Faver v. Clarke

Filing 45

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 9/29/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
BRAD FAVER,
Plaintiff,
v.
HAROLD CLARKE,
Defendant.

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Civil Action No. 7:16-cv-00287
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Brad Faver, a Virginia inmate proceeding pro se, filed a civil action pursuant to 42
U.S.C. § 1983, alleging that defendant Harold Clarke, the Director of the Virginia Department of
Corrections (VDOC), violated his religious rights under the First Amendment and the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, et seq. The
parties filed cross-motions for summary judgment, and this matter is ripe for disposition.1 For
the reasons stated herein, the court denies Faver’s motion for summary judgment and grants in
part and denies in part Clarke’s motion for summary judgment.
I. BACKGROUND
Faver is a Muslim inmate housed at Augusta Correctional Center (Augusta). He alleges
that, in accordance with his religion, he must grow a beard at least a fist’s length, apply perfumed
oils for prayer, and eat a diet containing meat that is “ritually slaughtered in the name of Allah.”
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Faver also filed a motion pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, asking the court
to delay ruling on Clarke’s motion for summary judgment until certain discovery was provided. See Dkt. No. 30.
Since that motion, Clarke has responded by providing some of the discovery, noting that some requested
information does not exist, and objecting to other requests. See Dkt. Nos. 41 and 42. The court denied Faver’s
motion to compel and determined that as to the requests for admission and discovery that was not provided, Faver
did not demonstrate that they were relevant to the adjudication of his claims or proportional to the needs of the case.
The court also notes that despite the motion to stay, Faver filed a response in opposition to Clarke’s motion for
summary judgment and filed his own motion for summary judgment.
Pursuant to Rule 56(d), if a nonmovant “shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Faver
has not submitted an affidavit or declaration stating why he cannot present facts essential to justify his opposition.
Further, even if he had submitted an affidavit, the facts which he states that he intends to show through the discovery
that was not provided do not change the court’s analysis. Accordingly, Faver’s Rule 56(d) motion is denied.

He also alleges that his religious beliefs “prohibit[] the acquisition of religious accoutrements
from a company that sells swine and idols.” (Compl. 2, Dkt. No. 1.)
Faver claims that VDOC Operating Procedure (OP) 864.1 prohibits him from growing a
fist-length beard; OP 802.1 requires him to acquire his perfumed oils from Keefe Commissary
(Keefe) which “sells swine and idols”; and the VDOC does not offer a diet that is consistent with
his “religious scruples.” (Compl. 2, 3.)
II. DISCUSSION
A. Motion for Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994). A plaintiff may not amend a complaint through argument in a brief
opposing summary judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).

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B. Limitation on Damages
Some of Faver’s claims for monetary damages fail at the outset. Defendant Clarke is
immune from damages claims for actions taken in his official capacity. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58 (1989). Moreover, RLUIPA does not authorize damages
against a public official under the Spending Clause of the United States Constitution.2 See
Sossamon v. Texas, 563 U.S. 277, 282 n.1, 293 (2011) (prohibiting damages claims against state
officials in their official capacity under the Spending Clause); Rendelman v. Rouse, 569 F.3d
182, 189 (4th Cir. 2009) (same for individual capacity). Therefore, the court will grant summary
judgment to Clarke on Faver’s claims for damages against Clarke in his official capacity and for
damages under RLUIPA.
C. First Amendment and RLUIPA
To state a viable claim under the First Amendment or RLUIPA, a plaintiff must
demonstrate that the defendant prison official’s actions or policies place a substantial burden on
his free exercise of his sincere religious belief. Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981) (First Amendment); Lovelace v. Lee, 472 F.3d 174, 185 (4th Cir. 2006)
(RLUIPA). A court must decide the threshold question of whether a plaintiff sincerely held the
avowed belief and whether the belief is, in a plaintiff’s own scheme of things, religious. United
States v. Seeger, 380 U.S. 163, 185 (1965). Only a personal practice that is both sincerely held
and rooted in religious belief is protected. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972).
A substantial burden on religious exercise occurs when a government, through act or
omission, “put[s] substantial pressure on an adherent to modify his behavior and to violate his
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The court considers Faver’s RLUIPA claim only pursuant to the Spending Clause because he does not
contend that RLUIPA applies under the Constitution’s Commerce Clause. See, e.g., Washington v. Gonyea, 731
F.3d 143, 146 (2d Cir. 2013) (declining to consider “whether RLUIPA authorizes individual-capacity suits under the
imprimatur of the commerce clause” where plaintiff “pled no facts” pertaining to interstate commerce); compare 42
U.S.C. § 2000cc-1(b)(1) (Spending Clause provision), with id. § 2000cc-1(b)(2) (Commerce Clause provision).

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beliefs.” Lovelace, 472 F.3d at 187 (quoting Thomas, 450 U.S. at 718). The plaintiff bears the
initial burden of establishing that the government’s actions substantially burdened his exercise of
religion. See, e.g., Krieger v. Brown, 496 F. App’x. 322, 324 (4th Cir. 2012). In conducting the
substantial burden inquiry, the plaintiff “is not required . . . to prove that the exercise at issue is
required by or essential to his religion.” Id. at 325 (citing Cutter v. Wilkinson, 544 U.S. 709, 725
n.13 (2005)). Nevertheless, “at a minimum the substantial burden test requires that a . . . plaintiff
demonstrate that the government’s denial of a particular religious . . . observance was more than
an inconvenience to one’s religious practice.” Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir.
2007). 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).
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” Although incarcerated, a
prisoner still “retains those First Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system.” Pell v.
Procunier, 417 U.S. 822 (1974). If the inmate establishes a substantial burden on his sincerely
held religious belief, the next inquiry is whether the prison regulation is reasonably related to a
legitimate penological interest. Turner, 482 U.S. at 89. Whether a regulation is reasonably
related depends on:
(1) [W]hether there is a “valid, rational connection” between the prison
regulation or action and the interest asserted by the government, or whether
this interest is “so remote as to render the policy arbitrary or irrational”; (2)
whether “alternative means of exercising the right … remain open to prison
inmates,” an inquiry that asks broadly whether inmates were deprived of all
forms of religious exercise or whether they were able to participate in other
observances of their faith; (3) what impact the desired accommodation would
have on security staff, inmates, and the allocation of prison resources; and (4)
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whether there exist any “obvious, easy alternatives” to the challenged
regulation or action, which may suggest that it is “not reasonable, but is
[instead] an exaggerated response to prison concerns.
Lovelace, 472 F.3d at 200 (citing Turner v. Safley, 482 U.S. 78, 89-92 (1987)). In weighing
these factors, the court must “respect the determinations of prison officials.” United States v.
Stotts, 925 F.2d 83, 86 (4th Cir. 1991). The prisoner carries the burden of proof under the
Turner analysis to disprove the validity of the prison regulation at issue. Overton v. Bazzetta,
539 U.S. 126, 132 (2003).
Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution . . . even if the
burden results from a rule of general applicability, unless the government demonstrates that” the
burden is “in furtherance of a compelling governmental interest[] and is the least restrictive
means of furthering that . . . interest.” 42 U.S.C. § 2000cc-1(a). Once a plaintiff produces prima
facie evidence to support the claim that the challenged practice or law substantially burdens the
plaintiff’s sincere religious belief, the government bears the burden of persuasion on whether the
practice or law is the least restrictive means of furthering a compelling governmental interest. 42
U.S.C. § 2000cc-2(b). “The least-restrictive-means standard . . . 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 by the objecting party.” Jehovah v. Clarke, 798 F.3d 169, 177
(4th Cir. 2015) (quoting Holt v. Hobbs, 135 S. Ct. 853, 864 (2015)).
“Although RLUIPA must ‘be construed in favor of a broad protection of religious
exercise,’ it must be applied ‘with particular sensitivity to security concerns.’” Couch v. Jabe,
679 F.3d 197, 201 (4th Cir. 2012) (internal citation omitted) (quoting Cutter v. Wilkinson, 544
U.S. 709, 722 (2005)). “In this regard, ‘RLUIPA [is not meant] to elevate accommodation of
religious observances over an institution’s need to maintain order and safety.’” Id. (alteration in
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original) (quoting Cutter, 544 U.S. at 722. Prison officials satisfy the “least restrictive” prong of
RLUIPA by demonstrating that they have considered and rejected less restrictive alternatives to
the challenged practice. See id. at 203. The court is required to give deference to prison
administrators’ policy explanations. See Lovelace, 472 F.3d at 182 (“We confirm emphatically
that any substantive explanation offered by the prison must be viewed with due deference.”).
D. Beard
Faver asserts that OP 864.1 prohibits him from growing his beard at least a fist’s length
in accordance with his religious beliefs. OP 864.1, Offender Grooming and Hygiene, establishes
uniform personal grooming standards for, inter alia, beards of offenders incarcerated in the
VDOC, in order to facilitate the identification of offenders and promote safety, security, and
sanitation. (Russell Aff. ¶¶ 5-6, Dkt. No. 25, Attach. 1.) This OP prohibits beards that could
conceal contraband, promote identification with gangs, create a health, hygiene, or sanitation
hazard, or could significantly compromise the ability to identify an offender. (Id. at ¶ 6.)
Pursuant to OP 864.1, beards of one-quarter inch maximum length are permitted for all offenders
in all VDOC facilities in order to accommodate religious, medical, and secular reasons for
beards. (Id. at ¶ 7.) Offenders who violate this policy may be charged with Disciplinary Offense
Code 133 (Refusal to Obey an Order). (Id.)
In support of Clarke’s motion for summary judgment, Major Russell submits an affidavit
stating that in addition to security concerns, positive identification of each offender is important
in the event of escape from confinement. (Id. at ¶ 8.) Offenders with long hair and beards can
rapidly change their appearance so as to compromise the need for rapid identification. (Id.)
Even inside the prison, positive, quick identification of offenders facilitates the orderly operation
of each facility. (Id.) Security is of paramount importance in an institutional setting. (Id.)

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Major Russell also avers that beards that are longer than one-quarter of an inch also
provide the offender with an additional place to hide contraband. (Id.) He states that the VDOC
has had instances where offenders have hidden drugs or weapons in their beards, thereby placing
staff and other offenders at “serious risk.” (Id.) He further states that shorter beards facilitate
routine searches of offenders by staff because the need to search the beards of male offenders is
essentially eliminated. (Id.)
Clarke notes that this court has previously held, in Coleman v. Jabe, Civil Action No.
7:11cv518, 2014 U.S. Dist. LEXIS 67971, at *13-15, 2014 WL 2040097, at *4 (W.D. Va. May
16, 2014), that the VDOC’s grooming policy, as it pertains to the one-quarter inch beard length
maximum was valid. (Def. Mot. Summ. J. 10-11, Dkt. No. 25.) In Coleman, the court
determined that the VDOC satisfied the least restrictive means test by articulating how its
grooming policy furthered its compelling interest in safety and sanitation in the least restrictive
means possible. Coleman, Civil Action No. 7:11cv518, 2014 U.S. Dist. LEXIS 67971, at *1315, 2014 WL 2040097, at *4.
Since the court’s decision in Coleman, the VDOC has added a new element to the
grooming policy. The VDOC has made special accommodations for offenders who are
persistent violators of the grooming policy and who assert that they cannot cut their beards due to
their religious beliefs. Specifically, the VDOC has established a separate housing unit, known as
the Grooming Standards Violator Housing Unit (VHU), for these individuals. (Russell Aff.,
Encl. A) The VHU is located at Wallens Ridge State Prison, and its objective is to manage and
encourage compliance by male offenders who are in violation of the grooming standards. (Id.)
As of August 1, 2016, the eligibility requirements for VHU are: (1) a conviction for Disciplinary
Offense Code 133 (Refusal to Obey an Order) and (2) no past history of disruptive or assaultive
behavior. (Id.)
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In this case, Clarke does not challenge whether Faver has a sincere religious belief that he
must grow a beard at least a fist’s length or that the one-quarter inch beard policy substantially
burdens his religious belief.
1. First Amendment
There being no dispute that the policy imposes a substantial burden on a Faver’s sincere
religious belief, the next inquiry with regard to a First Amendment analysis is whether the prison
regulation is reasonably related to a legitimate penological interest. Faver does not meet his
burden. Faver does not show that it is unreasonable for the VDOC to prohibit inmates from
growing fist-length beards while housed in general population. Clarke argues that beard length
is regulated due to safety and security concerns within the facility and/or in the event of an
escape. These are legitimate penological government interests. See , e.g., O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). There is a “valid, rational connection” between regulating
beard length and the legitimate penological interests addressed. See Lovelace, 472 F.3d at 182
(stating “emphatically that any substantive explanation offered by the prison must be viewed
with due deference”).
To the extent Faver argues that forty other states and the Federal Bureau of Prisons allow
longer beards than the VDOC, the court notes that “[a]lthough prison policies from other
jurisdictions provide some evidence as to feasibility of implementing a less restrictive means of
achieving prison safety and security, it does not outweigh the deference owed to the expert
judgment of prison officials who are more familiar with their own institutions than outside
observers.” Fegans v. Norris, 537 F.3d 897, 905 (8th Cir. 2008) (quoting Hamilton v. Schriro,
74 F.3d 1545, 1556 n. 15 (8th Cir. 1996)).
Faver also argues that an “obvious, easy alternative to the policy” would be to allow
inmates to grow beards and require them to carry a comb with them, presumably to aid in
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searching the beard. The court finds this argument unpersuasive because it does not address
defendant’s concern for the need for rapid identification of inmates. And, Faver suggests no
other alternative. Further, allowing longer beards would require more staff to search the beards.
And, if an inmate snuck a weapon into his beard, he could harm other inmates or staff, including
staff who would have to normally search the beards.
Having considered the Turner factors, the court concludes that Faver has not met his
burden of disproving the validity of the grooming policy as it relates to beards. Accordingly,
Clarke’s motion for summary judgment will be granted, and Faver’s motion for summary
judgment will be denied as to Faver’s First Amendment beard claim.
2. RLUIPA
In a RLUIPA analysis, because there is no dispute that the limitation on beard length
poses a substantial burden on Faver’s sincere religious belief, the burden shifts to Clarke to show
that the policy is the least restrictive means of furthering a compelling governmental interest.
Safety and security are compelling governmental interests. See McRae v. Johnson, 261 F. App’x
554, 558 (4th Cir. 2008). While Clarke demonstrates compelling governmental interests in
limiting beard length, he has not established that the current provisions of the grooming policy
are the least restrictive means of achieving the desired goal. In support of his argument that the
current policy is the least restrictive means, Clarke points to the court’s finding in Coleman.
Clarke does not discuss why the VDOC lacks other means of achieving its desired goal without
imposing a substantial burden on Faver. Further, Clarke does not discuss any alternatives to the
current policy that the VDOC has considered and rejected.
In support of Clarke’s motion for summary judgment, Major Russell submits that the
VDOC has had instances where offenders have hidden drugs or weapons in their beards.
However, he does not describe how long the beards were in those instances. Major Russell also
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states that longer beards provide offenders with an additional place to hide contraband, thereby
placing staff and other offenders at “serious risk.” However, he does not define “longer beards.”
It seems to the court that it would be easier to hide contraband in a twelve-inch beard than in a
one-half inch beard. Neither Major Russell nor Clarke explain where a fist-length beard falls on
that continuum.
The court finds that Clarke’s reliance on the court’s decision in Coleman and the vague
statements about past incidents are insufficient to carry his burden under RLUIPA. Accordingly,
the court will deny Clarke’s motion for summary judgment as to Faver’s beard claim under
RLUIPA.3
Faver also filed a motion for summary judgment as to this claim. And, for purposes of
his motion, the court must draw all reasonable inferences in favor of Clarke. With that lens, the
court finds a genuine dispute as to whether the beard policy is the least restrictive means.
Accordingly, the court will deny Favor’s motion for summary judgment as to this claim as well.
E. Prayer Oil
Faver states that, in accordance with his religious beliefs, he must use perfumed oils
during prayers and that he cannot buy these oils from a company that “sells swine and idols.”
OP 802.1, Offender Property, sets forth the guidelines for offender property and purchases.
(Shires Aff. ¶ 4, Dkt. No. 25, Attach. 3.) Pursuant to OP 802.1(IV)(B)(10), all religious personal
property items must be purchased through the facility commissary, and Augusta’s facility
commissary is Keefe. (Id.) Offenders within the VDOC are allowed to purchase non-flammable
prayer oils through Keefe. (Id. ¶ 5.) Keefe also sells pork products. (Collier Aff. ¶ 11, Dkt. No.
25, Attach. 2.)

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The court notes that its decision today does not mean that the Clarke cannot demonstrate that the policy is
the least restrictive means; he just has not done so yet. If Clarke submits further argument in support of his claim
that the policy is the least restrictive means, the court will consider that argument at that time.

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In support of Clarke’s motion for summary judgment, Augusta’s Property Supervisor, N.
Shires, avers that Faver has been purchasing prayer oils from Keefe for the past twelve months.
(Shires Aff. ¶ 7.) In response to the motion for summary judgment and under penalty of perjury,
Faver insists that he “sincerely believes that he must apply prayer oil… and he must acquire [the
oil] . . . from a source that does not engage in illegal (under Islamic law) practices.” (Faver
Resp. Opp. M. Summ. J. 14, Dkt. No. 31.) He also states that because Keefe “sells swine and
idols,” it violates his beliefs to purchase his religious accoutrements from Keefe. (Id.)
In considering the First Amendment and RLUIPA claims, the court must decide the
threshold question of whether Faver sincerely held the avowed belief and whether the belief is, in
Faver’s own scheme of things, religious. The court concludes that, viewing the record as a
whole and drawing all reasonable inferences in the light most favorable to Clarke as to Faver’s
motion, there is a genuine dispute as to whether Faver sincerely holds the belief that he cannot
buy his prayer oils from a company that “sells swine and idols.” Accordingly, the court will
deny Faver’s motion for summary judgment as to his prayer oil claims.
However, for purposes of Clarke’s motion for summary judgment, the court will assume,
for purposed of the motion only, that the single-vendor policy substantially burdens Faver’s
sincere religious belief and will continue its analysis under the First Amendment and RLUIPA.
1. First Amendment
The court must consider whether the single-vendor policy is reasonably related to a
legitimate penological interest. The burden is on Faver to disprove the validity of the policy.
In support of Clarke’s motion for summary judgment, N. Shires avers that, by limiting
offender purchases to Keefe only, the VDOC decreases the changes of contraband entering the
prisons and items being tampered with prior to entering the facilities. The policy also
necessitates that the VDOC approve an item only once before it is added to the approved list,
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making the process more uniform and standardized and, thus, easier to monitor for security
purposes. (Shires Aff. ¶5.) Keeping contraband out of prisons for safety and security is a
legitimate penological governmental interest. See McRae, 261 F. App’x at 558. And, there is a
“valid, rational connection” between the single-vendor policy and the legitimate penological
interests addressed.
Faver contends that the single-vendor policy is not based on “any security or penological
concern,” but rather based on a “profit-sharing contract obligation” with Keefe. (Faver Aff. ¶
40.) Clarke provided Faver with a copy of the VDOC’s contract with Keefe, and yet Faver
points to no provision that supports his theory.
With regard to “obvious, easy alternatives,” Faver submits an affidavit from a vendor
who states that she sells “correctional friendly” prayer oils to correctional facilities in Virginia
and other states. (Khan Aff. ¶¶ 3-4, Dkt. No. 35.) Clarke does not address whether this vendor
would be suitable to provide oils to VDOC facilities. The impact that having a new vendor
would have on guards, other inmates, and prison resources is unclear, other than the initial time
spent finding a suitable vendor, negotiating a new contract, and approving the oils for prison
entry.
In weighing the Turner factors, the court concludes that Faver has not disproved the
validity of the single-vendor policy and, thus, the court will grant Clarke’s motion for summary
judgment as to Faver’s First Amendment oils claim.
2. RLUIPA
Under RLUIPA, the burden shifts to Clarke to show that the single vendor policy is the
least restrictive means of furthering a compelling governmental interest. As the court previously
stated, safety and security are compelling governmental interests. See McRae, 261 F. App’x at

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558. However, Clarke has not demonstrated that the single-vendor policy is the least restrictive
means of achieving the desired goal.
In support of his argument that the current policy is the least restrictive means, Clarke
points to the court’s finding in Coleman. Clarke does not discuss why the VDOC lacks other
means of achieving its desired goal without imposing a substantial burden on Faver. Further,
Clarke does not discuss any alternatives to the current policy that the VDOC has considered and
rejected. While Clarke argues that having a single vendor keeps contraband out of the facilities,
Faver states that Jewish inmates are allowed to order items from an alternative vendor, and
Clarke does not suggest that there have been any problems with this alternative vendor. Clarke
also does not explain why approving an alternative vendor for prayer oils, like the similar
accommodation for Jewish inmates, cannot be done.
The court finds that Clarke’s reliance on the court’s decision in Coleman and his
conclusion that current policy is the least restrictive means are insufficient to carry his burden
under RLUIPA. Accordingly, the court will deny Clarke’s motion for summary judgment as to
Faver’s prayer oil claim under RLUIPA.4
F. Diet
Faver asserts that, in accordance with his religious beliefs, he must eat a diet containing
meat that is “ritually slaughtered in the name of Allah,” which the VDOC does not provide. The
VDOC offers the Common Fare diet for offenders who have specialized dietary needs, and the
Common Fare diet is served at Augusta. The Common Fare diet is intended to accommodate
offenders whose religious dietary needs cannot be met by the Master Menu. (Collier Aff. ¶ 4.)
The Common Fare menu has been analyzed and certified as meeting or exceeding minimum

4

The court notes that its decision today does not mean that the Clarke cannot demonstrate that the policy is
the least restrictive means; he just has not done so yet. If Clarke submits further argument in support of his claim
that the policy is the least restrictive means, the court will consider that argument at that time.

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daily nutritional requirements. (Id.) All food purchased for Common Fare, except fresh fruits
and vegetables, are certified by a recognized Orthodox Standard, such as “U,” “K,” or “CRC”
and no pork or pork derivatives are used. (Id. ¶ 5.) The Common Fare menu meets Islamic
dietary guidelines. (Id. ¶ 7.) The proteins used in the Common Fare diet are considered Kosher
and do not contain any pork or pork derivatives, as prohibited by a Halal diet. (Id.) The
Common Fare menu provides for fresh, uncooked fruits and vegetables, as required by a Halal
diet. (Id.) While the Common Fare menu may not offer every possible food item not
specifically prohibited for those of the Islamic faith, neither does the Master Menu include every
possible food item which might be desired by offenders receiving regular meals. (Id. ¶ 8.)
Offenders who wish to receive a Common Fare diet are reviewed to determine whether or
not they hold a sincere religious belief that requires a Common Fare diet rather than food served
on the Master Menu. (Id. ¶ 9.) Offenders are required to sign a participation agreement prior to
beginning the Common Fare diet. (Id.) Augusta’s Food Services Director N. Collier avers that
records indicate that Faver identified as a Sunni Muslim as of March 6, 2009, stating that he had
been practicing this faith since 1994. (Id. ¶ 10.) Faver also stated, at that time, that the reason
he was applying for the Common Fare menu was because it was the only menu that met his
religious requirements. (Id.) Notably, Faver has been on and off the Common Fare menu since
his incarceration, and as recently as January 2016, he had requested to be removed from the
Common Fare menu. (Id.) Collier also avers that as recently as October 11, 2016, “Faver has
been ordering perishable food items from Keefe Commissary that contain pork and . . . pork
derivative items.” (Id. ¶ 11.)
In an affidavit attached to his motion for summary judgment, Faver states that he believes
that Islam requires that he eat a Halal diet that contains meat ritually slaughtered in the name of
Allah; that the VDOC does not recognize or offer a Halal diet; that the Common Fare diet does
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not accommodate his religious dietary needs; and that since signing the Common Fare
Agreement in 2009, he has come to the understanding that he must have a diet that contains meat
ritually slaughtered in the name of Allah. (Faver Aff. ¶¶ 49-52, Dkt. No. 32, Attach. 1.) Faver
asserts that while the Common Fare diet does not contain any meat slaughtered in the name of
Allah, the Master Menu does serve it sometimes. (Id. ¶ 53.) Faver states that officials at
Augusta “put up signs when they are serving pork or pork byproducts.” (Id. ¶ 56.) Faver avers
that he does not, and has not, knowingly, ordered any product from the commissary that contains
pork or pork derivatives. (Id. ¶ 55.)
The court concludes that, viewing the record as a whole and drawing all reasonable
inferences in the light most favorable to Clarke as to Faver’s motion, there is a genuine dispute
as to whether Faver sincerely holds the belief that he must eat a diet containing meat that is
“ritually slaughtered in the name of Allah.” Accordingly, the court will deny Faver’s motion for
summary judgment as to his diet claims.
However, for purposes of Clarke’s motion for summary judgment, the court will assume
that the diets available to Faver substantially burden his sincere religious belief and will continue
its analysis under the First Amendment and RLUIPA.
1. First Amendment
The court must consider whether the Common Fare diet policy is reasonably related to a
legitimate penological interest. The burden is on Faver to disprove the validity of the policy.
Clarke argues that the cost and logistics of attempting to provide different religious diets
to every offender with different religious restrictions in every facility operated by the VDOC is
practically impossible. Instead, the VDOC offers the Common Fare diet as an alternative to the
Master Menu, and the Common Fare diet is designed to accommodate the religious needs of
many offenders of different religions. While the Common Fare diet excludes foods that may be
15

permitted by some religions and prohibited by others, the diet is intended to allow many inmates
to adhere to their religious dietary laws. (M. Summ. J. 15, Dkt. No. 25.)
Preserving prison resources and funds is a legitimate penological interest. See Baines v.
Hicks, No. 3:14cv616, 2016 U.S. Dist. LEXIS 176116, at *38, 2016 WL 7380558, at *16 (E.D.
Va. Dec. 20, 2016). And, there is a “valid, rational connection” between the Common Fare diet
policy and the legitimate penological interest addressed.
Faver argues that “Halal chicken franks” are already served on the Master Menu; thus,
there is “no reason” not to allow Faver to eat them. (Faver Brief in Opp. 13, Dkt. No. 31.)
However, Faver does not consider that introducing those “franks” into an area that is cleaned and
prepared for other religious requirements, or putting those “franks” on trays that are kept in a
manner to meet other religious requirements, creates a burden on other inmates. Faver does not
allege that he cannot buy meat from the commissary that is “ritually slaughtered in the name of
Allah” to supplement the Common Fare diet.
In weighing the Turner factors, the court concludes that Faver has not disproved the
validity of the Common Fare diet policy; thus, the court will grant Clark’s motion for summary
judgment as to Faver’s First Amendment diet claim.
2. RLUIPA
Under a RLUIPA analysis, the court finds that Clarke has demonstrated a compelling
governmental interest in not offering a multitude of different religious diets but has not
demonstrated that the Common Fare diet policy is the least restrictive means of achieving the
desired goal.
Clarke argues that cost and logistics prevent the VDOC from offering more diet options.
However, Clarke provides no specific information concerning these factors. Clarke does not
present any evidence to demonstrate why the VDOC lacks other means of achieving its desired
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goal without imposing a substantial burden on Faver. Further, Clarke does not discuss any
alternatives to the current policy that the VDOC has considered and rejected.
The court finds that Clarke’s largely vague and unsupported statements concerning cost
and logistics are insufficient to carry his burden under RLUIPA. Accordingly, the court will
deny Clarke’s motion for summary judgment as to Faver’s diet claim under RLUIPA.5
III. CONCLUSION
For the reasons stated herein, Faver’s motion for summary judgment is denied, Clarke’s
motion for summary judgment is denied in part as to Faver’s RLUIPA beard, prayer oils, and
diet claims, and granted in part as to Faver’s First Amendment claims, Faver’s claims for
damages against Clarke in his official capacity and under RLUIPA.
An appropriate order will be entered.
Entered: September 29, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

5

The court notes that its decision today does not mean that the Clarke cannot demonstrate that the policy is
the least restrictive means; he just has not done so yet. If Clarke submits further argument in support of his claim
that the policy is the least restrictive means, the court will consider that argument at that time.

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