Farrow v . Commissioner NH DOC CV-02-567-B 02/05/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Prayer Feather Farrow

v. Civil N o . 02-567-B Opinion N o .

Phil Stanley, et a l .

REPORT AND RECOMMENDATION

The plaintiff, Prayer Feather Farrow, is an inmate at the

New Hampshire Department of Corrections (“NHDOC”), who is being

housed at the Northern New Hampshire Correctional Facility

(“NCF”). He commenced this civil rights action alleging that the

defendants1 have violated his rights under the First Amendment’s

free exercise clause and under the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et

seq. (“RLUIPA”).

Before the Court for consideration is Farrow’s Motion for a

Temporary Restraining Order and a Preliminary Injunction

(document n o . 8 ) enjoining the Defendants from depriving him of

certain religious items and allowances, which he claims are

1 The named defendants are Phil Stanley, the former commissioner of NHDOC, Bruce Cattell, NCF Warden, Susan L . Young, NCF Administrator of Programs and John Vinson, Esq., staff attorney for NHDOC (collectively referred to as “Defendants”). necessary to the meaningful practice of his religion as a member

of the Native American Sacred Circle (“NASC”). Defendants filed

an objection. The motion was referred to me for review and to

prepare a report and recommendation.

The Court held an evidentiary hearing on the Plaintiff’s

motion on October 1 6 , 2003. Farrow testified on his own behalf,

and supported his motion with affidavits from Donald Newell, a

Penobscot elder, and Jermie Kline, an NCF inmate. See P l . Ex. 1-

2. The affidavits were entered into evidence without objection.

Warden Cattell, Chaplin Michael Shaulis, and Susan Young

testified on Defendants’ behalf. Defendants submitted

documentary evidence pertaining to NHDOC Policy and Procedure

Directives (“PPD”) on the issuance and control of resident

property and religious programming, the NCF Chapel Services

Calendar, and memorandums on the policies for inmate donations

and for NCF Native American feasts. See Def. Ex. A-J.

After considering the evidence, and the relevant

authorities, I find that Farrow has not demonstrated that he is

likely to succeed on the merits of his claims. Therefore, I

recommend that his motion for injunctive relief be denied.

2 STANDARD OF REVIEW

“The purpose of a preliminary injunction is 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.” CMM Cable Rep. v . Ocean

Coast Prop.,

1 8 , 620 (1st Cir. 1995) (citing Chalk v .

U.S. Dist. C t . Cent. Dist.,

0 1 , 704 (9th Cir. 1988);

Am. Hosp. Ass’n v . Harris,

(7th Cir. 1980)).

Thus, if the court ultimately finds for the movant, a preliminary

injunction provides the court with a method for preventing or

minimizing any current or future wrongs caused by the defendant.

CMM Cable Rep.,

.

A district court may grant a plaintiff’s request for a

preliminary injunction if the plaintiff satisfies a four-part

test: (1) the plaintiff is likely to succeed on the merits; (2)

the plaintiff will suffer irreparable harm if the injunction is

not granted; (3) the injury to the plaintiff outweighs any harm

which granting the injunction would inflict on the defendant; and

(4) the public interest will not be adversely affected by the

granting of the injunction. Langlois v . Abington Hous. Auth.,

3 , 47 (1st Cir. 2000); Public Serv. C o . v . Patch, 167

5 , 25 (1st Cir. 1998). In the First Circuit, the “sine qua

non” of the preliminary injunction analysis is whether the movant

can demonstrate a likelihood of success on the merits. Weaver v .

Henderson,

1 , 12 (1st Cir. 1993). To warrant

preliminary injunctive relief, the movant’s showing on the

likelihood of success must be substantial. See I.P. Lund Trading

ApS v . Kohler Co.,

7 , 33 (1st Cir. 1998); TEC Eng’g

Corp. v . Budget Molders Supply,

4 2 , 544 (1st Cir. 1996)

(same). However, a party seeking injunctive relief must

independently satisfy each of the four factors. Auburn News C o .

v . Providence Journal Co.,

(1st Cir. 1981);

Mass. Coalition of Citizens with Disabilities v . Civil Def.

Agency & Off. of Emergency Preparedness,

1 , 74 (1st

Cir. 1981). The Court applies this standard in reviewing

Plaintiff’s motion for injunctive relief.

BACKGROUND

I. Farrow’s Allegations

Farrow alleges that he was adopted by an elder of the Lakota

Sioux Nation, and that as such he assumed obligations associated

with the practice of that nation’s religion. He claims that the

Defendants have denied him the following religious items or

4 allowances that he needs to meaningfully practice his religion:

(a) tobacco;

(b) a sweat lodge;

(c) certain medicines and herbs;

(d) scheduled time for daily communal prayer;

(e) traditional foods for various special religious days;

(f) permission to wear feathers at all times; and

(g) separate scheduled meeting times for members of the various Nations in NASC

Farrow alleges that he has exhausted the administrative

grievance procedures available to him with regard to the above-

listed requests, but the Defendants have refused to accommodate

his concerns. Farrow claims that the Defendants have caused him

to experience continuing emotional and spiritual pain because he

is unable to meaningfully practice his religious beliefs.

II. NCF Regulations That Affect NASC

Warden Cattell testified that NCF attempts to allow all

inmates to practice their religion on a “reasonable and

necessary” basis. Inmates are provided a controlled, systematic

time for religious services that allows the institution to

monitor what is occurring. Religious groups are scheduled for

two hour blocks for services and separate two hour blocks for

5 religious education. Inmates may request additional programming

time when necessary. Warden Cattell testified that security is

required whenever inmates are moved within the facility, and that

checks are required during group activities.

Inmate property, including religious property, is strictly

regulated at NCF. See PPD 9.2, Def. Ex. A . The prison puts

limits on the types and amounts of property inmates may have to

control contraband, minimize conflicts between inmates, promote

cleanliness and eliminate fire hazards. The prison also needs to

prevent nuisance, escape paraphernalia, and items that could be

used as weaponry.

NFC attempts to substantiate the practices and religious

items that are necessary for a faith group through the chaplain.

Michael Shaulis,2 who works at NCF part-time, advises management,

leads worship services, and provides pastoral counseling to

inmates and their families regardless of religion. See NHDOC PPD

7.17, V(I)(1) (“The Chaplain shall schedule celebration of the

sacramental rituals necessary to meet minimal requirements of a

2 Shaulis testified that he is a Catholic Chaplain of Native American ancestry. He testified that his great grandmother is a full-blooded Cree and that his grandfather was an Abenaki. Shaulis gained additional familiarity with Native American religions while serving on a Blackfoot reservation as a member of the military. He has worked for NHDOC since March 1998.

6 given religious faith.”). Shaulis also works with outside

religious volunteers and oversees programs.3

Shaulis is responsible for working with the members of NCF’s

religious groups to help meet their religious needs. Inmates

direct requests to the chaplain for services that are not being

provided. Shaulis testified that he confers regularly with

Native American practitioners Chief Pouliot, who works with the

federal and state prison systems in Massachusetts, and Peter

Newell, who is chief of a New Hampshire tribal counsel, in making

recommendations to NCF regarding policies that affect NASC.

Cattell and Young testified that NCF does not support any

specific religion by buying religious items. The chaplain

attempts to find sources for donations for items requested by

inmates. M s . Shirley Bear of Hooksett, N.H., has agreed to be a

benefactor of NASC. M s . Bear has sent sweet grass, sage,

kinnikinick, videos, and books for chapel use.

III. Defendants’ Response to Farrow’s Complaints

Defendants argue that Farrow has been allowed all of the

items, services and practices that are mandated or central to his

3 Susan Young testified that volunteers for NASC have been rare. NASC is treated differently from other groups to its benefit in that they are allowed to have group meetings even without a volunteer.

7 religion. NASC has been scheduled time each week for communal

religious activity and education. NASC members are allowed to

participate in community smudging and community prayer, which

includes the use of a ceremonial pipe. NASC is allowed to hold

its ceremonies in a small confined area in front of the prison

that has been designated off limits to the general population.

It is undisputed that NCF allows Farrow, and NASC as a

group, to possess a number of religious items.4 The group items

are stored in a locker under the chaplain’s direction. NASC

members were previously allowed access to tobacco for religious

purposes, but NHDOC and NCF have changed their policies and now

prohibit the use of tobacco in the prison. However, NASC members

are allowed to use kinnikinick in their religious services as a

tobacco substitute.

Farrow admits that some traditional Native American foods

4 Individual NASC members are allowed to possess a native choker, a beaded necklace, feathers, a bandana, and a medicine bag with personal items. See Def. Ex. B , Attach. C , p . 1 . As a group, NASC is allowed to possess assorted sticks, beans, a blanket, cedar, cedar bark, cotton fabrics, cups, dream catchers, dried corn, a drum, drum beaters, leather, a leather medicine wheel, mandellas, native blue corn, a partial hawk wing, pictures, a pipe bundle, prayer flags, sage, shells, sinew, song books, spoons, squash seeds, sweet grass, talking sticks, tin with cedar, a turkey feather, and bitter root. See Def. Ex. B , Attach. C , p . 3 .

8 are part of the regular menu of foods provided to inmates at the

NCF including beans, corn and squash. He further admits that NCF

holds four feasts per year for NASC members related to the winter

solstice, spring equinox, summer solstice and the fall equinox.

See Def. Ex. B , Attach. C , p . 1 .

Defendants argue that there are legitimate penological

interests supporting the denial of Farrow’s specific requests,

and that his requests pertain to items or allowances that are not

necessary to the practice of his religion. Additional facts

pertaining to Farrow’s claims are contained in the discussion.

DISCUSSION

I. Section 1983

Farrow filed his complaint under

. To state

a claim under § 1983, a plaintiff must allege two elements: (1)

that a right secured by the Constitution or laws of the United

States has been violated, and (2) that the violation was

committed by a person acting under color of state law. See West

v . Atkins,

2 , 48 (1988). In order to be held liable

for a violation under § 1983, a defendant’s conduct must have

been a cause in fact of the alleged deprivation. See Monell v .

Dep’t of Soc. Serv.,

5 8 , 692 (1978); Soto v . Flores,

9

(1st Cir. 1997).

The premise of Farrow’s § 1983 claim is that the defendants,

acting under color of state law, have violated his rights under

the First Amendment’s free exercise clause,5 as applied to the

states through the Fourteenth Amendment, and that they have

violated his rights under the RLUIPA. There is no reasonable

dispute that Defendants’ actions were taken under the color of

state law, so I do not address that element further.

II. Free Exercise of Religion Claim

“Lawful incarceration brings about the necessary withdrawal

or limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal system.”

Price v . Johnston,

(1948). However, a prisoner

“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,

1 7 , 822 (1974); see also, Bell v . Wolfish,

2 0 ,

545 (1979) (“prisoners do not forfeit all constitutional

protections by reason of their conviction and confinement in

5 The relevant provision of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. Amend. I (hereinafter “Free Exercise Clause”).

10 prison.”). Those rights include the right to the free exercise

of religion. Cruz v . Beto,

(1972). Prisons

must provide all inmates reasonable opportunities to exercise

their religious freedom.

at 3 2 2 , n.2. When a prisoner

raises Free Exercise Clause claims, the prisoner must “establish

that a challenged policy restricts the inmate’s free exercise of

a sincerely held religious brief.” Brown-El v . Harris,

8 , 69 (8th Cir. 1994); Barnett v . Comm’r, N.H. Dept. of Corr.,

N o . Civ. 98-305-JD,

(D.N.H. Apr. 2 6 , 2000).

Even a sincerely held religious belief, however, must yield

if contrary to prison regulations that are “reasonably related to

legitimate penological interests.” Turner v . Safley,

8 , 89 (1987); see also, O’Lone v . Estate of Shabazz,

(1987) (finding that the Constitution does not

require the prison to sacrifice legitimate penological objectives

to satisfy an inmate’s desire to exercise his religion so long as

an inmate is not deprived of all forms of religious exercise). A

regulation must have a logical connection to the legitimate

governmental interests invoked to justify i t . Turner,

. That connection may not be “so remote as to render the

policy arbitrary or irrational.”

11 Defendants do not challenge the sincerity of Farrow’s

religious beliefs. Therefore, for the purposes of Farrow’s Free

Exercise Clause claims, the relevant issue is whether NCF is

providing Farrow a reasonable opportunity to practice his

religion. Plaintiff’s claims are examined in that context.

A. Access to Tobacco

Farrow asserts that he is not able to meaningfully practice

his religion because the Defendants have denied him access to

tobacco, which Farrow alleges he would use to make prayer ties,

prayer flags, and in pipe ceremonies.6 Cattell and Shaulis

testified that tobacco is no longer allowed at NCF, however,

because the prison has had numerous problems attempting to

control its use. Previously when inmates were allowed to use

tobacco for religious purposes, there were numerous instances of

theft of tobacco and resale on the prison’s black market. With

kinnikinick, the prison does not need to have an officer watching

over the ceremony the entire time because there are far fewer

instances of stealing.

Shaulis testified that his consultations with Native

American practitioners showed that kinnickinick is an acceptable

6 Shaulis testified that the pipe ceremony and smudging are common threads between all Native American religious services.

12 substitute for tobacco for Native American religious services.

Shaulis testified that kinnikinick has a very low tobacco base

and is less likely to be abused by inmates. According to

Shaulis, tobacco is not essential to the practice of Farrow’s

religion since “the creator looks at the intent in the prayer not

the offering in one’s hand.”

Donald Newell’s affidavit on Native American traditions,

submitted in support of Plaintiff’s motion, does not necessarily

contradict Shaulis’ testimony.7 In his affidavit, Newell stated

that “the elimination or inability to produce an acceptable

substitute” for certain items, would deny a person the

opportunity to properly practice Native religion. Newell Aff. at

1 , P l . Ex. 2 . Newell listed tobacco and kinnikinick among the

items of concern. Newell does not address in his affidavit

whether kinnikinick may be considered an acceptable substitute

for tobacco. The Court finds that Farrow has not demonstrated by

substantial evidence that the Defendants have denied him a

meaningful opportunity to practice his religion by requiring him

to use kinnikinick as a substitute for tobacco in religious

practices.

7 It is unclear whether there is any relationship between Donald Newell and Peter Newell, with whom Shaulis consulted.

13 B. Sweat Lodge

Donald Newell states in his affidavit that a sacred sweat

lodge is used to cleanse the body and renew the spirit. He

further provides that the sweat lodge “can be a place of healing

and reflection and is an integral part of most Native religions

from East to West.” Newell Aff. at 2 , P l . Ex. 2 . Farrow asserts

that Defendants’ security concerns regarding a sweat lodge at NCF

are unwarranted or unjustified because at least thirty other

prisons in the United States maintain sweat lodges.

Warden Cattell testified that the creation and maintenance

of a sweat lodge is a great burden on a prison’s resources and

raises a number of security concerns. Among the security

concerns that Cattell testified to were the need for inmates to

use tools to cut wood for the sweat lodge. Once inside the sweat

lodge, inmates are completely out of the sight of staff members

and in a state of undress. Cattell further testified that he is

aware from his twenty years of experience working in the Arizona

prison system that assaults have occurred inside sweat lodges,

and in particular he recalls a serious stabbing occurring in a

sweat lodge in Arizona.

In addition to the prison’s security concerns, Shaulis

14 contradicted Plaintiff’s evidence regarding whether a sweat lodge

is integral to the practice of his religion. According to

Shaulis, a sweat lodge is more important to some nations than to

others, and not all tribes use a sweat lodge. He testified that

the traditions in the Eastern nations rely less on a sweat lodge.

The Court finds the evidence on the necessity of a sweat

lodge to the practice of Farrow’s religion inconclusive. Neither

side presented evidence that specifically pertained to the

religious practices of the Native American nation into which

Farrow has been adopted. Because the evidence presented at the

hearing was inconclusive and contradictory, the Court finds that

Farrow has not demonstrated by substantial evidence that the

Defendants have denied him a meaningful opportunity to practice

his religion by refusing to allow a sweat lodge on the facility.

Furthermore, the Court finds that Defendants have articulated

sufficient reasons why Farrow’s Free Exercise Clause right to the

use of a sweat lodge is overborne by the detrimental effects on

the prison’s legitimate penological objectives.

C. Access to Medicines and Herbs

Farrow argues that he has been deprived medicines and herbs

that he needs for ceremonial religious use including red willow

15 bark, osha root, bitter root, yerba santa, pinion, desert sage,

balsam and camomile. See Newell Aff., p . 1 , P l . Ex. 2 .

Farrow acknowledges that many of the herbs that he seeks would be

used in prayers to treat common physical ailments such as stomach

ailments and sore throat.

Shaulis testified that many of the herbs Plaintiff seeks

have medicinal but not religious significance. NCF allows herbs

that are the most common across the board in Native American

traditions. The evidence showed that members of the NASC have

been approved for the following items, among other things: cedar,

cedar bark, dry corn, sage, shells, sinew, squash seeds, sweet

grass and bitter root. Shaulis testified that he made

recommendations to NCF as to the items that were necessary after

consulting with Native American practitioners. The additional

items that Farrow seeks may be used as part of ceremonies, but

they are not necessary. Shaulis further testified that some of

the items Plaintiff seeks could be physically harmful if used

inappropriately. NCF allows inmates to possess over-the-counter

medicines and herbs.

In light of the contradictory evidence on the necessity of

the additional herbs and medicines that Farrow seeks, and the

16 health concerns articulated by the Defendants, the Court finds

that Farrow has not demonstrated by substantial evidence that the

Defendants have denied him a meaningful opportunity to practice

his religion by denying access to the additional herbs and

medicines that he requests.

D. Daily Communal Prayer

Farrow complains that NASC is not scheduled for daily

communal prayer. As addressed above, NASC is scheduled religious

service and education time consistent with that provided to other

faith groups. Susan Young testified that it would not be

possible to provide daily communal prayer for every religious

group given the scheduling needs of the facility. In addition,

Shaulis testified that communal prayer on a daily basis is not

essential to the practice of Farrow’s religion. The evidence

further showed that Farrow could engage in communal prayer during

his free time if he and other NASC members desired. The Court

finds that Farrow has not demonstrated by substantial evidence

that the Defendants have denied him a meaningful opportunity to

practice his religion by denying his request to schedule daily

communal prayer for NASC.

17 E. Traditional Foods and Special Religious Days

Farrow complains that NASC members are deprived of

traditional foods and institutional recognition of special

religious days. In particular, Farrow testified that buffalo is

particularly important as a spiritual food and that NASC was

formerly able to obtain buffalo meat from a company that supplied

it before NHDOC changes its rules. He argues that NCF’s policy

is unreasonable because the members of NASC have offered to pay

for the foods they seek.

Shaulis testified that the foods that are eaten in Native

American feasts are the foods that are prevalent in the region at

the time of year. However, feasts are very common in Native

American culture and traditional foods are not necessary to the

practice of religion. Still, NCF holds four religious feasts for

NASC each year, which the evidence showed includes traditional

Native American foods. Farrow did not provide any evidence at

the hearing to support his claim that the number of religious

days scheduled for NASC are insufficient.

Susan Young testified that NASC is the only group that has

been allowed to bring personal food items for their feasts. NCF

has moved to relying on the prison’s culinary arts menu to

18 eliminate outside food coming into the prison to cut down on

contraband and for health reasons. Neither inmates, nor their

family members, are allowed to make donations to religious groups

inside the prison. Young testified that donations are prohibited

because they create the risk of coercion of inmates who are

unable to donate to contribute in other ways. For example, an

inmate could be pressured to serve as a runner for contraband.

The Court finds that Farrow has not demonstrated by

substantial evidence that the Defendants have denied him a

reasonable opportunity to practice his religion by denying NASC

special religious days and traditional food. Farrow has neither

demonstrated the number of religious feasts scheduled for NASC is

inadequate, nor that NASC has been denied a reasonable amount of

traditional foods.

F. Permission to Wear Feathers at all Times

Farrow complains that he is not permitted to wear feathers

at all times, but rather only during ceremonies. Shaulis

testified that while feathers are integral to Native American

religion, wearing them is not. Feathers are used in prayer and a

feather acts as a fan for smudging. Feathers are also commonly

used as adornment. Shaulis testified that an inmate could keep a

19 feather in his prayer or pipe bundle. The evidence showed that

NCF’s restriction on feathers is consistent with the policy

applied to members of other faith groups. Inmates who have

medallions or medicine bags, for example, are required to keep

them in or under their clothing. The Court finds that Farrow has

not demonstrated by substantial evidence that Defendants are

denying him a reasonable opportunity to practice his religion by

refusing to permit him to weather feathers at all times.

G. Separate Meeting Times for Various Nations

Farrow complains that NCF does not allow the opportunity for

the various Nations in the NASC group to meet separately, an

opportunity provided to the various separate denominations of

Christianity. He asserts that the Lakota, Abenaki and Mic Mac

members are all forced to be part of the same group. Farrow

testified that it is important that the members of the different

Native American nations have their own prayer and culture time

because the different nations have different languages and songs.

In response, Defendants contend that there is a relatively small

number of inmates who participate in NASC, as compared with other

faith groups, and that the religious practices of the members

within NASC are similar enough that a single group is sufficient.

20 Although the Plaintiff’s argument has merit, there is not

substantial evidence in the record to support his claim. Farrow

did not argue or present any evidence that demonstrates that his

own religious needs are going unmet. As Farrow is only

prosecuting this case on his own behalf, I do not find, based on

the current record, that Farrow has demonstrated that the

Defendants are denying him a reasonable opportunity to practice

his religion by recognizing only a single faith group for Native

American religious practices at NCF.

As discussed above, I do not find from the evidence that

Farrow has demonstrated that he is likely to succeed on the

merits of any of his Free Exercise Clause claims. Therefore, I

find that injunctive relief is not warranted on those claims.

III. RLUIPA Claim

Farrow raises the RLUIPA as another basis for granting him

injunctive relief. 42 U.S.C. § 2000cc-1 states in relevant part:

(a) General Rule. 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

21 (2) is the least restrictive means of furthering that compelling governmental interest.

(b) Scope of application. This section applies in any case in which –

(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance;8 or

(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

Thus, “RLUIPA protects prisoners and other institutionalized

people from government infringement on their practice of

religion.” Mayweathers v . Newland,

(9th Cir.

2002), cert. denied,

(U.S. Oct. 6, 2003) (No.

02-1655). In order to establish a claim for violation of the

RLUIPA, Farrow must demonstrate that the regulation in question:

(1) imposes a substantial burden; (2) on the “religious

exercise;” (3) of a person, institution, or assembly. Grace

United Methodist Church v . City of Cheyenne,

(D. Wyo. 2002), citing Murphy v . Zoning Comm’n,

(D. Conn. 2001). If Farrow meets his

burden, Defendants must show that the regulations further a

8 Defendants stipulated that NHDOC receives federal funding.

22 compelling state interest by the least restrictive means.

Charles v . Verhagen,

3 7 , 944 (W.D. Wis. 2002),

aff’d,

(7th Cir. 2003).

Defendants argue that there is a substantial question

regarding whether the RLUIPA is constitutional and that the

RLUIPA ought not be used as a basis for granting Farrow

preliminary injunctive relief. See Cutter v . Wilkinson,

(6th Cir. 2003) (finding that the RLUIPA violates

the Establishment Clause); Al Ghashiyah v . Dep’t of Corr.,

(E.D. Wis. 2003) (same). 9 There is no

controlling First Circuit precedent on this issue.10

Defendants argue that even if the RLUIPA is constitutional,

the Court should not find in Farrow’s favor because he has not

demonstrated that Defendants have created a “chilling effect” on

his exercise of religion. Defendants argue that they have

recognized NASC as a faith group, and have provided its members

9 Another case Defendants cite as support, Madison v . Riter, has been reversed. See

(W.D. V a . 2003), rev’d and remanded by, -- F3d –-, N o . 03-6362,

at *9 (4th Cir. Dec. 8 , 2003 10 Farrow has not responded to Defendants’ arguments pertaining to the constitutionality of the RLUIPA. The Court notes, however, that the United States Attorney’s Office might wish to intervene in this case to defend the constitutionality of the statute. See Fed. R. Civ. P. 24(c).

23 substantial and reasonable opportunities to practice their

religion. Defendants further argue that compelling state

interests support the specific denials in question.

The first element that Farrow must demonstrate in order to

succeed on his RLUIPA claim is that the regulations enforced by

the Defendants have imposed a substantial burden on the practice

of his religion. Since the term “substantial burden” is not

defined in the RLUIPA, courts have looked to the language used by

courts in discussing “substantial burdens” in other contexts.

See Murphy,

(analyzing cases). Such cases

have alternatively inquired whether a state “put[s] substantial

pressure on an adherent to modify his behavior and to violate his

beliefs,” Thomas v . Review Bd. of Indiana Employment Sec. Div.,

0 7 , 718 (1981), whether a person is required to “choose

between following the precepts of her religion and forfeiting the

benefits, on the one hand, and abandoning the precepts of her

religion . . . on the other,” Sherbert v . Verner,

9 8 ,

404 (1963), or whether state action “prevent[s] him or her from

engaging in conduct or having a religious experience that is

central to the religious doctrine,” Bryant v . Gomez,

4 8 ,

949 (9th Cir. 1995). In Charles v . Verhagen, the court found

24 persuasive the liberal definition of substantial burden employed

by the Seventh Circuit in considering a claim under the Religious

Freedom Restoration Act (“RFRA”): 11

a substantial burden on the free exercise of religion . . . is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.

Charles,

3 7 , 944-945 quoting Mack v . O’Leary,

(7th Cir. 1996), judgment vacated and remanded by

O’Leary v . Mack,

(1997). The Seventh Circuit found

it appropriate to give the term “substantial burden” a “generous

definition” to avoid making judges “arbiters of religious law.”

Mack,

.

The Court finds that the “chilling effect” standard advanced

by Defendants defines the court’s inquiry too narrowly. A

generous definition of “substantial burden” as discussed in Mack

appears to be required, particularly in light of the express

language in the RLUIPA that a religious exercise need not be

“compelled by or central to a system of religious belief” in

order to be covered by the statute. 42 U.S.C. § 2000cc-5(7)(A).

11 The RFRA is the predecessor to the RLUIPA. The Supreme Court held that the RFRA is unconstitutional as applied to the states in City of Boerne v . Flores,

(1997).

25 Even using a liberal definition of “substantial burden,”

however, the Court finds that Farrow has not demonstrated that

the Defendants have imposed a substantial burden on his religious

exercise except with regard to his request for access to a sweat

lodge. Though perhaps not a central tenet of Farrow’s religion,

the evidence shows that the use of sweat lodge is a widely-

practiced Native American religious exercise. Defendants have

not contested that Farrow’s request for access to a sweat lodge

emanates from a sincerely-held religious belief. Therefore, the

Court must consider whether the Defendants have articulated a

compelling state interest for denying Farrow’s request.

Defendants have refused to provide a sweat lodge citing the

heavy institutional burden of its construction and maintenance,

and the need for intensive monitoring. These concerns are not

insubstantial. The evidence demonstrated that a sweat lodge

would have to be constructed on land designated off limits to the

rest of the prison population, with specific dimensions, and

under the supervision of a competent Native American

practitioner. Defendants contend that the wood used in a sweat

lodge is usually not precut, which would require inmates to have

access to tools that would create security concerns. While using

26 the sweat lodge, inmates would be in a state of undress, and

completely out of sight of the prison’s security staff. This

raises concerns about potential inappropriate behavior. The

Court finds these countervailing interests compelling.

Farrow argues that the maintenance of sweat lodges at as

many as thirty others prisons shows that Defendants’ security

concerns are overstated. He argues that all of the raw materials

for the sweat lodge could be donated, and that the prison already

employs a person on its staff who could oversee its construction.

Farrow further argues that the inmates could go into the sweat

lodge wearing gym shorts, which would eliminate any concern about

indecent exposure, and that the members of NASC could reasonably

be expected to behave appropriately inside of the sweat lodge.

Notwithstanding the reasonableness of these arguments, Farrow has

not produced substantial evidence to support his assertions.

The Court finds that further development of the record on

the costs and security risks in maintaining a sweat lodge, and

whether there are less restrictive alternatives to complete

denial of access, is required. Therefore, the Court recommends

that Farrow’s request for interim injunctive relief on his RLUIPA

claims be denied.

27 CONCLUSION

For the reasons set forth above, I recommend that Farrow’s

Motion for a Temporary Restraining Order and a Preliminary

Injunction (document n o . 8 ) be denied. I further recommend that

the court notify the Attorney General of the United States that

the Defendants have challenged the constitutionality of the

RLUIPA in this action, and invite the United States to intervene

pursuant to

and Fed. R. Civ. P. 24(c).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon,

1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge Date: February 5 , 2004 cc: Prayer Feather Farrow, pro s e . Michael K. Brown, Esq.

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