CORDERO v. KELLEY et al
Filing
81
MEMORANDUM AND ORDER granting Defendant's 56 Motion for Summary Judgment and entering judgment in favor of Defendants in this action. (Memorandum and Order sent to Plaintiff via USPS on 3/1/2021) Signed by Judge Peter G. Sheridan on 3/1/2021. (jmh)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
MISAEL CORDERO,
:
:
Plaintiff,
:
Civ. No. 17-1596 (PGS) (DEA)
:
v.
:
MEMORANDUM AND ORDER
:
GRANTING SUMMARY JUDGMENT
:
IN FAVOR OF DEFENDANTS
GREGORY KELLEY, et al.,
:
BRUCE DAVIS AND
:
GREGORY KELLEY
Defendants.
:
____________________________________:
I.
INTRODUCTION
Plaintiff, Misael Cordero (“Plaintiff” or “Cordero”), is a state prisoner proceeding with a
civil rights complaint alleging purported violations of the First Amendment and the Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Presently pending before this
Court is Defendants Bruce Davis and Gregory Kelley’s (hereinafter the “Moving Defendants”)
motion for summary judgment (See ECF 56). For the following reasons, Moving Defendants’
motion is granted.
II.
SUMMARY JUDGMENT LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing
law” and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Disputes over irrelevant or unnecessary facts will not preclude the Court from
granting a motion for summary judgment. See id.
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A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A party asserting that a fact [is not]
genuinely disputed must support the assertion by ... citing to particular parts of materials in the
record, including depositions, documents ..., affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation
marks omitted). To withstand a properly supported motion for summary judgment, the
nonmoving party must identify specific facts and affirmative evidence that contradict the moving
party. See Anderson, 477 U.S. at 250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is
‘not significantly probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. &
Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
“If reasonable minds could differ as to the import of the evidence,” however, summary judgment
is not appropriate. See Anderson, 477 U.S. at 250-51.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the nonmoving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). The
Court’s role in deciding a motion for summary judgment is simply “to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. Ultimately, there is “no genuine issue as to
any material fact” if a party “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex, 477 U.S. at 322.
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III.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was incarcerated at the New Jersey State Prison (“NJSP”) from 2014 to 2019.
(See ECF 56-6 at 3). While Plaintiff is now incarcerated at the East Jersey State Prison, his
allegations relate to circumstances arising while he was incarcerated at NJSP. (See ECF 56-5 at
3). Defendant Kelley is a mailroom officer at NJSP while Defendant Davis is the administrator
of the NJSP. (See ECF 56-9 at 3; ECF 56-5 at 8). Plaintiff filed his initial complaint in this Court
in March, 2017. (See ECF 1). In August, 2018, this Court screened Plaintiff’s complaint. (See
ECF 16). This Court noted as follows in that screening opinion:
1.
Plaintiff alleges that Officer Kelley confiscated
religious tracts Plaintiff purchased to give to his family and friends.
Officer Kelley allegedly stated the tracts were “not authorized for
retention or receipt” and that “‘[a]ll religious material for
distribution must go through chaplains office.’” Compl. ¶ 8
(alteration in original).
2.
Plaintiff had previously purchased similar tracts
without problems. Id. ¶ 7. He alleges there is no policy that requires
religious pamphlets to go through the chaplain’s office. Id. ¶ 9. He
further states the pamphlets were for friends and family, not
distribution within the prison. Id. ¶ 11.
3.
Plaintiff appealed the confiscation to Administrator
1
D’llio on March 19, 2015. Id. ¶ 12. Plaintiff alleges Administrator
D’llio did not respond to his appeal, so he filed an inquiry form
requesting a decision. Id. ¶¶ 14-15. The response to the inquiry form
stated that religious pamphlets had to go through the chaplain’s
office. Id. ¶ 15.
4.
Plaintiff alleges Administrator D’llio purposely
failed to respond to his grievances to prevent him from exhausting
his administrative remedies. He claims he lost a meritorious claim
in the New Jersey Superior Court, Appellate Division.
5.
Plaintiff alleges defendants violated his First
Amendment rights to practice his religion. “[A] prison inmate
retains those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives
of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822
(1974). “[W]hen a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.” Turner v. Safley, 482 U.S. 78,
89 (1987). To make out a claim for denial of an individual's free
exercise rights under the First Amendment, an individual must
1
Davis has since replaced D’Ilio as a Defendant in this action.
3
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allege the regulation impinges on a sincerely held religious belief.
DeHart v. Horn, 227 F.3d 47, 51-52 (3d Cir. 2000) (en banc).
6.
Construing the complaint liberally and giving
Plaintiff the benefit of all reasonable inferences, he has sufficiently
alleged a First Amendment claim against defendants. This claim
shall proceed.
7.
Plaintiff also claims a violation of RLUIPA, 42
U.S.C. § 2000cc-1 et seq. “RLUIPA protects ‘any exercise of
religion, whether or not compelled by, or central to, a system of
religious belief[.]’” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015)
(quoting 42 U.S.C. § 2000cc–5(7)(A)). RLUIPA provides “‘greater
protection’ for religious liberty than is provided by the First
Amendment. . . . [C]ourts must be careful not to import reasoning
from cases such as Turner involving First Amendment rights.”
Payne v. Doe, 636 F. App'x 120, 124 (3d Cir. 2016) (per curiam)
(citing Hobbs, 135 S. Ct. at 863) (internal citation omitted).
Construing the complaint liberally and giving Plaintiff the benefit of
all reasonable inferences, he has sufficiently alleged a RLUIPA
against defendants. This claim shall also proceed.
(ECF 16 at 1-3).
After screening, discovery in this case included the deposition of Plaintiff. Plaintiff
indicated in his deposition that his religious beliefs require he bring the Word of God and
salvation to his friends and family. (See ECF 65 at 7). While incarcerated at NJSP, Plaintiff
ordered religious pamphlets to be sent to him at NJSP so that he could send them to his family.
(See ECF 56-5 at 6). During Plaintiff’s deposition, he further admitted though he could send the
pamphlets directly to his family rather than first to him at NJSP, but at a higher cost. (See id. at
9-10).
According to Moving Defendants, inmates at NJSP cannot receive bulk religious
mailings through the mailroom, but they can have them sent to the chaplain of NJSP for review
and distribution. (See ECF 56-10 at 5). The issue presented in this case is the seizure of Plaintif’s
bulk religious pamphlets by Kelley.
After the close of discovery, Moving Defendants filed a motion for summary judgment.
Plaintiff then filed his initial response to the motion for summary judgment. (See ECF 65). After
Moving Defendants were ordered to serve Plaintiff with a full copy of his deposition transcript
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(see ECF 71) and complied (see ECF 72), Plaintiff filed a subsequent response in opposition to
Moving Defendants’ motion for summary judgment. (See ECF 73). Moving Defendants then
submitted a reply brief (see ECF 77) and Plaintiff subsequently filed a sur-reply. (See ECF 79).
IV.
DISCUSSION
As previously discussed, Plaintiff is proceeding against the Moving Defendants both
under RLUIPA and the First Amendment’s Free Exercise Clause.
A. RLUIPA
RLUIPA “provide[s] very broad protection for religious liberty. See Holt v. Hobbs, 574
U.S. 352, 356 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014)).
RLUIPA mandates that “[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, ... even if the burden results from a
rule of general applicability,” unless the government can satisfy strict scrutiny. See 42 U.S.C. §
2000cc-1(a). This requires a showing that the burden imposed on a person's religious exercise “is
in furtherance of a compelling governmental interest” and “is the least restrictive means of
furthering that compelling governmental interest.” § 2000cc-1(a)(1)-(2). Even prior to the United
States Supreme Court decision in Holt, courts recognized in the prison context that RLUIPA
provides greater protections than the First Amendment. See Colvin v. Caruso, 605 F.3d 282, 296
(6th Cir. 2010) (citing Lovelace v. Lee, 472 F.3d 174, 199–200 (4th Cir. 2006)).
Under RLUIPA's burden shifting framework, a plaintiff must first show that the
defendant has placed a substantial burden on the plaintiff's sincerely held religious belief. See
Washington v. Klem, 497 F.3d 272, 277–78 (3d Cir. 2007). In Washington, the Third Circuit
noted that:
[f]or the purposes of RLUIPA, a substantial burden exists where:
1) a follower is forced to choose between following the precepts of
his religion and forfeiting benefits otherwise generally available to
other inmates versus abandoning one of the precepts of his religion
in order to receive a benefit; OR 2) the government puts substantial
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pressure on an adherent to substantially modify his behavior and to
violate his beliefs.
497 F.3d at 280 (3d Cir. 2007); see also Shelley v. Metzger, 832 F. App’x 102, 105 (3d Cir.
2020). Furthermore, as aptly noted by Chief Judge Wolfson:
[t]he Supreme Court has explained, however, that the question of
whether an authentic religious belief has been substantially
burdened under RLUIPA does not permit consideration of whether
the plaintiff may still exercise his religious beliefs in other ways.
See Holt, 135 S. Ct. at 862. “RLUIPA's ‘substantial burden’
inquiry asks whether the government has substantially burdened
religious exercise, not whether the RLUIPA claimant is able to
engage in other forms of religious exercise.” Id. (parenthetical
omitted).
Tormasi v. Lanigan, 363 F. Supp. 3d 525, 542 (D.N.J. 2019).
Moving Defendants argue Plaintiff can order smaller quantities of religious pamphlets to
himself and then send them to his family and friends so long as they are not in bulk quantities.
Indeed, in his deposition, Plaintiff admitted there had never been a time where he ordered less
than a hundred pamphlets that were rejected as a bulk order. (See id. at 13). Nevertheless,
Plaintiff argues he should have been able to keep some of the pamphlets from his bulk order
rather than all of them being confiscated. Even if this were so, Moving Defendants also argue
Plaintiff’s religious beliefs are not substantially burdened by the bulk mail policy because
Plaintiff can still send and receive pamphlets. Plaintiff can simply order pamphlets and have
them sent directly to his friends and family rather than have them shipped to him at NJSP and
then have him ship them out. Indeed, Plaintiff has taken advantage of this alternative before by
donating a bulk order to a woman who has a ministry in Florida. (See ECF 72 at 10).
In Marsh v. Granholm, No. 05-134, 2006 WL 2439760, at *10 (W.D. Mich. Aug. 22,
2006), the court determined that a prison’s restriction on bulk mailing did not substantially
burden an inmate’s exercise of his religion. In Marsh, an inmate alleged the only way he could
obtain the items necessary to practice his Wiccan religion was from purchasing them through a
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bulk mail catalog from Azure Green. See id. However, the Western District of Michigan granted
summary judgment for the defendants noting that Marsh failed to show that the only way he
could obtain the desired items was through Azure Green. See id. Furthermore, the Marsh court
determined the fact that the plaintiff could not obtain catalogs, without more, was insufficient to
show a substantial burden on the plaintiff’s Wiccan religion. See id.
More recently, in Czekalski v. Hanks, No. 18-592, 2020 WL 7231358 (D.N.H. Dec. 8,
2020), the District of New Hampshire also determined a prison’s prohibition on bulk mail did not
substantially burden a prisoner’s exercise of religion under RLUIPA. In that case, the District of
New Hampshire found that an inmate failed to explain how the inability to receive mail catalogs
substantially burdened his religious practices. For example, the court noted a Rabbi visitor was
permitted to print out copies of the catalogs the inmate wanted. See id. at *20.
This Court finds these two cases persuasive. Indeed, Plaintiff’s case is perhaps even one
step removed from these two cases as Plaintiff was able to obtain numerous copies of the
pamphlets for distribution (albeit perhaps at lesser quantities than Plaintiff would like). NJSP’s
prohibition on bulk mail did not force Plaintiff to choose between following the precepts of his
religion and forfeiting benefits otherwise generally available to other inmates versus abandoning
one of the precepts of his religion in order to receive a benefit. Indeed, Plaintiff failed to show he
could not obtain numerous copies of pamphlets so that he could distribute them himself or that
he could order the pamphlets and have them sent directly to his friends and family to support his
religious exercise. Furthermore, the prohibition on bulk mail did not put substantial pressure on
Plaintiff to modify his behavior and violate his beliefs. See Washington, 497 F.3d at 280.
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Accordingly, Moving Defendants are entitled to summary judgment on Plaintiff’s RLUIPA
claim.2
B. First Amendment – Free Exercise
Plaintiff next asserts his First Amendment Free Exercise Clause rights have been
violated. “[A] prison inmate retains those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the corrections system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974). “[W]hen a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.” Turner, 482 U.S. at 89. To make out a claim for denial of an individual's free exercise
rights under the First Amendment, an individual must allege the regulation impinges on a
sincerely held religious belief. See DeHart v. Horn, 227 F.3d 47, 51–52 (3d Cir. 2000) (en banc).
The Court considers four factors in assessing the overall reasonableness of a prison
regulation: (1) “there must be a ‘valid, rational connection’ between the prison regulation and the
legitimate governmental interest put forward to justify it”; (2) “whether there are alternative
means of exercising the right that remain open to prison inmates”; (3) “the impact
accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally”; and (4) whether there are alternatives to the
regulation that “fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological
interests.” Turner, 482 U.S. at 89–91.
Moving Defendants do not contest that Plaintiff has asserted a sincerely held religious
belief. However, they argue they are entitled to summary judgment based on the Turner factors.
The First Amendment imposes similar, but less strict standards on prison administrators than
Given that there is no material issue of fact that Plaintiff’s exercise of his religion was
substantially burdened by the bulk mail policy, this Court need not analyze Moving Defendants’
other arguments as to why they are entitled to summary judgment on Plaintiff’s RLUIPA claim.
2
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RLUIPA. See Turner v. Coupe, 655 F. App’x 47, 49-50 (3d Cir. 2016) (citing Turner, 482 U.S.
at 89). Accordingly, courts have noted that where there is no material issue of fact on a RLUIPA
claim, a plaintiff’s First Amendment free exercise claim typically fails as well. See, e.g., Watson
v. Christo, Nos. 16-433, 17-351, 2019 WL 1324941, at *6 (D. Del. Mar. 25, 2019), aff’d, No. 192737, 2020 WL 7054443 (3d Cir. Dec. 2, 2020); see also Lister v. Allen Oakwood Corr. Inst.,
No. 19-1583, 2020 WL 1140071, at *4 (N.D. Ohio Mar. 9, 2020) (noting plaintiff’s free exercise
claim fails because RLUIPA provides broader protections for religious liberty than the First
Amendment); Al-Kadi v. Ramsey Cty., No. 16-2642, 2019 WL 2448648, ag *12 (D. Minn. June
12, 2019) (citing Van Wyhe v. Reisch, 581 F.3d 639, 657-58 (8th Cir. 2009) (noting because
plaintiff’s RLUIPA claim on being forced to wear a bedsheet instead of a hijab failed, any free
exercise claim also fails); French v. Maryland Div. of Corr., Nos. 11-2124, 11-3301, 2013 WL
1104995, at *8 (D. Md. Mar. 15, 2013) (noting because statutory violation of RLUIPA involves
same threshold issues of a free exercise claim, plaintiff’s free exercise claim also fails).
Nevertheless, for purposes of completeness, this Court will analyze Plaintiff’s free exercise claim
under the Turner factors as well despite there being no material issue of fact remaining on
Plaintiff’s more strict RLUIPA claim.
In applying the Turner factors, this Court is mindful that it must:
give “considerable deference” to the “determinations of prison
administrators who, in the interests of security, regulate the
relations between prisoners and the outside world.” Thornburgh v.
Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874, 104 L. Ed. 2d 459
(1989); Falls v. Nesbitt, 966 F.2d 375, 379 (8th Cir.1992). This
deference is accorded to prison administrators because the realities
of running a penal institution are complex, and the courts are
illequipped to deal with problems of prison administration and
reform. Jones, 433 U.S. at 126. The Turner court observed that
“[r]unning a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all
of which are the province of the legislative and executive branches
of government.” 482 U.S. at 84–85.
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Hughbanks v. Dooley, No. 10-4064, 2012 WL 346673, at *9 (D.S.D. Feb. 2, 2012). In
Hughbanks, the District of South Dakota noted numerous cases where courts have upheld bulk
mail bans under the First Amendment. Indeed, that court stated as follows:
A number of courts have upheld prison bans on bulk-rate mail and
catalogs, finding they were reasonably related to legitimate
penological interests such as the security of the prison, allocation
of resources, and preventing fire hazards. See Jones, 503 F.3d at
1159–60 (noting that plaintiff likely had not met his burden of
demonstrating that a county jail's catalog ban was unconstitutional,
but remanding to district court for Turner analysis); Sheets v.
Moore, 97 F.3d 164, 168 (6th Cir.1996) (upholding a ban on bulkrate mail); Allen v. Deland, 42 F.3d 1406 (10th Cir.1994)
(upholding prison policy banning catalogs); Hrdlicka v. Cogbill,
No. 04–3020, 2006 WL 2560790 at *11 (N.D. Cal. Sept.1, 2006)
(upholding prison policy banning bulk-rate mail and prison
officials' decision not to deliver magazine pursuant to that policy);
Dixon v. Kirby, 210 F.Supp.2d 792, 801 (S.D.W.Va.2002)
(upholding ban on bulk-rate mail and catalogs); Allen v. Wood, 970
F. Supp. 824, 829–30 (E.D.Wash.1997) (upholding prison policy
banning catalogs); Alcala v. Calderon, No. 95–3329, 1997 WL
446234 at *6 (N.D. Cal. July 24, 1997) (upholding prison ban on
bulk-rate mail); Kalasho v. Kapture, 868 F. Supp. 882, 888
(E.D.Mich.1994) (upholding prison policy banning the delivery of
bulk-rate mail to inmates).
Hughbanks, 2012 WL 346673, at *9. Nevertheless, the District of South Dakota also noted other
courts which have decided these cases differently as stated below:
Hughbanks relies on contrary authority, which comes primarily
from the Ninth Circuit Court of Appeals. See Prison Legal News v.
Lehman, 397 F.3d 692,701 (9th Cir.2005) (holding that prison ban
on bulk-rate mail and catalogs violated the First Amendment);
Prison Legal News v. Cook, 238 F.3d 1145, 1149–50 (9th
Cir.2001) (holding that prison regulation banning the receipt of
subscription nonprofit mail based on the postal service rate was not
rationally related to a legitimate penological objective); Morrison
v. Hall, 261 F.3d 896, 905 (9th Cir.2001) (holding prison
regulation banning bulk-rate mail was unconstitutional as applied
to for-profit subscription publications); Allen v. Higgins, 902 F.2d
682, 684 (8th Cir.1990) (holding prison official was not entitled to
qualified immunity because he denied an inmate's request to mail a
money order for a government catalog without examining the
catalog); Brooks v. Seiter, 779 F.2d 1177, 1181 (6th Cir.1985)
(holding that an inmate's complaint that pamphlets, magazines, and
catalogs were not delivered was not frivolous). Because there is a
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split in authority and no controlling precedent from the Eighth
Circuit, this court will independently analyze the constitutionality
of the DOC correspondence policy ban on bulk-rate mail.
Hughbanks, 2012 WL 346673, at *8–9.
Defendants argue Turner’s first factor weighs in their favor. They claim there is a logical
connection between the bulk mail restriction and legitimate penological interests. Most notably,
Moving Defendants state they are concerned with an inmate receiving bulk religious pamphlets
individually rather than through the chaplain because an inmate who receives and distributes
such material may be seen as a spiritual leader with heightened authority which could affect the
power dynamic inside the prison. Furthermore, because an inmate can receive religious material
through the chaplain’s office, Moving Defendants state this shows the policy was meant to
address penological concerns, rather than necessarily restricting one’s religious practice. (See
ECF 56-2 at 27-28).
“Maintaining institutional security and preserving internal order and discipline are
essential goals that may require limitation or retraction of the retained constitutional rights” of
prisoners. Bell v. Wolfish, 441 U.S. 520, 546 (1979). “Such considerations are peculiarly within
the province and professional experience of corrections officials, and, in the absence of
substantial evidence in the record that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell, 417
at 827. With respect to analyzing the first Turner factor, the Third Circuit has noted the
following:
the prison has the burden of demonstrating the First Turner Factor.
See Waterman, 183 F.3d at 218 n. 9; Wolf v. Ashcroft, 297 F.3d
305, 308 & n. 2 (3d Cir.2002). This burden is slight, and in certain
instances, the connection may be a matter of common sense. Wolf,
297 F.3d at 308. Second, if the prison meets its burden under the
First Turner Factor, then we consider the Other Turner Factors.
See Waterman, 183 F.3d at 218 n. 9; Wolf, 297 F.3d at 308 & n. 2;
see also Jones v. Brown, 461 F.3d 353, 360 (3d Cir.2006).
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Sharp v. Johnson, 669 F.3d 144, 156 (3d Cir. 2012).
This Court finds Defendants have met their slight burden under the first Turner factor.
The explanation in prohibiting direct bulk religious mailings to inmates as necessary to maintain
safety and security of the prison meets Moving Defendants’ burden.
Moving Defendants also assert the second Turner factor weighs in their favor. They note
Plaintiff can still exercise his right to distribute his religious pamphlets to his family and friends
to support his exercise of his religion. Most notably, Plaintiff can order smaller quantities or even
send the materials directly to his family and friends from the distributor. (See ECF 56-2 at 28).
Indeed, Plaintiff has taken advantage of these alternatives which still allow Plaintiff to exercise
his religious belief of distributing the Word of God to family and friends. This Court agrees with
Moving Defendants that this factor favors them.
Next, Moving Defendants assert Turner’s third factor also weighs in their favor. They
claim changing the bulk mail restriction would negatively impact other inmates. More
specifically, distribution of religious materials within the prison can create power imbalances
among inmates. While Plaintiff states he does not intend to distribute the religious pamphlets,
Moving Defendants note there is no way for them to ensure that is the case. This Court agrees
and finds this factor too weighs in Moving Defendants favor.
Finally, Moving Defendants argue there are no additional alternatives that would
accommodate Plaintiff’s right at de minimus cost. Plaintiff suggests a less restrictive alternative
would be to permit him to receive a certain quantity of religious tracts – instead of a complete
prohibition. (See ECF 65 at 17-18). However, as the record in this case indicates, this is precisely
what has been permitted. Indeed, Plaintiff admits he has never had an order of less than 100
pamphlets confiscated. Accordingly, this factor weighs in Moving Defendants favor.
As the above discussion indicates, the Turner factors weigh in favor of Defendants.
Given this, Defendants are also entitled to summary judgment on Plaintiff’s free exercise claim.
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V.
CONCLUSION
For the foregoing reasons, Moving Defendants’ motion for summary judgment is granted.
ORDER
For the reasons discussed in the Memorandum filed herewith:
IT IS this 1st day of March, 2021,
ORDERED Defendants’ motion for summary judgment (ECF 56) is granted and
judgment is entered in favor of Defendants in this action; and it is further
ORDERED the Clerk shall serve this order and the accompanying opinion on Plaintiff by
regular U.S. mail; and it is further
ORDERED the Clerk mark this case as closed.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
13
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