Baker v. Parsons et al
Filing
81
OPINION AND ORDER Defendants' motion for summary judgment (Doc. 63) is GRANTED. Plaintiff's cross-motion for summary judgment (Doc. 64) is DENIED. The CLERK is directed to enter judgment in favor of Defendants Parsons and Taylor and close this case. Signed by Judge Mary S. Scriven on 7/29/2019. (RO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GARY STEVEN BAKER, JR.
Plaintiff,
v.
Case No. 8:12-cv-1636-T-35SPF
M. PARSONS, et al.,
Defendants.
/
ORDER
This cause comes before the Court on Defendants M. Parsons and A. Taylor’s
motion for summary judgment (Doc. 63), Plaintiff Gary Steven Baker, Jr.’s response
(Doc. 66), and Defendants’ reply (Doc. 73). Also before the Court is Plaintiff’s crossmotion for summary judgment (Doc. 64) and appendix thereto (Doc. 65), Defendants’
response (Doc. 67), and Plaintiff’s reply. (Doc. 69) Having considered the motions and
being otherwise fully advised, the Court ORDERS that Plaintiff’s motion for summary
judgment (Doc. 64) is DENIED, and Defendants’ motion for summary judgment (Doc.
63) is GRANTED.
I. BACKGROUND
Plaintiff Baker brings this action under Title 42 United States Code Section
1983, alleging that, while confined in the Hardee Correctional Institution, Defendants
violated Baker’s (1) right to exercise his religion, and (2) right to equal protection. He
also asserts that Defendants violated his rights under the Religious Land Use of
Institutional Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc–1, and under Florida’s
Religious Freedom Restoration Act of 1998 (“FRFRA”), Fla. Stat. § 761.03.
Generally, Plaintiff claims that Defendants have improperly denied his requests
to possess or use items of alleged significance to his Mystic faith. He also claims that
Defendant Parsons refused to assist Plaintiff in observing a sacred religious fast.
Finally, he contends that Defendants have, on the basis of his religion, denied him
access to the chapel and denied his request to schedule a Mysticism study group. He
seeks declaratory and injunctive relief, 1 along with nominal damages.
An earlier order dismissed Plaintiff’s claims against Defendants Lawrence,
Mount, and Bowden. (Doc. 41 at 6–7) At this stage of the proceedings, the only
remaining defendants in this case are M. Parsons (Chaplain) and Alex Taylor
(Administrator of Chaplaincy Services, Florida Department of Corrections (“DOC”)).
The Court notes that, upon review, the complaint does not clearly specify
whether Plaintiff is suing Defendants in their official or individual capacities. “[W]hile it
is ‘clearly preferable’ that a plaintiff state explicitly in what capacity defendants are
being sued, ‘failure to do so is not fatal if the course of proceedings otherwise indicates
that the defendant received sufficient notice.’ ” Young v. Apartments, Inc. v. Town of
Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008) (quoting Moore v. City of Harriman,
272 F.3d 769, 772 (6th Cir.2001)).
1
As part of the relief sought, Plaintiff seeks an order from the Court requiring Defendants to assist
Plaintiff with his pursuit of Mysticism, to allow Plaintiff to submit a chaplain’s guide for the Mysticism
religion, and to permit Plaintiff to obtain and use a number of items that he claims pertain to the practice
of his religion. He also seeks an order requiring Defendants to build a twenty-foot by twenty-foot building
for use as a meditation room. (Doc. 1 at 7,10–11)
Page 2 of 36
Defendants inferred from the Complaint that Plaintiff sued them in both
capacities. (Doc. 63 at 4, 19, 21–23) However, in his response to Defendants’ motion
for summary judgment, Plaintiff clarifies that he asserts RLUIPA claims against
Defendants in their official capacities (Doc. 66 at 3, 10, 11, 21) and he asserts free
exercise, equal protection, and FRFRA claims against Defendants in their individual
capacities. (Doc. 66 at 11–12, 21–22) Therefore, Plaintiff has affirmatively repudiated
individual capacity RLUIPA claims and official capacity free exercise, equal protection,
and FRFRA claims against Defendants. Accordingly, Defendants’ motion for summary
judgment on those claims — to the extent the complaint could have been construed to
raise them — is GRANTED.
II. SUMMARY JUDGMENT
The granting of summary judgment is proper “if pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact[2] and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56. See In re Optical Technologies,
Inc., 246 F.3d 1332, 1334 (11th Cir. 2001). A court must view the documents in the
light most favorable to the non-moving party and the documents must show that the
non-moving party is not entitled to relief under any set of facts alleged in the complaint.
See generally, Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997); Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590 (11th Cir. 1995).
2
A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve
the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
Page 3 of 36
“Rule 56(c) mandates the entry of summary judgment . . . against a party who
fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In such a situation, there can be ‘no
genuine issue as to any material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts
immaterial.” Id. at 322–23.
Where the non-moving party bears the burden of proof on an issue at trial, “the
moving party [is not required to] support its motion with affidavits or other similar
materials negating the [non-moving party’s] claim.” Id. at 323 (emphasis in original).
Instead, the movant simply “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any’
which it believes demonstrate the absence of a genuine issue of material fact.” Id.
Once the movant presents evidence that, if not controverted, would entitle the
movant to a judgment at trial, the burden shifts to the non-moving party to assert
specific facts demonstrating the existence of a genuine issue of fact for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Pennington v. City of Huntsville, 261
F.3d 1262 (11th Cir. 2001).
Even though an allegation in a pro se complaint is held to a less stringent
standard than a formal pleading drafted by a lawyer, Haines, 404 U.S. 520,
Tannenbaum v. United States, 148 F.3d 1262 (11th Cir. 1998), the plaintiff’s
allegations must have factual support. “The mere existence of a scintilla of evidence
Page 4 of 36
in support of the plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Burger King Corp. v. Weaver, 169 F.3d
1310, 1321 (11th Cir.) reh’g and suggestion for reh’g en banc denied, 182 F.3d 938
(11th Cir.), cert. dismissed, 528 U.S. 948 (1999). “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). See also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
III. UNDISPUTED FACTS
Upon review of the record, the following facts appear uncontested:
1. At all times relevant to this lawsuit, Plaintiff was, and remains, housed at Hardee
Correctional Institution (“HCI”). (Doc. 1 at 1; Doc. 42 at 1)
2. At all times relevant to this lawsuit, Defendant M. Parsons was employed as the
Chaplain at HCI. (Doc. 1 at 3; Doc. 42 at 1)
3. At all times relevant to this lawsuit, Defendant Alex Taylor was employed by the
Department of Corrections as the Administrator of Chaplaincy Services. (Doc. 1 at
4; Doc. 42 at 1)
4. Prison chaplains “must work with and accommodate numerous religions that are
different from the chaplain[’]s own beliefs,” and space designated for religious
activities must be shared by all inmates at HCI. (Doc. 63 Ex. 1 at 6)
5. Prior to the events challenged in the instant lawsuit, Plaintiff identified his religion
as Odinism. (Doc. 64 at 2) While observing that religion, HCI officials confiscated
Page 5 of 36
Plaintiff’s lighter from his cell as part of a shake-down for contraband. (Doc. 64 at
6; Doc. 63 at 20)
6. On October 3, 2011, Plaintiff wrote to Defendant Parsons, Chaplain at HCI,
requesting “access to, or the information pertaining to[,] what all the religion
Mysticism is allowed to practice, receive, medallion to wear, e[tc].” He explained
that he “would like to know all this before changing my faith, if I so do choose to in
the future.” (Doc. 63 Ex. 1 at 12; Doc. 65 Ex. 11 at 2)
a. Defendant Parsons responded, 3 “Currently there is no information through
DOC regarding this religion.” (Doc. 63 Ex. 1 at 12; Doc. 65 Ex. 11 at 2)
7. Sometime thereafter, Plaintiff changed his religious affiliation to Mysticism and
submitted the paperwork to change his listed affiliation with HCI. 4
8. The DOC recognizes Mysticism as a religion but has established no guidelines as
to the practice of Mysticism. (Doc. 63 Ex. 1 at 2; Doc. 67 at 5)
9. On October 18, 2011, Plaintiff submitted the following request to Defendant
Parsons (Doc. 63 Ex. 1 at 13; Doc. 65 Ex. 3 at 2):
Sir, I spoke to you when I changed my religion to Mysticism. You told
me that you would deny everything I requested or tried to get in. I have
already written Alex Taylor concerning this issue and what I need to be
able to pray as . . . “God” tells me to pray, when to pray and how. Since
they have taken lighters off the compound, and I need to light incense
during prayer, I am requesting access to the chapel to pray and meditate
8 times a day, 4 times will be the same every day, the other four will
3
The signature of the official responding to the request is not legible. However, Defendants do not
appear to contest that Parsons, as the chaplain, responded to the requests addressed to him. (See,
e.g., Doc. 63 at 9, 11)
4 Plaintiff contends he officially changed his religious preference with HCI before his October 18, 2011
request to Defendant Parsons regarding his prayer needs. (Doc. 64 at 2, ¶ 2; Doc. 63 Ex. 1 at 13; Doc.
65 Ex. 3 at 2) Defendants contend, however, that he did not do so until July 2014. (Doc. 63 Ex. 1 at 2)
Page 6 of 36
change daily. I will need access to a lighter, or one match per prayer. If
you have any questions, please call me up for exact times.
a. Defendant Parsons responded, “At this point it is not possible for you or
anyone to come into the chapel to pray 4–8 times a day[.] We will await a
response from Mr. Taylor.” (Doc. 63 Ex. 1 at 13; Doc. 65 Ex. 3 at 2)
10. Defendant Taylor recalls that Defendant Parsons contacted him during the fall of
2011 concerning Mysticism. Defendant Parsons contacted him by telephone or
email, and he responded by telephone. 5 (Doc. 63 Ex. 1 at 5)
11. Defendant Taylor did not communicate with Plaintiff. (Doc. 64 at 2)
12. On October 25, 2011, Plaintiff submitted the following request to Defendant
Parsons (Doc. 63 Ex. 1 at 16; Doc. 65 Ex. 11 at 4):
I am writing to advise you of all the materials I need for daily prayer and
communion with God in my religion as God told me directly. I need
incense Frankin[c]ense/My[rrh] and sandalwood, charcoal bricks/disk,
matches or a lighter, assorted color [tapered] candles, mystical oil #1
ancient wisdo[m] or High Johns and #2 anointing, small plastic bottle to
keep daily applications, . . . 25 crystal/stone runes and 1 box to house
these in, all except runes to be kept in locker. I will also need a medallion
that reflects my religious beliefs. Now that you know that I need these
items and what they are, your position as chaplain should be to promptly
obtain them so as for prayer and communion with God.
a. Defendant Parsons denied the request without explanation. (Doc. 63 Ex. 1
at 16; Doc. 65 Ex. 11 at 4)
5
Plaintiff contends that Defendant Taylor’s interrogatory responses belie the statement made in his
affidavit that Parsons contacted him by phone or email and that he responded by phone. (Doc. 63 Ex.
1 at 5, Doc. 65 Ex. 10 at 14–19) However, Taylor’s interrogatory response does not contradict his
affidavit. When asked whether he received emails from Parsons concerning Plaintiff and Mysticism, he
responded that he “reviewed [his] emails and [did] not have any emails regarding [Plaintiff] and the
Mysticism religion.” (Doc. 65 Ex.10 at 15) That he does not have a copy of any potential email does
not negate his averment that he recalled Parsons contacted him either by phone or email and that he
responded by phone.
Page 7 of 36
13. On October 26, 2011, Plaintiff filed an informal grievance that stated the following
(Doc. 63 Ex. 1 at 18–19; Doc. 65 Ex. 11 at 5–6):
I am grieving the fact that Chapl[a]in Parsons is [refusing] to make
accommodations to allow me to pray and commune with God and be
able to receive the items needed; to which are mystic oil, incense
Frankin[c]ense/myr[r]h & sandalwood, charcoal disk, assorted [tapered]
candles, box to house these items, a small plastic bottle to hold daily
amount of mystical oil, hard stick matches or a lighter, and a religious
medallion that reflects my faith, Mysticism. Chapl[a]in Parsons stated
from our first conversation that he would deny me anything I requested.
It is evident that Chapl[a]in Parsons is not in compliance with Chpt. 33503.001(c), 2(a), 2(b), 2(c), 2(c)(3)[,] thus he is maliciously denying
myself prayer until someone in Tallahassee demands that he does
conform to the Constitution; to religious freedom and chpt. 33-503.001c,
2a, 2b, 2c, 2c3. Which Chapl[a]in Parson[s’] job should mandate as
chapl[a]in that he does conform to the Constitution 1st Amendment,
“Freedom of Religion” and Chapter 33-503.001(c), 2(a), 2(b), 2(c),
2(c)(3).
Relief sought: That Chapl[a]in Parsons makes availability of the
chapel for me to pray 8 times a day and be able to order everything and
take the daily needed amount to do my prayers within my cell, as I was
doing before the lighters became contraband. And that Chapl[a]in
Parsons be instructed on the religious rights of those who practice a
recognized Religion and the description of his job title in Chapter 33503.001 and how he shall help inmates to further their spirituality.
a. The informal grievance was denied with the following explanation (Doc. 63
Ex. 1 at 18; Doc. 65 Ex. 11 at 5):
Your grievance has been received, reviewed, evaluated and the
following has been determined.
33-503.001 sections (1)(a)1, 2 and three states the following:
The Chaplaincy Service Section of the Office of Education and
Initiatives Is responsible for:
1. Developing and evaluating religious programs throughout the
Department
2. Coordinating all religious programs throughout the Department
3. Providing general assistance and guidance to chaplain.
Page 8 of 36
In previous conversations with the chaplain you were informed
that although the Department recognizes Mysticism there are no
guidelines for this religion within the Technical Guide. The
authority to develop such guidelines clearly is with The Chaplaincy
Service, not the local Chaplain.
Based upon the Florida Admin[.] code as quoted above[,] your
grievance is denied.
14. Plaintiff filed a second informal grievance on the same day, October 26, 2011
(Doc. 63 Ex. 1 at 20; Doc. 65 Ex. 3 at 3):
I am grieving the fact that Chapl[a]in Parsons and myself talked over 10
days ago about my faith “Mysticism.” At that time and until now,
Chapl[a]in Parsons has not attempted to find out what times I must pray
and commune with God, nor has he called me in to be able to pray and
commune w/ God. He is not making an attempt to help me further my
spirituality, as per his job requirement per Chpt. 33-[503].001c, 2(a), 2(b),
2(c), 2(c)(3).
Relief sought: To be allowed to pray and commune with God, with
Chapl[a]in Parsons trying to further my spiritual needs, or a chapl[a]in
who abides by Chpt. 33-[503].001[,] Replace and[/]or instruct Chapl[a]in
Parsons on his duties.
a. The informal grievance was denied using the exact same explanation as the
denial of his other October 26, 2011 grievance. (Doc. 63 Ex. 1 at 20; Doc.
65 Ex. 3 at 3); see supra ¶ 13(a).
15. On November 9, 2011, Plaintiff appealed the denials of his October 26, 2011
informal grievances. (Doc. 63 Ex. 1 at 21–22; Doc. 65 Ex. 11 at 9–10).
a. HCI’s warden denied the grievance, explaining that the response to his
informal grievance was appropriate and that Defendant Taylor would advise
Plaintiff concerning his issues. (Doc. 63 Ex. 1 at 23; Doc. 65 Ex. 11 at 8)
b. On December 6, 2011, Plaintiff appealed to the Secretary of the Florida
Department of Corrections. (Doc. 65 Ex. 11 at 14)
Page 9 of 36
i. The Secretary denied the appeal in March 2012, explaining (Doc. 63
Ex. 1 at 25; Doc. 65 Ex. 11 at 13):
Your administrative appeal has been received, evaluated
and referred to Chaplaincy Services who provided the
following information:
According to your request and the chaplain’s replies you
were appropriately told that you could not be called to the
chapel 8 times a day for prayer nor have a match for each
prayer. The Chapel schedule is based on time, space and
supervision availability; no group or individual is permitted
to use the chapel 8 times every day. If you desire a
medallion you should notify that chaplain as to the
medallion you request then the chaplain can determine if
the medallion is permitted. You must have the religious
headquarters of your faith group write to the chaplain, using
their own letterhead paper, the requirements and religious
paraphernalia necessary for their faith. The institution
responded appropriately.
16. On September 8, 2013, Plaintiff submitted a request to food service to be given
only fruit juice and no food during an upcoming forty-day religious fast. (Doc. 65 Ex.
16 at 2)
a. The response to his request indicated that Defendant Parsons would need
to make the request on Plaintiff’s behalf. (Doc. 65 Ex. 16 at 2)
b. Plaintiff, accordingly, submitted a request to Defendant Parsons, who denied
the request, explaining that Plaintiff could eat or drink what was offered by
food service, or choose not to do so. Permission from a chaplain was not
required. (Doc. 65 Ex. 16 at 3)
c. Plaintiff, ultimately, received assistance from Assistant Warden Morris and
Food Service. (Doc. 65 Ex. 16 at 4)
Page 10 of 36
17. On February 28, 2014, Plaintiff submitted an inmate request to Defendant Parsons
regarding the February 26, 2014, confiscation of his tarot cards. He asked that the
cards be returned to him, rather than be stored in the chapel. Alternatively, he
requested that the cards be stored in the chapel for his use only and that he be
placed on the call-out list daily at the same time to use them in the chapel. (Doc.
65 Ex. 12 at 2)
a. Defendant Parsons denied the request, explaining that: (1) pursuant to
Florida Administrative Code Section 33-602.201(13)(d), his tarot cards
would remain in the chapel; and (2) he could submit an inmate request to be
placed on the call-out list to use them in the chapel, and he would be placed
on the call-out list as time and space permitted. (Doc. 65 Ex. 12 at 2)
18. On May 9, 2014, Plaintiff submitted a request to Defendant Parsons for a time slot
for a Mysticism study group for five registered mystic inmates at HCI. (Doc. 63 Ex.
1 at 28)
a. Defendant Parsons responded by explaining that he “need[ed] a request
from everyone who wants this class first.” (Doc. 63 Ex. 1 at 28)
19. On May 21, 2014, Plaintiff submitted another request to Defendant Parsons, stating
that “all the mystics have submitted a class ‘study group’ request” and that he “again
request[s] a Mysticism study group and to be added to the list.” (Doc. 63 Ex. 1 at
29)
a. Defendant Parsons responded, “[w]hen a volunteer is available to supervise
this class, I will schedule it.” (Doc. 63 Ex. 1 at 29; see also Doc. 63 Ex. 1 at
2)
Page 11 of 36
b. On June 13, 2014, Plaintiff filed an informal grievance complaining that
Defendant Parsons had not responded to his request for a Mysticism study
group. (Doc. 63 Ex. 1 at 26; Doc. 65 Ex. 6 at 3)
i. Defendant Parsons denied the informal grievance, explaining, “[t]he
chaplain does not have the time or space to accommodate another
group that does not have an outside volunteer. No additional groups
will be allowed unless they have an outside sponsor. When Mystics
have an outside sponsor (volunteer) then the chapel will give the
group further consideration.” (Doc. 63 Ex. 1 at 26; Doc. 65 Ex. 6 at
3; see also Doc. 63 Ex. 1 at 2)
20. On September 5, 2014, Plaintiff requested Defendant Parsons place him on a
vegan diet for religious reasons. Defendant Parsons directed him to submit the
request to food service. (Doc. 63 Ex. 1 at 30)
21. On March 1, 2015, Plaintiff submitted a request to Defendant Parsons asking to be
permitted to possess “a Masonic ring with square and compass[] that [his] late
grandfather wore[,] who was both a Mason and Mystic.” He cited three books in
support of his claim that the ring “[i]mbues and lends it’s spiritual and religious
(mystic) protective power to [him].” (Doc. 66 Ex. 1 at 14) He further submitted a
Religious Property Approval Form for the ring, along with his previously obtained
Masonic Religious Material Property Card to demonstrate his purported entitlement
to the ring. (Doc. 66 Ex. 1 at 15–16, 18)
a. Defendant Parsons denied the request, explaining that, “although D.O.C.
recognizes mystics, the Department has no guidelines governing local
Page 12 of 36
chaplains[’] decisions as to what is authorized.
I suggest you use the
grievance process to central office for further assistance.” (Doc. 66 Ex. 1 at
14)
22. On March 3, 2015, Plaintiff submitted a request for:
a stone necklace with amethyst stone medallion, the stones are stones
of Thor and Odin, the necklace is constructed to mirror the place of the
Gods at the exact moment of my birth; the amethyst medallion is due to
the house/Heavenly Hall I was born in and it’s [sic] Qabalistic
metaphysical protections.
(Doc. 66 Ex. 1 at 6) He also included a request for a forty-count strand of mala beads
for training and “a 150 plus count (chipped) mala strand, as Alfather [sic] is known by
over 150 names[,] and I must use them in mantras to evoke him within me.” (Doc. 66
Ex. 1 at 6) The request was accompanied by a Religious Property Approval Form
requesting the mala beads. (Id. at 7)
a. Defendant Parsons denied the request on the basis that “[w]e do not have
any guideline[s] to show what religion you are.” (Doc. 66 Ex. 1 at 6)
b. On March 20, 2015, Plaintiff filed an informal grievance related to the denial
of his request to possess the masonic mystic ring that belonged to his
grandfather. (Doc. 66 Ex. 1 at 8–9)
i. The informal grievance was denied, with the explanation that
“ ‘[r]eligious beliefs do not justify violation of Department of
institutional rules and regulations.’ This includes inmate property
rules which permit only wedding bands, no other rings are permissible
including religious rings. The institution responded appropriately.”
Page 13 of 36
(Doc. 66 Ex. 1 at 10 (quoting Florida Administrative Code Section 33503.001(2)(c)2))
c. On April 5, 2015, Plaintiff appealed the denial of his informal grievance.
(Doc. 66 Ex. 1 at 11, 12)
i. The warden denied the appeal, explaining that the response Plaintiff
received to his informal grievance appropriately addressed his
concerns. (Doc. 66 Ex. 1 at 13)
d. On March 20, 2015, Plaintiff also filed a separate informal grievance related
to the denial of his request for a religious necklace with medallion and two
sets of mala beads. (Doc. 66 Ex. 1 at 9)
i. Defendant Parsons denied the grievance. (Doc. 66 Ex. 1 at 9)6
e. Plaintiff appealed the denial of his informal grievance, and the warden
denied the appeal, explaining that the response Plaintiff received to his
informal grievance appropriately addressed his concerns. (Doc. 66 Ex. 1 at
3)
23. On March 15, 2015, Plaintiff submitted an inmate request “to be placed on the
Catholic Mass call-out for 4-2-15[,] as [he was] invited to attend the sacrament of
conf[i]rmation.” (Doc. 65 Ex. 5 at 5) The request was granted. (Id.)
24. On March 19, 2015, Plaintiff submitted an inmate request “to be placed on the callout for the Joyce Meyer Service on April 14,” which was granted. (Doc. 65 Ex. 5 at
4)
6
The denial stated, “[p]lease see the attached response.” (Doc. 66 Ex. 1 at 9) However, no response
was attached to the document provided to the Court.
Page 14 of 36
25. On May 26, 2015, the Secretary denied Plaintiff’s grievance appeal, stating (Doc.
66 Ex. 1 at 2):
Your administrative appeal has been received, evaluated and referred to
Chaplaincy Services, who provided the following information: You may
study your faith through the use of the chapel library when it is open and
you have free time. You may also take correspondence courses and
purchase literature of your own to study, keeping in mind that all literature
must adhere to the Admissible Reading Rule. Further, you must have
the religious headquarters of your Mystic faith group send to the chaplain
on their letterhead the list of their holy days, scriptures or holy books and
any required religious paraphernalia. Once this is accomplished the
institution and the Department . . . can proceed with any necessary
changes. Thus the institution responded appropriately.
26. The “Religious Appendix” 7 provided by Plaintiff (Doc. 65 Ex. 15) contains a
“Mysticism’s Technical Guide” that includes the following information and citations
about the religious items and practices that Plaintiff requested: 8
a. “Mystic Oils: 1.) Anointing oil, 2.) Ancient Wisdom or High John's
Source: Franz Bardon Bk 2 pg.68 ‘For particular operations he is also
required sacrificial blood, also known as Holy oil, with which the
Magician embrocates his instruments and anoints specific areas of
his body.’ ”
(Doc. 65 Ex. 15 at 31)
b. “Candles: (7) Sacred colored tapered candles. Source: The Key of
Solomon the King, p.108 ‘It hath been ever the custom among all
natio1s to use fire and light in sacred things. For this reason the
Master of the Art should employ them in sacred rites, and besides
those for reading the conjurations by, and for the incense, in all
7
The appendix appears to have been authored by Plaintiff himself. (See e.g., Doc. 1 at 7 (relief
requested includes permission to submit guidelines on Mysticism for the chaplain to use); Doc. 65 Ex.
15 at 12 (notation indicating sources from which the “Essential Tenets of Faith and Belief” were
compiled); Doc. 65 Ex. 15 at 31 (“Plaintiff now provides a listing of requested items and their
authoritative sources.”); Doc. 65 Ex. 15 at 39 (notation that “Plaintiff has simplified the prayer times”
from his original request))
8
The provided Mysticism Technical Guide includes a lengthy list of items requested by Plaintiff.
(Doc. 65 Ex. 15 at 31–39) However, some of those items do not appear in the inmate request forms
submitted by Plaintiff to Defendants. Accordingly, the Court confines its analysis to those items that the
record demonstrates Defendants considered and rejected.
Page 15 of 36
operations lights are necessary in the Circle.’ Agrippa's Occult
Philosophy Bk1. Pp. 148, 149 ‘And we shall afterwards speak of some
colors which are the planets, by which the natures of Fixed Starts
themselves are understood, which also may be applied to the flames
of lamps and candles.’ ”
(Doc. 65 Ex. 15 at 31–32)
c. “Incense: (7) Sacred planetary incense, (12) Holy/Heavenly Zodiacal
Hall Incense. Source: The Key of Solomon the King. Chpt. 12 p. 108,
Chpt. 10 p. 105. ‘for a suitable suffumigation, thou may burn temple
incense, as it gives . . . a most fragrant odor which seems to
posses[s] the power to attract the GOOD SPIRITS and forces the
EVIL ones to go away f[ro]m thee.[’]
Agrippa's occult philosophy BK 1 chpt. XLIV p.135-137 list the
Suffumigations (incense) to use.
The Poetic Edda, Lee M. Hollander Hyndluluod, Stanzas 9-10
‘Burnt offerings on the Altar’,
Skirnismal, Stanzas 8-9, 17-18 Fire and smoke must be u ed to
get Prayers to the hall (heaven).”
(Doc. 65 Ex. 15 at 32)
d. Herbs:
“And in the Hall of Hair (Sacred Holy Space ‘circle’ to Alfather Odin)
burned her three times burned they (three stages of Holy herbs to
provide materialization) the thrice reborn, even and anon: even now
she liveth.
First Herb: White Oak bark, cut source: Gudrunarhvqt Stanza 22,
Peetic Edda Bruning of oak.
Second Herb: Mini Verba Lena Yesca, Source: Agrippa's occult
philosophy BK1 Chpt. XLIII pp. 132-134 ‘Some suffumigations, also,
or perfuming, that are proper to the stars, are of great force for the
opportune receiving of celestial gifts under the rays of the star, in as
much as they do strongly work upon the air and breast.
Which Suffumigations, indeed, being duly appropriated of any
certain deities, do fit us to receive divine inspiration.’
The rest of the Chapter list[s] herbs that combined become Mini
Yerba Lena Yesca.
Third Herb: Abra Melin source: The Book of the sacred Magic of
Abramelin the Mage. P.77 ‘The perfume shall be made thus: Take of
Incense in tears* Olibanum one part; of Stacte or Storax half a part;
of Lign Alves a Quarter of a part; and not being able to get this wood
Page 16 of 36
you shall take that of cedar, or of rose, or of Citron, or any other
odoriferous wood.’
All three herbs and the combinations to make them ban be found
in Agrippas's Occult Philosophy BK 1 pp. 133-137.
It shall be noted that neither of the Holy and divine herbs are illegal
substances.”
(Doc. 65 Ex. 15 at 33–34)
e. “Runes: (25) Metaphysical rune stones Source: Futhark, Edred
Thorsson pp. 5, 6, 11. ‘Runes have been found carved on wood,
stone, metal, and bone objects.’ ‘the greater number of runic
inscriptions are on rune stones, of which approximately twenty-five
(25) Hundred are known’ ‘There are also a few stone talismans.’
Raven Kaldera and Galina Krasskova: Neolithic Shamanism:
spirit work in the Norse tradition. See Appendix (I) Copy of Meta
physical rune stones etched with runes and copy of book covers.
Additional Reference Source Material.
Eliphas Levi (Translated by A.E. Waite) History of Magic Quoting
Hermetic Philosopher Oswald Crollins from the book of Signatures.
‘The characters of different writings were borrowed primitively from
these natural signatures existing in stars and flowers, on mountains
and the smallest pebble. The figures of crystals, the marks on
minerals were impressions of the thought which the creator had in
their formation.’
The above quote is provided for the Runes, Metaphysical
necklace and Medallion, and pray[er] beads/Meditation beads.”
(Doc. 65 Ex. 15 at 35–36)
f. “Holy Mystical Stone Necklace and Medallion (Metaphysical stones):
Medallion (Silver double headed fire phoenix on top of volknot,
Mounted on Amethyst Stone (2" by 2" teardrop shape) Volknot is the
symbol for the Einherjar (Odin’s hand Chosen)
Source: Franz Bardon BK 2 pp 68-69 Additional Magical aids,
Necklace, and BK 2 pp68-69 Additional Magical Aids, Necklace, and
B~ 2 p 297 ‘The purpose of a Talisman, amulet or any birthstone is to
raise, Strengthen and maintain a level of belief and confidence of the
person who is wearing it. Owning to the fact that the wearer pays
considerable attention to his talisman, the subconscious is autosuggestively influenced towards the desired direction, and various
effects can be achieved in accordance with the person’s inclination.
Finally, I would like to mention the precious and semi-precious stones
which are especially suitable fluid condensers and which have been
used from ancient times as good luck charms, to provide protection,
Page 17 of 36
to attain success and to effect cures. Astrology has assigned to every
Gemstone a particular effect and recommended the wearing of the
appropriate birthstone.’
Light of Egypt Vol. 1 p 214, Thomas H. Burgoyne list the Amethyst
to be plaintiff’s birth stone to be used in Medallion.”
(Doc. 65 Ex. 15 at 36–37)
g. Prayer and Meditation beads (Metaphysical chipped stones) 120 plus
small beads.
Source: Poetic Edda, The Alfather Odin is known by
over 200 hundred names of those 150 are recorded, during
adorations to each name to receive the blessings of these names the
prayer strand serves as a counter so as not to disturb the mind while
focusing on mantra of the name.
Franz Bardon BK. 1 p 84 Instructs for the use of a set of (40) beads
while performing the Mystical exercises the provides [sic] to make the
Mystic Stronger spiritually.
(Doc. 65 Ex. 15 at 37)
h. “Mystical Tarot Deck. Source: Franz Bardon BK 1 and Bk 2[.] BK
1 p. 18 ‘Many readers are probably aware that the Tarot is not a
game of cards serving mantic or prophetic purposes. . . . Instead it is
a book of initiation in which the greatest secrets are contained
symbolically.’ BK 2. P. 11. [‘]In accordance with the ancient Egyptian
Mysteries, the Magic of the Second Tarot is represented by the High
Priestess. I shall gladly continue to guide the Serious, diligent reader
and student of magic along the proper path.’ ”
(Doc. 65 Ex. 15 at 38)
i.
“Charcoal: Charcoal is placed lit within the censer where the three (3)
holy herbs are places to fumigate.”
(Doc. 65 Ex. 15 at 38)
j.
“Small Box: The box serves as the covenant of a[n] Arch. Source:
Franz Bardon BK 2. P 69 ‘Every magical aid must be safely stored
immediately after use.’ ”
(Doc. 65 Ex. 15 at 38)
k. “Lighter, (1) one to light her[b]s, incense, candles, and charcoal.”
(Doc. 65 Ex. 15 at 39)
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l.
“Prayer Time Hours Source: The Keys of Solomon the Kin p. 6 for
Monday — Sunday 6 AM, 1 PM, 8 PM! The fourth prayer is at 4 PM
every day. Plaintiff has simplified the prayer times of the four that
changed, which will no longer cha[n]ge times. The other (4) are
sunrise (at that time), Noon (at that time), sunset (at that time),
Midnight (at that time) the exact times are to be observed, not
afterwards.”
(Doc. 65 Ex. 15 at 39)
27. Section 33-602.201(16)(c)(1)(i) of the Florida Administrative Code permits inmates
adhering to the tenets of a particular religion to possess:
[o]ne religious symbol or medallion, such as a cross, Star of David, or
talisman, or other religious medallion. Religious symbols shall not be
more than 2 inches in length or diameter, and symbols worn about the
neck shall be worn under the shirt on a jewelry-type chain. Religious
symbols that are designed to be affixed to clothing with a pin are not
permitted.
(See also Affidavit of Alexander Taylor, Doc. 62 Ex. 1 at 5–6 (“All inmates are permitted
a religious medallion in keeping with their religion. The restrictions on a medallion have
to do with cost limits, size and any risks connected with the item itself. These risks
include any medallion that is obviously offensive to the extent it may cause a
disturbance, or a medallion that has secret compartments where contraband may be
secreted.”)).
28. Section 33-602.201(16)(c)(1)(h), Fla. Admin. Code, permits inmates adhering to
the tenets of a particular religion to possess “[o]ne set of prayer beads, such as
Rosary, Dhikr, Orisha, Mala, or Japa-Mala beads.”
29. Section 33-602.201(16)(c)(2)(c), Fla. Admin. Code, permits inmates adhering to the
tenets of Asatru or Odinism to possess runes and an accompanying cloth bag.
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30. Section 33-602.201(16)(d)(1), Fla. Admin. Code, requires that tarot cards be stored
in the chapel and be used “only under the supervision of the chaplain or an
approved volunteer.”
31. Each of Plaintiff’s previously described Mysticism-related requests was submitted
on a DC6-236 Inmate Request Form.
32. Inmate Douglas Jackson, who was housed with Plaintiff, “observed [Plaintiff’s]
constant and consistent prayers all throughout the day and night.” (Doc. 66 Ex. 2
at 4) Plaintiff informed Douglas Jackson that Plaintiff must continue his prayers,
even though his attempts were in vain without the necessary religious items. (Doc.
66 Ex. 2 at 4–5)
IV. ANALYSIS
Each side has filed a motion for summary judgment in this case. “[C]rossmotions may be probative of the non-existence of a factual dispute,” but “[c]rossmotions for summary judgment will not, in themselves, warrant the court in granting
summary judgment unless one of the parties is entitled to judgment as a matter of law
on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555
(11th Cir. 1984) (quoting Bricklayers Int’l Union, Local 15 v. Stuart Plastering Co.,
512 F.2d 1017, 1023 (5th Cir.1975)).
Upon review, Plaintiff’s motion for summary judgment and response in
opposition to Defendants’ motion for summary judgment focus heavily on
demonstrating proof of factual disputes, allegedly material, in the record. Plaintiff has,
therefore, not demonstrated that he is entitled to judgment as a matter of law, see Fed.
R. Civ. P. 56, and Plaintiff’s motion for summary judgment is DENIED. Accordingly,
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the remainder of this Order will consider Defendants’ motion for summary judgment,
viewing the evidence in the light most favorable to Plaintiff, the non-moving party.
1. RLUIPA
Section 3 of RLUIPA “protects institutionalized persons who are unable to freely
attend to their religious needs and are therefore dependent on the government’s
permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544
U.S. 709, 721 (2005). Section 3 provides that:
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, . . . unless
the government demonstrates that imposition of the burden on that
person — (1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a).
Prison inmates are, therefore, afforded “a heightened
protection from government-imposed burdens, by requiring that the government
demonstrate that the substantial burden on the prisoner’s religious exercise is justified
by a compelling, rather than merely a legitimate, governmental interest.” Smith v.
Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) (citation and internal quotation marks
omitted), abrogated on other grounds by Sossaman v. Texas, 563 U.S. 277 (2011). In
so doing, “section 3 affords confined persons greater protection of religious exercise
than what the Constitution itself affords.” Id. (citation and internal quotation marks
omitted).
In order to succeed on his RLUIPA claims, Plaintiff must first demonstrate that
his observance of Mysticism constituted a “religious exercise” under the statute. Allen,
502 F.3d 1276. Under RLUIPA, the term “religious exercise” is broadly defined to
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mean “any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc-5(7)(a). See also Allen, 502 F.3d 1276–77. Given
this broad definition, and the fact that Mysticism is a religion recognized by the
Department of Corrections, Plaintiff’s practice of Mysticism constitutes a religious
exercise for the purpose of RLUIPA.
Second, Plaintiff must demonstrate that his religious exercise was substantially
burdened. Allen, 502 .3d at 1277. “Substantial burden” means “significant pressure
which directly coerces the religious adherent to conform his or her behavior
accordingly.” Id. (quoting Midrash v. Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1227 (11th Cir. 2004)). Further, “the government’s action must be ‘more than . . .
incidental’ and ‘must place more than an inconvenience on religious exercise.’ ” Id.
(quoting Midrash, 366 F.3d at 1227). Instead, it “must significantly hamper one’s
religious practice.” Id.
Plaintiff alleges that Defendant Parsons substantially burdened the practice of
his religion by denying every request he has submitted for religious items related to
Mysticism, for access to the chapel, and to schedule a Mysticism study group. He also
claims that Defendant Taylor failed to respond to the letters Plaintiff wrote him
regarding his religious requests.
Defendants, in turn, argue that Plaintiff has not demonstrated that his religious
exercise was substantially burdened because he has not shown that the items and
practices requested are fundamental to Mysticism. They generally claim that the items
sought are contraband and that Plaintiff has failed to provide them with authoritative
information on Mysticism to frame the contours of his religious practice. Defendants
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also argue that, even if Plaintiff had demonstrated their actions constituted a
substantial burden on his practice of Mysticism, their actions are in furtherance of the
compelling governmental interests of safety, security, and institutional operational
needs. They identify concerns such as fire, the possibility that a medallion may pose
a hazard as a weapon, and the need to have knowledge of inmates’ whereabouts at
all times.
Plaintiff presents evidence that Defendants: (1) did not allow him to obtain or
possess mystic oil, incense, charcoal disks, tapered candles, matches or a lighter, a
religious medallion, crystal or stone runes, a stone necklace and medallion, a fortycount strand and a 150-count strand of mala beads, a box to store the various religious
items, a small plastic bottle to store the mystic oil, and his grandfather’s masonic ring
(Doc. 63 Ex. 1 at 16, 18–19; Doc. 65 Ex. 11 at 4–6; Do. 66 Ex. 1 at 3, 6, 8–18); (2)
denied his requested assistance to observe a religious fast (Doc. 65 Ex. 16 at 2–4); (3)
denied his request to schedule a Mysticism study group (Doc. 63 Ex. 1 at 26, 28–29;
Do. 65 Ex. 6 at 3); and (4) denied his request to be placed on the call-out to go to the
chapel daily for prayer and to use his tarot cards (Doc. 63 Ex. 1 at 13, 20; Doc. 65 Ex.
3 at 2–3; Doc. 65 Ex. 12 at 2). However, for the reasons that follow, Plaintiff has failed
to demonstrate a prima facie claim under RLUIPA, because he has not shown that
Defendants’ denial of the requested items or practices was fundamental to his practice
of Mysticism.
“While it is true that courts are not to inquire into the centrality of a particular
religious tenet in undertaking the substantial burden analysis, at a minimum the
substantial burden test requires that a RLUIPA plaintiff demonstrate that the
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government’s denial of a particular religious item or observance was more than an
inconvenience to one’s religious practice.” Allen, 502 F.3d at 1278. Therefore, in order
to succeed under RLUIPA, Plaintiff is required to provide authority in support of his
assertions that the requested religious items and practices are fundamental to his
practice of Mysticism — his mere belief that they are fundamental is insufficient. See
Allen, 502 F.3d at 1278 (“If the word ‘substantial’ in the statutory phrase ‘substantial
burden,’ 42 U.S.C. § 2000cc-1(a), is to retain any meaning, it must, at a minimum, be
construed as requiring something more than solely the denial of a request that is
sincere.”). See also Smith v. Governor for Ala., 562 F. App’x 806, 813 (11th Cir. 2014)
(citing Allen, 366 F.3d at 1278–79) (“While [the plaintiff] presented to the court
statements in his own affidavit that he needed these items for worship, those personal
assertions — without any support from authoritative sources — cannot meet the
standard for proving a substantial burden.”).
To the extent Plaintiff contends that no request was made of him to provide
further information or authoritative support, that argument is belied by the evidence.
Although Defendant Parsons’ responses to his requests did not specifically ask for the
information, the record demonstrates that, as early as December 6, 2011, the
Secretary of the Department of Corrections instructed Plaintiff that he “must have the
religious headquarters of [his] faith group write to the chaplain, using their own
letterhead paper, the requirements and religious paraphernalia necessary for their
faith.” (Doc. 63 Ex. 1 at 25; Doc. 65 Ex. 11 at 13)
Additionally, review of the evidence reveals that Plaintiff provided little to no
authoritative support to Defendants for his religious requests. In his request to possess
Page 24 of 36
his grandfather’s masonic ring, Plaintiff cited the titles of three resources and asserted
that the ring “[i]mbues and lends it’s [sic] spiritual and religious (mystic) protective
power to [him].” (Doc. 66 Ex. 1 at 14) Similarly, in his request for mala bead strands,
he explained that he would use the the forty-count strand for “training,” and he would
use the 150-count strand in mantras to evoke the Alfather within him. (Doc. 66 Ex. 1
at 6) However, nothing in those statements demonstrates that the ring or mala bead
strands are fundamental to the practice of his Mystic faith. Further, he provided no
authoritative support for the other sought-after items and practices.
Plaintiff now submits a “Religious Appendix” containing a “Code of Conduct and
Pledge to Mysticism,” a “Vow and Oath to the One Supreme Creator,” “Essential
Tenets of Faith and Belief,” and “Mysticism’s Technical Guide.” (Doc. 65 Ex. 15 at 2–
39) As described in the list of undisputed facts herein, the Mysticism Technical Guide
created by Plaintiff contains information about the requested items and practices
sought by Plaintiff in this litigation. The information quoted by Plaintiff from other
sources generally describes the items requested or their intended uses.
However, Plaintiff failed to provide this appendix of information to Defendants
at any time before this lawsuit. Additionally, the appendix does not comply with the
March 2012 or May 2015 grievance denials requiring the religious headquarters of his
faith group to write to the chaplain on its own letterhead to describe the requirements
and paraphernalia necessary for Mysticism. (Doc. 63 Ex. 1 at 25; Doc. 65 Ex. 11 at
13; Doc. 66 Ex. 1 at 2)
Moreover, Plaintiff’s guide does not indicate the relevance of the item or practice
to Mysticism.
Only two of the relevant citations specifically refer at all to
Page 25 of 36
Mysticism — “[p]rayer and meditation beads” and “[m]ystical [t]arot [d]eck.” (Doc. 65
Ex. 15 at 37, 38) The entry on prayer beads explains that the requested strand of “120
plus small beads” is used to count during adoration of the 150 known names of the
Alfather Odin, while the requested strand of forty beads is used during unspecified
mystical exercises to enhance the practitioner’s spiritual strength. (Doc. 65 Ex. 15 at
37) Regarding the deck of tarot cards, the reference to Mysticism is limited to the
entry’s title — “Mystical Tarot Deck.” (Doc. 65 Ex. 15 at 38) Otherwise, the quoted
source information merely describes the tarot as “a book of initiation in which the
greatest secrets are contained symbolically,” and does not refer to any particular faith
or religion. (Doc. 65 Ex. 15 at 38) 9
Overall, the entries and other evidence fail to provide sufficient information and
context for a jury to reasonably find that the requested items and practices are
fundamental to Plaintiff’s exercise of Mysticism. See e.g., Allen, 502 F.3d at 1278
(finding the prisoner plaintiff did not demonstrate the fundamental nature of a quartz
crystal to his practice of Odinism, where the plaintiff provided authority to support his
position, but sources noted by the plaintiff only generally discussed the use of such
crystals by shamans and in societies across the world, did not mention Odinism, and
did not indicate such a crystal was necessary to the practice of Odinism). The Court,
accordingly, concludes that Plaintiff has demonstrated nothing more than an incidental
burden on his practice of Mysticism. See Allen, 502 F.3d at 1279.
9 Moreover, the evidence demonstrates that Plaintiff was, indeed, able to observe the fast for which he
claims Defendant Parsons failed to assist him. (Doc. 65 Ex. 16 at 4)
Page 26 of 36
The Court notes that issues of fact exist regarding the sincerity of Plaintiff’s
professed religious beliefs and whether he properly requested access to the chapel to
use his tarot cards and for prayer. For example, Defendants point to Plaintiff’s failure
to request to attend chapel and failure to submit authoritative information about the
Mystic faith as evidence that his professed Mystical beliefs are not sincere. However,
Plaintiff has provided evidence of the sincerity of his beliefs in the form of an affidavit
from inmate Douglas Jackson, who avers that he observed Plaintiff praying
consistently throughout the day and night, even though Plaintiff believed the prayers
to be in vain without access to the items that he sought. (Doc. 66 Ex. 2 at 4) The
evidence further shows that Plaintiff has tarot cards that are stored in the Chapel. See
Fla. Admin. Code § 33–602.201(16)(d)(1) (listing tarot cards as a religious item
permitted to be stored and used in the chapel — but not in an inmate’s cell or sleeping
area — due to general security risks). Plaintiff complains he has not been granted
access to the chapel to use his tarot cards. Defendants contend that Plaintiff has not
properly requested to be placed on call-out to use the cards in the chapel. The record
of Plaintiff’s submitted inmate requests indicates that he did request to use the cards
daily in the chapel as an alternative to his request to keep the cards in his possession.
(Doc. 65 Ex. 12 at 2) However, the response to that request instructs him that he
needs to request to be placed on the call out list to attend the chapel for such use.
(Doc. 65 Ex. 12 at 2) Similarly, Plaintiff generally requested access to the chapel for
prayer up to eight times per day. Yet, Defendants contend he did not properly request
to be placed on the call-out for chapel. Notably, more specific requests submitted by
Plaintiff — to attend other religious services with identified dates and times — were
Page 27 of 36
granted. (Doc. 65 Ex. 5 at 4–5) Therefore, a question of fact exists regarding whether
Plaintiff’s attempts to request chapel attendance were sufficient for that purpose.
Nevertheless, given Plaintiff’s failure to demonstrate that the requested items
and practices are fundamental to his practice of Mysticism, those questions of fact are
not material. See Celotex, 477 U.S. at 322–23.
Because Plaintiff has not shown that Defendants have imposed more than a mere
inconvenience on his religious exercise, the Court does not address whether
Defendants’ denials of those religious items and practices were the least restrictive
means of furthering a compelling governmental interest.
Summary judgment is,
therefore, GRANTED to Defendants on Plaintiff’s RLUIPA claims.
2. FRFRA
Plaintiff also attempts to assert a claim under the FRFRA, which provides,
Fla. Stat. § 761.03(1):
(1) The government shall not substantially burden a person's exercise of
religion, even if the burden results from a rule of general applicability,
except that government may substantially burden a person's exercise
of religion only if it demonstrates that application of the burden to the
person:
(a) Is in furtherance of a compelling governmental interest; and
(b) Is the least restrictive means of furthering that compelling
governmental interest.
Federal and state courts apply the same analysis under FRFRA as under
RLUIPA. Westgate Tabernacle, Inc. v. Palm Beach Cty., 14 So. 3d 1027, 1031 (Fla.
4th DCA 2009).
Page 28 of 36
Additionally, the definition of “substantial burden” is the same under FRFRA as
under RLUIPA. Compare Warner v. City of Boca Raton, 887 So. 2d 1023, 1035 (Fla.
2004), with Allen, 502 U.S. at 1277; Midrash, 366 F.3d at 1227.
Accordingly, because Plaintiff has not demonstrated that Defendants created a
substantial burden on his religious rights under RLUIPA, he has not shown that
Defendants created a substantial burden on his religious rights under FRFRA.
Summary judgment is, therefore, GRANTED to Defendants on Plaintiff’s FRFRA
claims.
3. Section 1983
To succeed on his Section 1983 claims, Plaintiff must demonstrate “the violation
of a right secured by the Constitution and laws of the United States” by “a person acting
under color of state law.” Cummings v. DeKalb Cty., 24 F.3d 1349, 1355 (11th Cir.
1994).
Plaintiff asserts claims pursuant to Section 1983 for violation of the free
exercise and equal protection rights afforded him by the United States Constitution.
a. Free Exercise of Religion
Under the First Amendment, “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).
However, as previously explained, RLUIPA affords prisoners greater protection of
religious exercise than that afforded by the Constitution. Allen, 502 F.3d at 1266
(quoting Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005)) (“RLUIPA . . .
affords to prison inmates a ‘heightened protection from government-imposed burdens,’
by requiring that the government demonstrate that the substantial burden on the
Page 29 of 36
prisoner’s religious exercise is justified by a compelling, rather than merely a legitimate,
governmental interest.”). Because Plaintiff’s evidence is insufficient to demonstrate a
substantial burden on his religious practice under RLUIPA, it is insufficient to support
his Section 1983 free exercise claim. Defendants’ motion for summary judgment is,
therefore, GRANTED as to Plaintiff’s Section 1983 free exercise claims.
b. Equal Protection
“To establish an equal protection claim, a prisoner must demonstrate that (1) he
is similarly situated to other prisoners who received more favorable treatment; and (2)
the state engaged in invidious discrimination against him based on race, religion,
national origin, or some other constitutionally protected basis.” Sweet v. Sec’y, Dep’t
of Corr., 467 F.3d 1311, 1318–19 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944,
946-47 (11th Cir.2001)). See also McCleskey v. Kemp, 481 U.S. 279, 292 (1987)
(explaining that a plaintiff “must prove that the decisionmakers in his case acted with
discriminatory purpose”).
Plaintiff claims that Defendants violated his equal protection rights when
Defendants denied his efforts to practice his Mystic religion and his requests for
allegedly related religious items, while permitting prisoners who affiliate themselves
with more mainstream religions to practice similarly and obtain the same items. (Doc.
1 at 5, 8) He states that every religion has a mystical path. He argues that allowing a
prisoner who practices a mainstream religion to engage in a particular religious practice
or obtain certain religious items, while denying the same to him — a “Mystic who pulls
from these religions” — violates his equal protection rights. (Doc. 1 at 8)
Page 30 of 36
Specifically, Plaintiff argues that: (1) the Florida Administrative Code permits the
use of runes, tarot cards, prayer beads, and religious medallions; (2) DOC Procedures
permit the use of lighters or matches for approved religious ceremonies and permit
Native Americans to use three holy herbs; (3) the religious technical guides for the
Muslim, Catholic, Jewish, Odinist, Wiccan, Buddhist, and Native American faiths allow
the use of “incense, candles, lighters or matches, robes, ritual horns or chalices, ritual
prayer and oil, and wands;” and (4) Muslim prisoners are permitted to access the
chapel five times per day during Ramadan, and the chaplain puts those prisoners on
the call-out list for every prayer. (Doc. 64 at 10–11) Plaintiff further alleges that
Defendant Parsons told him he would reject all requests by Plaintiff based on his Mystic
faith. (Doc. 1 at 9).
Defendants contend that they have not treated Plaintiff differently from any other
similarly situated group and note further that “these other persons or groups have
responded in some form or fashion to demonstrate with authority what and how they
wish to practice.” (Doc. 73 at 7) Specifically, Defendants claim Plaintiff has not used
the proper procedures set in place to request the items sought or to request to be called
out for access to the chapel. (Doc. 63 at 20) Overall, Defendants argue that Plaintiff
cannot demonstrate a discriminatory purpose for the denials of his requests. (Doc. 63
at 21)
Upon review of the record before the Court, Plaintiff has failed to show that he
is similarly situated to prisoners who have requested and obtained the same items and
practices sought without success by Plaintiff.
Although he cites Section
33-602.201(16)(c) of the Florida Administrative Code, that provision does not support
Page 31 of 36
his assertion that the law necessarily permits all prisoners to use runes, tarot cards,
prayer beads, and religious medallions.
Section 33-602.201 states, “[u]nless otherwise prohibited by department rule or
by paragraph (e) of this subsection, inmates shall be permitted to possess the following
items adhering to the tenets of a particular religion.” Fla. Admin. Code § 33602.201(16)(c) (emphasis added). The list permits a prisoner who is adhering to the
tenets of a particular religion to possess “[o]ne set of prayer beads, such as Rosary,
Dhikr, Orisha, Mala, or Japa-Mala beads.” Fla. Admin. Code § 33-602.201(16)(c)(1)(h).
Section 33-602.201(16)(c)(1)(i) permits such a prisoner to possess:
[o]ne symbol or medallion, such as a cross, Star of David, or talisman, or
other religious medallion. Religious symbols shall not be more than 2
inches in length or diameter, and symbols worn about the neck shall be
worn under the shirt on a jewelry-type chain. Religious symbols that are
designed to be affixed to clothing with a pin are not permitted.
As determined with respect to Plaintiffs’ RLUIPA, FRFRA, and free exercise claims,
Plaintiff has not established that the items requested are fundamental to the tenets of
Mysticism.
Moreover, regarding his mala beads request, Plaintiff originally requested two
different sets of beads, not one. He has presented no evidence showing that he ever
submitted a request for just one set of mala beads. Similarly, he has not demonstrated
that he submitted a request for a medallion that complies with Section
33-602.201(16)(c)(1)(i). The record contains two requests for a medallion. The first
request, on October 25, 2011, merely stated that he required “a medallion that reflects
[his] religious beliefs.” (Doc. 63 Ex. 1 at 16; Doc. 65 Ex. 11 at 4) This request did not
describe the medallion in any detail or particularity or the means by which the medallion
Page 32 of 36
would be worn. The second request, on March 3, 2015, described the medallion as
follows:
a stone necklace with amethyst stone medallion, the stones are stones
of Thor and Odin, the necklace is constructed to mirror the place of the
Gods at the exact moment of my birth; the amethyst medallion is due to
the house/Heavenly Hall I was born in and it’s [sic] Qabalistic
metaphysical protections.
(Doc. 66 Ex. 1 at 6)10 While that request contained more detail, including that it would
be worn as a necklace, the request still failed to describe the size of the medallion.
Again, he has also failed to show the source of the religious tenet that purportedly
demands the use of precious stones in a medallion of any size.
Section 33-602.201(16)(c)(2) provides that prisoners who practice Asatru or
Odinism are permitted to possess “runes and [an] accompanying cloth bag.” While it
is undisputed that Plaintiff previously practiced Odinism while at HCI, he changed his
religion to Mysticism; therefore, the provision related to Odinism no longer applies to
him. As explained, he has not demonstrated that use of the runes is fundamental to
Mysticism. See Florida Administrative Code Section 33-602.201(16)(c) (requiring that,
‘[w]hen an inmate makes a change in religious preference, the inmate must dispose of
all of the items associated with the previous religion unless such items are also
associated with the new religious preference.”).
Next, Plaintiff claims that DOC Procedures permit the use of lighters or matches
for approved religious ceremonies and permit Native Americans to use three holy
10
Plaintiff argues that he did not know he was supposed to submit a form different than the standard
inmate request form, form DC6-236. (Doc. 66 at 16–17) His argument is not persuasive. The Court
notes that Plaintiff stated in this request that he had previously submitted a religious property approval
form for the necklace and medallion, which was denied. (Doc. 66 Ex. 1 at 6) (The form for the necklace
and medallion was not included in the evidence submitted for consideration on summary judgment. He
did, however, attach a religious property approval form for the mala beads. (Doc. 66 Ex. 1 at 7)).
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herbs. He further claims the DOC religious technical guides for various identified faiths
allow the use of incense, candles, lighters or matches, and ritual prayer and oil.
However, that evidence is not before the Court for consideration as Plaintiff failed to
include in his submissions copies of the DOC procedures and technical guides.
Additionally, Plaintiff alleges that Muslim prisoners at HCI are permitted to
access the chapel five times per day during Ramadan and that the chaplain puts those
prisoners on the call-out list for every prayer. However, Plaintiff has submitted no
evidence to support that assertion. Even had Plaintiff supported his claim with relevant
evidence, he has not demonstrated that he is similarly situated to a Muslim inmate
seeking prayer during Ramadan, as Ramadan is observed over the course of a defined
time period. 11 Plaintiff requested four to eight daily visits to the chapel for prayer for
an unspecified and potentially indefinite period of time. As explained, Plaintiff has not
demonstrated that his request to pray in the chapel four to eight times per day is
fundamental to his observance of Mysticism.
Plaintiff also claims that Defendant Parsons accommodates other religious
groups with study group requests who have no approved volunteer for supervision.
(Doc. 64 at 9; Doc. 66 at 16) In support, Plaintiff points to Defendant Parsons’ response
to Plaintiff’s June 13, 2014 informal grievance stating, “[t]he chaplain does not have
the time or space to accommodate another group that does not have an outside
volunteer.” (Doc. 63 Ex. 1 at 26; Doc. 65 Ex. 6 at 3 (emphasis added)) However, it is
undisputed that the chaplain is merely one person, who must divide his time among
11 See O’Lone, 482 U.S. at 352 (describing the Muslim observance of Ramadan as a “month-long . . .
period of fasting and prayer”).
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the needs of many inmates. Defendant Parsons’ response indicates that his time was
full at the time Plaintiff submitted his request for a study group.
Therefore, any
additional study sessions would need to be supervised by an approved volunteer.
(Doc. 63 Ex. 1 at 26; Doc. 65 Ex. 6 at 3) Plaintiff has not offered evidence, only
conclusory statements, that subsequent inmates (who requested study groups after
Plaintiff’s group was denied) were able to obtain a study group session either
unsupervised, or supervised by Defendant Parsons, or supervised by a volunteer.
Finally, to the extent Plaintiff generally argues a violation of his right to equal
protection because he, as a Mystic, has not been allowed to obtain and use items that
are permitted for use by more mainstream religions, that argument is not persuasive.
The fact that the Florida Administrative Code permits adherents of some religions to
obtain certain items and engage in certain practices or activities while denying the
same to others implies a recognition that those permitted items and practices are
fundamental to those religions. Plaintiff has not presented any evidence demonstrating
that other inmates were permitted to obtain the requested items without showing that
they practice religions for which the DOC has no guidance or information and without
submitting any authority regarding their religion to support their religious property
requests.
Accordingly, because Plaintiff has not satisfied his burden of demonstrating that
he is similarly situated to other prisoners who received more favorable treatment, 12
12
Contrary to Defendants’ assertions, Plaintiff has provided evidence of discriminatory intent in the form
of an affidavit from a fellow prisoner, Charles Jackson. Inmate Jackson averred that, while assigned as
a chapel orderly, he overheard conversations between Plaintiff and Defendant Parsons. He recalls that,
among other things, Defendant Parsons mocked and denigrated Plaintiff and other non-Christian
inmates. Further, Defendant Parsons “was adamant that he did not care what religion [Plaintiff]
professed, [Plaintiff] would not be allowed to practice a heathenistic pagan craft in the chapel.” (Doc. 65
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Defendants’ motion for summary judgment is GRANTED as to Plaintiff’s Section 1983
Equal Protection claims. 13
V. CONCLUSION
Upon consideration, Defendants’ motion for summary judgment (Doc. 63) is
GRANTED. Plaintiff’s cross-motion for summary judgment (Doc. 64) is DENIED. The
CLERK is directed to enter judgment in favor of Defendants Parsons and Taylor and
close this case.
DONE AND ORDERED in Tampa, Florida, this 29th day of July, 2019.
Ex. 14 at 2–6) Defendant Parsons acknowledges that Jackson was assigned as an orderly during the
relevant time, but denies Jackson’s allegations. (Doc. 63 Ex. 2 at 4–5) While this conflicting evidence
presents an issue of fact on the element of invidious discrimination, the evidence is not material, given
Plaintiff’s failure to demonstrate that he is similarly situated to other prisoners who received more
favorable treatment. See Celotex, 477 U.S. at 322–23.
13
Because Defendants are entitled to summary judgment, the Court does not consider Defendants’
Eleventh Amendment Immunity and Qualified Immunity arguments.
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