HENRY WASHINGTON v. SUPERINTENDENT EDWARD KLEM; DEPUTY SUPT. JOSEPH PIAZZA; JOHN MACK, Programs Coordinator; SGT. DOUGHERTY, Property Room Supervisor
Case No: 05-2351
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 2, 2007
SMITH, Circuit Judge
Precedential. Argued April 10, 2007. On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 01-CV-02432). District Judge: The Honorable John E. Jones, III.
Opinions of the United States Court of Appeals for the Third Circuit
8-2-2007
Washington v. Klem
Precedential or Non-Precedential: Precedential
Docket No. 05-2351
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Recommended Citation
“Washington v. Klem” (2007). 2007 Decisions. Paper 516. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/516
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Case No: 05-2351
HENRY WASHINGTON v. SUPERINTENDENT EDWARD KLEM; DEPUTY SUPT. JOSEPH PIAZZA; JOHN MACK, Programs Coordinator; SGT. DOUGHERTY, Property Room Supervisor
Henry Unseld Washington, Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 01-CV-02432 District Judge: The Honorable John E. Jones, III
Argued April 10, 2007
(Filed: August 2, 2007)
Counsel:
Nancy Winkelman, Edward D. Manchester (argued), Schnader Harrison Segal & Lewis LLP, 1600 Market St., Suite 3600, Philadelphia, PA 19103, Counsel for Appellant
Thomas W. Corbett, Jr., Attorney General, Howard G. Hopkirk, Senior Deputy Attorney General (argued), John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of Attorney General, Appellate Litigation Section, 15th Fl., Strawberry Square, Harrisburg, PA 17120, Counsel for Appellee
OPINION OF THE COURT
SMITH, Circuit Judge.
I.
Henry Unseld Washington is an inmate in the custody of the Pennsylvania DOC who has attempted to practice his religion while incarcerated. Washington founded and has been a practitioner of the Children of the Sun Church for over two decades. According to Washington, the Children of the Sun Church supports the development of “Pan-Afrikanism” whereby adherents to the religion stress that “only through Pan-Afrikanism can Afrikan people worldwide, be able to change the conditions of Afrikan people in the diaspora and the motherland.” To this end, Washington‘s Church states that “[f]or every Afrikan‘s eyes you open with his teachings you will gain rewards in the life everafter.” One of the rituals requires a practitioner to read four different Afro-centric books per day.1
This ritual is aimed at educating the adherent to doctrine, so that he is able to teach others more effectively. Washington views this ritual as necessary to his Church‘s proselytization requirement, so that the books “are in essence the religion itself.”
The Pennsylvania DOC limits the amount of property any inmate may store in his cell. The DOC‘s policy states that “limitations on the amount and variety of inmate property may be imposed for security, hygiene and/or safety reasons.” With respect to publications, each inmate is permitted to retain three newspapers, ten magazines, and ten books, “unless additional books are approved by the facility‘s education department.” This provision applies to every prison in the Pennsylvania DOC.2 The DOC also permits “storage space equal to four records center boxes. This space may be made up of the four records center boxes or one footlocker and two records center boxes. In cells that have either a built-in or a free standing storage cabinet, the inmate is permitted to use that space and either two records center boxes or one footlocker.”
The conflict in this case arises from the clash between Washington‘s interest in practicing what he claims is his religion
Washington, proceeding pro se, sued several employees of Pennsylvania‘s DOC pursuant to
II.
A. A General Note About RLUIPA
Congress passed RLUIPA to grant heightened protection to prisoners from burdens imposed by the government. RLUIPA also contains a land-use provision not applicable in this case. The history of this law traces back to the Supreme Court‘s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). The Supreme Court in Smith held that the Free Exercise Clause of the First Amendment does not impede the enforcement of neutral and otherwise valid laws of general applicability that incidentally burden religious conduct. Id. at 878-82, 885. The Court did state that the political branches could grant a higher degree of protection for religious exercise through legislative
RLUIPA also does not confer any “privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.” Id. at 724. In addition to not differentiating between bona fide faiths, RLUIPA does not permit a court to determine whether the belief or practice in question is “compelled by, or central to, a system of religious belief.”
B. Strict Scrutiny Under RLUIPA
1. Substantial Burden
A plaintiff-inmate bears the burden to show that a prison institution‘s policy or official practice has substantially burdened the practice of that inmate‘s religion. Both the text of the statute and the legislative history provide support for how the statute should be interpreted with respect to what qualifies as a “substantial burden.” Legislative history on this point has been cited by the Supreme Court approvingly in Cutter. Despite the limitations inherent in most legislative history as a tool for use in statutory interpretation, here that history as been cited by the Supreme Court approvingly in Cutter. Cf. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (describing some of the criticisms of legislative history to interpret the meaning of a statute).
[t]he Act does not include a definition of the term “substantial burden” because it is not the intent of this Act to create a new standard for the definition of “substantial burden” on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence. Nothing in the Act, including the requirement in Section 5(g) that its terms be broadly construed, is intended to change that principle. The term “substantial burden” as used in this Act is not intended to be given any broader interpretation than the Supreme Court‘s articulation of the concept of substantial burden or religious exercise.
146 CONG. REC. S7774, 7776 (July 27, 2000) (emphasis added). Section 5 of RLUIPA provides the Act‘s Rules of Construction. Section 5(g) states that “[t]his Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”
This clear methodology runs into trouble, however, because Supreme Court precedent with respect to the definition of “substantial burden” in the Free Exercise Clause context has not always been consistent. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226-27 (11th Cir. 2004) (discussing the various standards). Further, transferring these definitions, which often arise in the denial of unemployment benefits, to a prison setting has not always been seamless because of the different factual scenarios presented by the institutional milieu. Nonetheless, the Supreme Court has stated in its Free Exercise Clause jurisprudence that a substantial burden exists when a follower is forced “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). In Sherbert, the Court addressed whether a Seventh Day Adventist who was religiously precluded from working on Saturdays could be denied unemployment compensation because she could not find work that would permit her to observe this precept of her religion. The Court concluded that the Government could not deny unemployment benefits, as such a practice essentially forced Sherbert to choose between her religion and government benefits provided to others who do not have a similar religious belief. In a footnote, however, the Supreme Court seemed to imply that a substantial burden exists whenever a government action has the “tendency to inhibit constitutionally protected activity.” Id. at 406 n.6.
The Court in a later case purportedly followed Sherbert,
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Id. See also Hobbie v. Unemployment Appeals Comm‘n of Florida, 480 U.S. 136, 141 (1987) (quoting Thomas). The current status of this test is not entirely clear because of a later Supreme Court decision that contains some language which may be read to lower the hurdle for showing a substantial burden. See Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439 (1988).
In Lyng, the Supreme Court found no substantial burden where the federal government planned to harvest timber and build a highway through part of a National Forest used for religious purposes by members of three Native American religions. The members claimed that the noise and pollution from the highway would “diminish the sacredness of the area” and interfere with the religious experience of the members using the area. Id. at 448. The Court rejected the position that “incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their
The courts of appeals to have addressed the definition of “substantial burden” under RLUIPA have defined it in several ways. Most of those courts have adopted some form of the Sherbert/Thomas formulation, but have often reworded their holdings. The result of this practice has been to create several definitions of “substantial burden” with minor variations.5
Whether or not these semantic differences in definition result in any meaningful differences in application is, for the most part, an open question.6 In an effort to harmonize the “substantial
This definition accords with
In interpreting the definition of “substantial burden,” we must keep in mind the plain text of the statute. Adopting the negative implication of the Supreme Court‘s holding in Lyng would read “substantial” out of the statute. See Civil Liberties for Urban Believers, 342 F.3d at 761 (stating, in the land use context, that “[a]pplication of the substantial burden provision to a regulation inhibiting or constraining any religious exercise ... would render meaningless the word ‘substantial‘“). The straightforward test we adopt today, derived directly from Supreme Court precedent, respects the text and purpose of RLUIPA while seeking to clarify unnecessary confusion on this issue.
With this groundwork laid, we now apply this definition to the case before us. In our view, the Pennsylvania DOC‘s ten-book limitation in a prisoner‘s cell constitutes a substantial burden which impedes Washington from exercising his professed religion.
The Pennsylvania DOC contends that limiting the number of books that Washington may keep in his cell at any one time does not significantly inhibit or constrain his conduct, or the expression, of his religious beliefs. This book limitation, it asserts, does not prohibit Washington from adhering to his faith or deny him the opportunity to engage in activity fundamental to his religion. The Pennsylvania DOC also argues that its regulations do not render Washington‘s religious exercise effectively impracticable.
The District Court took a similar stance when it held that the exercise of Washington‘s religion was not substantially burdened by the Pennsylvania DOC‘s policy. Notably, the definition of “substantial burden” used by the District Court came from a pre-RLUIPA Eighth Circuit case from 1997, and at least one prong of the definition adopted in that case contained the central tenet requirement that has since been prohibited by the express terms of RLUIPA.8 Another prong required the
The position espoused by the Pennsylvania DOC and adopted by the District Court is incorrect. The DOC has, for whatever reason, elected not to challenge the sincerity of Washington‘s religious beliefs. The brief for the DOC prison officials states that those officials “do not dispute that Washington‘s beliefs are sincerely held religious beliefs and that the books are necessary to enable him to fulfill his religious missionary work.” The District Court has acknowledged this sincerity of belief and that books are necessary to enable him to fulfill his religious missionary work. The District Court‘s acknowledgment and the DOC‘s concession, coupled with the ten-book limitation, indicates why Washington‘s religious exercise has been substantially burdened. Washington‘s religion contains two interrelated components—reading four books per
The ten-book limitation substantially burdens the first component of Washington‘s religious exercise under the second part of our disjunctive test because it severely inhibits his ability to read four new books per day. Before the end of three days, Washington would run out of new books. In response, the Pennsylvania DOC makes two arguments. First, the DOC states that the prison library is available for Washington‘s use and that he would be permitted to read books that are housed in the library. The fatal flaw in this argument is that, as we have mentioned, Washington was permitted to visit the library only once a week and could take out just four books at a time. This policy precludes Washington from reading twenty-eight Afro-centric books per week. Thus, even if the Pennsylvania DOC is correct that Washington could house his own books in the prison library,9 this policy would still not permit him to read four books per day. Second, the Pennsylvania DOC argues that there is no prohibition on Washington‘s trading those ten books for another ten books at any time. We find nothing in the record to show that Washington could freely trade books that were located inside the prison. Similarly, forcing Washington, an indigent prisoner, to have outsiders continuously mail books to him severely inhibits his ability to read four new books per day.
2. Compelling Governmental Interest
Washington has satisfied his burden to show that the Pennsylvania DOC‘s ten-book limitation substantially burdens his exercise of religion.
Interests of safety and health play a particularly important role in the institutional setting. Williams v. Morton, 343 F.3d 212, 218 (3d Cir. 2003) (stating that “when a challenged regulation implicates security . . . judicial deference is especially appropriate“) (internal quotation omitted); Lovelace, 472 F.3d at 210-11 (Wilkinson, J., dissenting) (chastising the majority for not properly accounting for the prison‘s compelling interest in safety and security). The Supreme Court in Cutter v. Wilkinson, 544 U.S. 709 (2005), repeatedly referenced the importance of according deference to prison authorities’ choices about how to run their institution. The Court plainly stated that “[w]e do not read RLUIPA to elevate accommodation of religious observances over an institution‘s need to maintain order and safety.” Cutter, 544 U.S. at 722 (emphasis added); Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (a policy that “is related to maintaining good order and controlling costs” serves a compelling governmental interest). The Court in Cutter noted
In this case, Washington argues that general assertions of safety and security are not sufficient to establish a compelling governmental interest. He points to the Pennsylvania Administrative Code, which recommends that prisoners should be allowed “a reasonable quantity of reading materials,” and that “[n]eatness and good order should be of primary concern rather than a specified number of publications.”
The Pennsylvania DOC responds that its limitation on the number of books in a cell furthers a compelling governmental interest in protecting the safety and health of prisoners and DOC employees. The District Court agreed with the DOC that the policy furthers the state‘s compelling governmental interest. The DOC contends that an excess number of books can create a fire hazard, provide a place to conceal weapons or other contraband, and also create a sanitation problem in the relatively small confines of a prison cell.
Certainly, the Pennsylvania DOC has asserted a valid interest, but it fails to make clear how its ten-book limitation furthers this interest. It is unclear how the book limitation decreases the likelihood of a fire in a cell or provides hiding places for contraband when a prisoner in that same cell is permitted to have magazines and newspapers in addition to ten books. We suppose that books eleven through twenty, for example, provide more hiding places than books one through ten. It is also plausible that the physical space taken by these extra books might make a cell dirtier. In this sense, the ten-book limitation might further the Pennsylvania DOC‘s interest in safety and health. Yet even assuming that the DOC has shown that its ten-book limitation serves a compelling governmental interest, it falls short of satisfying its burden that this DOC policy is the least restrictive means for achieving this interest. See Warsoldier, 418 F.3d at 998 (recognizing the comparatively lower threshold to prove a compelling governmental interest when juxtaposed against whether the government policy is the
3. Least Restrictive Means
In other strict scrutiny contexts, the Supreme Court has suggested that the Government must consider and reject other means before it can conclude that the policy chosen is the least restrictive means. See Warsoldier, 418 F.3d at 999 (citing United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 824 (2000); City of Richmond v. J.A. Croson, 488 U.S. 469, 507 (1989)). In light of the statute‘s text and legislative history, we agree with the Ninth Circuit in Warsoldier that this requirement applies with equal force to RLUIPA. Additionally, the phrase “least restrictive means” is, by definition, a relative term. It necessarily implies a comparison with other means. Because this burden is placed on the Government, it must be the party to make this comparison.
The Pennsylvania DOC argues that the manner in which its policies were applied to Washington were the least restrictive means of furthering the compelling governmental interest in health and safety. To support this point, the DOC emphasizes that the policies were applied to Washington in a flexible manner. The DOC notes that none of Washington‘s books was ever destroyed, Washington could have donated his books to the prison library so that they would be available to him, and Washington could have exchanged his books for new ones. Because of this flexibility, according to the Pennsylvania DOC, the policy was applied to him in the least restrictive manner possible. There are two interrelated problems with the Pennsylvania DOC‘s argument. First, this discussion occurred in the District Court against the backdrop of the incorrect
Once we place this burden on the proper party, the second problem arises. This problem is that the ten-book limitation, either facially or as applied to Washington, arbitrarily limits the property an inmate may possess. The record indicates that Pennsylvania DOC policies permit prisoners to have personal property up to a limit of four storage boxes or their equivalent. However, an inmate is not permitted to fill these boxes with more than ten books, although the inmate may fill the boxes with other property. The least restrictive means would be to allow an inmate to choose what property he may keep in the storage units so long as the property does not violate prison policy for an independently legitimate reason. A prisoner could not, for example, keep a knife in the storage unit. Additionally, prison policy permits more than ten books when the books are approved for educational purposes. Finally, inmates are permitted to have ten books, ten magazines, and three newspapers, but not more books instead of fewer magazines and newspapers. Put simply, these two policies evince a flexibility in the prison regulations that belies the “compelling” nature of the policies with respect to safety and security.
There is also flexibility within the Pennsylvania DOC system. Prior to transferring to SCI-Retreat, Washington spent
We are satisfied that a ruling in favor of the plaintiff will not lead to judicial micro-management of the Pennsylvania DOC. Here, we are doing no more than examining prison policies on their own terms to determine whether the ten-book limitation is the least restrictive means to achieving a compelling interest in health, safety, and security. The Pennsylvania DOC‘s own policies state that safety and security of a prison cell are satisfied when the prisoner possesses storage boxes that have the capacity to hold more than ten books. Given the existence of those policies, falling back on safety and security concerns, while possibly satisfying the compelling governmental interest prong of strict scrutiny, will not, independent of other reasoning, also satisfy the least restrictive means test.10 See Warsoldier, 418 F.3d at 998-99 (rejecting the
III.
For the above-stated reasons, we will reverse the District Court‘s Order dismissing Washington‘s RLUIPA claim and remand with instructions to consider whether any factual issues remain when that claim is evaluated under the proper legal standard. On the current record, the DOC has failed to demonstrate that its policy is the least restrictive means to further its interest in safety and security. However, we recognize that the Pennsylvania DOC has not had a full opportunity to rebut Washington‘s assertions because the District Court appeared to place the least restrictive means burden on Washington rather than the DOC. On remand, the DOC will have the opportunity to do so.