Fletcher v. Kelly et al
ORDER adopting 54 the proposed findings and recommendations with one exception: Fletcher may not proceed on his claim for access to a ceremonial pipe and tobacco because the claim is moot; granting in part 37 40 defendants' motion for summ ary judgment and amended motion for summary judgment; dismissing Fletcher's complaint, with prejudice; and certifying that an in forma pauperis appeal from this order would not be taken in good faith. Signed by Chief Judge Brian S. Miller on 3/12/2018. (kdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CASE NO. 5:16-CV-00201 BSM
WENDY KELLY, Director,
Arkansas Department of Correction, et al.
The proposed findings and recommendations [Doc. No. 54] submitted by United
States Magistrate Judge Joe J. Volpe, the parties’ objections [Doc. Nos. 59, 60], and plaintiff
Billy Fletcher’s other filings which are construed as objections [Doc. Nos. 61, 62] have been
reviewed and, after reviewing the entire record, de novo, the proposed findings and
recommendations are adopted with one exception: Fletcher may not proceed on his claim for
access to a ceremonial pipe and tobacco because the claim is moot.
In light of Fletcher’s objections, see Doc. No. 60, at 1 (alleging fraud by the
defendants in procuring his declaration and deposition), and out of an abundance of caution,
his declaration [Doc. No. 40-23] and the deposition submitted by defendants [Doc. No. 40-1],
are rejected; however, the deposition testimony submitted by Fletcher in support of his
motion to strike [Doc. No. 48] is relied upon.
The finding that Fletcher has failed to establish the denial of a sweat lodge violates
his rights under the First Amendment or RLUIPA, Doc. No. 54, at 19, is adopted. Fletcher
objects, arguing that defendants have failed to establish that an absolute ban on a sweat lodge
is the least restrictive means of protecting the admittedly compelling interests of prison
security and safety. Doc. No. 60 ¶ 8. He attempts to distinguish his case from Fowler v.
Crawford, 534 F.3d 931 (8th Cir. 2008), by asserting (1) that he is willing to accept
alternatives to the traditional sweat lodge, Doc. No. 60, at 5, and (2) that the Varner Unit is
“more medium or minimum than maximum security.” Doc. No. 61 ¶ 3.
Fletcher’s attempt to distinguish the security level at Varner from the maximum
security prison in Fowler is rejected because Varner is a maximum security prison. Watson
Decl. ¶ 7, Doc. No. 40-6. Although Fletcher now argues he is willing to accept alternatives
to a traditional sweat lodge, he testified that he is not open to alternatives. When asked
whether an alternative would be sufficient, Fletcher responded, “No.” Fletcher Dep. 60:3,
Doc. No. 48. When asked to explain why, Fletcher testified, “Because it’s not a sweat lodge
and there’s not any darkness, no–steam, no–no ceremonial rocks or things. It wouldn’t be
a sweat lodge. [It] wouldn’t be practicing a religion.” Id. 60:6–10. “You can’t go down to
a bar and hold church services. It would be like holding church services in a bar.” Id.
60:12–14. When asked, “So if you were to be given a closet that could have smoke in it and
that could be dark, no lights at all, and you were allowed to be in there with smoke and
steam, would that be acceptable,” Fletcher again responded, “No, I don’t think so, no.
Because it wouldn’t be a sweat lodge.” Id. 61:6–8. “You wouldn’t have participation from
the fire, from the fire path, from the fire pit to the pit back and forth, the path that it travels,
the rocks travel outside.” Id. 61:13–16. He also unequivocally stated that the sweat lodge
“needs to be outside.” Id. 62:8–12. Fletcher said that a fire keeper and bent willow poles are
necessary. Id. 63:1–18; see also Doc. No. 51 ¶ 13. Further, Fletcher testified the lodge
should be covered with material dark enough to prevent seeing inside of it. Fletcher Dep.
63:19–21. He insisted he needs access at least twelve times annually and that each ceremony
consists of three or four sessions of twenty-minute durations. Id. 64:11–65:1.
“Unfortunately for [Fletcher], the burden of production shifted to him once ADC
officials [came] forth with evidence that other means by which [Fletcher] might practice his
Native American faith were unacceptable to him.” Fowler, 534 F.3d at 940. Perhaps
Fletcher is willing to compromise now, but he cannot create a genuine issue of material fact
simply by contradicting his own previous deposition testimony. City of St. Joseph, Mo. v.
Sw. Bell Tel., 439 F.3d 468, 475 (8th Cir. 2006). It is clear that defendants seriously
considered other alternatives, such as a dark room that would hold steam and smoke.
Fletcher, however, flatly rejected alternatives that did not involve fire, darkness, and a
structure constructed out-of-doors with willow poles. Defendants moved for summary
judgment based on Fletcher’s statements, and that is the issue as it now stands.
Even if Fletcher’s attempts at compromise were considered, his proposed alternative
to a traditional sweat lodge is hardly a practical one. He suggests that “a more practical and
modern technological method would be to utilize infrared heat sensing vision equipment
and/or audio listening devices, which would be economical for such close quarters
monitoring.” Doc. No. 52, at 4; Doc. No. 51, at 6. He proposes as follows:
Specifically, the sweat lodge would be permanently built inside the prison
compound with wood, bricks or cement blocks, for a capacity of about fifteen
(15) inmates. It would have a roof but not a floor. This would allow
participants to sit upon the earth, which is significant. In the center, a small
gas or electrical heating device would be securely installed in such a manner
that it poses no threat. The heating device would be similar to or of a heating
device from a conventional sauna, one that is specifically designed, accredited
and approved for pouring water upon a heated surface to create steam. This
would allow participants to utilize the traditional mixtures of water with herbs,
roots and barks to create steam for purification. The room would be
thermostatically controlled and with exhaust fans, to maintain a constant and
safe temperature; a temperature approved by the ADC’s health provider. And
the room would not be completely dark; there would be sufficient lighting
(determined by staff) to enable observation of participants via a window or
windows. All material would be donated by outside sources.
Doc. No. 60, at 7. Fletcher insists that “the existence of obvious, easy alternatives may be
evidence that the regulation . . . is an exaggerated response to prison concerns.” Doc. No.
52, at 4.
It is unclear how Fletcher believes his suggestions are economical or how he can get
donations to cover a state-of-the-art sweat lodge when he admits he has not purchased an
eagle feather or headdress because they are too expensive. Fletcher Dep. 50:1– 53:9. In
addition to demonstrating the substantial cost of building a sweat lodge like the one Fletcher
describes, Fletcher demonstrates that the accommodation he seeks presents a constantly
moving and somewhat arbitrary target. Apparently, willow poles, open flame, total darkness,
and construction out-of-doors are no longer requirements as originally asserted.
Ceremonial Pipe and Tobacco
The finding that Fletcher’s RLUIPA claim for access to a ceremonial pipe and tobacco
should proceed because defendants have failed to show that a total ban is the least restrictive
means of furthering the government’s compelling interest in prohibiting contraband, Doc.
No. 54, at 24, is rejected because Fletcher’s request for a ceremonial pipe and tobacco is now
moot. Fletcher has made it clear that a pipe ceremony will not suffice in the absence of sweat
lodge access or a religious advisor. Fletcher Dep. 42:6–14 (religious advisor will keep
tobacco in his possession), 44:22–45:10; Doc. No. 48, at 35 (“the sweat lodge ceremony is
indispensable” and “cannot be replaced with ‘smudging’ for example, or with the sacred pipe
ceremony”); Doc. No. 60, at 7 (sweat lodge and ceremonial pipe and tobacco must be
practiced “in conjunction”). Further mooting the issue is the defendants’ willingness to
reasonably accommodate Fletcher by allowing access to a ceremonial pipe mixture
containing 1% tobacco for use during religious ceremonies (if he decides a sacred pipe
ceremony is better than nothing, even in the absence of a sweat lodge). Am. Kelley Decl. ¶
33, Doc. No. 59-1 (“When a qualified, free-world, Native American Religious advisor is
found for the Native American inmates at the ADC, that person will be authorized to conduct
ceremonial pipe services in the presence of ADC security staff.”). Fletcher has conceded that
this ratio is adequate. Doc. No. 51, at 8 (“kinnikinnik . . . is a mixture of primarily herbs,
roots, and barks, with only a pinch (one to five percent) of tobacco”). Thus, Fletcher’s claim
for a ceremonial pipe and tobacco is moot.
Eagle Feather, Headdress, and Religious Advisor
The findings that Fletcher has failed to demonstrate that the denial of an eagle feather,
headdress, or religious advisor violates his rights under the First Amendment or RLUIPA,
Doc. No. 54, at 11, 14, are adopted. Additionally, Fletcher’s testimony demonstrates his
claim for a religious advisor is moot. Fletcher Dep. 53:18 (“there’s no reason to have a
medicine man if you don’t have the sweat lodge.”).
The finding that Fletcher has failed to demonstrate that the ADC’s refusal to provide
his requested religious accommodations violates his rights under the Equal Protection
Clause, Doc. No. 54, at 25, is adopted.
For these reasons, defendants’ motion for summary judgment and amended motion
for summary judgment [Doc. Nos. 37, 40] are granted in part, and Fletcher’s complaint is
dismissed with prejudice. It is further certified that an in forma pauperis appeal from this
order would not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED this 12th day of March 2018.
UNITED STATES DISTRICT JUDGE
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