Harris v. Wall
Filing
32
ORDER granting in part and denying in part granting in part and denying in part 3 Motion for Preliminary Injunction; adopting 27 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 11/18/2016. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
ASHBEL T. WALL,
)
)
Defendant.
)
___________________________________)
JAMES HARRIS,
C.A. No. 16-080 S
ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff James Harris, an inmate at the Adult Correctional
Institutions (“ACI”), is challenging a Rhode Island Department
of
Corrections
(“RIDOC”)
policy
that
allows
him
to
wear
his
religious head covering only when he is in his cell or when he
is
attending
religious
services.
(Compl.
4,
ECF
No.
1.)
Plaintiff, a Sunni Muslim, is seeking a temporary restraining
order and preliminary injunction that he be allowed to wear a
kufi without restriction throughout the ACI. (Mot. for TRO &
Prelim.
Inj.
1,
ECF
No.
3.)
Magistrate
Judge
Patricia
A.
Sullivan held a hearing on Plaintiff’s motion in July 2016 and
filed
a
Report
and
Recommendation
(“R&R”)
(see
attached)
on
August 15, 2016, recommending that the Court issue a limited,
ninety-day injunction “directing RIDOC to expand its headwear
policy to permit Plaintiff to wear a kufi of a specified design
while
exercising
in
the
prison
yard,
subject
to
all
of
the
existing limits on the wearing of secular head coverings.” (R&R
2, 28, ECF No. 27.)
The R&R also recommended that the narrow
injunction “be subject to immediate cancellation and withdrawal
of
the
privilege
if,
in
practice,
it
exacerbates
RIDOC’s
identified security concerns.” (Id. at 2-3.)
Defendant filed an objection to the R&R, arguing that the
R&R
erred
by
recommending
that
the
Court
issue
a
limited
injunction allowing Plaintiff to wear a kufi in the prison yard.
(Obj.
to
R&R
2,
ECF
No.
29.)
Defendant
contends
that
any
increase in risk to the safety and security at the ACI, however
slight, means that the balancing of the harms consideration of
the preliminary injunction analysis must tip in favor of not
changing the religious head-covering policy. (Mem. in Supp. of
Def.’s Obj. to R&R 9, ECF No. 29-1.)
Defendant also challenges
the conclusions in the R&R that Plaintiff’s religious belief is
sincere and that the current policy substantially burdens his
beliefs. (Id. at 21-22.)
This Court has carefully considered
Defendant’s Objection and finds that it does not present any
additional
arguments
to
those
thoroughly
considered
and
addressed within the R&R.
The R&R recommended the narrow injunction after carefully
considering
injunction.
each
of
the
elements
for
granting
a
preliminary
By recommending such a narrow injunction, the R&R
2
focused on accommodating two competing public policies: ensuring
security
and
safety
practice
of
his
interference
at
the
religion
pursuant
ACI
from
to
and
protecting
Plaintiff’s
overly-intrusive
the
Religious
government
Land
Use
and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1.
The
R&R
clearly
security
and
safety
permitting
Plaintiff
acknowledged
concerns
to
the
serious
identified
wear
his
by
kufi
and
the
legitimate
RIDOC
without
about
restriction
anywhere within the ACI facilities, concluding that “except for
the narrow circumstances of the prison yard where secular caps
are
already
allowed,
the
balance
of
the
hardships
tilts
dramatically against the issuance of an injunction.” (R&R 26,
ECF
No.
27.)
professional
The
judgment
acknowledging
that
R&R
of
RIDOC
gave
the
had
appropriate
ACI
deference
administrators
failed
to
to
while
demonstrate
that
the
also
its
complete ban on religious headwear is the least restrictive way
to achieve its compelling interest in a safe and secure prison
facility where existing RIDOC policy already allows for secular
headwear (e.g., a baseball cap in summer and a knit cap in
winter) during inmate time in the prison yard.
Ultimately,
this
Court
agrees
with
the
findings
and
reasoned conclusions in the R&R, and hereby accepts the R&R in
its entirety pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff’s
Motion
Preliminary
for
a
Temporary
Restraining
3
Order
and
Injunction is GRANTED IN PART, as follows:
Defendant A.T. Wall,
in his official capacity as the Director of RIDOC, shall alter
the RIDOC’s headwear policy to allow Plaintiff to wear a solid
color,
close-fitted,
seamless,
crocheted
kufi
when
he
is
exercising in the prison yard in addition to when he is in his
cell.
The
existing
altered
limits
on
policy
the
shall
wearing
be
and
subject
use
to
of
all
of
secular
the
head
coverings, and the policy shall be subject to withdrawal if any
of
RIDOC’s
identified
security
concerns
are
realized
from
permitting Plaintiff to wear his kufi while exercising in the
prison yard.
The effect of this Order will be stayed for a
period of thirty days from today’s date, during which time RIDOC
shall make any necessary amendments to its policies, regulations
or
search
protocols
to
conform
injunction imposed by this Order.
with
the
limited
mandatory
Once the injunction takes
effect, it shall be in effect for ninety days pursuant to the
Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(2).
Other
than
the
limited
Plaintiff’s motion is DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: November 18, 2016
4
injunction
ordered
above,
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JAMES HARRIS,
Plaintiff,
v.
ASHBEL T. WALL,
Defendant.
:
:
:
:
:
:
:
C.A. No. 16-080S
REPORT AND RECOMMENDATION
Patricia A. Sullivan, United States Magistrate Judge
Pro se 1 Plaintiff James Harris, a prisoner at the Adult Correctional Institutions (“ACI”)
and a self-identified devout Sunni Muslim, has sued Defendant A.T. Wall individually and in his
official capacity as the Director of the Rhode Island Department of Corrections (“RIDOC”) 2
pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1
(“RLUIPA”). 3 Plaintiff challenges a longstanding RIDOC policy (the “headwear policy”) that
1
As required in this Circuit, based on Plaintiff’s pro se status, his filings have been liberally construed. Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Instituto de Educacion
Universal Corp. v. U.S. Dep’t of Educ., 209 F.3d 18, 23 (1st Cir. 2000).
2
Because Director Wall is named in his official capacity, Plaintiff has named the proper defendant for purposes of
injunctive relief under RLUIPA. See Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir. 2011). While RIDOC has not
moved to dismiss the suit against Director Wall in his individual capacity, it has argued that no injunction should
issue as to him in his personal capacity because such a claim is not viable under RLUIPA, citing Jihad v. Fabian,
No. CIV. 09-1604 SRN LIB, 2011 WL 1641885, at *8 (D. Minn. Feb. 17, 2011), adopted, 2011 WL 1641767 (D.
Minn. May 2, 2011). I agree. Accordingly, I recommend that the motions should be denied as to Director Wall
individually because the RLUIPA claim against him personally is not viable. See Kuperman, 645 F.3d at 79 (noting
that Fifth, Seventh and Eleventh Circuits have held that personal-capacity claims are not available under RLUIPA
but reserving decision because RLUIPA claim fails as matter of law). The term “RIDOC” as used in this report and
recommendation refers only to Director Wall in his official capacity.
3
In addition to RLUIPA, Plaintiff’s complaint states that it is a “civil action authorized by 42 U.S.C. § 1983 . . .
under color of state law, of rights secured by the constitution and acts of congress of the United States.” ECF No. 1
¶ 1. (“Compl.”). In a subsequent filing and at the hearing, Plaintiff clarified that he is asserting only a claim for
declaratory and injunctive relief to redress the RLUIPA violation. ECF No. 16 at 8 ¶ 18 (“Plaintiff has only
specifically raised an RLUIPA claim and not a First Amendment Claim.”). Accordingly, this report and
recommendation does not address whether Plaintiff’s motions would fare differently if the Court were considering a
First Amendment claim. Cf. Staples v. Gerry, Civil No. 14-cv-473-JL, 2015 U.S. Dist. LEXIS 86629, at *47-48
(D.N.H. May 11, 2015) (court declines to issue decision on First Amendment claim; to do so would be essentially
permits him to wear his religious head covering (the kufi 4) only while he is in his cell or
attending religious services. In this suit, he seeks declaratory relief and a permanent injunction
“to ensure that he is allowed to freely exercise the right to exercise the religious belief of wearing
a kufi through the ACI facilities without restriction.” ECF No. 3 at 1. Plaintiff claims that
RIDOC’s headwear policy imposes a substantial burden on his sincerely-held religious belief and
that, while the policy may advance RIDOC’s compelling interests in safety and security, it is not
the least restrictive means of furthering those interests, as required by RLUIPA. RIDOC
counters with two affidavits, one from Deputy Warden Jeffrey Aceto and the other from
Lieutenant William Galligan, which detail the State’s compelling penological interests in
adopting and enforcing the headwear policy, while attempting to accommodate the religious
beliefs of inmates like Plaintiff.
Before the Court for report and recommendation, 28 U.S.C. § 636(b)(1)(B), are
Plaintiff’s motions for temporary restraining order and preliminary injunction; a hearing on the
motions was conducted on July 1, 2016. Also pending is Plaintiff’s oral motion for appointment
of counsel, which has been referred for determination. See 28 U.S.C. § 636(b)(1)(A). For the
reasons that follow, I recommend that the Plaintiff’s motions for a temporary restraining order
and preliminary injunction be granted in part by the issuance of a limited injunction directing
RIDOC to expand its headwear policy to permit Plaintiff to wear a kufi of a specified design
while exercising in the prison yard, subject to all of the existing limits on the wearing of secular
head coverings. I further recommend that this slightly more-liberal policy be subject to
advisory because RLUIPA is more protective of prisoner’s religious practice), adopted with modifications sub nom.,
Staples v. N.H. State Prison, Warden, Civil No. 14-cv-473-LM, 2015 WL 4067139 (D.N.H. July 2, 2015).
4
“A Kufi is a ‘close-fitting brimless cylindrical or round hat.’” Malik v. Ozmint, Civil Action No. 8:07-387-RBHBHH, 2008 WL 701517, at *9 (D.S.C. Feb. 13, 2008) (quoting Merriam-Webster’s Dictionary,
http://www.merriam-webster.com/dictionary/kufi)), adopted, 2008 WL 701394 (D.S.C. Mar. 13, 2008), aff’d, 289 F.
App'x 662 (4th Cir. 2008).
2
immediate cancellation and withdrawal of the privilege if, in practice, it exacerbates RIDOC’s
identified security concerns. Beyond this narrow injunction, I recommend that Plaintiff’s
motions for a temporary restraining order and preliminary injunction be denied. In a separate
memorandum and order, I have also denied the motion for counsel, subject to Plaintiff’s right to
renew the motion if this matter proceeds to the discovery phase, and subject to the acceptance of
the case by a member of the Court’s pro bono panel.
I.
FACTS 5
A.
RIDOC’s Policies and Compelling Penological Interest
The RIDOC policies at issue in this case exist to protect the well-being and security of
correctional staff, inmates and the public. Aceto Aff. ¶ 61. These policies were not adopted in a
vacuum: during the 1970s, violence and other conditions at the ACI resulted in the judicial
holding that it was an institution “unfit for human habitation and shocking to the conscience of a
reasonably civilized person,” Palmigiano v. Garrahy, 443 F. Supp. 956, 979 (D.R.I. 1977), while
in the 1990s, gang activity continued to be a significant security concern. Galligan Aff. ¶ 18.
RIDOC remains vigilant in seeking ways to reduce gang and sectarian violence at the ACI by
eliminating, to the greatest degree possible, any differentiating factor in the inmate population
that might be used as a gang identifier or that might serve as a basis for groups of inmates to
segregate themselves from other inmates. Galligan Aff. ¶¶ 18-19; see Aceto Aff. ¶¶ 51-54
(permitting subgroups in prison to create “us vs. them” mentality is extremely dangerous and
poses a direct threat to prison order and security).
5
These facts are drawn from the verified complaint, declarations, affidavits and other evidence that Plaintiff and
RIDOC submitted. Plaintiff’s verified complaint (ECF No. 1) is referred to as “Compl.,” while Plaintiff’s
declarations are referred to as “Pl. Dec. I” (ECF No. 3-1) and “Pl. Dec. II” (ECF No. 18). The parties’ document
submissions are referred to by ECF number. During the hearing, Plaintiff made representations about the motions,
his Muslim faith and status at the ACI, which are referenced in the text. In support of its opposition to the motions,
Defendant proffered affidavits from two RIDOC officials, Lieutenant William Galligan, whose affidavit is at ECF
No. 14-1 and will be referred to as “Galligan Aff.,” and Deputy Warden Jeffrey Aceto, whose affidavit is at ECF
No. 14-2 and will be referred to as “Aceto Aff.”
3
As the Galligan and Aceto affidavits make clear, in formulating its policies, RIDOC
strives to anticipate what might increase the risk of violence or danger and has created a complex
weave of policies to address the identified risks. For example, it monitors the experiences of
other institutions; as a result, it knows that hats are readily used in a wide range of ways by
members of gangs, such as the Aryan Brotherhood, to self-identity to other inmates. Aceto Aff.
¶ 33; see id. ¶ 35 (RIDOC believes that wearing the kufi in certain manner or only on certain
days could be used to signal gang affiliation). Similarly, RIDOC staff is aware that the potential
for factional violence inside the institution is exacerbated when racial or religious tensions erupt
in the society outside the institution. This information is used to design policies to reduce gang,
religious or racial violence to the greatest degree possible. Aceto Aff. ¶ 38 (news stories about
religious tensions will manifest tenfold in prison population); id. ¶¶ 40-42 (noting that tensions
were created when pork was eliminated from RIDOC menu to accommodate Muslim inmates).
RIDOC also knows that even a perception of preferential treatment can trigger a potentially
violent outburst, threatening the ability of RIDOC staff to maintain order. Aceto Aff. ¶¶ 40-44
(describing profane outburst by inmate who believed, wrongly, that fish was being served to
accommodate Muslim inmates). Based on its past experience with sectarian violence, as well as
information gained from the experiences of other institutions, RIDOC believes that there is a
“very real” danger that permitting the wearing of the kufi (and other religious head coverings)
throughout the ACI could facilitate gang activity or promote the identification of a subgroup as a
distinct clique, creating the “risk of boiling over into factional violence.” Aceto Aff. ¶¶ 35, 3738.
A second serious danger that RIDOC must constantly address is the smuggling of
contraband, particularly drugs, weapons, notes and food, into the ACI and from place to place
4
within the institution. Galligan Aff. ¶ 15. RIDOC takes “proactive measures to stem the tide of
this destructive practice,” while acknowledging that is it virtually impossible entirely to
eliminate contraband trafficking from any prison. Aceto Aff. ¶¶ 5, 9; see Galligan Aff. ¶ 15.
Based on experience, RIDOC is aware that contraband is smuggled into the institution through a
wide range of creative methods, including in sneakers, under hats, in sock bands, in body orifices
and in the seams of clothing. Galligan Aff. ¶ 16. RIDOC has also observed that clothing can be
switched, for example during family visits, to smuggle contraband. Aceto Aff. ¶¶ 7-9.
To prevent contraband smuggling RIDOC conducts frequent inmate searches. Aceto Aff.
¶ 9. However, while RIDOC relies on both random and key-time searches, its resources are
finite and at some point extensive searches become impracticable without a significant
reallocation of resources. Aceto Aff. ¶ 9; see id. ¶ 18 (due to infeasibility of searching inmates
constantly, inmates moving within ACI are searched either randomly or not at all). In addition,
RIDOC’s knowledge of the dangers of singling out a discrete group has caused it to conclude
that religious tensions, and the related potential for violence, would increase if believers are
targeted for searches. See Aceto Aff. ¶¶ 19-21 (if religious head coverings, such as the kufi, are
permitted throughout ACI, additional searches would increase costs, add to burden on RIDOC
staff, complicate searching, increase religious tension and detract from searches of other
inmates). Based on these considerations, RIDOC believes that permitting the wearing of the kufi
or other religious head coverings without limitation would tax its limited resources, undermine
its strict uniform policy and hinder its ability to combat contraband smuggling. Aceto Aff. ¶ 21.
A third RIDOC concern is the maintenance of prison order, which requires the swift and
efficient conduct of searches, as well as monitoring by correctional officers and security
cameras. Aceto Aff. ¶ 17. RIDOC believes that any head covering, including a kufi, would
5
hinder inmate identification because identifying features can be obscured both from correctional
officers and cameras, making it more difficult to track movements or determine an inmate’s
identity. Aceto Aff. ¶¶ 27-29. In addition, the proliferation of head coverings would make the
search protocol more complex and increase the likelihood that something dangerous could be
overlooked. See Aceto Aff. ¶¶ 11, 13, 17.
To address these serious safety concerns while minimizing the need for additional
searches (and the costs and tensions such searches would cause), RIDOC has implemented
interconnected policies, 6 including specially-designed prison uniforms and aggressive
restrictions on the ability of inmates to wear any article of clothing or adornment that is different
or unnecessary. Aceto Aff. ¶¶ 10, 58-59; Galligan Aff. ¶¶ 17-19. RIDOC strives to achieve a
complete uniformity which will facilitate searches and inmate identification, and which will
eliminate anything that could be used to hide contraband or to signal gang or other affiliation.
For example, the special uniform has eliminated pockets 7 because they were not only used to
hide contraband but were also adjusted to signal gang affiliation. Aceto Aff. ¶ 12; see Galligan
Aff. ¶ 18 (RIDOC eliminated belts because they were used to signal gang affiliation).
A critical strand woven into the fabric of these interconnected policies is RIDOC’s strict
prohibition against inmates wearing any head covering – religious or otherwise – anywhere
inside any RIDOC facility or outside in the prison yard. Galligan Aff. ¶ 11; Aceto Aff. ¶¶ 11,
25. The only exception is that inmates may wear a uniform knit cap in winter and a uniform
baseball cap in summer while they are outside in the prison yard. Because of security concerns,
6
For example, RIDOC’s experiences with the real and extremely serious risks created when inmates are permitted
to form subgroups or cliques have resulted in the implementation of policies keeping cell blocks and prison jobs
integrated so that they are not dominated by inmates of one race or religion. Aceto Aff. ¶ 39. The same concerns
have resulted in a policy requiring that religious jewelry (such as a religious symbol worn around the neck) be
concealed under the clothing so that it cannot be seen by other inmates. Aceto Aff. ¶ 48.
7
Plaintiff disputes part of this averment, pointing out that the uniform shirt has pockets. Pl. Dec. II ¶ 16.
6
inmates must carry the cap until they are outside and remove it immediately upon reentering the
facility. 8 Aceto Aff. ¶¶ 23-24, 26.
RIDOC’s affiants aver that these policies have been very successful. The amount of
searching has been reduced, permitting more productive deployment of resources. And the gang
violence of the 1990s has been brought under control “due to steps DOC took to reduce gang
activity, such as implementing standard prison uniforms.” Galligan Aff. ¶ 19. As Lieutenant
Galligan noted, “[a]s a result, DOC facilities are now one of the best in the country at reducing
and managing gang activity.” Id. Plaintiff disputes the efficaciousness of the policies, averring
that, despite the ban on religious head coverings, contraband is easily smuggled; gang activity is
“very present and current,” resulting in a fight as recently as January 2016; inmates’ hair can be
styled in braids or ponytails to smuggle contraband and signal gangs; the secular caps permitted
during exercise are tilted as gang signals; and Muslims are readily identified because of their
dietary differences. Pl. Dec. II ¶¶ 11, 13, 26, 28; see id. ¶ 14.
To accommodate the religious beliefs of inmates whose religion calls for the wearing of a
head covering, while not compromising the safety and security of inmates, staff and the public,
RIDOC has relaxed the headwear policy in limited circumstances. See Galligan Aff. ¶ 11; Aceto
Aff. ¶ 11. Specifically, all inmates whose beliefs call for head coverings, no matter the religious
affiliation, are allowed to wear religious headwear in their cells and during religious services.
See Galligan Aff. ¶ 11; Compl. ¶ 17; Pl. Dec. II ¶ 23. However, when mingling with the rest of
the inmate population, moving through the institution, exercising in the yard, researching in the
library, working at a job, taking a class, or visiting with family and friends, all inmates must
8
Plaintiff claims that the knit caps are offered in three colors, which he alleges undermines RIDOC’s claim of
uniformity, while RIDOC avers that the knit cap is black. Compare Pl. Dec. II ¶ 20, with Aceto Aff. ¶ 23. Plaintiff
also alleges that it is easier to hide contraband in a carried cap than in a worn cap so that the policy of requiring that
the caps must be carried, not worn, to the prison yard is counterintuitive. Pl. Dec. II ¶ 21.
7
conform to the basic policy of wearing the specially-designed uniform with no head covering and
no other visible apparel or adornment, except to the limited extent that a cap is necessary for
protection from the cold or the sun while exercising outdoors.
B.
Plaintiff’s Religious Beliefs
Plaintiff has been an inmate at the ACI since March 23, 2006. Galligan Aff. ¶ 5. In
2005, a year prior to the commencement of his sentence, Plaintiff converted to Islam. Three
years later, in 2008 (while serving his current sentence), he began wearing a kufi. At the
hearing, Plaintiff stated that the ACI’s policy limiting the wearing of the kufi (and other religious
headwear) was in place when he first chose to wear it. Consequently, over the last eight years,
Plaintiff has worn his kufi only in his cell and at religious services. See Pl. Dec. I ¶ 7; Galligan
Aff. ¶ 11; Aceto Aff. ¶ 11.
In his declarations and filings, as well as in his statements made during the hearing,
Plaintiff explains that he wears the kufi based on his belief as a Sunni Muslim that he must
follow the Islamic dress code as expressed in the “hadiths,” or sayings of the prophet
Muhammad, which require that men wear a turban or kufi to express respect and deference to
Allah. Compl. ¶¶ 7, 9, 14-15; ECF No. 8-1 at 3, 9, 11. Plaintiff believes that wearing a kufi at
all times 9 is an important act of worship that allows a Muslim to “earn blessings” and “become
beloved to Allah.” Compl. ¶ 19; Pl. Dec. I ¶¶ 4-5. His belief includes the conviction that
wearing a kufi is akin to automatic worship and that, if he dies without his kufi, he would be at
9
Lieutenant Galligan controverts Plaintiff’s professed need to wear a kufi at all times in his affidavit with the
testimony that he has seen Plaintiff in his cell without his kufi “[o]n multiple occasions.” Galligan Aff. ¶ 13.
Plaintiff responds that he does not wear the kufi while shaving, applying hygiene products or sleeping. Pl. Dec. II ¶
9. The Galligan affidavit also avers that Plaintiff’s block officer has said that Plaintiff does not wear his kufi
roughly thirty percent of the time when in his cell. Galligan Aff. ¶ 14. Plaintiff disputes the accuracy of the hearsay
from the block officer, asserting that he (Plaintiff) spoke to his block officer, who said that his words had been
twisted because the block officer rarely sees Plaintiff in his cell without a kufi, and the reference to “30% of the
time” included times when Plaintiff was not in his cell. Pl. Dec. II ¶ 10. With no affidavit from the block officer to
counter Plaintiff’s averment, I have disregarded the hearsay and accept for purposes of these motions Plaintiff’s
claim that he wears his kufi in his cell as much as he can.
8
risk of “being raised up among [non-believers] on the day of Judgement.” Pl. Dec. I ¶ 3. This
belief is so powerful, Plaintiff alleges, that the RIDOC headwear policy has forced him to choose
between following his religion or taking part in prison recreation and other activities out of his
cell. Based on his belief, at times, Plaintiff has stayed in his cell and foregone recreation in the
yard or other activities; however, after many weeks he began to suffer severe anxiety from the
lack of exercise and fresh air. Pl. Dec. I ¶¶ 6, 7.
Plaintiff attributes the delay between the time when he began wearing a kufi at the ACI in
2008, and September 29, 2015, 10 when he first took steps to challenge the ACI’s policy on
religious headwear, to his understanding that “… I thought, as an inmate, I give up and lose all
rights upon incarceration.” Pl. Dec. II ¶ 4.
C.
Plaintiff’s Other Relevant Background
Plaintiff’s current sentence is twenty years, with sixteen years to serve, for felony assault,
conspiracy, carrying a pistol without a license, discharging a firearm and firing in a compact
area. In public filings earlier this year in connection with a Superior Court matter, 11 RIDOC
asserts that he has had twenty-two disciplinary infractions since entering the ACI in 2006. Harris
v. Rhode Island, No. PP-2016-0520 (R.I. Super. Ct. June 3, 2016). In December 2014, he
received a disciplinary booking for narcotics trafficking when a visiting friend was found to have
narcotics on her person. Plaintiff received a sanction of 365 days in segregation, 365 days of lost
10
On September 29, 2015, Plaintiff submitted a Level I grievance in which he asked to wear his kufi throughout the
ACI without restriction. Compl. Ex. A (ECF No. 1-3). After denial, on November 4, 2015, Plaintiff filed a Level II
grievance. It was denied on November 30, 2015. Compl. ¶¶ 28-30. Presumably in light of this history, RIDOC has
not challenged Plaintiff’s RLUIPA claim based on the failure to exhaust available administrative remedies. See
Collins v. Hobbs, No. 5:13CV00060-SWW-JTK, 2014 WL 2084875, at *2 (E.D. Ark. May 19, 2014) (granting
prison official’s motion for summary judgment on RLUIPA claim challenging, inter alia, policy limiting when kufi
can be worn based on failure fully to exhaust available grievance procedure).
11
Plaintiff filed a Superior Court petition to change his birth name to a Muslim name. Pl. Dec. II ¶ 32. Following
briefing and a hearing, the petition was denied on security grounds based on RIDOC’s uncontroverted evidence that
Plaintiff’s criminal record has twenty-one criminal entries, he is subject to a no-contact order extending to 2026 and
he has had twenty-two disciplinary infractions since entering the ACI in 2006. Harris v. Rhode Island, No. PP2016-0520 (R.I. Super. Ct. June 3, 2016); see Pl. Dec. II ¶ 32.
9
good time, and 365 days of lost visitation. 12 Harris v. Perry, No. CA 15-222-ML, 2015 WL
4879042, at *1-2 (D.R.I. July 15, 2015); Aceto Aff. ¶ 22. Since February 2015, Plaintiff has
been in High Security Administrative Confinement for this attempt to smuggle contraband.
Galligan Aff. ¶ 6. Plaintiff concedes that he has been affiliated with a gang at the ACI in the
past, although he asserts that he is no longer actively involved with gangs. Aceto Aff. ¶ 36; Pl.
Dec. II ¶ 24. Finally, he avers that all inmates already know that he is a Muslim and that his
beliefs teach that he is “better” than non-Muslim inmates and RIDOC staff, which already
creates the “us vs. them” mentality within the ACI. Pl. Dec II ¶ 29. Consistent with this theme,
Plaintiff attached to his complaint a letter expressing his belief, inter alia, that he must wear the
kufi as an expression of his membership in a “tribe, nation, and religion in ALLAH’s Kingdom,”
analogous to an army uniform. Compl. Ex. C (ECF No. 1-5 at 2).
Because of his high security status, Plaintiff currently spends nineteen to twenty-one
hours a day in his cell and is not allowed to attend religious services. At the hearing, he admitted
that these restrictions significantly limit the impact of the headwear policy. Galligan Aff. ¶¶ 8,
11. Presently, he is allowed out of his cell for one hour of outside recreation five days a week, a
ten minute phone call once a week, one hour of programming two to three times a week, and two
to three hours six times a week to work as a porter. Galligan Aff. ¶¶ 9-10. During the hearing,
Plaintiff added the three to four hours per week that he spends in the law library; he also stated
that, if permitted to do so, he would prefer to wear his kufi while exercising in the prison yard,
but would accept a ban on wearing the kufi during classes and visits from friends and family.
12
After this Court rejected his § 1983 claim challenging the severity of the consequence imposed for this infraction,
Harris v. Perry, No. CA 15-222-ML, 2015 WL 4879042, at *2 (D.R.I. July 15, 2015), Plaintiff filed a second action,
which alleges that the procedures used to adjudicate the narcotics booking violated his due process rights; this case
remains pending. Harris v. Perry, No. 16-cv-0089M (D.R.I. Feb. 24, 2016); see Pl. Dec. II ¶ 19 (claiming narcotics
trafficking was a false booking).
10
At the hearing, the parties confirmed that Plaintiff’s current status at the ACI may change
in the near future. First, Plaintiff’s security risk group level was recently lowered because he is
no longer actively involved with a gang. Pl. Dec. II ¶ 24. Based on this determination, Plaintiff
stated (and RIDOC did not disagree) that he expects soon to be permitted to leave his cell for a
greater portion of each day, which would result in the headwear policy imposing an increased
burden on the practice of his religious faith. Second, Plaintiff will be eligible for parole in
September 2016; therefore, it is possible he will be released from the ACI, potentially mooting
his prayer for injunctive relief. 13 Kuperman v. Wrenn, 645 F.3d 69, 72-73 (1st Cir. 2011)
(RLUIPA claims for injunctive relief are moot due to claimant’s release from state custody while
appeal was pending); Hathcock v. Cohen, 287 Fed. App’x 793, 799 (11th Cir. 2008) (transfer of
plaintiff to another facility moots RLUIPA claim arising from limits on when kufi may be worn).
II.
STANDARD OF REVIEW
When considering a request for interim injunctive relief, the court must be guided by the
traditional equity doctrine that preliminary injunctive relief is an extraordinary and drastic
remedy that is never awarded as of right. Letourneau v. Aul, No. CA 14-421L, 2015 WL
5167854, at *2 (D.R.I. Sept. 3, 2015). The basic four-factor legal standard is the same for a
temporary restraining order and a preliminary injunction. 14 OfficeMax Inc. v. Cty. Qwick Print,
Inc., 709 F. Supp. 2d 100, 106 (D. Me. 2010); Brennan v. Wall, C.A. No. 08-419S, 2009 WL
13
Plaintiff disputes that his release will moot his claim, arguing that his parole could be revoked, which would bring
him back to the ACI, and reassert the burden on his religious beliefs imposed by the headwear policy.
14
The principal distinction between a temporary restraining order and a preliminary injunction is that a temporary
restraining order can be issued quickly at the outset of the litigation without notice to the opposing party, or when a
litigant is facing a threat of irreparable harm before a preliminary injunction can be held. Compare Fed. R. Civ. P.
65(a)(1) (preliminary injunction can issue “only on notice to the adverse party”), with Fed. R. Civ. P. 65(b)
(temporary restraining order can issue with or without notice to opposing party). When, as here, the opposing party
has notice, the opportunity to respond, and an adversarial hearing is held, the standards for issuing a temporary
restraining order are substantively similar to those for a preliminary injunction. San Juan Cable LLC v.
Telecommunications Regulatory Bd. of Puerto Rico, 598 F. Supp. 2d 233, 235 (D.P.R. 2009).
11
196204, at *2 (D.R.I. Jan. 26, 2009). That is, the moving party must demonstrate: (1) a
substantial likelihood of success on the merits; (2) a significant risk of irreparable harm if the
injunction is withheld; (3) a favorable balance of hardships; and (4) a fit (or lack of friction)
between the injunction and the public interest. Nieves–Marquez v. Puerto Rico, 353 F.3d 108,
120 (1st Cir. 2003) (preliminary injunction); Brennan, 2009 WL 196204, at *2 (temporary
restraining order). A plaintiff seeking an interim injunction bears the burden of demonstrating
that each of the four factors weigh in his favor. Letourneau v. Aul, No., 2015 WL 5167854, at
*2.
The four factors are not weighted equally; “likelihood of success is the main bearing wall
of this framework” and of primary importance. W Holding Co. v. AIG Ins. Co.-Puerto Rico, 748
F.3d 377, 383 (1st Cir. 2014); Flores v. Wall, No. CA 11-69 M, 2012 WL 4471103, at *3 (D.R.I.
Sept. 5, 2012); see Letourneau, 2015 WL 5167854, at *2. “[I]f the moving party cannot
demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle
curiosity.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.
2006). Irreparable harm is measured on “a sliding scale, working in conjunction with a moving
party’s likelihood of success on the merits, such that the strength of the showing necessary on
irreparable harm depends in part on the degree of likelihood of success shown.” Braintree Labs.,
Inc. v. Citigroup Glob. Markets Inc., 622 F.3d 36, 42-43 (1st Cir. 2010).
Interim injunctive relief is typically used to “preserve the status quo, freezing an existing
situation so as to permit the trial court, upon full adjudication of the case’s merits, more
effectively to remedy discerned wrongs.” Letourneau , 2015 WL 5167854, at *2. By contrast,
an injunction that alters the status quo, which is what Plaintiff is seeking, is atypical. Designated
as a “mandatory injunction,” such relief “normally should be granted only in those circumstances
12
when the exigencies of the situation demand such relief.” Braintree Labs., 622 F.3d at 4;
Textron Fin. Corp. v. Freeman, No. CA 09–087S, 2010 WL 5778756, at *2 (D.R.I. Oct. 28,
2010). Put differently, because a mandatory preliminary injunction alters rather than preserves
the status quo, such an injunction should not issue unless the facts and the law clearly favor the
moving party. Robinson v. Wall, No. C.A. 09-277-S, 2013 WL 4039027, at *2 (D.R.I. Aug. 7,
2013); see Flores v. Wall, 2012 WL 4471103, at *7 (when injunction sought is mandatory, courts
should exercise more caution); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 66 F. Supp. 2d
317, 327 (D.R.I. 1999) (same).
Plaintiff’s status as a prisoner triggers an additional restriction on the availability of
interim injunctive relief that is set forth in the Prison Litigation Reform Act (“PLRA”). 18
U.S.C. § 3626. PLRA provides that the court shall not enter a temporary restraining order or
preliminary injunction unless it finds that the injunctive relief is “narrowly drawn, extend[s] no
further than necessary to correct the harm the court finds requires preliminary relief, and [is] the
least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Further, the court
considering an interim injunction “shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the preliminary relief.” In addition,
the court must respect principles of state and federal comity. 18 U.S.C. § 3626(a)(2). In
interpreting the text of § 3626, courts must be guided by Congress’s “ambient intent” to curb the
involvement of the federal judiciary in the day-to-day management of prisons. Morales
Feliciano v. Rullan, 378 F.3d 42, 50 (1st Cir. 2004). Under the PLRA, preliminary injunctive
relief automatically expires after ninety days unless the court makes specific findings supporting
an extension. See 18 U.S.C. § 3626(a)(1)-(2).
III.
ANALYSIS
13
This case implicates two competing but important matters of public concern; it juxtaposes
the interest in the security and safety of prisons against the important interest in the protection of
religious practice from governmental interference codified in RLUIPA. To set the balance right,
the Court must be guided by the Supreme Court’s seminal RLUIPA decision, Holt v. Hobbs, __
U.S. __, 135 S. Ct. 853 (2015), in which a grooming regulation banning short beards was struck
down because it burdened the prisoner’s sincerely-held religious belief that men must grow
beards. Id. at 867. My recommendation – that the Court deny the broad injunction sought by
Plaintiff, but issue the narrow injunction suggested by the body of RLUIPA case law discussed
below – is intended to be consistent with the accommodation of both.
A.
Substantial Likelihood of Success on the Merits
Under RLUIPA, 15 Plaintiff has the initial burden of proving that his religious beliefs are
sincere and that RIDOC has instituted a policy that “substantially burdens his exercise of
religion.” Once he satisfies this burden, the burden shifts to RIDOC to show that its policy (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); see LeBaron v.
Spencer, 527 Fed. App’x 25, 28-29 (1st Cir. 2013) (per curiam); Ajala v. West, 106 F. Supp. 3d
976, 980 (W.D. Wis. 2015). Because of the “least restrictive means” requirement, the Act
affords greater protection for religious exercise “than what is available under the First
Amendment.” Holt, 135 S. Ct at 859-60.
15
RLUIPA states in pertinent part:
No government shall impose a substantial burden on the religious exercise of a person residing in or
confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of
general applicability, 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)(1) and (2).
14
Plaintiff’s averments and other evidence of the religious foundation for his belief easily
satisfy his initial burden of establishing that the relief sought in these motions is animated by a
sincere religious conviction. This is not a case where the claimant’s religious assertions amount
to no more than vague allegations or “conclusory” arguments. See Al-Fuyudi v. Correction
Corp. of America, CIV-12-1170-D, 2016 WL 1117607, at*2 (W.D. Okl. Mar. 22, 2016); Strother
v. Myers, No. 1:11cv01131 AWI DLB, 2013 WL 1785978, at *5 (E.D. Cal. Apr. 25, 2013).
Facing similar evidence, numerous courts, including some that conducted extensive evidentiary
hearings, have acknowledged that the belief that the kufi should be worn at all times can be
sincere. See, e.g., Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 WL 5957978, at *18 (D.
Colo. July 25, 2005) (following bench trial, testimony of competing experts on belief of Muslims
of Hanafi school results in finding that wearing of kufi at all times can be sincerely-held religious
belief); Malik v. Ozmint, No. 8:07-387-RBH-BHH, 2008 WL 701517, at *11 (D.S.C. Feb. 13,
2008) (affidavits and declarations submitted with summary judgment motion permit finding that
plaintiff sustained burden of establishing that wearing kufi at all times is sincerely-held religious
belief), adopted, 2008 WL 701394 (D.S.C. Mar. 13, 2008), aff’d, 289 F. App’x 662 (4th Cir.
2008). Plaintiff’s failure to present proof that the kufi is “central” to the Muslim faith is
irrelevant. Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (RLUIPA bars inquiry into
whether particular belief or practice is central to prisoner’s religion, while permitting inquiry into
sincerity of professed religiosity). Accordingly, for purposes of these motions, I find – and
RIDOC has not seriously disputed 16 – that it is likely that Plaintiff will successfully demonstrate
that his religious belief about the importance of wearing the kufi all the time is sincere.
The second leg of Plaintiff’s burden is to demonstrate that the policy forbidding him from
wearing his kufi except in his cell and at religious services amounts to a substantial burden on
16
See n.9 supra.
15
religious exercise. Plaintiff supports his claim with the uncontroverted averment that he has tried
not to leave his cell, eschewing outdoor exercise, to the detriment of his mental health, in an
attempt to comply with the religious duty to wear a kufi. See Holt, 135 S. Ct. at 862 (policy is
substantial burden when prisoner faced choice of shaving beard in contravention of religious
belief or facing serious prison discipline); Staples v. N.H. State Prison, Warden, Civil No. 14-cv473-LM, 2015 WL 4067139, at *9 (D.N.H. July 2, 2015) (policy is substantial burden when
prisoner faced choice of shaving beard in contravention of religious belief or remaining in
harshest level of confinement). RIDOC counters by pointing to the reality that, because Plaintiff
is confined to his cell for almost twenty-four hours per day, the headwear policy has limited
impact on him. However, numerous cases have rejected that argument, holding that when a
policy limiting the amount of time a kufi can be worn is imposed on a prisoner who sincerely
believes that it should be worn at all times, the burden on religious practice is substantial because
it still amounts to an outright ban. See, e.g., Ajala, 106 F. Supp. 3d at 981 (if belief requires kufi
“all the time,” rule that allows it “most of the time” imposes a substantial burden); Malik v.
Ozmint, 2008 WL 701517, at *9-11 (rejecting prison official’s argument that burden of kufi
limitation not substantial because inmate out of cell only one hour per day). Contrary holdings
appear to be based on the sui generis nature of the inmate’s religious belief. See, e.g., Jihad v.
Fabian, No. CIV. 09-1604 SRN LIB, 2011 WL 1641885, at *17 (D. Minn. Feb. 17, 2011) (where
prisoner believed only that he needed to cover his head and state-issued headwear was permitted,
kufi ban did not amount to substantial burden), adopted, 2011 WL 1641767 (D. Minn. May 2,
2011). Accordingly, consistent with our Circuit’s directive that, when a policy amounts to an
outright ban on a religious exercise, “[c]ourts have little difficulty in concluding that . . . [it] is a
substantial burden on that . . . exercise,” LeBaron, 527 F. App’x at 29, I find that Plaintiff has
16
demonstrated likelihood of success in establishing that the headwear policy imposes a substantial
burden on his religious practice.
With Plaintiff’s RLUIPA burdens satisfied, I turn next to RIDOC, which first must show
that its kufi restriction operates in furtherance of a compelling government interest. 42 U.S.C. §
2000cc-1(a). Through the affidavits of two highly experienced correctional officials, RIDOC has
established that its headwear policy evolved as part of its response to a Rhode Island-specific
gang problem and that more than mere speculation undergirds its belief that permitting ad hoc
religious head coverings worn throughout the entire facility would create the risks of: (1)
increased smuggling of drugs, weapons and other contraband; (2) increased difficulty in the
identification of inmates; (3) increased gang activity; (4) increased religious tensions and
singling out of Muslims; (5) demands for other dress exceptions and the erosion of a prison
uniform; and (6) demands for other headgear leading to religious and gender discrimination.
RIDOC has buttressed its compelling-interest evidence with concrete proof that its rationale
correlates to Plaintiff’s criminal background and disciplinary history (including both a
contraband offense and past gang involvement). See Staples v. N.H. State Prison, 2015 WL
4067139, at *6 (claimant’s history of drug offenses and use of a razor to self-harm demonstrates
that institutional interests are not abstract). In performing this leg of the analysis, courts defer to
the judgment of prison officials and apply RLUIPA “with particular sensitivity to security
concerns.” Cutter v. Wilkinson, 544 U.S. at 722; see Holt, 135 S. Ct. at 864 (“Prison officials
are experts in running prisons and evaluating the likely effects of altering prison rules”); Flores
v. Wall, 2012 WL 4471103, at *6 (while “federal courts must take cognizance of prisoners’ valid
constitutional claims, federal courts cannot manage prisons, and must give substantial deference
to those who do”). I find that RIDOC’s affidavits constitute persuasive evidence that it will
17
succeed in meeting its burden of proving that the headwear policy furthers compelling interests
in safety and security.
A far more difficult question is presented by the second prong of the burden imposed on
RIDOC – whether the headwear policy is the least restrictive way that it can achieve its
compelling goal of a safe and secure prison facility. Holt counsels that this analysis requires
scrutiny of the prison’s stated security interest in the context of the inmate’s circumstances and
that courts must not defer blindly to the prison’s stated security justification. 135 S. Ct. at 864;
see Staples v. N.H. State Prison, 2015 WL 4067139, at *3 (“least-restrictive-means standard is
exceptionally demanding, and it requires the government to show that it lacks other means of
achieving its desired goal without imposing a substantial burden on the exercise of religion”)
(citing Holt, 135 S. Ct. at 864). As Justice Sotomayor clarified in her Holt concurrence, “leastrestrictive-means” is a relative term and RLUIPA does not require that prison officials refute
every conceivable option; however, officials must demonstrate that a less restrictive alternative
suggested by the prisoner would undermine the prison’s compelling interests and they must
respond to less restrictive policies used at other prisons brought to their attention during the
course of the litigation. Id. at 868 (citing United States v. Wilgus, 638 F.3d 1274, 1289 (10th
Cir. 2011) (in analogous context of Religious Freedom Restoration Act, government need not
“do the impossible – refute each and every conceivable alternative regulation scheme” – but
should “refute the alternative schemes offered by the challenger”)).
Many pre- and post-Holt decisions have found that the prisons seeking to justify
protocols similar to RIDOC’s headwear policy stumble at this last leg of the analysis. In each
such case, the court concluded that prison officials had failed to present evidence sufficient to
meet the exceptionally demanding mark of demonstrating that their policy was the least
18
restrictive means of protecting the articulated compelling interest. In every instance, the court
noted that the prison barred religious head coverings in circumstances where secular head
coverings were permitted. See Ajala, 106 F. Supp. 3d at 982-87 (prison that allowed secular
hats failed to show that allowing kufi would trigger tensions and materially increase searching);
Ali v. Stephens, 69 F. Supp. 3d 633, 644-49 (E.D. Tex. 2014) (prison’s justifications for kufi ban
rejected as speculative “post hoc rationalizations” because it failed to address more lenient
policies used by other prison systems and failed to explain why secular hats, which were
sometimes permitted, did not cause same concerns); Malik, 2008 WL 701517, at *12 (with
unexplained evidence that other inmates were allowed to wear caps, hoods and hats outside of
their cells, fact issue existed as to whether kufi ban was least restrictive means to prevent
smuggling contraband), adopted, 2008 WL 701394 (D.S.C. Mar. 13, 2008), aff’d, 289 F. App’x
662 (4th Cir. 2008); Aziyz v. Tremble, No. CIV A 5:03CV-412 HL, 2008 WL 282738, at *2, *6
(M.D. Ga. Jan. 31, 2008) (kufi ban plainly not least restrictive alternative to prevent inmates
from identifying themselves as gang members because prison later allowed uniform kufi);
Caruso v. Zenon, 2005 WL 5957978, at *20 (prison that required stocking cap or baseball cap
failed to carry burden of establishing that outright ban on kufi was least restrictive alternative).
Other pre- and post-Holt cases hold that the state’s compelling interest in the safety and
security of prisoners and staff is so great, and the need to defer to the prison officials’ expertise is
so compelling, that a policy that places limits on when a Muslim prisoner may wear the kufi
“appears to qualify as the least restrictive way of furthering that compelling interest.” Phillips v.
Cobb, No. 3:14CV3109, 2016 WL 2726630, at *8 (W.D. La. Apr. 4, 2016) (prison established
that head-covering policy banning kufi outside of dorm was least restrictive means of furthering
compelling governmental interest); accord, Guess v. McGill, No. 9:13-cv-02260-TLW, 2014 WL
19
5106735, at *10-12 (D.S.C. Oct. 10. 2014) (prison officials met burden of showing that ban on
array of Muslim practices, including inmate-led prayer group, possession of DVDs and religious
oils and openly wearing kufi, was least restrictive means of furthering prison interest in security);
Garner v. Livingston, No. CA-C-06-218, 2011 WL 2038581, at *3 (S.D. Tex. May 19, 2011)
(no-beard policy enjoined, but rule banning kufi at certain times found to be least restrictive way
of furthering safety and security); Jihad v. Fabian, 2011 WL 1641885, at *17-18 (ban on kufi
outside of cell or religious services narrowly tailored to further prison’s compelling interest in
safety and security by requiring uniform appearance of all inmates); see also Jonas v. Schriro,
No. 04-2719-PHX-SMM, 2006 WL 2772641, at *5 (D. Ariz. Sept. 25, 2006) (ban on native
American religious headband, except for recreation and religious services, found to be least
restrictive means of furthering compelling interest in safety and security). However, in almost
none of these cases does the decision reflect that the court grappled with evidence juxtaposing a
more lenient rule on secular hats than that applied to religious head coverings. The only
exception, Jihad, 2011 WL 1641885, at *17, is based on the finding that the claimant believed
only that his religion required him to cover his head, which he could do with readily available
state-issued headwear.
Plaintiff points to Ali and argues that “[t]here has never been a past event at the ACI that
threatened institutional security or to support the inadequately formulated prison policies and
regulations that are grounded on mere speculation, exaggerated fears, or post-hoc rationalizations
prohibiting the religious practice of wearing a kufi throughout the ACI.” Compl. ¶ 31. More
concretely and consistent with Holt’s holding that prisons must at least consider more flexible
policies that seem to work at other institutions, he has proffered evidence of the federal prison
policy, which permits the wearing of strictly-defined religious head coverings, including the kufi,
20
throughout federal institutions. ECF No. 16-1 at 2; Compl. ¶ 32; see Pl. Dec. II ¶ 33. Consistent
with Holt’s holding that prisons must at least consider the inmate’s suggestion of a compromise
that narrowly accommodates religious practice, Plaintiff suggests that RIDOC could specify a
single color and style of crocheted (that is, see-through) kufi that is seamless and tightly fits the
head, which happens to be the style that is already available in the RIDOC commissary. 17
Relatedly, at the hearing, he acknowledged that the ban on all head-coverings could persist for
visits with outsiders or gatherings of prisoners, such as for classes, but that, in the prison yard
where secular hats are already worn, it makes no sense. See Pl. Dec. II ¶¶ 12, 14; Compl. ¶¶ 2223. Consistent with cases like Ajala and Caruso, he points out that allowing the kufi in the yard
would not increase the risk because the secular caps already allowed in the yard can be tilted to
signify gang affiliation. Compl. ¶¶ 22-23; Pl. Dec. II ¶¶ 13-14. Plaintiff debunks the notion that
a more relaxed kufi policy would heighten religious tension because inmates already know well
which prisoners are Muslim as a result of their special diet and attendance at religious services,
yet they “have not been singled out by anyone.” Pl. Dec. II ¶¶ 26-28. Plaintiff also claims that
Muslims are taught that they are “better in the eyes of Allah,” so that the kufi ban adds nothing to
the prevention of an “us v. them” mentality based on religious belief. Pl. Dec. II ¶ 29.
In response, RIDOC’s affidavits and arguments compellingly establish that the headwear
policy is part of a larger solution to an array of important penological concerns, fueled by a past
when the ACI was plagued by serious and dangerous gang activity and based on RIDOC’s
judgment as to what was needed to form an integrated set of protocols calibrated to address
17
Plaintiff presents an array of reasons why this suggestion presents a less restrictive means of furthering RIDOC’s
goals without compromising safety or security. For example, he points out that the increased risk of contraband is
minimized by limiting inmates to a see-through crocheted kufi that hugs the skull. Compl. ¶¶ 24, 27; Pl. Dec. II ¶¶
11-12. Such a kufi style also eliminates the ability of an inmate to hide his face to evade identification. Compl. ¶
26. The risk of gang signaling is reduced by a permitting a single style of kufi available in limited colors with no
seam to prevent turning the seam in a certain direction as a gang signal. See Aceto Aff. ¶ 35.
21
anticipated safety risks. While RIDOC readily concedes that none of its policies are perfect at
eliminating the risks they are designed to address, they do not appear to be based on mere
speculation or on what Holt condemned as the “classic rejoinder of bureaucrats throughout
history: If I make an exception for you, I'll have to make one for everybody, so no exceptions.”
135 S. Ct. at 866 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 436 (2006)). 18 Further, generously read, RIDOC’s explanation that its policy was adopted
in part to address a Rhode Island-specific gang problem permits the Court to infer that it can
meet the Holt requirement that the prison must offer reasons why the more lenient federal policy
might not work at the ACI. 135 S. Ct. at 866.
However, RIDOC has failed to comply with Holt’s other mandate, see 135 S. Ct. at 86465, 868, that the prison must address the inmate’s suggestion for a less restrictive alternative.
Specifically, RIDOC has failed to present creditable reasons why Plaintiff’s suggestion that the
wearing of a kufi in the design already offered in RIDOC’s commissary at least while exercising
in the yard is not workable. RIDOC asserts only that a kufi can be tipped or worn sporadically as
a gang signal and that it would identify Plaintiff as a Muslim. The first justification fails because
the kufi would create no more risk of gang signaling than that posed by the stocking and baseball
caps already worn in the yard. See Holt 135 S. Ct. at 864-66 (½ inch beard proposed by claimant
as compromise would be no more difficult to search than ¼ inch beard already permitted).
Likewise, RIDOC has offered no concrete reason why the identification of Plaintiff as a Muslim
in the prison yard would increase sectarian tension. While it has established that an inmate’s
18
Even RIDOC’s stated reason that it has not altered the headwear policy to allow the kufi partly due to its fear that
allowing the kufi would force it to make many other exceptions to its dress code is based on more than pure
speculation. As part of his factual proffer, Plaintiff has offered evidence that the Muslim faith also calls for the
wearing of a loose gown or long flowing tunic. Compl. Exs. E, G. While he has not asked for the right to wear such
garb, this evidence seems to be presented in support not just of the right to wear the kufi more openly but in support
of a flexible prison dress code that would utterly eradicate RIDOC’s policy of uniformity of dress.
22
outburst was triggered by his mistaken perception that his meal was adversely affected by a
religious accommodation of Muslims, RIDOC has presented no facts suggesting that the wearing
of the kufi in the yard by a known Muslim around prisoners of other faiths, who are not
adversely affected because they are free to wear stocking caps or baseball caps, would result in
harassment or a physical altercation. See Ajala, 106 F. Supp. 3d at 986 (“defendants have
offered nothing but their own say so for believing that the mere sight of a kufi to non-Muslins
would be so offensive as to cause a fight”) (citing Holt 135 S. Ct. at 867 (Sotomayor, J.,
concurring)). Thus, RIDOC’s reasons do not hold up to the level of judicial scrutiny required by
Holt. Id. at 864; Staples v. N.H. State Prison, 2015 WL 4067139, at *3 (courts must not defer
blindly to the prison’s stated security justification). To the contrary, RIDOC’s policy of
permitting the carrying of a uniform stocking cap or baseball cap to the exercise yard and the
wearing of that uniform cap while exercising is powerful evidence that banning a uniform kufi in
the same setting and under the same circumstances is not the least restrictive alternative. Ajala,
106 F. Supp. 3d at 984 (evidence that prisoners allowed secular baseball caps raises issues
regarding kufi ban in same circumstances); Ali, 69 F. Supp. 3d at 644 (claim that kufi is security
risk undermined by evidence that prisoners may wear caps); Caruso, 2005 WL 5957978, at *20
(kufi ban is not least restrictive means where prisoners allowed to wear secular stocking caps and
baseball caps anywhere in prison).
Based on foregoing, I find that Plaintiff has sustained his burden of demonstrating that he
is likely to succeed on the merits to the limited extent that RIDOC has failed to establish that its
ban on a uniform kufi, designed to minimize identified risks and worn only at the same times and
with the same limits as are applicable to the wearing of secular caps, is the least restrictive means
of furthering RIDOC’s important interests in safety and security.
23
B.
Balancing of Harms and Public Policy
The remaining factors that the Court must consider in determining whether interim
injunctive relief is appropriate are the risk of irreparable harm to the party seeking the injunction,
as balanced against the harm to the party opposing it, and the public policy interests implicated
by the issuance (or not) of an injunction. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); NievesMarquez, 353 F.3d at 120. The starting point for the analysis is that the loss of religious freedom
caused by a RLUIPA violation – standing alone – is sufficient to show irreparable harm and that
the protection of religious practice is an important public interest. Staples v. Gerry, Civil No. 14cv-473-JL, 2015 U.S. Dist. LEXIS 86629, at *44, 47-48 (D.N.H. May 11, 2015) (citing cases),
adopted with modifications sub nom., Staples v. N.H. State Prison, 2015 WL 4067139.
In this case, Plaintiff has enhanced his showing of irreparable harm with his averment
that he experienced severe anxiety when he felt forced to choose his religious practice over
leaving his cell, including for outdoor recreation. See id. at 44-45 (irreparable harm shown by
proof that prisoner forced to remain in high security confinement to avoid shaving beard).
Diluting the irreparability of Plaintiff’s harm is his seven-year delay in initiating this challenge.
While Plaintiff argues that the delay should be disregarded based on his claimed lack of
understanding of the law, the case law is clear that even pro se plaintiffs are expected to know
their legal rights. See Laurence v. Wall, No. 07-066ML, 2007 WL 1875795, at *1 (D.R.I. June
27, 2008). The irreparability of the harm is also reduced by the reality that Plaintiff can wear the
kufi except for the few hours he is allowed out of his cell each day; therefore, the headwear
policy has limited impact on him due to his high security status. 19
19
Because the PLRA only permits a ninety-day preliminary injunction unless there is further fact finding by the
court, 18 U.S.C. § 3626(a)(1-2), Plaintiff’s suggestion that he might be allowed out of his cell more in the future is
less pertinent to this analysis.
24
Balanced against these considerations is RIDOC’s strong showing that its headwear
policy is in furtherance of a compelling public interest in prison safety and security. The
affidavits of RIDOC’s two high ranking officers, Lieutenant Galligan and Deputy Warden Aceto,
establish their belief based on years of correctional experience that the elimination of the
headwear policy would create a more dangerous prison environment. See Letourneau v. Aul,
2015 WL 5167854, at *2 (balance of harms weighs against inmate asserting RLUIPA claim
where there is “no basis to intrude on the inner workings of the ACI, a subject area that requires
strong deference by this Court”). These affidavits also establish that a broad interim injunction
could have collateral consequences that RIDOC would have to address in recalibrating its
carefully interrelated mesh of policies to comply with the injunction while trying to operate a
safe prison with appropriate rules affecting other inmates. Further, to the extent that RIDOC
might initiate an evaluation of the headwear policy in light of the experiences of other prison
systems, its timetable for doing so in an orderly fashion could be adversely impacted.
In tallying the relative harms, the Court must comply with the PLRA requirement that
consideration of an interim injunction affecting prison policy requires giving “substantial weight
to any adverse impact on public safety or the operation of a criminal justice system caused by the
preliminary relief,” as well as affording respect for principles of state and federal comity. 18
U.S.C. § 3626(a)(2); see Morales Feliciano, 378 F.3d at 50 (§3626 requires courts to be guided
by “ambient intent” to curb involvement of judiciary in day-to-day management of prisons);
Collins v. Magnuson, No. Civ. 03-82-B-W, 2003 WL 23004996, at *2 (D. Me. Dec. 19, 2003)
(interim injunctive relief denied where “record, at this juncture, indicates” that plaintiff failed to
demonstrate he will “more likely than not succeed on the merits,” and equities, viewed with “the
caution of 18 U.S.C. § 3626(a)(2) in mind” do not support injunction) (emphasis in original).
25
Guided by these principles, I find that, except for the narrow circumstances of the prison yard
where secular caps are already allowed, the balance of the hardships tilts dramatically against the
issuance of an injunction. Similarly, in that narrow context, I find that the public interest in
protecting religious practice predominates because the increased risk to safety and security is
small; otherwise the public interest requires the denial of an injunction that broadly alters the
headwear policy. See Staples v. Gerry, 2015 U.S. Dist. LEXIS 86629, at *47-48 (public interest
served by narrow injunction tailored to protect religious practice).
C.
Scope of Narrow Interim Injunction
RIDOC has raised legitimate security concerns that counsel against the entry of
preliminary injunctive relief that would require RIDOC to dramatically change its headwear
policy before this case is resolved on the merits. Mindful that this Court “must accord
substantial deference to the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them,” Overton v. Bazzetta, 539 U.S.
126, 132 (2003), but also that, “if a less restrictive means is available for the Government to
achieve its goals, the Government must use it,” Holt, 135 S. Ct. at 864 (quoting United States v.
Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)), I recommend that Plaintiff’s motions for a
temporary restraining order and preliminary injunction be granted by the issuance of a ninetyday limited injunction, as required by 18 U.S.C. § 3626(a)(1-2), directing that, beginning thirty
days after this Court adopts my recommendation, RIDOC shall permit Plaintiff to wear a
uniform, close-fitted, seamless, crocheted kufi, of a single color, only while exercising in the
prison yard, subject to all of RIDOC’s limits on the wearing of secular head coverings and
subject to the withdrawal of the privilege if the wearing of the kufi implicates any of RIDOC’s
26
identified security concerns. Otherwise, I recommend that the motions be denied. See Robinson
v. Wall, 2013 WL 4039027, at *2 (mandatory preliminary injunction that alters rather than
preserves status quo should issue only if facts and law clearly favor the moving party).
I note that the proviso permitting RIDOC to withdraw the privilege is included partly in
light of the troubling evidence of Plaintiff’s history of involvement with contraband smuggling
and his former participation in gang-related activities. Holt, 135 S. Ct. at 867 (institution may
withdraw accommodation of claimant who abuses exemption so as to undermine prison’s
compelling interest). Further, where RIDOC’s compelling interest in safety would be triggered
not just by Plaintiff’s use of the kufi to smuggle contraband, inflame sectarian tension or give
gang signals, but also by increased tensions arising from the perception of other inmates that
Muslims have been unfairly singled out for preferential treatment, any such concrete increase in
sectarian tensions caused by this limited injunction may also be grounds for terminating
Plaintiff’s right to wear the kufi unless and until the increased risk can be addressed and
resolved. Put differently, even if Plaintiff’s conduct is pristine, if the kufi worn in the yard raises
tension and creates the risk of violence, RIDOC may reinstitute its ban. See Staples v. N.H.
State Prison, 2015 WL 4067139, at *9 (modifying limited interim injunction to make clear that
prison may take either punitive or protective action in response to actual security threat). And
the delay in the implementation of this interim injunction for thirty days following this Court’s
adoption of this recommendation is included to allow RIDOC time to adjust its policies,
regulations and search protocols. Caruso, 2005 WL 5957978, at *21 (mindful of deference due
to prison officials, court enjoins violation but leaves to officials to fashion remedy based on
alternatives mentioned in opinion); Fisher v. Goord, 981 F. Supp. 140, 177 (W.D.N.Y. 1997)
(even where there has been merits finding that unconstitutional conditions exist, federal courts
27
should proceed cautiously and incrementally in ordering remediation so as not to assume the role
of prison administrators).
I add a coda to address RIDOC’s fear that an interim injunction in this case would cause
it to be inundated with demands for various forms of religious garb. The limited interim
injunction that I am recommending is consistent with a policy that is strictly limited to (a)
religious headwear for which RIDOC has established a uniform standard; (b) headwear
appropriate to be worn while exercising; and (c) headwear that covers no more of the head, face
or body than is covered by the secular stocking and baseball caps already permitted. It is not
consistent with more.
IV.
CONCLUSION
Based on the foregoing, I recommend that Plaintiff’s motions for a temporary restraining
order and preliminary injunction be granted by the issuance of a ninety-day limited injunction
directing defendant A.T. Wall in his official capacity as the Director of the Rhode Island
Department of Corrections (not in his individual capacity) to alter its headwear policy to permit
Plaintiff to wear a uniform close-fitted, seamless, crocheted kufi, available in only one color,
only while exercising in the prison yard, subject to all of the limits on the wearing and use of
secular head coverings and subject to the withdrawal of the privilege if the wearing of the kufi
concretely implicates any of RIDOC’s identified security concerns. Otherwise, I recommend
that the motions be denied. I further recommend that the implementation of this interim
injunction be stayed until thirty days following this Court’s adoption of this recommendation to
allow RIDOC time to adjust its policies, regulations or search protocols.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
28
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
August 15, 2016
29
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