Reese v. Lt. Jacobs et al

Filing 46

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 3/16/2020. (Copies distributed as directed) (smej, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Diyision

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p

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MAR 1 6 2020

CLERK, U.S. DISTRICT COURT
RICHMOND. VA

MICHAEL JOHN REESE,

Plaintiff,
V.

Civil Action No.3:18CV140

LT.JACOBS,et aL^
Defendants.
MEMORANDUM OPINION

Michael John Reese, a former Virginia inmate proceeding pro se and informa pauperis,

filed this civil action under 42 U.S.C. § 1983.' The action proceeds on Reese's Particularized
Complaint ("Complaint," ECF No. 13).^ In his Complaint, Reese contends that, during his

incarceration at the Meherrin River Regional Jail ("MRRJ"), Defendants^ violated his right to
'That statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action
at law....

42 U.S.C. § 1983.

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lnn

^ The Court employs the pagination assigned by the CM/ECF docketing system to the
parties' submissions. The Court corrects the spelling, punctuation, and capitalization in the
quotations from Reese's submissions.

^ Reese named the following individuals as defendants: Lt. Jacobs, a lieutenant at MRRJ
("Lieutenant Jacobs"), Captain Lucy,a captain at MRRJ,J.W.Booth,a captain at MRRJ("Captain
Booth"), Brent Wright, Deputy Superintendent at MRRJ ("Deputy Superintendent Wright"), and

Robert McCoy,a chaplain at MRRJ ("Chaplain McCoy"). (Compl. 2-U);{see ECF No. 26, at 1.)
Because Reese failed to serve Chaplain McCoy, the Court dismissed all claims against Chaplain
McCoy without prejudice in a separate Memorandum Opinion and Order. (ECF Nos. 35, 36.)
This action proceeds against Defendants Lieutenant Jacobs, Captain Lucy, Captain Booth, and
Deputy Superintendent Wright(collectively "Defendants").

practice his "Pagan/Wiccan" religion. (Compl. 7.) The Court construes Reese to raise the
following claims for relief;

Claim One:

Defendants violated Reese's First Amendment"* right to the free
exercise of religion when they refused to accommodate his request
"to set[] up a weekly off housing unit Pagan/Wiccan faith/study
group." {Id. at?, 12.)

Claim Two:

Defendants' actions violated the Establishment Clause of the First

Amendment because Defendants "accommodated Christians [and]
refused to do so for any other religious groups[,] [and] [t]hat is a
clear endorsement of[and] encouragement to practice their brand of
Christianity." {Id. at 12-13.)

Claim Three: Defendants violated Reese's Fourteenth Amendment^ right to equal
protection when they upheld Chaplain McCoy's "refusal to
accommodate Wiccan/Pagan religion in the same way he did [for]
followers of[Christianity]." {Id. at 13.)

Claim Four: Defendants placed a substantial burden on Reese's exercise of his
religion in violation ofthe Religious Land Use and Institutionalized

Persons Act("RLUIPA")^ when they informed Reese that he "must
provide [his] own volunteers to supervise, lead [and] set up off
housing unit religious services for 'safety [and] security reasons.'"
{Id. at 14.)

Reese seeks monetary damages and injunctive relief. {Id. at 16-19.)
This matter is before the Court on the Renewed Motion for Summary Judgment filed by

Defendants. (ECF No. 43.) Despite the provision of notice pursuant to Roseboro v. Garrison,

528 F.2d 309(4th Cir. 1975), Reese has not responded. For the reasons stated below,the Renewed
Motion for Summary Judgment(ECF No.43) will be GRANTED.

"* "Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof...." U.S. Const, amend. I.

^ "No State shall... deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const, amend. XIV,§ 1.

M2 U.S.C. §2000cc-l(a).

L

STANDARD FOR SUMMARY JUDGMENT

Summaryjudgment must be rendered "ifthe 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). The party seeking summary judgment bears the responsibility ofinforming the Court of
the basis for the motion and identifying the parts of the record which demonstrate the absence of
a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317,323(1986). "[Wjhere
the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on the pleadings, depositions, answers

to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When
the motion is properly supported,the nonmoving party must go beyond the pleadings and, by citing
affidavits or '"depositions, answers to interrogatories, and admissions on file,' designate 'specific
facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c),(e)
(1986)).

In reviewing a summary judgment motion, the Court "must draw all justifiable inferences
in favor of the nonmoving party." United States v. Carolina Transformer Co.., 978 F.2d 832, 835
(4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). A mere
'^scintilla ofevidence," however, will not preclude summaryjudgment. Anderson, All U.S. at 251

(quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[Tjhere is a
preliminary question for the judge, not whether there is literally no evidence, but whether there is
any upon which a jury could properly proceed to find a verdict for the party ... upon whom the

onus of proofis imposed." Id.(quoting Munson,81 U.S. at 448). Additionally,"Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence to support a
party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)

(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7(5th Cir. 1992)); see Fed. R. Civ.
P. 56(c)(3)("The court need consider only the cited materials ...")•

In support of their Motion for Summary Judgment, Defendants submit the affidavit of
Deputy Superintendent Wright ("Wright Aff.," EOF No. 44-1). As noted above, Reese did not
respond to Defendants' Renewed Motion for Summary Judgment. Further, Reese did not sign his
Complaint under the penalty of perjury. (See Compl. 19.) Thus, Reese has put forth no evidence
in support of his claims.

In light ofthe foregoing submissions and principles, the following facts are established for
purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in
favor of Reese.

II.

UNDISPUTED FACTS

Reese "became an inmate [at MRRJ] on November 4, 2016." (Wright Aff. ^ 2.) At all

times relevant to this action, Reese was an inmate at MRRJ. (See Compl. 6, 19.)^
"When inmates are processed into MRRJ,they can identify a religion on intake forms so
that MRRJ can assess if it needs to inquire regarding any respective inmates' religious dietary

needs and worship accommodations." (Wright Aff. H 3.) "MRRJ will query an inmate to
determine ifthe identified religious preference is authentic." (Id. If 5.) "MRRJ makes reasonable
accommodations to inmates to practice their authentic religious beliefs limited only by legitimate

security and operational considerations." (Id. ^ 6.) Upon intake, "Reese identified himself as a
follower of Paganism." (Id;see Compl. 6.)

Inmates requesting to hold organized religious services "may do so as long as a volunteer
from the outside community agrees to lead the service." (Wright Aff. ^ 9.) "MRRJ does not

^ The Court notes that on April 15, 2019, Reese submitted a Notice of Change of Address,
in which he provided a residential address as his "(new) mailing address." (ECF No. 40, at 1.)

employ any religious figure, celebrant, or leader, nor does MRRJ officially recognize any specific
religion." {Id. ^ 10.) "All organized religious services at MRRJ are conducted by volunteers from
the community outside of MRRJ," {id.

7), and "[a]ny individual leading religious services at

MRRJ is done strictly on a voluntary basis." {Id.

10.) "MRRJ requires volunteer outside

officiants to lead services to avoid inmates having any position of authority over other inmates."
{Id^n.)

With respect to volunteer outside officiants. Chaplain McCoy serves as"a volunteer pastor
for Christian services at MRRJ." {Id. Tf 8; see id. at 2 n.2.) Additionally, "volunteers for the
Jehovah's Witnesses faith have contacted MRRJ to conduct faith services and have led such

services when requested by inmates." {Id. H 11.) As a volunteer officiant at MRRJ, Chaplain
McCoy has"no supervisory role over any professional staffat MRRJ and [is] not the final decision
maker regarding other faith services at MRRJ." {Id. ^ 12; see id. at 3 n.3.)
III.

RLUIPA AND FREE EXERCISE

The Court first addresses Reese's RLUIPA claim and First Amendment free exercise claim,

which are set forth in Claims Four and One, respectively.
A.

RLUIPA

In Claim Four, Reese contends that Defendants placed a substantial burden on his exercise
of his religion in violation of RLUIPA. (Compl. 14.)
1.

Injunctive Relief

Reese is not entitled to pursue a claim for injunctive relief under RLUIPA because Reese's
release from incarceration at MRRJ moots his claim for injunctive relief. "[A] case is moot when

the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the out
come." Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007)(quoting Powell v. McCormack,

395 U.S. 486, 496 (1969)). "[F]ederal courts have 'no authority to give opinions upon moot

questions or abstract propositions, or to declare principles or rules oflaw which cannot affect the
matter in issue in the case before it.'" Id. (quoting Church ofScientology ofCat. v. United States,

506 U.S. 9,12(1992)). Thus,"[o]nce an inmate is removed from the environment in which he is

subjected to the challenged policy or practice, absent a claim for damages, he no longer has a

legally cognizable interest in a judicial decision on the merits ofthe claim."^ Id. at 287. Neither
Reese, nor the record, establishes ongoing interference with his practice of his Pagan/Wiccan

religion. Reese's demands for injunctive relief with respect to RLUIPA,therefore, are moot and
will be DISMISSED. Id. at 286-87 (citations omitted)(holding that transfer or release moots

claims for injunctive relief).^
Moreover, as explained below, Reese fails to demonstrate that Defendants substantially
burdened his religious exercise.
2.

Two-Part Inquiry

RLUIPA provides, in pertinent part, that:

No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution .. . unless the government
demonstrates that imposition ofthe burden on that person—
(1)is in furtherance of a compelling governmental interest; and
(2)is the least restrictive means offurthering that compelling
governmental interest.

^ IfReese were to demonstrate that the action is"capable ofrepetition, yet evading review,"
his claim may not be moot. Incumaa, 507 F.3d at 289 (quoting Fed. Election Comm 'n v. Wis.
Right to Life, Inc., 551 U.S. 449, 462 (2007)). Nevertheless, such a showing requires a
"demonstrated probability" that the allegedly improper action "will recur again, and to the same
complainant." Id. (quoting Murphy v. Hunt,455 U.S.478,483(1982)). That showing is not made
here.

^ The Court notes that Reese's request for injunctive relief with respect to his other claims
is also moot and will be DISMISSED.

42 U.S.C. § 2000cc-l(a). Thus, to begin, Reese must demonstrate that Defendants' actions

imposed a "substantial burden" on the exercise of his religion. To determine whether Reese has
met this standard, the Court must answer two questions: "(1) Is the burdened activity 'religious

exercise,' and if so(2)is the burden 'substantial?'" Adkins v. Kaspar,393 F.3d 559,567(5th Cir.
2004); see Couch v. Jabe, 679 F.3d 197, 200-01 (4th Cir. 2012)(employing similar two-part
inquiry).
a.

Whether The Burdened Activities Are a Religious Exercise

"RLUlPA defines the term 'religious exercise' broadly to include 'any exercise ofreligion,
whether or not compelled by, or central to, a system of religious belief.'" Couch,679 F.3d at 200
(quoting 42 U.S.C. § 2000cc-5(7)(A)). Reese's claim implicates his ability to participate in group
Pagan/Wiccan religious services "off[ofthe] housing unit." (Compl. 7.) Given RLUlPA's broad
definition of religious exercise, the Court will assume that this activity constitutes religious
exercise. See, e.g., Whitehouse v. Johnson, No. 1:10CV1175 (CMH/JFA), 2011 WL 5843622,
at *3 (E.D. Va. Nov. 18, 2011)(assuming inmate's enrollment in seminary course constituted
religious exercise for purposes of RLUlPA).
h.

Reese Fails To Demonstrate A Substantial Burden On His

Religious Exercise
RLUlPA does not define the term "substantial burden." See Couch,679 F.3d at 200. The

United States Court of Appeals for the Fourth Circuit determined that the Supreme Court's

jurisprudence interpreting the Free Exercise Clause provides guidance on the issue. See Lovelace
V. Lee, All F.3d 174,187(4th Cir. 2006). Thus,the Fourth Circuit has explained that a substantial
burden:

is one that put[s] substantial pressure on an adherent to modify his behavior and to
violate his beliefs, or one that forces a person to choose between following the

precepts of h[is] religion and forfeiting [governmental] benefits, on the one hand,
and abandoning one ofthe precepts of h[is] religion ... on the other hand.
Couch,679 F.3d at 200(alterations and omission in original)(quoting Lovelace,472 F.3d at 187).

To meet the substantial burden component of the test, the plaintiff "is not required ... to prove
that the exercise at issue is required by or essential to his [or her] religion." Krieger v. Brown,496
F. App'x 322, 325 (4th Cir. 2012)(citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.l3 (2005)).

"[A]t a minimum," however, "the substantial burden test requires that a RLUIPA plaintiff
demonstrate that the government's denial of a particular religious item or observance was more

than an inconvenience to one's religious practice." Smith v. Allen, 502 F.3d 1255,1278(11th Cir.

2007)(citingMidrash Sephardi, Inc. v. Town ofSurfside,366 F.3d 1214,1227(11th Cir. 2004));'®
see Krieger, 496 F. App'x at 326 (affirming grant of summary judgment where inmate failed to
"show that the deprivation of an outdoor worship circle and the requested sacred items modified
his behavior and violated his religious beliefs." (citing Lovelace, All F.3d at 187)). Thus, no
substantial burden occurs if the government action merely makes the "religious exercise more

expensive or difficult," but fails to pressure the adherent to violate his or her religious beliefs or
abandon one of the precepts of his religion. Living Water Church of God v. Charter Twp. of
Meridian, 258 F. App'x 729,739(6th Cir. 2007).
Two decisions issued by the Fourth Circuit illustrate a plaintiffs responsibility with respect

to demonstrating a substantial burden. In Couch,the plaintiff"testified that the primary religious
texts of Islam command that he grow a beard and that the refusal to maintain a beard is a sin
comparable in severity to eating pork." Couch,679 F.3d at 200. The VDOC's grooming policy
prohibited inmates from growing beards and enforced this rule by placing a noncompliant inmate

In Sossamon v. Texas, 563 U.S. 277, 293 (2011), the Supreme Court abrogated Smith's
ultimate holding that RLUIPA allows for monetary damages against state officials acting in their
official capacity.
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in a program that "restricted or limited [the inmate's] access to personal property, movement
rights, the right to eat and associate with others, recreation time, and visitation time." Id. at 199.
The Fourth Circuit concluded that VDOC's grooming policy and enforcement mechanism "fit

squarely within the accepted definition of 'substantial burden'" because it placed substantial
pressure on the plaintiff to modify his behavior and violate his beliefs. Id. at 200-01 (citing
Warsoldier v. Woodford,418 F.3d 989,995-96(9th Cir. 2005)).

In Krieger,the Fourth Circuit declined to find that an inmate had demonstrated a substantial
burden where prison officials denied "his requests for an 'outdoor worship circle' and certain
'sacred items' related to his religious practice of Asatru." Krieger, 496 F. App'x at 322-23. The
inmate-plaintiff"asserted that deprivation ofthe outdoor worship circle would require him to pray
indoors, and that the 'Blot' ceremony is 'best performed outdoors.'" Id. at 325(emphasis added).

The Fourth Circuit concluded that the mere denial ofthe optimal marmer for performing the "Blot"

ceremony could not demonstrate a substantial burden where the plaintiff "failed to offer any
explanation regarding the reason why indoor worship would compromise his religious beliefs."
Id.

Krieger illuminates another consideration in conducting the substantial burden inquiry.

The availability to an inmate, in the most general sense, of other means to practice his or her faith
is not relevant to the RLUIPA substantial burden inquiry. See id.; see also Al-Amin v. Shear, 325
F. App'x 190, 193 (4th Cir. 2009). "Nevertheless, courts properly consider whether the inmate

retains other means for engaging in the particular religious activity, such as the 'Blot' ceremony,
in assessing whether a denial ofthe inmate's preferred method for engaging that religious exercise

imposes a substantial burden." Shabazz v. Va. Dep 't Corr., 3:10CV638,2013 WL 1098102, at *7

(E.D. Va. Mar. 15, 2013)(citing Krieger, 496 F. App'x at 326; Coleman v. Governor ofMich.,

413 F. App'x 866,875-76(6th Cir. 2011)). Applying these principles, the United States Court of

Appeals for the Eighth Circuit has held that an inmate failed to demonstrate that the denial of
additional group study time imposed a substantial burden upon his religious exercise where prison
officials already provided three hours of group study and worship time and allowed the inmate to

study in his cell. Van Wyhe v. Reisch,581 F.3d 639,656-57(8th Cir. 2009). Similarly,the United
States Court of Appeals for the Sixth Circuit concluded that prison policies which limited the
inmates' access to religious radio and television broadcasts failed to substantially burden the
inmates' religious exercise because the inmates "may receive religious literature via the mail and

may receive visitors at the prison to discuss their religious beliefs." Coleman^ 413 F. App'x at 876.
As explained below, in light of the foregoing principles, Reese has not demonstrated any
substantial burden upon his religious exercise with respect to Claim Four.
In Claim Four, Reese contends that Defendants substantially burdened his exercise of his

religion by failing to provide, and denying Reese's requests for, "a weekly off housing unit
PaganAViccan faith/study group." (Compl. 7.)
The evidence before the Court establishes that inmates requesting to hold organized

religious services "may do so as long as a volunteer from the outside community agrees to lead
the service." (Wright Aff.^ 9.) This applies to all organized religious services, meaning that"[a]ll

organized religious services at MRRJ are conducted by volunteers from the community outside of
MRRJ,"(id ^ 7), and "[a]ny individual leading religious services at MRRJ is done strictly on a
voluntary basis." (Id. 110.) "MRRJ requires volunteer outside officiants to lead services to avoid
inmates having any position of authority over other inmates." (Id. H 11.)

Reese contends that he requested that Chaplain McCoy "assist[him]in setting up a weekly

off housing unit Pagan/Wiccan faith/study group," and that his request for assistance from

10

Chaplain McCoy was denied. (Compl. 7-8.) Reese also contends that Chaplain McCoy indicated
that, in accessing Reese's request for assistance, Chaplain McCoy had "consulted" with Lieutenant
Jacobs. {Id. at 7.) Additionally, Reese faults Lieutenant Jacobs, Captain Lucy, Captain Booth,

and Deputy Superintendent Wright for upholding and approving Chaplain McCoy's denial of
Reese's request for Chaplain McCoy's assistance. {See id. at 7-11,13-14.)
The record before the Court, however, establishes that Chaplain McCoy serves as "a

volunteer pastor for Christian services at MRRJ." (Wright Aff. 8; see id. at 2 n.2.) The record
|
also establishes that inmates at MRRJ, such as Reese, who request to hold organized religious

services"may do so as long as a volunteer from the outside community agrees to lead the service."

(Wright Aff. H 9.) Thus, Chaplain McCoy's denial of Reese's request for his assistance, and the
other Defendants' approval of Chaplain McCoy's denial, did not prevent Reese from participating
in organized religious services with a different outside volunteer.
Further, the record establishes that MRRJ's volunteer requirement applies to all organized

religious services at MRRJ. {See id. H 7.) Thus,"[b]ecause the volunteer policy was implemented

uniformly [at MRRJ], it was not the policy imposing the burden on [Reese's] religious practice,
but instead the lack of qualified volunteers." Brown v. Collier, 929 F.3d 218, 231 (5th Cir. 2019)
(first alteration in original)(quoting Mayfield v. Tex. Dep't ofCriminal Justice, 529 F.3d 599,614

(5th Cir. 2008)); Adkins v. Kasper, 393 F.3d 559,571 (5th Cir. 2004)(discussing that with respect
to a jail's policy that required an outside volunteer to hold group religious services, the lack of
opportunity for group religious services resulted "not from some rule or regulation that directly
prohibits such gatherings," but "from a dearth of qualified outside volunteers available to go to

[the jail]"); see Wright v. Lassiter, 921 F.3d 413, 419 (4th Cir. 2019)("concluding 'a lack of
outside clergy, volunteer visitors, and practicing co-religionists in the prison,' not decision to

11

transfer the plaintiff to a different prison, had caused the burden on plaintiffs religious exercise"
(quoting Bader v. Wrenn,675 F.3d 95,98 (1st Cir. 2012)).
For these reasons, Reese has failed to demonstrate that Defendants imposed a substantial

burden on his religious exercise. Accordingly, because Reese has offered no evidence that

Defendants imposed a substantial burden on his religious exercise. Claim Four Avill be
DISMISSED.
B.

Free Exercise

In Claim One, Reese contends that Defendants violated his First Amendment right to the

free exercise ofhis religion by engaging in the same action set forth in Claim Four (i.e., by refusing
to accommodate Reese's request "to set[] up a weekly off housing unit Pagan/Wiccan faith/study
group"). (Compl. at 7,12.)

In order for Reese to survive summary judgment on the First Amendment claim, Reese
must demonstrate that Defendants' conduct substantially burdened his religious exercise.

Whitehouse, 2011 WL 5843622, at *5. "RLUIPA provides considerably more protection for an

inmate's religious exercise than does the Free Exercise Clause of the Constitution of the United
States." Id. (citing Lovelace, 472 F.3d at 186). Thus, "[w]here an inmate has not put forth
sufficient evidence under RLUIPA to demonstrate a substantial burden on his religious exercise,
his claim fails under the Free Exercise Clause of the First Amendment as well." Van Wyhe, 581

F.3d at 657-58 (citing Patel v. U.S. Bureau ofPrisons, 515 F.3d 807, 813 (8th Cir. 2008)). As

explained above, Reese has failed to demonstrate a substantial burden on his religious exercise.
Accordingly, Claim One will be DISMISSED.

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IV.

ESTABLISHMENT OF RELIGION

"The Establishment Clause prohibits state action with a sectarian legislative purpose or
with the primary effect of advancing religion, including fostering an 'excessive government
entanglement' with religion." Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010)
(quoting Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). In analyzing Establishment Clause

challenges, the Supreme Court often applies the Lemon test. See Van Orden v. Perry, 545 U.S.
677, 685-86(2005)(citing Lemon, 403 U.S. at 612-13). In Lemon,the Supreme Court set forth
the following three-part test: "First, the statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances nor inhibits religion; finally, the
statute must not foster 'an excessive government entanglement with religion.'" Lemon,403 U.S.
at 612-13 (internal citation omitted)(quoting Walz v. Tax Comm 'n, 397 U.S. 664,674(1970)).

In Van Orden v. Perry, however, the Supreme Court noted that "[m]any of the [Supreme

Court's] recent cases simply [had] not applied the Lemon test." Van Orden, 545 U.S. at 686
(citations omitted)(discussing that "just two years after Lemon was decided,[the Supreme Court]
noted that the factors identified in Lemon serve as'no more than helpful signposts.'"(quoting Hunt

V. McNair, 413 U.S. 734, 741 (1973)). Furthermore, "[t]he Supreme Court has not directly
addressed the standard ofreview that applies when inmates assert a violation ofthe Establishment

Clause, and more particularly, whether the applicable standard may depend upon the specifics of
the claim." Brown v. Collier, 929 F.3d 218,242(5th Cir. 2019).

In the prison context, claims under the Establishment Clause and the Free Exercise clause
are sometimes in tension because "[p]rison officials[] ... are required to facilitate opportunities

for prisoners to worship or otherwise exercise religious beliefs even though, outside the prison
context, such involvement would undoubtedly implicate Establishment Clause concerns." Id.

13

at 244 (emphasis in original). In light of this inherent tension, in Brown v. Collier, the United
States Court of Appeals for the Fifth Circuit concluded that the standard set forth in Turner v.

Safley, 482 U.S. 78 (1987), rather than the Lemon test, applied "[w]hen policies ostensibly
designed to honor the Free Exercise rights ofinmates are challenged on the basis that they violate
the Establishment Clause because the policies favor one or more faith groups over another."
Brown, 929 F.3d at 244; see Firewalker-Fields v. Lee, No. 7:17-cv-00400, 2019 WL 4783112,

at *8(W.D. Va. Sept. 30, 2019)(applying the Turner standard to inmate's Establishment Clause
claim).

In applying the Turner standard, courts consider(1) whether a "valid, rational connection
[exists] between the prison regulation [or managerial decision] and the legitimate governmental
interest put forward to justify it,"(2)whether "alternative means of exercising the right [exist] that

remain open to prison inmates,"(3) what "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 an "absence of ready alternatives" to the regulation or managerial decision in
question exists. Turner,482 U.S. at 89-90 (citations omitted)(internal quotation marks omitted).

The Fifth Circuit explained the rationale underlying the application of the Turner standard as
follows:

In attempting to accommodate the religious beliefs of varying faith groups in
compliance with the Free Exercise Clause, prison officials must operate within a
zone of "reasonableness." If policies meet Turner's reasonableness standard in

effectuating the Free Exercise rights of inmates, then those policies should not be
pruned or eliminated as a result of higher scrutiny under the Establishment Clause,
even if those policies do not treat all faith groups precisely the same. Prison
officials have been accorded some flexibility in providing Free Exercise
opportunities for inmates. Inmates' opportunities for religious exercise would be
diminished if a more restrictive standard were applied to Establishment Clause

claims than is applied to Free Exercise claims, when the allegation is that preference
has been given to inmates of one or more faiths. If prison policies are in fact
balanced and meet the Turner standard,those policies are vindicating only what the
14

First Amendment requires, and such policies do not amount to government
involvement in religious matters to such an extent that the Establishment Clause is
violated.

Brown,929 F.3d at 244.

Here, in Claim Two, Reese contends that Defendants' actions violated the Establishment

Clause ofthe First Amendment because, with respect to religious services held off ofthe housing

unit, they "accommodated Christians [and] refused to do so for any other religious groups[,][and]
[t]hat is a clear endorsement of [and] encouragement to practice their brand of Christianity."

(Compl. 12-13.) Specifically, Reese contends that Defendants permitted Christian inmates to
participate in group religious services "in a space offthe inmate housing unit,"{id. at 7), but denied
his request to have group religious services"offthe housing unit"for Pagan/Wiccan inmates. {See,
e.g., id. at 9.)

As explained below, however,applying either the Turner standard or the Lemon test, Reese
fails to demonstrate that Defendants' actions violated the Establishment Clause. As an initial

matter, Reese has put forth no evidence in support of this claim. Instead, the evidence before the
Court establishes that"MRRJ does not employ any religious figure, celebrant, or leader, nor does
MRRJ officially recognize any specific religion." (Wright Aff.^ 10.) Further,the evidence before
the Court establishes that "[a]11 organized religious services at MRRJ are conducted by volunteers

from the community outside of MRRJ,"{id. ^ 7), and "[a]ny individual leading religious services
at MRRJ is done strictly on a voluntary basis." {Id. ^ 10.) The rationale for requiring volunteer
outside officiants to lead religious services at MRRJ is "to avoid inmates having any position of
authority over other inmates." {Id. ^11.)

The Fifth Circuit's application ofthe Turner factors in Brown is instructive to the analysis
of the Turner factors in the present case. Brown involved a challenge to a previously entered

15

consent decree that"exenipt[ed] Muslim inmates from the requirement that all religious gatherings
and activities in Texas state prisons attended by more than four inmates must be directly supervised
by either prison staff or a prison-approved outside volunteer." Brown^ 929 F.3d at 224. Applying
the first Turner factor, in Brown, the Fifth Circuit concluded that "[t]here is a 'valid, rational

connection' between permitting volunteers to provide additional opportunities for the exercise of
religious rights and 'the legitimate governmental interest' of prison officials in complying with
their obligation to afford 'reasonable op[p]ortunities ... to all prisoners to exercise the religious
freedom guaranteed by the First and Fourteenth Amendment[s].'" Id. at 245 (second and third
alterations, and omission in original)(footnotes omitted)(quoting Turner,482 U.S. at 89; Cruz v.
Beta, 405 U.S. 319, 322 n.2 (1972)). This conclusion regarding the first Turner factor is also

applicable to the present case because MRRJ's policy regarding volunteer outside officiants
"provide[s] additional opportunities for the exercise of religious rights" by inmates. Id. (citation
omitted). Furthermore,as was the case in Brown,the governmental interest or objective in MRRJ's

policy "is 'a legitimate and neutral one' that 'operate[s] in a neutral fashion, without regard to the
content of the expression.'" Id. (alteration in original)(quoting Turner,482 U.S. at 90).

Applying the second Turner factor (i.e.,"whether there are alternative means ofexercising
the right," Turner, 482 U.S. at 90), in Brown, the Fifth Circuit concluded that "[i]f the volunteer

policy were eliminated or fewer resources were expended to support volunteer efforts, inmates,
including Muslim inmates, would have fewer opportunities for worship and religious study."
Brown,929 F.3d at 245-46. Similarly,in the present case,ifMRRJ eliminated its volunteer policy,
inmates, such as Reese, would have fewer opportunities to engage in religious activities.

Next,applying the third Turner factor (i.e.,"the impact[of] accommodation ofthe asserted
constitutional right," Turner,482 U.S. at 90), as was the case in Brown,"[i]f the volunteer policy

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were eliminated as violative ofthe Establishment Clause, inmates would be adversely impacted,"

however,conversely,"resources would no longer be spent by[MRRJ]to implement the volunteer
program." Brown,929 F.3d at 246.

Finally, applying the fourth Turner factor (i.e., whether an "absence of ready alternatives"
to the regulation or managerial decision in question exists. Turner, 482 U.S. at 90), "[t]he

alternatives to allowing volunteers into [MRRJ] to facilitate religious worship and study include
excluding the volunteers or paying other individuals to replace them." Brown, 929 F.3d at 256.
As the Fifth Circuit explained in Brown, "[t]he first alternative would[] . . . reduce inmates'

religious exercise[,][and][t]he second would require considerable expenditures." Id.
Accordingly, applying the Turner factors, the Court concludes that MRRJ's "volunteer

policy and the resources expended to implement it are reasonably related to [MRRJ's] obligation
to afford inmates reasonable opportunities to exercise religious freedom." Id.

Moreover, applying the Lemon test, because MRRJ's volunteer policy applies to all

religious services, MRRJ "neither advances nor inhibits religion," Lemon,403 U.S. at612(quoting

Bd. of Educ. V. Allen, 392 U.S. 236, 243 (1968)), and MRRJ does "not foster 'an excessive
government entanglement with religion'" because inmates of all religions must adhere to this
policy. Id. at 613(quoting Walz, 397 U.S. at 674).
Thus, for these reasons, Reese fails to demonstrate that Defendants' actions violated the
Establishment Clause. Accordingly, Claim Two will be DISMISSED.
V.

EQUAL PROTECTION

The Equal Protection Clause of the Fourteenth Amendment commands that similarly
situated persons be treated alike. See City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,439
(1985)(citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). To survive summary judgment, Reese

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must demonstrate: (1)"that he has been treated differently from others with whom he is similarly
situated"; and,(2)that the differing treatment resulted from intentional discrimination. Morrison

V. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If a plaintiff satisfies the above, "the court

proceeds to determine whether the disparity in treatment can be justified under the requisite level
of scrutiny." Id. (citations omitted). "In a prison context," disparate treatment passes muster so

long as "the disparate treatment is 'reasonably related to [any] legitimate penological interests.'"

Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (alteration in original) (quoting Shaw v.
Murphy,532 U.S. 223, 225 (2001)).

In Claim Three, Reese contends that Defendants violated his Fourteenth Amendment right

to equal protection when they upheld Chaplain McCoy's "refusal to accommodate Wiccan/Pagan
religion in the same way he did [for]followers of[Christianity]." (Compl. 13.) Specifically, Reese
contends that he was denied the ability to "set[] up a weekly off housing unit Pagan/Wiccan

faith/study group in the same space [and] manner that [Chaplain McCoy] was at that time, doing
for Christian inmates." {Id. at 7.) Reese asserts that when Chaplain McCoy "refus[ed] to

accommodate Wiccan/Pagan religion in the same way he did [for] followers of his own religion,

it [was] clearly his religious bias that [was] motivating his actions" and "he is clearly of a
discriminatory mindset towards[Reese's] religion." {Id. at 13.) Additionally, Reese contends that
by "upholding [Chaplain McCoy's]clearly discriminatory actions,[all Defendants]themselves are
exhibiting a discriminatory intent." {Id.) Further, Reese contends that "when we are unobserved,

[Lieutenant Jacobs] makes religiously bigoted statements," and Lieutenant Jacobs told Reese that
"[his] religion [was] evil." {Id. at 11.)

Besides Reese's conclusory allegations, however, he has put forth no evidence in support

of Claim Three. Furthermore, although Reese contends that Lieutenant Jacobs made "religiously

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bigoted statements," {id.), he fails to proffer any evidence demonstrating that Lieutenant Jacobs's
statements resulted in the denial of his request for group Pagan/Wiccan religious services. Instead,

the evidence submitted by Defendants establishes that inmates,such as Reese, may request to hold

organized religious services "as long as a volunteer from the outside community agrees to lead the
service." (Wright Aff.^ 9.) Reese provides no evidence to demonstrate that any alleged "unequal
treatment was the result of intentional or purposeful discrimination." Morrison, 239 F.3d at 654.
Accordingly, Claim Three will be DISMISSED.
VI.

CONCLUSION

For the foregoing reasons. Defendants' Renewed Motion for Summary Judgment(ECF

No. 43) will be GRANTED. Reese's claims will be DISMISSED. The action will be
DISMISSED.

An appropriate Final Order shall accompany this Memorandum Opinion.

/S/

John A. Gibney,Jr.

Date: \Q) Mo.fch 1j02~O

United States District Judge

Richmond, Virginia

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