Newberg v. Geo Group, Inc. et al
Filing
39
OPINION AND ORDER. Plaintiff's Motion to Strike 24 is construed as response in opposition to Defendant GEO's Motion to Dismiss/Motion for Summary Judgment, Plaintiff's Motion for Summary Judgment 25 is construed as a supplement to Plaintiff's Response, and Plaintiff's respective motions (Docs. ##24-25) shall be terminated from the pending motions report. Defendant GEO's Motion to Dismiss for Mootness/Motion for Summary Judgment 22 is GRANTED for the reasons set forth above. Defendant DCF's Motion to Dismiss 23 is terminated as moot. The Clerk is directed to terminate any pending motions, enter judgment accordingly, and CLOSE this file. Signed by Judge Charlene E. Honeywell on 6/27/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ERIC NEWBERG,
Plaintiff,
vs.
Case No.
GEO GROUP,
DEPARTMENT
FAMILIES,
2:09-cv-625-FtM-36DNF
INC., and FLORIDA
OF
CHILDREN
&
Defendants.
________________________________
OPINION AND ORDER
I. Status
This matter comes before the Court upon Defendant GEO's Motion
to Dismiss/Motion for Summary Judgment (Doc. #22, "GEO Motion").
Defendant GEO submitted the Affidavit of Timothy J. Budz with
attachments as an exhibit in support of its Motion (Doc. #22-1,
"Budz Affidavit").1
Plaintiff filed a Motion to Strike in response
to Defendant GEO's Motion, which is construed by the Court as a
response in opposition to GEO's Motion (Doc. #24, "Plaintiff's
Response").
Plaintiff subsequently filed a three-page pleading
entitled "Motion for Summary Judgment" (Doc. #25, "Plaintiff's
Motion").
Plaintiff's Motion basically reiterates the arguments
raised in his Response to GEO's and DCF's Motions.
1
Further,
Defendant DCF filed a Motion to Dismiss the Amended Complaint
(Doc. #23, "DCF Motion"). GEO's Motion was filed before DCF's
Motion. A favorable ruling on GEO'S Motion will deem DCF's Motion
moot. Consequently, the Court considered GEO's Motion first.
Plaintiff's Motion fails to comport with the dictates of Federal
Rule of Civil Procedure 56(c) and Local Rule 3.01(a).
Therefore,
the Court considers Plaintiff's Motion as a Supplement to his
Response.
Plaintiff did not attach any exhibits in support of his
Response or his Supplement.
The Court deems GEO's Motion ripe for
review.
Amended Complaint2
A.
Plaintiff is civilly confined to the Florida Civil Commitment
Center ("FCCC") pursuant to the Involuntary Civil Commitment of
Sexually Violent Predators' and Care Act, § 394.910, et. seq., Fla.
Statutes
(the
"SVP
Act").
On
September
19,
2009,
Plaintiff
initiated this action by filing a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983 (Doc. #1).
Plaintiff was granted
permission to proceed in this action in forma pauperis (Doc. #5).
Prior to the Court directing service, Plaintiff filed an amended
2
Because the Amended Complaint contained no allegations against
any of the named defendants in their individual capacities, the
Court sua sponte construed the Amended Complaint as being brought
against the respective entities that employed Defendants Lister and
Kline, namely GEO and DCF, and dismissed the individually-named
Defendants. See July 6, 2010 Order of Court (Doc. #10, "Order").
The Court noted that only Defendants Kline and Lister were
identified by name in the Amended Complaint, and then, only in
their respective official capacities.
See Complaint at 3.
Further, it is clear from the Amended Complaint that Plaintiff is
challenging a custom or practice that existed at the FCCC at the
time that Plaintiff filed his Amended Complaint, not the actions of
any of the individual Defendants.
-2-
complaint (Doc. #8, Amended Complaint), which is the operative
pleading in this case.
The Amended Complaint alleges violations to Plaintiff's First
Amendment free exercise rights against Defendants GEO, Inc (GEO)
and The Florida Department of Children and Families ("DCF").
generally Amended Complaint.
See
According to the Amended Complaint,
GEO, the administrator of the FCCC, implemented a "Smoke Free"
policy, which Plaintiff alleges infringed upon his ability to
practice various aspects of his Native American faith.
Id. at 6.
Plaintiff explains that the denial of any tobacco products at
the FCCC prevents him from engaging in the Sacred Pipe Ceremony and
Smudging. Id. at 2. Plaintiff avers that denying Native Americans
the "use of tobacco for their prayer pipe" is essentially "denying
the Natives the right to pray."
Id.
Additionally, Plaintiff
states that GEO refuses to provide an outdoor area designated for
Native Americans "to set up a Sacred circle for its rites and
rituals," and for "a sweat lodge and fire pit."
Id. at 7.
Plaintiff alleges that he made efforts to resolve the tobacco issue
with Charles F. Lister of GEO and Dr. Kline with DCF to no avail.
Id. at 3, 7.
As relief, Plaintiff seeks declaratory and injunctive relief
only.
Id. at 8.
Specifically, Plaintiff requests that (1) GEO be
required to "recognize and respect" the religious rights of Native
Americans and permit "the use of Sacred Tobacco" by the Native
-3-
Americans; (2) GEO provide a "secure area" for a "proper circle" to
be used by the Native Americans; (3) GEO provide a "sweat lodge and
fire pit"; (4) the Court "investigate" possible federal criminal
charges against the Defendants under 42 U.S.C. § 1985; and, (5) GEO
be required to "set aside funds" for the purchase of the various
religious items.
B.
Id.
GEO's Motion
Defendant GEO does not dispute that "Plaintiff observes Native
American
practices"
Motion at 5, ¶8.
and
has
"firmly
held
spiritual
beliefs."
Nonetheless Defendant GEO seeks summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure3 on the
basis that: (1) all but one of Plaintiff's claims are moot due to
the implementation of a new FCCC policy permitting Native American
residents to smoke tobacco, smudge, and perform other Native
American rites and ceremonies; and, (2) the FCCC has articulated a
reasonable/compelling
governmental
interest
to
prohibit
the
construction of a sweat lodge, fire altar and fire pit.
3
Because the Amended Complaint is devoid of any allegations as
to Defendants Jorge Dominics, Timothy Budz, Dr. E. Hermann, Dr.
Robin Wilson, Mr. Lorenz, or Major Baloff, Defendant GEO also seeks
dismissal pursuant to Rule 12 on behalf of these Defendants. As
noted supra, the Court sua sponte dismissed Plaintiffs' claims
against the individual named Defendants in its July 6, 2010 Order.
See n. 2.
-4-
II. Applicable Law
A.
Motion for Summary Judgment
“Summary judgment is appropriate only if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Moton v. Coward, 631
F.3d 1337, 1341 (11th Cir. 2011)(internal quotations and citations
omitted).
See also, Fed. R. Civ. P. 56(c)(2).
"The moving party
may meet its burden to show that there are no genuine issues of
material fact by demonstrating that there is a lack of evidence to
support the essential elements that the non-moving party must prove
at trial."
Moton, 631 F.3d at 1341 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
The standard for creating a
genuine dispute of fact requires the court to “make all reasonable
inferences in favor of the party opposing summary judgment,”
Chapman v. Al Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)(en
banc) (emphasis added), not to make all possible inferences in the
non-moving party’s favor.
To avoid the entry of summary judgment, a party faced with a
properly supported summary judgment motion “bears the burden of
persuasion” and must come forward with extrinsic evidence, i.e.,
affidavits,
depositions,
answers
to
interrogatories,
and/or
admissions, and “set forth specific facts showing that there is a
genuine issue for trial.”
Beard v. Banks, 548 U.S. 521, 529
(2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v.
-5-
Murata Electronics North America, Inc., 181 F.3d 1220, 1225 (11th
Cir. 1999).
If there is a conflict in the evidence, the non-moving
party’s evidence is to be believed and “all justifiable inferences”
must be drawn in favor of the non-moving party.
Beard, 548 U.S. at
529 (citations omitted); Shotz v. City of Plantation, Fl., 344 F.3d
1161, 1164 (11th Cir. 2003).
“A court need not permit a case to go
to a jury, however, when the inferences that are drawn from the
evidence, and upon which the non-movant relies, are ‘implausible.’”
Cuesta v. School Bd. of Miami-Dade County, 285 F.3d 962, 970 (11th
Cir. 2002) (citations omitted).
Nor are conclusory allegations
based on subjective beliefs sufficient to create a genuine issue of
material fact.
Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217
(11th Cir. 2000).
“When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
In
the summary judgment context, however, the Court must construe pro
se pleadings more liberally than those of a party represented by an
attorney.
B.
Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002).
First Amendment/Free Exercise of Religion
As this is a § l983 action, the initial inquiry must focus on
the presence of two essential elements:
(1) whether the person engaged in the conduct
complained of was acting under color of state
-6-
law; and (2) whether the alleged conduct
deprived a person of rights, privileges or
immunities guaranteed under the Constitution
or laws of the United States.
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
Here, Plaintiff challenges a policy that is enforced at the FCCC,
a facility admittedly operated by GEO "via contract with the State
of Florida for the specific purpose of housing and providing
treatment to persons detained and committed as sexually violent
predators under the [SVP Act]."
Budz Affidavit, ¶4.
Plaintiff
contends that FCCC policy completely prohibits Native American
residents from using tobacco and "smudge" during their religious
prayer, and complains that the FCCC has denied Native Americans a
dedicated area to hold religious ceremonies. Amended Complaint at
2-4.
Additionally, Plaintiff alleges that the Native American
religion "requires the use of a sweat lodge on a periodic basis,
for cleansing and purification," which requires a fire pit. Id. at
4.
Consequently, liberally construing the Amended Complaint, the
Court finds that Plaintiff has articulated a violation of the Free
Exercise Clause of the First Amendment against persons acting under
color of state law.
The Free Exercise Clause of the First Amendment to the United
States Constitution, which is applied to the States through the
Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296,
303 (1940), provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof . . . .
-7-
U.S. Const. Amend.I.
"At a minimum, the protections of the Free
Exercise Clause pertain if the law at issue discriminates against
some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons."
Church of Lukumi
Babalu Ave v. City of Hialeah, 508 U.S. 520, 532 (1993).
If a law
is neutral and generally applicable, it does not violate the Free
Exercise Clause, even if the law has an incidental effect on a
religious group or practice. Id., at 531. To determine neutrality
and general applicability, the Court looks at the purpose or object
of the law, by viewing its text.
III.
A.
Id., at 532.
Findings of Undisputed Facts and Conclusions of Law
Smoking, Smudge and Religious Grounds Claims Are Moot
GEO presents evidence that the FCCC Chaplain submitted a
report to the administration, in May 2009, requesting that GEO
change its current policy at the FCCC dealing with Native American
religious practices.
Budz. Aff., ¶8.
The Chaplain recommended
that GEO "adopt the Florida Department of Corrections policies"
concerning the practices of "Smudging" and the use of the "Sacred
Pipe Ceremony."
Id.
As a result, since the filing of the Amended
Complaint, GEO enacted policy PRG-26 entitled "Guidelines for
Native American Religious Observances," effective on July 20, 2009,
at the FCCC.
Id., ¶9.
A copy of the newly enacted policy is
attached as Exhibit A-2 to Mr. Budz' Affidavit.
forth
specific
guidelines
for
-8-
implementing
The policy sets
The
Sacred
Pipe
Ceremony, Smudging, Control of Ceremonial Pipe/Sacred Items, Group
Worship, and Basic Beliefs.
Id.
In pertinent part, the following
changes have occurred as a result of the newly adopted policy:
The FCCC now allows Native American residents to
participate in the "Sacred Pipe Ceremony" and smoke
ceremonial tobacco at each of their regular and special
ceremonies.
Indian tobacco, herbs, prayer pipes, and
other ceremonial supplies are purchased online from a
Native American retailer (www.crazvcrow.com) for this
purpose through a combination of resident and facility
funds. The tobacco and herbs are securely maintained by
the Chaplin between ceremonies.
The FCCC now allows Native American residents to participate in the
ceremonial act of "Smudging" (the purification and cleansing with
smoke from smoldering sage, sweet grass, cedar, or kinnik-kinnik)
at each of their regular and special ceremonies.
Id., ¶10(a)(b). In addition to permitting the use of the sacred
pipe and smudging, GEO provides evidence that:
The FCCC allows Native American residents to meet,
outdoors, three times a week for ceremony and spiritual
prayer. These meetings generally consist of two daytime
meetings (from 2:30 to 4:00 p.m.) and one evening meeting
(from 6:30 to 8:30).
In addition to these regular
meetings, Native Americans are allowed additional
meetings on days of unique spiritual importance - such as
a New Moon. Native Americans at the FCCC are also
permitted to hold two "Pow-Wows" a year which can each
last a full day.
The FCCC has set aside designated grounds for the Native
American community to hold ceremonies outdoors. At this
location, Native American's have erected a Prayer Circle
of their own design prescribed by landmarks such as
plants, stones, and dirt.
Id., ¶10(c)(d).
As a result of the aforementioned policy changes
at the FCCC, GEO submits that Plaintiff's claims regarding the
prohibition against tobacco, smudging and unavailability of a
-9-
designated area for religious ceremonies are moot and must be
dismissed.
The Court agrees.
“If a suit is moot, it cannot present an Article III case or
controversy and the federal courts lack subject matter jurisdiction
to entertain it.
[ ] Mootness can occur due to a change in
circumstances, or . . .
a change in the law.”
Seay Outdoor
Adver., Inc. v. City of Mary Esther, Fla., 397 F.3d 943, 946 (11th
Cir. 2005)(internal citations omitted); Troiano v. Supervisor of
Elections in Palm Beach County, Florida, 382 F.3d 1276, 1281 (11th
Cir. 2004).
live,
the
A case is moot when the issue presented is no longer
parties
lack
a
legally
cognizable
interest
in
its
outcome, or a court decision could no longer provide meaningful
relief to a party.
Troiano, 382 F.3d. at 1281-82.
An amendment or
repeal of a law generally moots constitutional challenges to the
original law, Coalition for the Abolition of Marijuana Prohibition
v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000), unless
"there is a substantial likelihood" that the challenged action will
be reinstated.
Nat'l Adver. Co. v. City of Miami, 402 F.3d 1329,
1334 (11th Cir. 2005).
Further, "when the defendant is not a
private citizen but a governmental actor, there is a rebuttal
presumption
that
the
objectionable
behavior
will
Troiano, 382 F.3d. at 1283 (emphasis in original).
not
recur."
Whether a case
is moot is a question of law, id. at 1282, and the party urging
dismissal bears the heavy burden of establishing mootness.
-10-
Beta
Upsilon Chi Upsilon Chapter v. Machen, 586 F.3d 908, 916 (11th Cir.
2009).
Because mootness is about the Court’s power to hear a case,
Rule
12(b)(1)
provides
Defendants’ Motions.
the
proper
framework
for
evaluating
Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1182 (11th Cir. 2007).
Under Federal Rule of Civil
Procedure 12(b)(1), a party may move to dismiss a claim (or,
indeed, an entire lawsuit) on the ground that the Court lacks
subject matter jurisdiction. Jurisdiction may be attacked facially
or factually.
(11th
Cir.
Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5
2003).
Facial
attacks
challenge
the
court's
jurisdiction based on the allegations in the complaint, which the
court accepts as true.
(11th Cir. 1990).
Lawrence v. Dunbar, 919 F.2d 1525, 1529
On the other hand, factual or substantive
attacks challenge the “existence of subject matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered.”
Id.
In such a challenge a "'trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear the
case
without
allegations.'"
presuming
the
truthfulness
of
the
plaintiff’s
Makro Capital of America, Inc. v. UBS AG, 543 F.3d
1254, 1258 (11th Cir. 2008)(quoting Amway Corp., 323 F.3d at 925).
Based upon the Affidavit of Timothy Budz and the exhibits
attached thereto, subsequent to the filing of this action, the FCCC
-11-
enacted and implemented specific policies that now permit Native
Americans to participate in the Sacred Pipe Ceremony and Smudging,
which utilize tobacco, sage, cedar, sweet grass and kinnik-kinnik.
Further, FCCC has established specific time periods to ensure that
Native
Americans
can
observe
and
participate
in
religious
ceremonies outside on grounds designated for use only by the Native
Americans.
Plaintiff has not presented any evidence that GEO
intends on withdrawing any aspect of the newly enacted policy. See
Nat'l Adver., 402 F.3d at 1334 (recognizing that a plaintiff has a
heavy "burden of presenting affirmative evidence" that a state
actor might reenact a challenged policy).
The Court finds Plaintiff's First Amendment free exercise
claims premised on: (1) GEO's prohibition of tobacco which prevents
Plaintiff from the ability to engage in the Sacred Pipe Ceremony
and Smudging; and, (2) GEO's refusal to provide an area for the
Native Americans to set up a Sacred circle for its rites and
rituals are moot.
B.
Consequently, the Court dismisses these claims.
Sweat Lodge/Fire Pit Claim
GEO acknowledges that Plaintiff's claim that GEO's prohibition
against a sweat lodge and fire pit violates Plaintiff's First
Amendment free exercise rights is not moot.
that
under
either
the
reasonable
However, GEO contends
relationship
test
or
the
compelling interest test, the construction of a sweat lodge and
fire pit "poses an unreasonable dangerous risk to the facility, to
-12-
staff,
and
to
prohibited.
other
residents"
and;
therefore,
is
properly
GEO Motion at 7, ¶13.
GEO presents evidence that its decision to prohibit a sweat
lodge and fire pit at the FCCC was reached only after considering
the following safety and security concerns:
The danger associated with permitting open fires on
facility grounds.
The danger associated with allowing residents extended
access to an unobservable area - the area inside the
sweat lodge. While inside the lodge, residents would not
be visible to security staff and could engage in a
variety of illegal or dangerous conduct such as illegal
drug use or sexual misconduct. The situation would also
pose an unreasonable danger of unobserved physical
assault or violence.
The danger associated with allowing residents access to
dangerous items such as burning hot rocks, open flames,
fire-wood, fire pokers, shovels, and other related tools.
The danger to participants posed by the ceremony itself.
This includes the dangers associated with prolonged
exposure to the conditions present in a sweat lodge such
as heat stroke, dehydration, smoke inhalation, and
suffocation.
Participants
are
also
exposed
to
danger/injury through the necessary acts of tending a
fire, handling firewood and large hot rocks, and creating
hot steam.
The fact that construction of a sweat lodge may create a
high degree of discord and unrest among other residents
who would not be allowed to use the sauna type lodge and
who may view Native Americans as receiving preferential
treatment.
Budz Aff., at ¶11(a)-(e). The expense associated with constructing
a sweat lodge was an additional factor considered by GEO.
¶12.
sweat
Id.,
In addition to the actual costs incurred with constructing a
lodge,
GEO
also
would
incur
-13-
expenses
associated
with
constructing a new fenced area within which the sweat lodge itself
would be situated, as well as storage facilities where equipment
and firewood could be maintained.
Id.
Moreover, GEO would have to
increase its staffing budget, due to the need to provide additional
manpower to oversee the area whenever sweat lodge ceremonies took
place. Id.
Based on the various security concerns and additional
costs, GEO argues that it is entitled to summary judgment as a
matter of law.
Id. at 12, 14.
Plaintiff does not present evidence, other than his own
opinions, to refute the security concerns identified by GEO.
See
generally Response and Supplement to Response. Plaintiff disputes
that
a
sweat
lodge
poses
any
security
issues
because
GEO
successfully runs sweat lodges at "numerous Federal prisons."
Response at 3.
Further, Plaintiff argues that he should be
"afforded religious practices in the same manner as a mental health
patient."
Id.
Plaintiff also claims that the Eleventh Circuit
"determined that the State of Alabama must provide sweat lodges in
their prison system."
1.
Id. at 4.4
Rational Basis/Reasonable Relationship Standard
4
Plaintiff declares that the Native American Sponsor, Mr. Tony
Stonehawk, has agreed to donate the items necessary to build the
sweat lodge. Response at 6. Plaintiff, however, does not attach
any evidence of this fact, such as Mr. Stonehawk's affidavit.
Additionally, Plaintiff for the first time, claims that GEO permits
"the Druid community to have an open fire at their ceremonies." Id.
at 4. The Court will not address Plaintiff's newly asserted claim,
which appears to allege an equal protection claim, because it is
not raised in his Amended Complaint.
-14-
Due to the unique circumstances created by imprisonment,
regulations that substantially burden an inmate's First Amendment
free exercise rights are evaluated under a reasonableness test,
which balances the right of the prisoner with the interests of
prison officials who are tasked with administering the penal
system.
O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987);
Turner v. Safely, 482 U.S. 78, 89 (1987).
This Court is cognizant that Plaintiff is civilly committed,
the FCCC is not a prison, and Plaintiff is not a prisoner.
Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).
The
Supreme Court has recognized that an individual who has been
involuntarily civilly confined has liberty interests under the Due
Process Clause of the Fourteenth Amendment that “require the State
to provide minimally adequate or reasonable training to ensure
safety and freedom from undue restraint.”
U.S. 317, 319 (1982).
Youngberg v. Romeo, 457
Thus, the Supreme Court has opined that, at
least in regards to certain aspects of their confinement, civil
detainees are afforded a higher standard of care than those who are
criminally committed.5
See Id. at 321-322; Dolihite v. Maughon, 74
F.3d 1027, 1041 (11th Cir. 1996)(holding that “persons subjected to
involuntary civil commitment are entitled to more considerate
treatment
and
conditions
of
confinement
5
than
criminals
whose
In Youngberg, the issue was whether a severely retarded young
man had received proper treatment in a state facility. Id. at 309.
-15-
conditions of confinement are designed to punish.”).
See also
Lavender v. Kearney, 206 F. App'x 860, 863 (11th Cir. 2006).
By way of background, the State of Florida enacted the SVP Act
by which a person determined to be a sexually violent predator6 is
required to be housed in a secure facility “for control, care, and
treatment until such time as the person’s mental abnormality or
personality disorder has so changed that it is safe for the person
to be at large.”
Fla. Stat. § 394.917(2).
The SVP Act was
promulgated for the dual purpose “of providing mental health
treatment to sexually violent predators and protecting the public
from these individuals.”
Westerheide v. State, 831 So. 2d 93, 112
(Fla. 2002)(emphasis added).
In its statement of “findings and
intent,” the State legislature said that the SVP Act was aimed at
“a
small
but
extremely
dangerous
number
of
sexually
violent
predators . . . who do not have a mental disease or defect that
renders them appropriate for involuntary treatment under the Baker
Act (§ 394.451- § 394.4789, Fla. Stat.).”
Fla. Stat. § 394.910.
6
A “sexually violent predator” is defined by the Act as any
person who:
(a) Has been convicted of a sexually violent offense; and
(b) Suffers from a mental abnormality or personality
disorder that makes the person more likely to engage in
acts of sexual violence if not confined in a secure
facility for long-term control, care, and treatment.
Section 394.912(10), Fla. Stat. (2008).
-16-
Thus, Plaintiff has been confined against his volition to a
“secure facility” pursuant to the SVP Act upon a probable cause
determination that Plaintiff meets the statutory definition of a
sexually violent predator, due to his previous state conviction for
a sexually violent offense.
See Fla. Stat. § 394.910.
In other
words, the FCCC is a place of involuntary confinement for persons
who have demonstrated a disposition for sexually deviant and
violent behavior.
The need to curtail potentially violent conduct
is an “obligation” incumbent upon the operators of the FCCC.
Washington v. Harper, 494 U.S. 210, 225 (1990) (stressing that the
state has not only an interest, but an obligation, to combat any
danger posed by a person to himself or others, especially in an
environment, which “by definition is made up of persons with a
demonstrated proclivity for antisocial criminal, and often violent,
conduct.” (internal quotations and citations omitted)).
Staff
at
the
FCCC
are
tasked
with
the
arduous
task
of
rendering treatment consistent with the goals of the SVP Act while
ensuring the safety of not only themselves and other administrative
personnel, but of all residents who are confined at the FCCC.
The
Supreme Court has recognized that the "interest in institutional
security" and "internal security" is "paramount."
Palmer, 468 U.S. 517, 528 (1984).
Hudson v.
See also Cutter v. Wilkinson,
544 U.S. at 722 (stating that even the more stringent standard
-17-
mandated by RLUIPA7 cannot "elevate accommodation of religious
observances over an institution's need to maintain order and
safety."). The Court is also aware of the numerous complaints that
have been filed before it which contain allegations of resident on
resident attacks, resident attacks on staff, sexual assaults on
residents by other residents, and other acts of inappropriate
sexual misconduct.
Although Plaintiff is not a prisoner and despite the Eleventh
Circuit's cautionary language in its unpublished decision in Marsh
v. Fla. Dep't of Corrections, 330 F. App'x 179 (11th Cir. 2009),8
the Court finds the context in which Plaintiff is civilly detained
should be afforded significant consideration in this case before
the Court.
Further, the Court notes that the unpublished decision
in Marsh is only persuasive authority and is not binding precedent
7
The Religious Land Use and Institutionalized Persons Act,
"RLUIPA" provides that, in programs that receive federal funding,
"[n]o government shall impose a substantial burden in the religious
exercise" of an institutionalized person unless the government
demonstrates that the burden "is in furtherance of a compelling
governmental interest" and "is the least restrictive means of
furthering" that interest.
42 U.S.C. § 2000cc-1(a).
Courts
evaluating RLUIP claims apply the governmental interest/least
restrictive means test.
See Cutter v. Wilkinson, 544 U.S. 709
(2005). The Amended Complaint does not allege a RLUIPA claim.
8
While the Marsh Court opines that a resident at the FCCC is
"arguably entitled to more protection that a criminal prisoner with
regard to his First Amendment free exercise claim," Marsh, 330 F.
App'x at 182, the opinion does not shed light on what standard
would be applicable to residents who, albeit not criminals, are
involuntarily committed due to their propensity to commit violent
sexual acts, as opposed to having a mental disease. See Fla. Stat.
§ 394.910.
-18-
pursuant to Eleventh Circuit Rule 36-2.
Additionally, the law
generally requires a careful balancing of the rights of individuals
who are detained for treatment, not punishment, against the state's
interests in institutional security and the safety of those housed
at the facility.
Thus, while Plaintiff as a civil detainee may not
be subjected to conditions that amount to punishment, Bell v.
Wolfish, 441 U.S. 520, 536 (1979), he nonetheless may be subjected
to conditions within the bounds of professional discretion that
place restrictions on his personal freedoms.
at 321-22.
Youngberg, 457 U.S.
GEO, although not the operator of a prison, is tasked
with making numerous decisions and implementing policy regarding
the FCCC's administration that GEO is better equipped to make than
the Court.
equipped
The "recognition that prison authorities are best
to
make
difficult
decisions
regarding
prison
administration" was the cornerstone of the Supreme Court's decision
in adopting the reasonable relationship test.
Turner, 482 U.S. at
84-85; Jones v. North Carolina Prisoners' Labor Union, 433 U.S.
119, 228 (1977);
Washington v. Harper, 494 U.S. at 223-24.
Indeed, the Third Circuit, considered the status of a SVP civilly
committed
resident
to
that
of
a
prisoner
when
analyzing
the
institution's policies governing inspection of a resident's mail
and adopting the Turner analysis to evaluate the resident's First
Amendment rights.
See Rivera v. Rogers, 224 F. App'x 148, 151 (3d
Cir. 2007)(unpublished).
Thus, the Court is not persuaded by
-19-
Plaintiff's argument that the Court should analogize his status to
that
of
a
mental
health
patient
who
is
hospitalized,
when
evaluating the FCCC's prohibition against a sweat lodge.
Instead, in order to properly balance Plaintiff's liberty
interests against the relevant state interests and afford deference
to the professional judgments of qualified FCCC staff as required
by Youngberg, the Court finds that, in the instant case, the Turner
standard
is
the
proper
standard
to
be
applied
Plaintiff's First Amendment free exercise claim.9
claim
under
following
the
Turner
factors:
test,
(1)
the
whether
Court
there
is
in
In evaluating a
should
a
evaluating
consider
“valid,
the
rational
connection” between the regulation and a legitimate governmental
interest
put
forward
to
justify
it;
(2)
whether
there
are
alternative means of exercising the asserted constitutional right
that remain open to the inmates; (3) whether and the extent to
which accommodation of the asserted right will have an impact on
facility
staff,
other
residents
9
and
the
allocation
of
the
"Essentially, the First Amendment analysis under Turner
mirrors the due process analysis under Youngberg; in both
instances, courts must balance the constitutional interests of
confined persons against the legitimate interests of the state-run
institution in which they reside." Graham v. Main, Case No. 105027(SRC), 2011 WL 2412998 at *13 n.11 (D.N.J. 2011)(citing
Bealulie v. Ludeman, Case No. 07-cv-1535 (JMR/JSM), 2008 WL
2498241, at *20 n.15 (D. Minn. 2008)(finding Turner to be
consistent with Youngberg because "it will not allow a Program
detainee's rights to be restricted unless there is a valid
institutional reason for doing so.").
-20-
facility's resources generally;10 and, (4) whether the regulation
represents an “exaggerated response” to the facility's concerns.
Turner, 482 U.S. at 89-91; Hakim v. Hicks, 223 F.3d 1244, 1247-48
(11th Cir. 2001).
Based upon the record, the Court finds that the challenged
FCCC prohibition against permitting a sweat lodge at the FCCC is
reasonably related to a legitimate security interest.
Wilson v.
Moore, 270 F. Supp. 2d 1328 (N.D. Fla. 2003)(security reasons
justified prison officials' refusal to permit construction and use
of sweat lodge by Native Americans and thus, did not violate Native
American's First American Free Exercise rights).
It is undisputed
that the policy is aimed at permitting a condition to exist on the
FCCC grounds that officials deemed to be “a potential security
threat to staff and other residents at the facility.”
Affidavit at 3, ¶11.
Budz
Plaintiff is not otherwise prohibited from
practicing any other component of his faith, or engaging in other
Native American religious rituals and rites.
Id. at ¶10.
Despite
Plaintiff's unsupported protestations that no resident would view
the sweat lodge as a sauna, the Court can envision how the erection
of a sweat lodge would be viewed as disproportionately favoring the
Native American residents and create hostilities among the other
10
The Court must also consider the "ripple effect" of any
accommodation. See Turner, 482 U.S. at 90 (“When accommodation of
an asserted right will have a significant 'ripple effect' on fellow
inmates or on prison staff, courts should be particularly
deferential to the informed discretion of corrections officials.")
-21-
residents. Id. at ¶11 (e). Further, the Court finds the fact that
the sweat lodge prohibits its occupants from being viewed raises
grave security issues and concerns, including affording a place to
hide contraband, and no means for the FCCC staff to monitor
prohibited resident behavior. Plaintiff has not come forward with
any evidence to counter Defendant's proof.
Thus, based upon the
record and for the reasons set forth above, the Court finds that
Defendant GEO is entitled to summary judgment on Plaintiff’s First
Amendment free exercise claim under the reasonable relationship
test.
2.
Compelling Interest Test
In the alternative, and based upon the Eleventh Circuit's
unpublished
Marsh
decision,
Plaintiff's
claims
under
the
the
Court
more
compelling governmental interest.11
will
rigorous
next
consider
standard
of
the
Due to the numerous exceptions
that have developed over the years to the compelling state interest
test set forth in Sherbert v. Verner, 374 U.S. 398, 406 (1963),
Congress
eventually
compelling
interest
adopted
test
the
applies
RLUIPA
to
to
ensure
government
that
action
substantially burdens an individual's free exercise rights.
the
that
To
establish a prima facie case under the RLUIPA, plaintiff must show:
(1) that he engaged in a religious exercise, and (2) that the
11
Defendant GEO argues that under either the reasonable
relationship or the
more stringent compelling interest test
Plaintiff's First Amendment claim fails. GEO Motion at 14.
-22-
religious exercise was substantially burdened by a government
practice.
Muhammad v. Sapp, 388 F. App'x 892, 895 (11th Cir.
2010)(unpublished).
A substantial burden has been found when a
regulation has "a tendency to coerce individuals into acting
contrary to their religious beliefs," Lying v. Northwest Indian
Cemetery Protective Ass'n, 484 U.S. 439, 450 (1988), or when the
government places "substantial pressure on an adherent to modify
his behavior and to violate his beliefs."
Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987).
Plaintiff bears
the burden of demonstrating a substantial burden and it requires
something more than an "incidental effect" or an "inconvenience" on
a religious exercise.
Midrash Sephardi v. Town of Surfside, 366
F.3d 1214, 1225 (11th Cir. 2004).
Applying the law to the facts before the Court, the Court
finds
that
Plaintiff
has
failed
to
sustain
his
burden
of
demonstrating that the prohibition of a sweat lodge imposed a
substantial
burden
on
his
Native
American
religion
practice.
Plaintiff avers that the sweat lodge affords him the ability "for
cleansing and purification."
Amended Complaint at 4.
Here, the record reveals that the FCCC affords Plaintiff the
ability to practice the tenets of his faith by permitting him to
participate in the Sacred Pipe Ceremony and Smudging. The FCCC has
established
specific
times,
three
times
a
week,
for
Native
Americans to gather as a group for religious ceremonies, and has
-23-
permitted additional ceremonial time for other spiritual holidays,
as
well
as
two
Pow-Wows.
Finally,
the
FCCC
has
set
aside
designated grounds for the Native American community where a Prayer
Circle has been erected.
According to the documentation presented
by GEO, "[t]he use of the Sacred Pipe is of the utmost importance
to
spiritual
observance."
Exh.
A-1
at
10.
Additionally,
"[v]arious plants, such as sage, cedar, sweet grass, and bitterroot
are used to cleanse and purify by 'washing' one's self or one's
sacred
objects
in
the
smoke."
Id.
"[S]mudging
'ceremonial cleansing' to those who practice."
represents
Id. at 12.
Plaintiff's ability to participate in the Sacred Pipe Ceremony and
Smudging affords Plaintiff the ability to pray and to cleanse
pursuant to his religious tenets.
Thus, GEO's prohibition against
a sweat lodge is an "incidental effect" or "an inconvenience" on
Plaintiff's
religious
exercise,
which
is
insufficient
to
demonstrate a substantial burden. Midrash Shephardi, Inc. at 1227.
Even if Plaintiff can demonstrate that the prohibition of a
sweat lodge is a substantial burden on his faith, based upon the
record and applicable law, the Court finds that Plaintiff's claim
nonetheless fails as a matter of law.
Defendant GEO refers the
Court to the Eight Circuit's decision in Fowler v. Crawford, 534
F.3d 931 (8th Cir. 2008), in which the court evaluated whether a
penal institution's prohibition against a Native American sweat
lodge violated the RLUIPA.
GEO Motion at 14.
-24-
The plaintiff in Fowler, who was a Native American inmate
serving a life sentence at a maximum security prison, filed a civil
rights complaint alleging that the Missouri State prison official's
prohibition of a sweat lodge on the prison grounds denied him his
First Amendment free exercise rights under the RLUIPA.
After
providing a detailed description of what is required to erect a
sweat lodge and explaining the ceremonial activities held therein,12
12
The description, although more detailed, is strikingly
similar to Plaintiff's description found in his Response at pages
5-6.
Willow poles form the structure of a sweat lodge.
Participants place several poles, 1 1/2 inches in
diameter and 14-16 feet long into the ground and bend
them to create a domed structure held together by a small
cord. The size of the completed lodge is approximately
4 feet high and 8-10 feet wide, accommodating 12-15
individuals.
Blankets or tarps cover the entire
structure to contain heat and dark. In the center of the
lodge, a depression approximately 3 feet wide and 2 feet
deep is designed to hold several cantaloupe-sized rocks.
The dirt from the depression is placed outside the
entrance of the lodge to form an altar mound.
Directly beyond the altar mound is a fire pit. The pit
rests 12-15 feet outside the lodge's entrance and
measures approximately 5-6 feet by 4 feet. Firewood is
stacked in the pit. The rocks are placed on the firewood
and the wood is lit. Once the rocks are hot, a
participant carries 7-10 rocks, depending on their size,
to the lodge entrance with a shovel or pitchfork. The
ceremony's facilitator receives the hot rocks using a
pair of deer antlers and places them in the depression at
the center of the lodge.
A sweat lodge typically consists of four rounds.
Participants enter the lodge wearing only shorts, or a
towel wrapped around their waist. A round begins when
the hot rocks are placed in the depression and the
(continued...)
-25-
the
court
held
that
the
correctional
official's
decision
to
prohibit a sweat lodge at the prison was in furtherance of a
compelling governmental interest, stating:
no reasonable jurist, affording due deference to prison
officials, can dispute that serious safety and security
concerns arise when inmates at a maximum security prison
are provided ready access to (1) burning embers and hot
coals, (2) blunt instruments such as split wood and large
scalding rocks, (3) sharper objects such as shovels and
deer antlers, and (4) an enclosed area inaccessible to
outside view.
Id. at 939.
Likewise, the security concerns identified by GEO are equally
significant, especially in the context of an institution like the
FCCC. Plaintiff's assertion that the Eleventh Circuit mandated the
State of Alabama to permit sweat lodges is inaccurate.
Plaintiff
12
(...continued)
doorway flap is closed. The facilitator intermittently
pours water containing sage, cedar, and/or sweetgrass
over the rocks to produce steam, heat and humidity.
During each round, the participants engage in a
prescribed set of songs and prayers. Participants may
smoke the ceremonial pipe during the round.
A round takes from 30 minutes to an hour to complete.
Upon completion of a round, the doorway flap is raised
and additional hot rocks and water are brought into the
lodge. A new round then begins. The typical number of
rocks used during the ceremony is 30-40.
The entire
ceremony typically takes 6-7 hours to complete. To
conclude the ceremony, participants exit the lodge and
remove the blankets or tarps from the willow pole
structure. The fire is burned down and sacred objects
are stored for safekeeping.
The lodge's skeletal
structure remains standing.
Fowler, 534 F.3d at 934.
-26-
does not direct the Court to the case upon which his assertion is
based, and research has identified only one case in which the issue
of sweat lodges in the Alabama prisons was discussed by the
Eleventh Circuit.
See Lathan v. Thompson, 251 F. App'x 665 (11th
Cir. 2007)(unpublished).
In Lathan, the Eleventh Circuit in an
unpublished decision held that the inmates' claim challenging a
policy prohibiting sweat lodge ceremonies under the RLUIPA was moot
because the Alabama Department of Corrections had "changed its
policy" and permitted Native Americans to participate in sweat
lodge ceremonies four times a year.
Id. at 666.
Moreover, the
fact that other penal institutions may permit sweat lodges does not
ipso
facto
mandate
institutions.
that
sweat
lodges
be
built
at
all
other
Spratt v. Rhode Island Dept. of Corrections, 482
F.3d 33, 42 (1st Cir. 2007)(recognizing "prison officials are
infinitely more familiar with their own institutions than outside
observers . . . and that as such, evidence of policies at one
prison is not conclusive proof that the same policies would work at
another institution."(internal quotations and citations omitted)).
Security
issues
are
unique
to
each
institution
just
as
the
differences among institutions vary with respect to population,
physical and geographical characteristics, staffing, and budgeting.
Based upon the record and for the reasons previously addressed
in the reasonable relationship analysis above, in the alternative,
the Court finds that Defendant GEO is entitled to summary judgment
-27-
on Plaintiff’s First Amendment free exercise claim under the
compelling interest test.
C.
Conspiracy Claim
The Court finds the Amended Complaint fails to articulate a
conspiracy claim under § 1985.
To establish a conspiracy claim,
Plaintiff “must show an agreement between ‘two or more persons' to
deprive him of his civil rights.” 42 U.S.C. § 1985(3), interpreted
in Dickerson v. Alachua County Com'n, 200 F.3d 761, 767 (11th
Cir.), cert. dismissed, 530 U.S. 1285 (2000).
Plaintiff's Amended
Complaint is devoid of any factual allegations that support a
conspiracy claim.
Indeed, Plaintiff only raises his claim of
conspiracy under his paragraph for "relief" in which he requests
that the Court order an investigation.
Amended Complaint at 8.
Consequently, the Court finds that, to the extent that Plaintiff
was attempting to assert a conspiracy claim under § 1985, the claim
must be dismissed.
ACCORDINGLY, it is hereby
ORDERED:
1.
a
Plaintiff's Motion to Strike (Doc. #24) is construed as
response
Dismiss/Motion
Summary
in
opposition
for
Judgment
Summary
(Doc.
#25)
to
Defendant
Judgment.
is
GEO's
Plaintiff's
construed
as
a
Motion
to
Motion
for
supplement
to
Plaintiff's Response, and Plaintiff's respective motions (Docs.
##24-25) shall be terminated from the pending motions report.
-28-
2.
Defendant GEO's Motion to Dismiss for Mootness/Motion for
Summary Judgment (Doc. #22) is GRANTED for the reasons set forth
above.
3.
Defendant
DCF's
Motion
to
Dismiss
(Doc.
#23)
is
terminated as moot.
4.
The Clerk of Court shall enter judgment accordingly,
terminate any pending motions, and close this file.
DONE AND ORDERED at Fort Myers, Florida, on this 27th day of
June, 2011.
SA: hmk
Copies: All Parties of Record
-29-
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