to Easter
majority’s
federal
approach,
Under
Maundy Thursday
Sunday,
to Easter
Good
judges
primary
“become the
arbiters of
Friday
Sunday,
to Easter
or Easter Sun-
constitutes the best solution” to ev
what
day
majority
place pris-
alone. The
would
problem.
accommodation
See
ery religious
position making
on officials
of
diffi-
78, 89, 107
Safley,
Turner v.
482 U.S.
S.Ct.
judgments
religious questions
cult
about
(1987).
2254,
Questions
everything from observances such S.Ct. 2254). Christmas, systems can- days-long State observances Passover, accommodate, month-long degree to the foreshad- such as observ- remand, the reli- majority’s Ramadan. tie the timeli- owed ances such as To gious practices of hundreds hearings timing ness of to the and duration beliefs Verhagen, faiths. Charles v. of different observances would different See *39 216 (W.D.Wis.2002) majority’s contrary approach, 937, Under the 946-47 F.Supp.2d
220
however,
may
“accommodation
devolve
(it
to allow
“utterly impractical
be
would
fostering
religion.”
of
into an unlawful
to have its own
denominations
each of 300
Presiding Bishop
Corp.
by
very
their
na
of
day”). Religions,
of
feast
Latter-Day
Jesus Christ
Church
of
of
ture,
varied forms of wor
rich and
entail
Amos,
327, 334-35, 107
483 U.S.
Saints v.
Accommodating,
the sense
ship.
(internal
(1987)
2862,
has a
or one
is more
categorically
Court has stated
that RLUI-
*40
laws,
intricately
up
regu-
bound with state
excesses,
PA does not license such
and
lations,
that,
than the adminis-
procedures,
they
pass,
should
come to
“facilities]
” Woodford,
prisons.’
tration of its
548 would be free to
the imposition” by
resist
-,
(quoting
U.S. at
with
rather
Turner,
See
signaled to federal courts that RLUIPA
broadly
Because RLUIPA
defines
applied
appropriately
“gov-
must “be
bal-
way.”
“any person
ernment” to include
acting
anced
Div., Human Res. v. Dept. of pursuant to the 878-79, “[Ljegislation enacted (1990). much in the nature of spending power There no indication is L.Ed.2d 876 contract, therefore, intended to be bound Congress at all RLUIPA conditions, federally imposed recipients intent standard modify or change voluntarily In this accept indifference. must them federal funds one deliberate case, alleged knowingly deliber cannot knowingly. never States appellant they violation are un ately accept indifferent conditions of which a standard: creation such argued they for the are unable to ascer aware or which majority creates the issue Arlington Thus Sch. Dist. Bd. tain.” Cent. *41 open. -, -, it then leaves 126 Murphy, v. 548 Educ. U.S. (2006) 2455, 2459, L.Ed.2d 526 165 S.Ct. generally, more Con As to the issue (citation quotation marks and internal Congress has said. what gress has said omitted). Here, the Commonwealth drafting majority acknowledges, As the indifference not on notice of a deliberate RLUIPA, create a state- Congress did not accepted at the time that it feder standard Maj. Op. at 20-21. of-mind standard. See suggest and al funds under RLUIPA. To religious protection Instead it enhanced question of such a open then leave statute, such as through parts other of is commensurate with neither standard and the burden of standard of review or restraint. deference 2000cc-l(a), §§ 42 persuasion. See U.S.C. Flores,
2(b); City v. 521 see also of Boerne 2157, 517, 529, 117 138 S.Ct. U.S. rv. (1997) that (suggesting
L.Ed.2d 624
RFRA,
intended
predecessor,
RLUIPA’s
question
into
Not content to draw
intentional
protection
to enhance
RLUIPA,
majority
prison policy under
by altering bur
of free exercise
violations
it
no less than two
finds fault with
of
Congress was well aware
proof).
den of
grounds. According to the
constitutional
legis
it
legal backdrop against which
majority,
ap
on these issues is
a remand
lated,
it did not enunciate
and where
Maj. Op.
propriate “for obvious reasons.”
it
wise to assume
changes, we would be
in a straightfor
at 200 n. 9. But to remand
Faragh
law. See
keep
meant to
the same
only
this not
violates
ward case such as
Raton,
775, 792,
524 U.S.
City
er v.
Boca
judicial
regarding
“the
restraint
(1998)
2275,
due
provided
officials to have
For
again
are once
Reversal and remand
they
process,
Lovelace with more
either
from the
it is clear
unnecessary, because
grievance
tailor their
would have had to
ex-
process deprivation
no due
record that
Ramadan,
to the timeframe of
procedures
assuming that Lovelace
ists. Even
they would have had to do as Lovelace
interest,4
liberty
protected
deprived of
him
urges
opportunity
and allow
more
nevertheless establishes
the record
of his innocence. Under
present evidence
his interest
procedures protecting
Eldridge
the three-factor Mathews v.
bal-
prison’s complaint
adequate.
were
test,
change
either
ancing
it is clear that
him the attention
procedures afforded
See 424 U.S.
would be unwarranted.
highest administrators
the institution’s
(1976).5
893,
221
trials,
procedures
there would be considerable
addressed are the same
criminal
used
walls.”).
for havoc inside
potential
complaints, including
handle all inmate
alleged
other
constitutional violations.
Meanwhile,
Eldridge
the third
under
formulating
procedures,
those
the state
any change
procedure would en
prong,
has had to strike a difficult balance de-
unjustifiable costs. See El
significant
tail
signed
identify
grievances,
bona fide
dridge,
U.S. at
568-69,
view that all
procedures
expresses
ticular faiths. through strength derived personal
that the in rehabilitative manifest itself
faith will others, of
efforts, and record respect for indis citizenship. These
good institutional balanced, however,
putable values are managing con of the difficulties prison envi hence combustible fined and America, UNITED STATES 726, 125 Cutter, See 544 U.S. ronments. Plaintiff-Appellee, recognize content to 2113. Not S.Ct. possibly legitimate what it is—a case for v. that prison inmate complaint by a Muslim Douglas SMITH, Defendant- James were deliber fasting rights
his Ramadan Appellant. by a maliciously violated ately and it to what it expands guard —the America, United States not, top-to-bottom for finetun- is an excuse Plaintiff-Appellee, designed accommodating policy ing of an v. religious ex very values of to foster the forth in RLUIPA. pression set Douglas Smith, Defendant- James Appellant. majori- not merit the policy If this does pressed I am hard ty’s approval, then America, United States It is unfortunate think of one that will. Plaintiff-Appellee, Ra- designed respect that a profound for the observance madan fast should become the means is Douglas Smith, Defendant- James up in knots. No potentially tying prisons Appellant. blindly a court should argues
one 06-4358, 06-4359, Nos. 06-4360. any justification for a accept religious exercise. interferes with Appeals, United States Court judgment for the But to substitute its own Fourth Circuit. judgment admin- accommodative 29, 2006. Argued: Nov. Cutter, 544 just as bad. See istrators 13; 717, 723, 2113 n. U.S. at 29, 2006. Decided: Dec. 84-85, 89, Turner,
2254; Madison,
It is
difficult to overstate misjudgments, and
gridlock, penological over
unwitting privileging of certain faiths that courts will make while embark-
others all majority’s course. With
ing on the majority, they my in the
respect to friends gone process
have much too far and and constitu-
have created administrative come time to problems
tional will