Damron et al v. Sims

Filing 331

ORDER denying 328 Motion to Alter or Amend. Signed by Judge Algenon L. Marbley on 2/3/2012. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James E. Damron,

:
Plaintiff

Defendant

Judge Marbley

:

Wanza Jackson,

Civil Action 2:09-cv-050

:

v.

:

Magistrate Judge Abel

:

ORDER DENYING RECONSIDERATION

This matter is before the Court pursuant to Plaintiff’s October 11, 2011
motion (Doc. 328) to alter or amend the Court’s opinion and order of September 21,
2011.1 In it, the Court denied Plaintiffs’ motion for summary judgment and granted
Defendant’s motion for summary judgment in part, dismissing all claims except
those for denial of religious literature, and all plaintiffs except for James E.
Damron.
Plaintiff in the first place takes exception to what he describes as a
mischaracterization of Christian Separatist belief. In the Court’s opinion, it stated:
In her motion for summary judgment, Defendant suggested that Plaintiff has

A motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) is
properly applicable only to final entries of judgment, which the Order of September
21, 2011 was not. The Court will address the present motion as one for
reconsideration.
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not suffered a substantial burden upon his religious practice, because,
despite being denied certain accommodations, he could still: (1) visit
individually with a minister during normal prison visiting hours; (2) receive
religious publications which do not incite violence; (3) engage in individual
prayer, study, and reflection; and (4) engage in congregational worship with
Protestants. (Doc. 316 at 6.) Plaintiff argues that these proposed alternatives
are inadequate; with respect to segregated worship, he rebuts specifically
that there is no Christian Separatist minister in Ohio who could visit him,
that the opportunity for individual prayer is tautological and meaningless,
and that the tenets of Christian Separatism are fundamentally incompatible
with those of ordinary Protestant denominations, which Plaintiff
characterizes as unacceptably "Judeo" Christian beliefs. (Doc. 319 at 12.)
(Doc. 327 at 14.) Plaintiff states that it is not true that for Christian Separatists
“the opportunity for individual prayer is tautological and meaningless”. The Court
in this passage summarized Plaintiffs’ rebuttal to Defendant’s suggestion that
individual worship was an acceptable alternative to collective worship (Doc. 319 at
11): “[T]he Defendant’s invitation to individual prayer call[s] for cessation of all
religious services since everyone can pray in their cell.” The Court’s reference
therefore was not that Plaintiffs had argued that individual prayer was
meaningless, but that Plaintiffs had argued that it was meaningless for Defendant
to refer to the “opportunity” for individual prayer.
Plaintiff also argues that the Court erred in granting Defendant summary
judgment on the Plaintiffs’ claims that she had infringed their right to free exercise
of religion by failing to permit separate congregate worship services for Christian
Separatist adherents. In their complaint, Plaintiffs sought “[s]eparate worship and
study for adherents of Christian Separatist Church apart from non-whites and
homosexuals”. (Doc. 1-2 at 2.)

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Under RLUIPA, the Religious Land Use and Institutionalized Persons Act of
2000, 42 U.S.C. §2000cc et seq.:
No 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 result of general applicability, unless the
government demonstrates that imposition of the burden on that person
(1)
(2)

is in furtherance of a compelling government interest; and
is the least restrictive means of furthering that compelling
governmental interest.

42 U.S.C. §2000-cc-1. Furthermore:
If a plaintiff produces prima facie evidence to support a claim alleging
a violation of the Free Exercise Clause or a violation of section 2000cc
of this title, the government shall bear the burden of persuasion on any
element of the claim, except that the plaintiff shall bear the burden of
persuasion on whether the law (including a regulation) or government
practice that is challenged by the claim substantially burdens the
plaintiff’s exercise of religion.
42 U.S.C. §2000-cc-2. In its order granting summary judgment, the Court found
that Plaintiff had failed to make a prima facie showing of a substantial burden upon
his ability to practice the Christian Separatist faith.
Assuming arguendo that Plaintiff has made such a showing of substantial
burden, Defendant bears the burden of persuasion that refusing Christian
Separatist adherents separate worship apart from nonwhites and homosexuals is in
furtherance of a compelling government interest and is the least restrictive means
of furthering that compelling government interest. The Sixth Circuit Court of
Appeals held in Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005), that
under RLUIPA courts are to give “due deference” to the expertise and judgment of

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prison officials as to matters of institutional security, discipline, and good order. In
an affidavit accompanying Defendant’s motion for summary judgment, Austin
Stout, an assistant ODRC chief counsel, explained ODRC’s position on segregated
worship:
No inmates are excluded from any congregate worship services based
on race or sexual orientation. Providing inmates that identify
themselves as a member of the Christian Identity Church is not
possible for two reasons. First, because the Christian Identity church
is connected to or associated with known Security Threat Groups and
white supremacist groups, allowing members to congregate under the
guise of religious worship would create serious safety and security
concerns. Second, ODRC does not have the resources to provide every
religious sect within a particular religion with their own religious
service. Instead, ODRC has rationally decided to accommodate as
many faith groups as possible by providing services that are common
to all sects within a particular faith. Thus, inmates who identify
themselves as members of the Christian Identity Church may
participate in the general Christian religious service offered by their
institutions.
(Doc. 316-1 at 7.)2
The Court is not required to simply accept at face value ODRC’s
representations concerning the dangers of permitting Christian Separatist
adherents to congregate. Nevertheless, ODRC’s argument that it cannot reasonably
administer a kaleidoscope of worship services for any individual group that wishes
to form a separate congregation, and must instead offer general services for similar
sects is rational and persuasive, even given Plaintiff’s evidence that general
Protestant religious services are unacceptable to Christian Separatists. ODRC has

The Court takes Mr. Stout’s references to the “Christian Identity Church”
to refer instead to the Christian Separatist Church; q.v. Doc. 49.
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a compelling governmental interest in utilizing limited resources to make
congregate worship available to as many inmates as possible, and a policy against
separate services for separate denominations appears the least restrictive means of
furthering that interest.
In addition, granting the relief the plaintiffs here seek might well be
fruitless. Were the Ohio Department of Rehabilitation and Correction (“ODRC”)
compelled to permit the establishment of Christian Separatist worship services
separate from ordinary Protestant services, it could not bar nonwhites from them.
Such a bar would contravene the ODRC’s compelling and obvious interest in
maintaining institutional security by not permitting the establishment of exclusive
prisoner organizations, and would be deeply suspect as institutionally mandated
race discrimination.3 In addition, as Defendant points out, ODRC does not keep
information on inmates’ sexual orientation, and so has no ability to enforce a
prohibition of homosexuals at Christian Separatist services.
Accordingly, as the Court finds that, even were refusing to permit Christian
Separatist adherents to hold separate worship services a substantial burden on
their religious exercise, such refusal is in the furtherance of a compelling
government interest, and is the least restrictive means of furthering that
compelling government interest. Accordingly, Defendant’s action in refusing such

Furthermore, of course, should any nonwhites (or homosexuals) aver that
they wished to become adherents of the Christian Separatist faith, barring them
from participating in institutional Christian Separatist services would itself be a
substantial burden on their religious exercise.
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separate worship is not violative of RLUIPA, and summary judgment on this issue
was properly granted to Defendant. The motion (Doc. 328) is DENIED.

s/Algenon L. Marbley
United States District Judge

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