Adele v. Goff et al

Filing 200

MEMORANDUM OPINION AND ORDER denying 173 Motion for Summary Judgment; denying 176 Motion for Suspect Classification ; denying 177 Motion for Turner Test Analysis ; granting 185 Motion for Summary Judgment; denying 189 Motion to Produce. Signed by Magistrate Judge John C. Gargiulo on 3/31/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DAVID RAY ADELE

PLAINTIFF

V.

CIVIL NO. 1:14-cv-463-JCG

PRESTON GOFF Warden,
JOHNATHAN MORAN Warden, and
ERIC RICHARD Chaplain

DEFENDANTS

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF No. 173), GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF No. 185), AND DENYING
PLAINTIFF’S MOTIONS (ECF Nos. 176, 177, 189)
BEFORE THE COURT are Plaintiff David Ray Adele’s Motion for Summary
Judgment (ECF No. 173) and the Motion for Summary Judgment (ECF No. 185),
filed by Defendants Preston Goff, Johnathan Moran, and Eric Richard. Plaintiff has
also filed three other motions that will be resolved. (ECF Nos. 176, 177, 189). The
Motions have been briefed. An omnibus and Spears hearing was held on April 19,
2016.1 Having considered the written submissions of the parties, the record, and
relevant law, the Court finds that Plaintiff’s Motion for Summary Judgment should
be DENIED and Defendants’ Motion for Summary Judgment GRANTED. Plaintiff’s
additional motions will also be DENIED.
I.

BACKGROUND

Plaintiff David Ray Adele is a postconviction prisoner in the custody of the
Mississippi Department of Corrections (MDOC) who is proceeding pro se and in

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

forma pauperis. Plaintiff practices Odinism, a polytheistic Norse religion that is also
known as Asatru. Plaintiff claims that while he was a pretrial detainee at George
County Regional Correctional Facility (GCRCF) during the three years he awaited
trial, his right to freely exercise his religion was infringed. Defendant Preston Goff
is the former warden at GCRCF. Defendant Jonathan Moran is the Training and
Security Threat Group Coordinator at GCRCF. Defendant Eric Richard is a
chaplain at GCRCF. Plaintiff now has been convicted of aggravated domestic
assault and sentenced to life in the custody of MDOC without the possibility of
parole. Plaintiff was transferred from GCRCF to the East Mississippi Correctional
Facility (EMCF) in 2014 to serve his sentence.
Plaintiff’s first complaints concern items confiscated from his cell. Defendants
have offered with their Motion for Summary Judgment what they contend was
confiscated. They are documents written in runes or religious symbols used in
Odinism and also include drawings of a woman who Defendants represent is
Plaintiff’s victim. GCRCF officials deemed the runic texts to be coded writings and
gang paraphernalia, both contraband under prison rules. Coded writings are
deemed a security threat because they are used to communicate in secret inside and
outside the facility. Runes are used by the Aryan Brotherhood and other security
threat groups as a symbol of white supremacy. (ECF No. 14-2, at 7).
Because of the ongoing criminal investigation against Plaintiff, the
documents, as well as Plaintiff’s blood-spattered clothing and personal effects, were
2

turned over to Stuart Fairchild, a deputy with the George County Sheriff’s Office.
(ECF No. 185-2, at 83; ECF No. 185-3, at 1). A criminal intelligence unit was able to
partially translate the writings. According to Detective Fairchild, the translations
revealed continuing threats to Plaintiff’s victim and admissions regarding the
aggravated domestic assault. The runic texts however were excluded from Plaintiff’s
criminal trial because they were not fully translated, and the Court deemed them
inadmissible character evidence, hearsay, and unduly prejudicial. (ECF No. 173-1).
Plaintiff submits that the runic scripts that Defendants produced in discovery
and that were addressed at Plaintiff’s criminal trial are not the only documents that
were confiscated from him. Plaintiff states:
Runes are not the issue. The runic script confiscated, which
is now used as “discovery” is not Adele’s religious
literature. The religious Havamal and Edda were type
print plain English and have disappeared. . . . Coded
literature is not the issue. Not a policy pertaining to this
matter. Disappearing documents is the policy before this
court.
...
Plaintiff’s claim is that defendants confiscated and kept his
religious literature Havamal and Edda. This claim stands
true to date. Defendants have yet to produce the Havamal
and Edda, confiscated between 2012-2013. The discovery
produced thus far is not even religious literature.
Defendants confiscated and discarded Plaintiffs’ religious
literature and now pretend the runic script is all they took
Aug 2012-2013.
(ECF No. 197 at 3).
Plaintiff testified at the omnibus hearing that the Havamal is a portion of the
Poetic Edda and its significance in Odinism is comparable to the book of Proverbs to
3

Christianity. (ECF No. 185-1, at 17). Plaintiff maintains that a Thor’s hammer
medallion on a cord that he uses for rituals, as well as some of his legal papers,
were also confiscated.
Plaintiff’s next complaints concern Eric Richard, one of GCRCF’s chaplains.
Plaintiff maintains that it was unconstitutional for Chaplain Richard to withhold
indigent hygiene supplies to Plaintiff unless Plaintiff attended two church services a
month. Plaintiff alleges that Chaplain Richard refused to allow Odinists to have
religious services. He alleges that Chaplain Richard refused to accommodate his
request for a Yule feast, consisting of pork and mead, or a substitution of honeyed
water for mead, during the twelve days of Yule, a high holiday of Odinism.
Plaintiff seeks the return of his Havamal and hammer medallion. He
requests an injunction to require GCRCF to make Odinist religious texts available
in the canteen and through a chaplain as he asserts is available for more common
religions. Plaintiff seeks six million dollars in monetary damages.
II.
A.

DISCUSSION

Legal Standards
1.

Summary Judgment

Federal Rules of Civil Procedure 56 provides, in relevant part, that summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
4

56(c). The party moving for summary judgment bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of the record that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant need
not, however, support the motion with materials to negate the opponent’s claim. Id.
As to issues on which the non-moving party has the burden of proof at trial, the
moving party need only point to portions of the record that demonstrate an absence
of evidence to support the non-moving party’s’ claim. Id. at 323-24. The non-moving
party must then go beyond the pleadings and designate “specific facts showing that
there is a genuine issue for trial.” Id. at 324.
It is improper for the court to “resolve factual disputes by weighing the
conflicting evidence, . . . since it is the province of the jury to assess the probative
value of the evidence.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.
1980). Summary judgment is also improper if the court merely believes it unlikely
that the non-moving party will prevail at trial. Nat. Screen Serv. Corp. v. Poster
Exch. Inc., 305 F.2d 647, 651 (5th Cir. 647).
2.

The Prisoner Litigation Reform Act

Because Plaintiff is a prisoner pursuing a civil action seeking redress from
government employees, the Prison Litigation Reform Act (PLRA), Pub. L. No. 104134, 110 Stat. 1321, H.R. 3019 (codified as amended in scattered titles and sections
of the United States Code), applies and provides:
5

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
injury.
28 U.S.C. §1915(g).
Plaintiff has two “strikes” under the PLRA. He received a strike on January
1, 12, 2015, in Adele v. King, No. 1:14-cv-449-LG-RHW (S.D. Miss. Jan. 12, 2015)
where his claims were dismissed as frivolous. Plaintiff’s appeal of the judgment in
King was dismissed for want of prosecution because Plaintiff failed to timely file a
brief.
Plaintiff received his second strike on June 5, 2015, in Adele v. Rogers, No.
1:14-cv-448-HSO-JCG (S.D. Miss. June 5, 2015). Plaintiff’s denial of access to courts
claim was deemed frivolous and his religious claims dismissed as duplicative of the
ones he raises in this case, making them malicious. On appeal, the judgment in
Rogers was affirmed as modified.
If Plaintiff accumulates three strikes, he is barred from proceeding in forma
pauperis in any civil action or appeal filed while he is incarcerated or detained
unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

6

B.

Analysis of Plaintiff’s Claims
1.

Damages

As an initial matter, Plaintiff may not recover the six million dollars he seeks
because he has not suffered a physical injury. The PLRA provides:
No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody
without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246 of
Title 18).
28 U.S.C. § 1997e(e).
“Section 1997e(e) applies to all federal civil actions in which a prisoner
alleges a constitutional violation, making compensatory damages for mental or
emotional injuries non-recoverable, absent physical injury.” Geiger v. Jowers, 404
F.3d 371, 374-75 (5th Cir. 2005). Plaintiff’s request for compensatory damages is
barred by 28 U.S.C. § 1997e(e). Also, the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, does not permit damages against
defendants in their individual capacities. Sossamon v. Lone Star State of Tex., 560
F.3d 316, 331 (5th Cir. 2009).
Section 1997e(e)’s bar does not apply to declaratory or injunctive relief.
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2011). But, because Plaintiff has
been transferred from GCRCF to East Mississippi Correctional Facility, Plaintiff’s
claims for declaratory and injunctive relief are moot. Id.; see Oliver v. Scott, 276
F.3d 736, 741 (5th Cir. 2002). For these reasons, Plaintiff’s claims for compensatory
7

damages, declaratory, and injunctive relief should be dismissed with prejudice.
2.

Qualified Immunity

Defendants have asserted the defense of qualified immunity. Qualified
immunity applies to officials sued in their individual capacities for money damages.
It does not protect municipalities or officials sued in their official capacities, and it
does not apply to claims for injunctive relief. Qualified immunity operates “to
ensure that before they are subjected to suit, officers are on notice that their
conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001). Qualified immunity
protects officials unless they violate “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 817-18 (1982). It focuses on “the objective unreasonableness of an official’s
conduct, as measured by reference to clearly established law,” rather than the
official’s motives or other aspects of his state of mind. Id. at 818.
Qualified immunity “shields an officer from suit when [he] makes a decision
that, even if constitutionally deficient, reasonably misapprehends the law governing
the circumstances [the officer] confronted.” Brosseau v. Haugen, 543 U.S. 194, 197
(2004). “Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions. When properly
applied, it protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citing Malley v. Briggs, 475
U.S. 335, 341 (1986)).
8

3.

Confiscation of Documents from Plaintiff’s Cell

Plaintiff contends that the confiscation of a religious text from his cell
violated the First Amendment. Defendants assert that the documents confiscated
were not religious.
Prison inmates do not lose their First Amendment right to free exercise of
religion by virtue of their confinement. “[R]easonable opportunities must be
afforded to all prisoners to exercise the religious freedom guaranteed by the First
and Fourteenth Amendments without fear of penalty.” Cruz v. Beto, 405 U.S. 319,
322 n.2 (1972). Prison officials may place reasonable limits on prisoners’ religious
rights. Davis v. Davis, 826 F.3d 258, 265 (5th Cir. 2016).
Prison regulations that impinge on fundamental constitutional rights are
reviewed under the deferential standard set forth in Turner v. Safley, 482 U.S. 78
(1987). Under Turner, “a prison regulation that impinges on inmates’ constitutional
rights . . . is valid if it is reasonably related to legitimate penological interests.” 482
U.S. at 89. Turner employs a four-factor test to resolve this inquiry: (1) whether
there is a rational relationship between the regulation and the legitimate
government interest advanced; (2) whether the inmates have available alternative
means of exercising the right; (3) the impact of the accommodation on prison staff,
other inmates, and the allocation of prison resources generally; and (4) whether
there are ready alternatives to the regulation. Id. at 89-91. Rationality is the
controlling factor. Mayfield v. Tex. Dept. of Crim. Justice, 529 F.3d 599, 607 (5th
9

Cir. 2008).
With respect to the confiscated documents that were written in runes,
Plaintiff admits that the documents are not religious materials. (ECF No. 197, at 3)
(“The discovery produced thus far is not even religious literature.”). Plaintiff’s First
Amendment claim with respect to the runic scripts therefore fails and should be
dismissed with prejudice.
Defendants furthermore have offered legitimate penological reasons for why
the runic texts were confiscated. Warden Fairley avers in an affidavit that “coded
writings . . . are viewed as a security threat, and are often used to communicate in
secret inside and outside of the facility.” (ECF No. 185-2, at 1). He attests that the
“coded writings in Plaintiff’s possession contained runes and/or symbols which are
known symbols of a gang and/or group of inmates that has been labeled a Security
Threat Group (“STG”), which represent constant security concerns.” (ECF No. 1852, at 1). Defendants’ rules prohibiting coded writings and gang paraphernalia are
rationally related to the legitimate penological interest of security. Turner, 482 U.S.
at 89-90. They are facially neutral and Plaintiff has not shown a disparate
application. Mayfield, 529 F.3d at 608-609. The rules satisfy Turner.
Plaintiff, however, submits that he is not complaining about runic scripts. He
alleges that his Havamal was confiscated despite not being contraband. According
to Plaintiff, his Havamal was a 24-page booklet “written in plain English,” not runic
text. (ECF No. 14-1, at 1; ECF No. 197, at 3). Plaintiff submits that “Defendants
10

confiscated and discarded Plaintiff’s religious literature and now pretend the runic
script is all they took Aug 2012-2013.” (ECF No. 197, at 3). Defendants have not
addressed Plaintiff’s argument that the Havamal was not written in runic script
and thus was not contraband.
Assuming that the Havamal was not contraband, Plaintiff has not supported
with authority his position that taking his Havamal during a shakedown was a
violation of clearly established constitutional rights, or that it was done with
deliberate indifference to Plaintiff’s religious rights. Plaintiff repeatedly states that
the Havamal was “lost” or “discarded.” (ECF No. 185-1, at 19, 22-23, 34, 52-53, 65).
An incident report written by Officer J. Martinez indicates that Martinez returned
to Plaintiff “what [he] thought was gang paraphernalia” because he later learned
that Plaintiff practiced Odinism and that it was “a religious text.” (ECF No. 173-1,
at 1). Plaintiff has not responded to this report indicating that religious literature
was returned to him. Assuming the Havamal should not have been confiscated,
qualified immunity gives ample room for mistaken judgments. Plaintiff has not
overcome the qualified immunity defense.
There is furthermore no Fourteenth Amendment due process violation when
a government actor negligently deprives an individual of property, so long as there
is an adequate post-deprivation remedy. A negligent action alone cannot form the
basis of a Fourteenth Amendment property deprivation. Daniels v. Williams, 474
U.S. 327, 330-31 (1986). Even if confiscation of the Havamal was intentional, there
11

is no due process violation where the loss of property results from the intentional,
but random and unauthorized act of government employees, where an adequate
post-deprivation remedy exists. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The
distinction between random, unauthorized conduct and conduct pursuant to
established state procedure is significant. Plaintiff has no due process claim because
he had access to the prison’s grievance process to seek the return of the Havamal,
and the opportunity to pursue a remedy in state court. Quick v. Hodge, No. 2:16-cv166-KS-MTP, 2017 WL 440261, *3 (S.D. Miss. Jan. 31, 2017) (citing Johnson v.
King, 85 So. 3d 307 (Miss. Ct. App. 2012)); Brown v. Johnson, No. 2:10-cv-210-KSMTP, 2012 WL 426258, *3 (S.D. Miss. Jan. 19, 2012).
Plaintiff alleges that the purported seizure of his Havamal also violates
RLUIPA. RLUIPA provides that state and local institutions may not substantially
burden a person’s exercise of religion unless doing so is in furtherance of a
compelling governmental interest and the least restrictive means of furthering that
compelling governmental interest. 42 U.S.C. § 2000cc-1. The Act broadly defines
“religious exercise” to include “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.” Id. at § 2000cc-5(7)(A).
Under RLUIPA, the plaintiff bears the burden to prove the challenged law,
regulation, or practice substantially burdens his exercise of religion. Once a plaintiff
has made this prima facie showing, the defendant bears the burden to prove that
the challenged regulation is the least restrictive means of furthering a compelling
12

governmental interest. Id. at § 2000cc-2(b); see Sossamon, 560 F.3d at 326-27.
RLUIPA is a prohibition against government regulation, law, or policy.
Plaintiff is not alleging that the Havamal was taken pursuant to a prison rule or
policy. He is alleging that the Havamal was not contraband and should not have
been taken. Plaintiff cannot sustain a RLUIPA claim under these facts because he
is challenging the actions of individuals acting as individuals, and not as the
government. Garrett v. Stephens, No. 16-40354, 2017 WL 128555, *1 (5th Cir. Jan.
12, 2017) (citing Adkins v. Kasper, 393 F.3d 559, 567 (5th Cir. 2004)). That some
property allegedly confiscated was of a religious nature does not turn Plaintiff’s
claim into a RLUIPA claim. Id.
4.

Confiscation of Wooden Thor’s Hammer Medallion

Plaintiff stated at the omnibus hearing that Officer Dickerson, who is not a
party to this suit, confiscated a wooden Thor’s hammer on a cord from Plaintiff that
was two inches by two inches large. (ECF No. 185-1, at 43). In another pleading,
Plaintiff stated that the hammer medallion was taken by Ronnie Pitts, who is also
not a party to this suit. (ECF No. 14, at 2). Plaintiff submits that the importance of
the Thor’s hammer in Odinism is “[t]he same as a cross” in Christianity. Id. at 44.
Plaintiff maintained that he used the hammer medallion in rituals as a “hallowing
hammer” and “warder.” (ECF No. 185-1, at 57).
Defendants have no record of Plaintiff entering GCRCF with a hammer
medallion. Defendant Moran, Security Threat Group Coordinator at GCRCF, stated
13

in his affidavit that if a hammer medallion had been found in Plaintiff’s possession,
without prior authorization, it would have been considered contraband. (ECF No.
185-4, at 2, 25). Plaintiff admits that he was told by Chaplain Newbaker, who is not
a defendant in this suit, that he could probably have a plastic hammer medallion if
he could acquire one. Id. at 44, 48. Plaintiff acknowledged that, after the hammer
medallion was confiscated, he made a “homemade amulet” from plastic rosary beads
provided by a chaplain. Id. at 46.
“The pertinent question is not whether the inmates have been denied specific
religious accommodations, but whether, more broadly, the prison affords the
inmates opportunities to exercise their faith.” Freeman v. Tex. Dep’t of Crim.
Justice, 369 F.3d 854, 862-63 (5th Cir. 2004). While making a homemade plastic
amulet or acquiring a plastic hammer medallion may not be ideal to Plaintiff,
Plaintiff has reasonable opportunities to practice his faith, while at the same time
complying with prison rules against contraband. Plaintiff has not established a free
exercise violation or that prison officials were deliberately indifferent to his
religious rights when they confiscated his hammer medallion. Plaintiff has not met
his summary judgment burden with respect to RLUIPA because a RLUIPA plaintiff
must demonstrate more than an inconvenience to one’s religious practices. Smith v.
Allen, 502 F.3d 1255, 1277-79 (11th Cir. 2007). Also, Plaintiff is again challenging
individual action, not governmental action. Garrett, 2017 WL 128555, at *1.
Plaintiff has no due process claim because he had adequate post-deprivation
14

remedies through the prison’s grievance procedures and state court remedies.
Quick, 2017 WL 440261, at *3.
Interpreting his allegations liberally, Plaintiff may be asserting an equal
protection violation because he alleges that some prisoners have religious metal
jewelry like crosses that have not been confiscated, while his wooden medallion was
confiscated. He has also been told by a chaplain that he cannot have a metal
medallion. Plaintiff has not identified any prisoners who have been allowed to
possess jewelry similar to the medallion that was confiscated from him. He has also
not offered evidence that any unequal treatment stemmed from discriminatory
intent. Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001).
5.

Request for Odinist Religious Texts

Plaintiff alleges that his First Amendment rights were violated because he
requested Odinist religious literature from Chaplain Richard but was not provided
it. Chaplain Richard states in his affidavit that the library has a religious section
containing donated materials. (ECF No. 185-1, at 2). Chaplain Richard responded to
Plaintiff on November 12, 2014, telling him that there was not material concerning
Odinism in the library. Id. at 3. Chaplain Richard provided Plaintiff with the only
Odinist material available, which consisted of some information from the internet.
Id. at 2. Chaplain Richard asked Plaintiff to have an Odinist volunteer advisor or
minister “contact my office [so that] we can schedule a conference to discuss getting
more material or visitation.” Id. at 2.
15

According to Chaplain Richard, “all inmates, regardless of religion and/or
spiritual belief, had to provide [him] with an individual who could act as an advisor
regarding their religious beliefs and aid [him] to understand the individual inmate’s
spiritual needs . . . .” Id. Plaintiff has offered no evidence that he provided Chaplain
Richard with an individual who could act as a volunteer Odinist minister or advisor.
Id.
“The pertinent question is not whether the inmates have been denied specific
religious accommodations, but whether, more broadly, the prison affords the
inmates opportunities to exercise their faith.” Freeman, 369 F.3d at 862-63.
Chaplain Richard responded to Plaintiff’s requests, but he was not required to
provide Odinist texts to Plaintiff at government expense. A jail has no affirmative
duty to provide inmates the religious texts or other reading material of their
choosing. Frank v. Terrell, 858 F.2d 1090, 1090 (5th Cir. 1988) “There cannot
possibly be any constitutional or legal requirement that the government provide
materials for every religion and sect practiced in this diverse country.” Id. (quoting
Cruz, 405 U.S. at 319) (Burger, C.J., concurring). Plaintiff has not demonstrated a
violation of a clearly established constitutional right. At most, if Odinist texts had
been donated, then those texts could not have been denied to Plaintiff, but that is
not the allegation. Id. The evidence does not support a finding that Chaplain
Richard acted with deliberate indifference to Plaintiff’s religious rights. Plaintiff
has no First Amendment claim, and his RLUIPA claim fails because he is
16

challenging individual, and not government, action. Garrett, 2017 WL 128555, at *1.
6.

Request for Odinist Services

Plaintiff advances a First Amendment claim against Chaplain Richard for
denying him and “a few” others Odinist church services. (ECF No. 185-1, at 37, 39).
Plaintiff has offered the affidavits of two other prisoners practicing Odinism at
GCRCF. (ECF No. 22-1, at 2-5; ECF No. 166, at 1). GCRCF’s religious programs
policy states that “[r]egular and special worship services and religious study activity
schedules will be posted in each housing unit. Through the use of religious service
volunteers, every effort will be made to meet the needs of all recognized religions.”
(ECF No. 185-4, at 11). Chaplain Richard affirmed in his affidavit that he regularly
spoke with Plaintiff and attempted to read and learn more about Odinism in order
to assist Plaintiff. (ECF No. 185-5, at 2). Chaplain Richard asked Plaintiff to have a
volunteer Odinist minister or advisor contact him in order that he could seek out
religious materials or arrange visitation. Id. at 2. Neither Richard nor apparently
Plaintiff were aware of an outside volunteer qualified to conduct Odinist services or
meetings.
The Constitution “does not demand that every religious sect or group within
a prison – however few in numbers – must have identical facilities or personnel.”
Freeman, 369 F.3d at 862-63 (internal citation omitted). It is not constitutionally
impermissible for Defendants to consider the demand and need of a group
requesting religious accommodations. Baranowski v. Hart, 486 F.3d 112, 123 (5th
17

Cir. 2007). “[A] special chapel or place of worship need not be provided for every
faith regardless of size, nor must a chaplain, priest, or minister be provided without
regard to the extent of the demand. But reasonable opportunities must be afforded
to all prisoners to exercise the religious freedom guaranteed by the First and
Fourteenth Amendments without fear of penalty.” Cruz, 405 U.S. at 322 n.2.
In Adkins v. Kaspar, the Fifth Circuit held that the prison’s requirement that
an outside volunteer be present at religious services did not place a substantial
burden on a plaintiff-prisoner’s exercise of religion, because the record showed that
the infrequency of religious services arose from a lack of volunteers, rather than any
direct prohibition on services. 393 F.3d 559 (5th Cir. 2004); see Baranowski, 486
F.3d at 121-22 (rejecting challenge to volunteer policy). It is not GRCF’s religious
accommodation policy that imposes a burden on Plaintiff’s religion, but instead a
lack of volunteers, donations, and demand. Plaintiff has offered no evidence that he
attempted to locate a volunteer Odinist minister or adviser. Plaintiff has not
established the violation of a clearly established constitutional right or that
Chaplain Richard acted with deliberate indifference to Plaintiff’s religious rights.
Plaintiff’s First Amendment claims with respect to requests for Odinist services
should be dismissed with prejudice.
Plaintiff’s RLUIPA claims concerning Odinists services should also be
dismissed with prejudice. In Chance v. Tex. Dep’t of Crim. Justice, the Fifth Circuit
rejected a prisoner’s RLUIPA claim about the limited frequency of services that was
18

due to the limited number of outside volunteers, finding that the volunteer policy
itself is reasonable and necessary, and “that it is the least restrictive means of
furthering the prison’s compelling interest in prison administration.” 739 F.3d 404,
415 (5th Cir. 2013).
7.

Accessibility of Hygiene Products

Plaintiff alleges that his First Amendment rights were violated by Chaplain
Richard administering an indigent program that provided shampoo, deodorant, and
lotion to prisoners who attended two church services per month. (ECF No. 185-1, at
32). The handout containing the rules for this program provide that prisoners also
had the option of attending “any class offered (i.e. discipleship, A&D, life skills,
etc.)” (ECF No. 19-1), but Plaintiff contends that only religious services were offered
to him because he was a George County inmate that was not in MDOC custody.
Chaplain Richard disputes this and avers that Plaintiff had the option of attending
non-religious life skills classes:
That I administer a program at GCRCF for indigent
inmates, which allows those inmates who do not have
funds available to purchase hygiene supplies to request
certain indigent supplies, and this program is completely
separate from Mississippi Department of Corrections
standards, which also apply to George County inmates,
allowing for limited hygiene supplies while incarcerated at
GCRCF and is aimed at assisting those indigent inmates;
That this indigent program is made possible through
donations of certain supplies and that there are not always
supplies available to the indigent inmates because these
items are received entirely by donation;
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That in order for indigent inmates to receive certain
donated supplies, they must attend some sort of life skills
class or program offered by GCRCF, or a religious service.
Participation in such a program is required to show
initiative on the part of the indigent inmate to show that
they are trying to improve themselves . . . .
(ECF No. 185-5, at 1).
Warden Fairley attested in his affidavit “[t]hat the GCRCF provides soap,
toothpaste, tooth brush, toilet paper, and razor to county inmates. All other hygiene
supplies must be purchased from the commissary, or when available, can be
obtained from the chaplain’s indigent supplies program.” (ECF No. 185-2, at 2). The
inmate handbook is clear that inmate attendance at religious programs is
voluntary. (ECF No. 185-4, at 11).
Plaintiff does not have a clearly established constitutional right to have
shampoo, deodorant, and lotion. GCRCF provides Plaintiff with soap, and Chaplain
Richard provided Plaintiff with soap on occasion, despite the fact that Plaintiff did
not attend services or classes. The indigent program administered by Chaplain
Richard is supported by donations. Participation is voluntary. Non-religious classes
are offered. Plaintiff has not demonstrated that Chaplain Richard’s sponsorship of
this program violates the First Amendment.
8.

Request for Yule Feast Accommodations

Plaintiff asserts a First Amendment claim against Chaplain Richard for
refusing to accommodate his requests for a Yule feast, which would entail serving
pork and mead, or a substitution honeyed water for mead, during the Twelve Days
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of Yule. (ECF No. 185-1, at 37, 39). Plaintiff submits that Yule is “about like
Ramadan” but is 12-days long as opposed to thirty. Id. at 53. Chaplain Richard
denies that Plaintiff spoke with him about Yule or requested accommodations for a
Yule feast. (ECF No. 185-5, at 2).2
Prisons are not required to respond to all individual religious dietary
requests in order to comply with the First Amendment. Baranowski v. Hart, 486
F.3d 112, 122 (5th Cir. 2007). The Fifth Circuit has recognized that “if one such
dietary request is granted, similar demands will proliferate, with two possible
results: either accommodation of such demands will place an undue burden on the
prison system, or the prisons would become entangled with religion while drawing
fine and searching distinctions among various free exercise claimants.” Kahey v.
Jones, 836 F.2d 948, 950 (5th Cir. 1988). Plaintiff has not demonstrated the
violation of a clearly established constitutional right, or deliberate indifference to
his religious rights. Plaintiff’s RLUIPA claim fails because Plaintiff is challenging
individual, not government, action. Garrett, 2017 WL 128555, at *1.
9.

Confiscation of Legal Documents

If this is the case, then Defendants should have moved to dismiss Plaintiff’s claim
for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a).
Defendants did not raise failure to exhaust as a defense to any of Plaintiff’s ten
claims. The exhaustion requirement reduces the quantity and quality of prisoner
claims and should be considered as a threshold issue. See Porter v. Nussle, 534 U.S.
516, 524-25 (2002); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010). GCRCF has
an administrative grievance procedure, but it is not apparent that it was enforced
with respect to Plaintiff’s many complaints.
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2

Plaintiff submits that legal papers were confiscated from his cell “at various
times by Cavender, Martinez, Orris, Lt. Schultz, and Sgt. Davis,” none of whom are
Defendants. (ECF No. 14, at 3-4). Plaintiff acknowledged at the omnibus hearing
that the papers were taken due to a prison rule that only allowed a prisoner to
maintain six inches of documents in his cell. (ECF No. 185-1, at 29-31). Plaintiff
admitted that the papers taken were locked in a storage room, and he could request
access. Id. at 29-31, 51-52. Plaintiff has not demonstrated a cognizable claim with
respect to his legal papers.
10.

Conspiracy

Defendants submit that Plaintiff is alleging a claim for conspiracy based on
his belief that items were confiscated from his cell in order to fabricate a criminal
case against him. To the extent that Plaintiff is asserting this claim, the Court
agrees with Defendants that the claim is barred by Heck v. Humphrey, 512 U.S. 477
(1994) because Plaintiff’s conviction has not been overturned.
CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Summary
Judgment (ECF No. 173) is DENIED.
IT IS, FURTHER, ORDERED that Plaintiff’s Motion for Suspect
Classification (ECF No. 176) is DENIED. The legal standards governing Plaintiff’s
claims were discussed in this Memorandum Opinion and Order.

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IT IS, FURTHER, ORDERED that Plaintiff’s Motion for Turner Test
Analysis (ECF No. 177) is DENIED. The legal standards governing Plaintiff’s
claims, included Turner v. Safley, 482 U.S. 78 (1987), were discussed in this
Memorandum Opinion and Order.
IT IS, FURTHER, ORDERED that Defendants’ Motion for Summary
Judgment (ECF No. 185) is GRANTED, and Plaintiff’s claims dismissed with
prejudice.
IT IS, FURTHER, ORDERED that Plaintiff’s Motion to Produce Computer
Kiosk Inmate Request (ECF No. 189) is DENIED. The request for discovery is
denied as untimely.
SO ORDERED AND ADJUDGED, this the 31st day of March, 2017.

s/ John C. Gargiulo

JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE

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