Farrow v . Stanley, et a l . CV-02-567-PB 10/20/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Prayer Feather Farrow

v. Civil No. 02-567-PB n No.

Opinion Phil Stanley, et a l .

MEMORANDUM AND ORDER

Pro se plaintiff Prayer Feather Farrow is serving a life

sentence at the Northern New Hampshire Correctional Facility

(“NCF”). In December 2002, he filed suit alleging that several

state officials1 are denying him his right to practice his

religion in violation of the Religious Land Use and

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

seq. (“RLUIPA”), the First Amendment’s Free Exercise Clause, and

the Fourteenth Amendment’s Equal Protection Clause. The

defendants have responded with a motion for summary judgment.

1 The named defendants are Phil Stanley, former commissioner of the Department of Corrections; Bruce Cattell, NCF Warden; Susan L . Young, NCF Administrator of Programs; and John Vinson, Esq., Staff Attorney for the Department of Corrections. I. PROCEDURAL HISTORY

Farrow filed his complaint on December 1 1 , 2002. He seeks:

(1) a declaration stating that defendants are violating his

statutory and constitutional rights to practice his religion; (2)

an injunction ordering defendants to grant the various requests

enumerated in his complaint; and (3) compensatory damages.2

On September 4 , 2003, Farrow filed a motion for a temporary

restraining order and for preliminary injunction (Doc. N o . 8 ) .

Defendants timely filed and served their objection on September

1 9 , 2003 (Doc. N o . 1 1 ) . On October 1 6 , 2003, Magistrate Judge

Muirhead held a hearing on Farrow’s motion. Farrow testified on

his own behalf and the defendants offered the testimony of

Defendant Cattell, Defendant Young and DOC Chaplain Michael

Shaulis. On February 5 , 2004, the Magistrate Judge issued his

Report and Recommendation (Doc. N o . 1 9 ) , recommending that

Farrow’s motion be denied. I approved the Report and

Recommendation on March 5 , 2004. Defendants’ motion for summary

2 As to each of his claims, Farrow alleges, and defendants do not contest, that he has exhausted the administrative grievance procedures available to him within the prison system.

-2- judgment (Doc. N o . 24) followed on June 1 , 2004. 3

I I . BACKGROUND4

Farrow, a practicing member of the Lakota Sioux Nation and

the Native American Sacred Circle (“Sacred Circle”), is

incarcerated at NCF, the Department of Corrections (“DOC”)

facility located in Berlin, New Hampshire. He claims that

defendants are depriving him of his statutory and constitutional

rights to practice his religion by: (1) preventing him from

possessing tobacco for prayer and ceremonial use; (2) denying him

access to medicines and herbs for ceremonial use; (3) prohibiting

him from engaging in daily group prayer with other members of the

Sacred Circle; (4) failing to supply him with Native American

foods on religious holidays; (5) refusing to allow him to wear

3 I thereafter stayed the case until the Supreme Court determined in Cutter v . Wilkinson,

(2005), that RLUIPA did not violate the First Amendment’s Establishment Clause. 4 For the purpose of this Memorandum and Order, I consider all exhibits submitted with the parties’ summary judgment papers, as well as the transcript and exhibits from the October 1 6 , 2003 preliminary injunction hearing held before Magistrate Judge Muirhead. Because this is a motion for summary judgment, I recite the facts in the light most favorable to Farrow, the non- moving party.

-3- feathers at all times; (6) barring the various Native American

nations represented within the Sacred Circle from meeting as sub-

groups; (7) failing to employ a Native American consultant to

shape the DOC’s religious policies; and (8) denying him access to

a sweat lodge5 for ritual purification.

A. DOC Policies that Impact the Sacred Circle

To facilitate inmates’ religious practices, the DOC drafted

Policy and Procedure Directive 7.17 (“PPD 7.17"), which

established guidelines for operating religious programs in New

Hampshire’s prison system. PPD 7.17 was developed by DOC

officials, including the prison system’s chaplains, who consulted

with representatives of various religious traditions, including

members of the Native American community. Prelim. I n j . Hr’g T r .

(“Tr.”) at 51-56, 91-92. The PPD was intended to provide inmates

with “the greatest amount of freedom and opportunity for

pursuing [their] religious belief or practice” that is achievable

given the DOC’s need to maintain “security, safety, discipline

5 A sweat lodge is essentially a frame covered by tarps that is heated by fire. T r . at 1 4 , 66-67. In the Native American tradition, religious practitioners “go into the sweat lodge to be reborn, spiritually [and] emotionally.”

at 1 4 . The sweat lodge also serves a purification function.

-4- and the orderly operation of the institution.” PPD 7.17, IV.E.

Each religious group at NCF is provided a weekly two-hour block

for group worship and a separate weekly two-hour block for

religious education under the PPD. T r . at 7 3 . Inmates may

request additional programming time.

Attachment C to PPD 7.17 governs the issuance and control of

inmate religious property within DOC facilities. Inmate property

is strictly regulated to minimize conflicts between inmates,

control contraband, promote cleanliness, and eliminate fire

hazards. Id. at 47-50. Inmate property regulations also enable

the DOC to exclude items that could be used as weaponry or as a

means for escape. Id. at 4 9 .

New Hampshire law prohibits prison officials from using

state funds to support any particular religion (see

), so inmates must rely on the support of

outside groups and volunteers to donate religious materials. T r .

at 9 5 . Defendants concede there have been periods of time when

few Native American donations have been received.

.

Defendants maintain that they continue to work with the DOC

chaplains to find outside Native American groups to donate

religious items. Id. at 145.

-5- B. Application of PPD 7.17

Individual members of the Sacred Circle are allowed to

possess a number of religiously significant items (in addition to

the standard authorized property permitted by prison policy)

including beaded necklaces, feathers, bandanas, a native choker,

and a medicine bag that usually contains personal items.

Feathers and medicine bags may be worn underneath clothing at all

times. In addition to these individually-owned items, the Sacred

Circle as a group is permitted to have a number of other

religiously significant items including sticks, beans, blankets,

cedar, a cedar bark boat, cups, a dream catcher, 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, song books, and talking sticks. The prison

chaplain holds these items and makes them available to the group

during communal gatherings. Id. at 35-40.

Sacred Circle members may use the herb blend kinniknick,

sage, and sweet grass. Id. at 6 4 , 127. They are not, however,

allowed to have the following herbs in their pure forms:

tobacco, desert sage, cedar, juniper, bitteroot, osha root,

pinion, red willow bark, bearberry leaf, Indian perfume,

-6- lavender, marshmallow root, mullein leaf, peppermint leaf,

spearmint leaf, valerian root, wild cherry bark, yerba santa,

anise seeds, balsam and chamomile.6 Compl. Attach. 1 ; Newell

Aff. at 1 , Pl.’s Ex. 2 , Hr’g on Prelim. Inj (“Newell Aff.”).

In addition to their weekly two-hour blocks for group

worship and religious education, members of the Sacred Circle may

participate in four feasts per year. T r . at 3 6 . They may pray

daily by themselves or with other Sacred Circle members during

free time. Id. at 4 1 .

The DOC does not have a sweat lodge at any of its

facilities, id. at 6 4 , and it is unwilling to allow members of

the Sacred Circle to build one.

III. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

6 Many of these herbs are used as ingredients in kinniknick. Tr. at 127.

-7- 56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, I construe the

evidence in the light most favorable to the nonmovant. See

Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001). The

party moving for summary judgment “bears the initial

responsibility of . . . identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v . Catrett,

1 7 ,

323 (1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

; Anderson,

4 9 ) . Neither conclusory

allegations, improbable inferences, nor unsupported speculation

are sufficient to defeat summary judgment. See Carroll v . Xerox

-8- Corp.,

3 1 , 236-37 (1st Cir. 2002), citing J. Geils Band

Employee Benefit Plan v . Smith Barney Shearson, Inc.,

(1st Cir. 1996).

IV. ANALYSIS

Farrow alleges that defendants are violating his rights

under RLUIPA, the First Amendment’s Free Exercise Clause and the

Fourteenth Amendment’s Equal Protection Clause. I begin with

Farrow’s RLUIPA claims.

A. RLUIPA

1. Statutory Interpretation

Section 3 of RLUIPA, which addresses religious practices by

inmates, provides 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

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

-9- interest.7

42 U.S.C. §2000cc-1(a). The statute defines “religious exercise”

as “any exercise of religion, whether or not compelled by or

central t o , a system of religious belief.” 42 U.S.C. § 2000cc-

5(7)(A); see Civil Liberties for Urban Believers v . Chicago,

5 2 , 760 (7th Cir. 2003), cert. denied,

(2004).

To prevail on a claim under Section 3 of RLUIPA, a prisoner

must establish a prima facie case that the challenged policy or

regulation imposes a substantial burden on his exercise of

religion. See Warsoldier v . Woodford,

(9th

Cir. 2005). If the prisoner makes this prima facie showing, the

burden shifts to prison officials to demonstrate that the policy

or regulation furthers a compelling governmental interest by the

least restrictive means.

; see also 42 U.S.C. §

2000cc-2(b).

Neither the Supreme Court nor the First Circuit has had

occasion to interpret the term “substantial burden,” and the

7 Section 3 of RLUIPA applies to state prisons that accept federal funds. See 42 U.S.C. § 2000cc-1(b)(1). Defendants concede that the DOC accepts federal funds and is subject to RLUIPA. T r . at 3 5 .

-10- circuit courts that have done so are in disagreement. The Eighth

Circuit requires significant infringement on a “central tenet” or

fundamental activity of religious practice. Murphy v . M o . Dep’t

of Corrections,

(8th Cir. 2004), cert. denied,

125 S . C t . 501 (2004); see also Gordon v . Pepe, N o . 00-10453-RWZ,

at *12-13 (D. Mass. Aug. 2 4 , 2004);

Ulmann v . Anderson, N o . 02-405-JD,

at

*24 (D.N.H. Apr. 2 6 , 2004); Farrow v . Stanley, N o . 02-567-B,

at *28 (D.N.H. Feb. 5 , 2004). Other

circuits disavow the central tenet requirement. The Fifth

Circuit, for example, concluded that

[A] government action or regulation creates a “substantial burden” on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs. . . . [T]he effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs. . . . We emphasize that no test for the presence of a “substantial burden” in the RLUIPA context may require that the religious exercise that is claimed to be thus burdened be central to the adherent’s religious belief system.

Adkins v . Kaspar,

(5th Cir. 2004), cert.

-11- denied,

(2005); accord Konikov v . Orange County,

(11th Cir. 2005)(“[A] ‘substantial burden’

must place more than an inconvenience on religious exercise; a

‘substantial burden’ is akin to significant pressure which

directly coerces the religious adherent to conform his or her

behavior accordingly. Thus, a substantial burden can result from

pressure that tends to force adherents to forego religious

precepts or from pressure that mandates religious conduct.”)

(quoting Midrash Sephardi, Inc. v . Town of Surfside,

(11th Cir. 2004)); San Jose Christian College v . City

of Morgan Hill,

(9th Cir. 2004)(A substantial

burden “imposes a ‘significantly great’ restriction or onus upon

[religious] exercise.”); Civil Liberties for Urban Believers, 342

F.3d at 761 (A substantial burden “bears direct, primary, and

fundamental responsibility for rendering religious exercise . . .

effectively impracticable.”).

Although the circuits have split, the better reasoned view

is that the “substantial burden” requirement does not turn on the

centrality of a particular religious practice to the plaintiff’s

religion. To hold otherwise disregards RLUIPA’s definition of

“religious exercise,” which expressly protects practices that are

-12- not central to a practitioner’s religious beliefs. Thus, I

conclude that a prison policy substantially burdens religious

exercise under RLUIPA if it coerces the inmate to modify his

religious behavior significantly or to violate his religious

beliefs.

2. Application

Farrow makes eight specific claims. Defendants respond by

arguing that the DOC’s policies do not impose a substantial

burden on Farrow’s religious practice. Alternatively, they

contend that all of the policies are justified because they

further compelling governmental interests by the least

restrictive means available. I address each of Farrow’s specific

claims in turn.

a. Access To Tobacco

Farrow claims that defendants are denying him access to

tobacco. Compl. ¶ 1 8 . He asserts that he needs tobacco to

perform “prayer ties, prayer flags, offerings to mother earth,

and all creation, along with drum offerings, and . . .

ceremonies,” all of which are important to the practice of his

religion. Pl.’s Memo. in Supp. O b j . Summ. J. ¶ 2 . He asserts

that kinniknick, the tobacco substitute offered by defendants, is

-13- unacceptable because he believes that “his creator will look upon

him poorly should he use a tobacco free product.” Id. ¶ 6. In

fact, Farrow charges, asking him to accept this substitute is

“more than a substantial burden, it is spiritual death.” Id.

Defendants counter that kinniknick is an acceptable

substitute for Sacred Circle ceremonies and other religious

purposes. All DOC facilities are tobacco-free, and prison

officials reached the decision to use kinniknick as a tobacco

substitute after they consulted with several members of the

Native American community. T r . at 115-16. Kinniknick, which is

available commercially, is sold both with and without tobacco.

Prison policy does not prohibit inmates from using kinniknick

with “some tobacco in it.” T r . at 6 4 . Farrow states that “a

tobacco mix of kinniknick would be good enough for [religious

purposes].” Pl.’s Memo. in Supp. O b j . Summ. J. ¶ 1 3 .

Accordingly, because defendants permit the use of kinniknick with

traces of tobacco, they do not force Farrow to violate his

religious beliefs or to depart significantly from his religious

traditions. Defendants’ system-wide prohibition of pure tobacco

thus does not impose a substantial burden on Farrow’s religious

exercise, and I grant defendants’ motion for summary judgment as

-14- to this claim.

b. Access To Medicines And Herbs

Farrow next complains that defendants do not permit him to

possess traditional medicines and herbs necessary to practice his

religion. Compl. ¶ 7 8 . Farrow submitted two long lists of

herbs, but failed to explain why those herbs are important to

Native American religious practice. Newell Aff. at 1 ; Compl.

Attach. 1 . At the preliminary injunction hearing, Farrow

testified that several of the herbs are used to prevent sore

throats, to make teas, or to produce saliva during sweat lodge

ceremonies. T r . at 6-9. He has failed, however, to adequately

explain why these herbs’ are religiously significant. Likewise,

Chaplain Shaulis testified that although many of the herbs Farrow

requested have medicinal value, they do not have religious value.

Id. at 121-22. Shaulis explained that he developed the list of

permissible herbs such as sage, sweet grass and kinniknick after

he consulted with Native American practitioners. Although other

herbs may have ceremonial purposes, he concluded that they are

not necessary for religious practice. Id. at 122-24. In further

defense of the DOC’s policy, defendants explained that several of

the prohibited herbs can be physically harmful and even fatal if

-15- used incorrectly. Id. at 69-70, 120-22.

Farrow has not made a prima facie showing that defendants’

unwillingness to provide him with the prohibited herbs coerces

him to significantly modify his religious behavior or to violate

his religious beliefs. I therefore grant defendants’ motion as

to this claim.

c. Daily Communal Prayer

Farrow also alleges that his religion requires daily

communal prayer, which prison officials do not allow. Compl. ¶

36. Prison policy permits members of each of NCF’s faith groups,

including the Sacred Circle, one weekly two-hour block for group

worship and one weekly two-hour block for religious education.

Tr. at 4 0 . Farrow has not explained why daily group prayer is

necessary or why weekly group prayer is inadequate. Moreover,

Chaplain Shaulis testified that although daily prayer is itself

essential, daily group worship is not. T r . at 124. Farrow

concedes that he is permitted to pray with other Sacred Circle

members during free time and to pray daily in his cell. Id. at

41.

Farrow has not presented sufficient credible evidence to

show that defendants’ refusal to provide daily group prayer to

-16- Sacred Circle members substantially burdens his religious

exercise. I therefore grant defendants’ motion for summary

judgment as to this claim.

d. Traditional Foods And Special Religious Days

Farrow complains that he is being denied traditional Native

American foods, particularly buffalo meat, which he needs to

properly celebrate major religious holidays. Compl. ¶ 57 &

Attach. 3 . He maintains that buffalo meat was formerly available

but is now banned. Farrow claims that Sacred Circle members are

willing to pay for buffalo meat and other traditional foods for

four annual festivals sanctioned and sponsored by NCF officials.

Tr. at 17-19.

Chaplain Shaulis testified that the foods traditionally

prepared for Native American holidays depend upon the foods

available during a particular season and in a particular region.

Id. at 128. Moreover, Farrow admitted that many traditional

foods, such as squash and corn, are prepared and served at NCF.

Id. at 4 1 . Defendant Young testified that she consults with the

various NCF religious groups about the development of feasts for

religious holidays. Id. at 149-50. When a feast menu has been

designed, she presents it to the prison chef so that the kitchen

-17- staff can prepare the meal. Id. at 151.

More important, Farrow has not explained why any specific

foods are a significant part of his religious practice. The only

connection he made between traditional foods and religious

exercise was at the preliminary injunction hearing, when he

testified that “when people properly prepare themselves to eat

these foods, these foods impart positive attributes to those who

eat and take part in these meals.” Id. at 1 7 . This showing is

insufficient to demonstrate that eating specific foods is an

important component of Farrow’s religious practice. At best, it

indicates that preparation for consumption, rather than

consumption itself, has religious significance. This suggests

that the substitution of other foods is not a substantial burden

on Farrow’s religious exercise.

Farrow has not presented sufficient credible evidence that

defendants’ refusal to provide him with traditional foods has

substantially burdened his religious exercise. I therefore grant

defendants’ motion as to this claim.

e. Permission To Wear Feathers At All Times

Farrow next complains that DOC policy prohibits him from

wearing feathers on the outside of his clothing except during

-18- ceremonies, and that this policy prevents him from meaningfully

practicing his religion. Compl. ¶ 6 4 . Farrow asserts that

wearing feathers in his hair keeps him safe, protects him from

harm and reminds him of his connection to his creator. Farrow

Aff. ¶ 3 1 . The defendants agree that it is essential for Sacred

Circle members to have feathers. They dispute Farrow’s

contention that practitioners must wear the feathers. T r . at

131. Farrow is permitted to use feathers in prayer and smudging

ceremonies and to wear feathers inside of his clothing. Id. at

42-43. He has not explained how the prohibition on wearing

feathers outside his clothing, in addition to the uses that

defendants permit, forecloses religious use of the feathers.

Farrow has not presented sufficient evidence that requiring

him to conceal his feathers forces him to modify his religious

practice significantly or to violate his religious beliefs.

Accordingly, I grant defendants’ motion for summary judgment as

to this claim.

f. Separate Meeting Times For Various Nations

Farrow complains that defendants do not allow the various

tribal nations represented in the Sacred Circle group to meet

separately. Farrow Aff. ¶ 3 6 . He asserts that the different

-19- nations need separate meetings to learn more about their

religious traditions. Farrow Aff. ¶¶ 32-34, 3 7 . Farrow also

testified that members of different Native American tribes need

separate meetings because they have different languages,

ceremonies and songs. T r . at 29-30. Defendants counter that the

relatively small number of inmates in the Sacred Circle makes

more than one group meeting impractical.8 They also argue that

one meeting is sufficient because of the similarity of the

different nations’ religious practices. Id. at 7 5 .

Farrow has not provided evidence that defendants’ refusal to

allow separate meetings has limited his own religious practice in

any way. Accordingly, he has not made a prima facie case that

his religious practice is substantially burdened by the DOC

policy. I therefore grant defendants’ motion for summary

judgment as to this claim.

g. Retention of a Native American Consultant

Farrow next demands that the DOC retain a Native American

consultant to oversee prison policy, focusing specifically on

8 Chaplain Shaulis testified that there are approximately 65 declared Sacred Circle followers in the DOC system, and only 12 of those are incarcerated at NCF. T r . at 100.

-20- important Native American religious practices. Compl. ¶ 4 3 . As

one of two chaplains, Chaplain Shaulis ministers to all

religions. T r . at 9 6 . He has worked on two different Native

American reservations, id. at 8 9 , and consults with outside

experts in formulating Native American religious policy. Id. at

91-92. Farrow has not shown that the absence of a Native

American consultant has burdened his religious practice in any

way; in fact, Chaplain Shaulis is more knowledgeable about Native

American religious traditions than might be expected.9

Defendants’ motion for summary judgment as to this claim is

granted.

h. Sweat Lodge

Lastly, Farrow complains that defendants have refused to

allow Sacred Circle members to construct a sweat lodge at NCF.

Compl. ¶ 2 9 . Farrow explains that the sweat lodge ceremony is an

“integral part” of his religious practice, Farrow Aff. ¶ 1 5 , and

describes it as the “most important component of the Lakota

9 Chaplain Shaulis has Native American heritage. He testified that his great-grandmother is a full-blooded Cree and his grandfather is an Abenaki. Shaulis explained that he gained additional insights into Native American religious practices while serving in the military on the Blackfoot and Assinaboine reservations. T r . at 8 9 .

-21- religion.” Pl’s Memo. in Supp. O b j . Summ. J. ¶ 9. Penobscot

Elder Donald Newell’s affidavit also supports this position.

Newell Aff. at 2 . Although defendants acknowledge that a sweat

lodge is a “very important function” for followers of the Lakota

tradition, T r . at 1 1 8 , and defendant Susan Young indicated in her

August 5 , 2002 letter that the DOC was “reviewing the

appropriateness of constructing Sweat Lodges,” prison officials

ultimately denied Farrow’s request.

Defendants argue that denying Farrow access to a sweat lodge

does not substantially burden his religious exercise because

community smudging and weekly community prayer meetings, which

include a pipe ceremony, provide adequate alternative means by

which Farrow can meaningfully practice his religion.10 I

disagree in large part because Chaplain Shaulis’s testimony at

10 Defendants rely on Trapp v . DuBois, CA95-0779B, 2000 Mass. Super. LEXIS at 259 (Mass. Super. C t . May 8 , 2000) for the proposition that a sweat lodge is unnecessary because inmates who are Sacred Circle members may perform pipe ceremonies and smudging. This reliance is misplaced. Although the Massachusetts Superior Court in Trapp denied the plaintiffs’ request for a sweat lodge, the Massachusetts Court of Appeals subsequently recommended that the parties commence settlement discussions. In March 2003, the parties agreed to settle, after which the appeals court entered an order approving joint stipulation of dismissal. Trapp v . DuBois, 1995-0779,

at *2 (Mass. Super. C t . December 1 0 , 2003).

-22- the preliminary injunction hearing effectively undermines

defendants’ argument. Shaulis testified that for some Native

American tribes “the sweat lodge [ceremony] would be considered a

cornerstone” and “for the Lakota it would be a very important

function, almost as important as the sun dance.” T r . at 118.

Shaulis further testified that there are no other methods or

ceremonies that could replace the sweat lodge ceremony’s

purification and detoxification functions. Id. at 119. The

DOC’s outright prohibition on sweat lodges makes it impossible

for Farrow to participate in this particular religious ritual. I

thus conclude that Farrow has presented sufficient credible

evidence to show that denying him access to a sweat lodge

requires him to modify his religious behavior significantly and

therefore substantially burdens his religious exercise.

Because Farrow has made a prima facie case, defendants must

demonstrate that their refusal to permit a sweat lodge furthers a

compelling governmental interest by the least restrictive means

available. See 42 U.S.C. § 2000cc-1(a)(2). Warden Cattell

testified in an effort to satisfy this standard that a sweat

lodge is a “significant security problem” because it requires a

sacred space in which non-believers are not permitted to enter,

-23- making it difficult for NCF officials to conduct searches of the

area. T r . at 6 5 . Furthermore, because the sweat lodge is

covered by tarps, prison officials have difficulty monitoring

conduct inside the lodge. Id. at 66-68. This lack of

supervision could create opportunities for violence and other

inappropriate conduct inside the sweat lodge. Id. at 6 8 .

Warden Cattell also testified that the construction and

operation of a sweat lodge would burden prison resources. He

noted that the proposed sweat lodge site currently is used for

outdoor functions both by the Sacred Circle and by other

religious groups. Id. at 6 7 . Construction of a sweat lodge

would preclude use of the space by other groups. Id. Shaulis

corroborated this testimony, explaining that a sweat lodge would

require “a sacred space of at least 40 feet by 40 feet . . . not

open to dual use, so it would not be open to any other groups.”

Id. at 117.

In addition, Cattell pointed out the need for fire wood for

the sweat lodge, which would have to be split at NCF or shipped,

pre-cut, into the facility. Id. at 6 5 . He testified that in his

experience inmates cannot afford pre-cut wood, so uncut logs

would have to be delivered to the prison. Id. Prison officials

-24- would have to ensure that the person delivering the wood had

security clearance to enter the facility, inspect the shipment,

and supervise the crew using restricted tools to split the

firewood. Id. at 65-66.

Farrow responds that as many as thirty other prisons

maintain and operate sweat lodges, indicating that defendants’

safety and security concerns may be exaggerated.11 He testified

that inmates could be searched prior to entering and before

exiting the area. Id. at 15-16. Farrow suggested that NCF could

use Native American security guards already employed by the DOC

to supervise sweat lodge ceremonies. Id. at 1 6 . Finally, Farrow

11 In addition to Trapp, defendants cite five other cases in which courts concluded that prisons need not allow sweat lodges. At the preliminary injunction hearing, Farrow properly distinguished two of these cases on their facts. T r . at 1 2 . In both Hamilton v . Schriro,

(8th Cir. 1996) and Allen v . Toombs,

(9th Cir. 1987), the prisoners who sought access to a sweat lodge were incarcerated in maximum security facilities, in which the security concerns and risk of security breaches were higher than at NCF. Notably, in Allen the court recognized that inmates in the general population were permitted to participate in weekly sweat lodge ceremonies.

n.5. Likewise, in McElhaney v . Elo,

at *3(6th Cir. 2000)(unpublished table opinion), another case cited by defendants, Michigan prison guidelines prohibited sweat lodge access only to those inmates in the three highest security classifications.

-25- identified two potential Sacred Circle volunteers, who currently

visit prisons in Massachusetts and Connecticut, who might be

available to oversee the ceremonies. Pl.’s Memo. in Supp. O b j .

Summ. J. ¶ 1 1 . Whether either of these suggestions is feasible,

however, remains unclear.

Without a doubt, “prison security is a compelling state

interest and . . . deference is due to institutional officials’

expertise in this area.” Cutter, 125 S . C t . at 2124 n . 1 3 . But

prison officials “cannot merely brandish the words ‘security’ and

‘safety’ and expect that their actions will automatically be”

insulated from scrutiny. Campos v . Coughlin,

9 4 ,

207 (S.D.N.Y. 1994); see also Werner v . McCotter,

,

1480 (9th Cir. 1995) (“‘[T]he state must do more than simply

offer conclusory statements that a limitation on religious

freedom is required for security, health or safety to establish

that its interests are [compelling].’”) (quoting Weaver v . Jago,

(6th Cir. 1982). At this early stage, the

record is insufficiently developed for me to award judgment as a

matter of law to either party. An evidentiary hearing will flesh

out the factual context, with further inquiry into the

requirements for constructing and operating a sweat lodge, the

-26- potential for satisfactory alternatives, and the defendants’

ability to maintain security and orderliness in a facility that

includes a sweat lodge.

Genuine issues of material fact exist as to whether

defendants’ decision to deny Farrow access to a sweat lodge

violates his rights under RLUIPA. Accordingly, summary judgment

on this issue is inappropriate.

B. Free Exercise Clause

Farrow alternatively argues that the DOC is violating his

right to practice his religion under the First Amendment’s Free

Exercise Clause. To establish a Free Exercise Clause violation,

Farrow must demonstrate both that defendants have imposed “a

substantial burden on the observation of a central religious

belief or practice,” Hernandez v . Commissioner,

8 0 , 699

(1989), and that the defendants’ conduct is not “‘reasonably

related to legitimate penological interests,’”

O’Lone v . Estate of Shabazz,

4 2 , 349 (1987) (quoting

Turner v . Safley,

8 , 89 (1987)); see also Overton v .

Bazzetta,

(2003) (allocating burden of proof).

The Free Exercise Clause’s substantial burden requirement is

more difficult to satisfy than its counterpart under RLUIPA in

-27- part because, unlike RLUIPA, the Free Exercise Clause requires

that defendants’ conduct must substantially burden one or more of

the plaintiff’s central religious beliefs or practices. Compare

Hernandez, 490 U.S. at 699 (Free Exercise Clause) with Adkins,

(RLUIPA). Accordingly, my determination that

none of Farrow’s claims except his sweat lodge claim satisfy

RLUIPA’s substantial burden test necessarily means that his

corresponding claims under the Free Exercise Clause are also

deficient. Further, although the difference between the two

tests leaves open the possibility that a claim that satisfies

RLUIPA’s substantial burden requirement nevertheless may fail

under the Free Exercise Clause, Farrow’s sweat lodge claim is not

subject to this fate because participation in the sweat lodge

ceremony is a central part of Farrow’s religious practice. Thus,

I turn to the second part of the Free Exercise Clause test to

determine whether Farrow’s sweat lodge claim is viable.

Several factors ordinarily are considered in determining

whether a prison practice is reasonably related to a legitimate

penological interest. As a threshold matter, “there must be a

valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it.”

-28- Turner,

9 . If this requirement is met, other

factors become potentially relevant. These include:

(1) the extent to which other means are available to the inmate

to practice his religion; (2) the impact that accommodation of

the inmate’s request will have on “guards and other inmates, and

on the allocation of prison resources generally;” and (3) the

availability of alternatives “that fully accommodate the

prisoner’s rights at de minimis cost to valid penological

interests.”

. A “court is not required to weigh

evenly, or even consider explicitly, each of the four Turner

factors.” Spies v . Voinovich,

9 8 , 403 (6th Cir. 1999).

Although Farrow’s Free Exercise Clause claim is

substantially weaker than his RLUIPA claim because both the

burden of proof and the legal standard that govern the Free

Exercise Clause claim are more favorable to the defendants, I

nevertheless conclude that defendants are not entitled to summary

judgment on the sweat lodge claim because facts material to the

resolution of the claim remain in genuine dispute. In

particular, I need to know whether Farrow is correct in claiming

that the DOC has a sufficient number of Native American prison

guards who could monitor sweat lodge ceremonies without

-29- compromising their religious significance. I also need to better

understand whether the DOC’s security needs could be satisfied if

such guards were available to monitor sweat lodge ceremonies.

Accordingly, I deny defendants’ motion for summary judgment as to

this claim.

C. Equal Protection

Farrow’s third claim is that defendants are violating his

Fourteenth Amendment right to equal protection by discriminating

against him on the basis of his religion. In particular, he

challenges the DOC’s policies on feathers, group meeting times

and requests for traditional foods. I discuss each claim in turn

after briefly describing the legal standard that governs the

equal protection claim.

1. The legal standard

To establish an equal protection claim, a plaintiff must

demonstrate that he is intentionally being treated differently

from other similarly situated individuals without sufficient

justification. See Tapalian v . Tusino,

, 5 (1st Cir.

2004). Religious discrimination claims ordinarily are subject to

rational basis review unless the plaintiff can establish that the

alleged discrimination also violates his rights under the Free

-30- Exercise Clause. Wirzburger v . Galvin,

7 1 , 282 (1st

Cir. 2005).

a. Feathers

Farrow may carry feathers on his person at all times, but

prison regulations prohibit him from wearing feathers outside of

his clothing except during religious ceremonies. T r . at 42-43,

74. Although Farrow testified that inmates of other faiths may

“wear head gear” except during security checks,

, the

prison’s feather policy is consistent with regulations applicable

to other religious items, for example Christian inmates must wear

medallions inside their shirts when they are outside their cells.

at 4 3 . Farrow’s allusion to “head gear,” without explanation

of how feathers are similar to such head gear, is insufficient to

make out an equal protection claim. Rather, the testimony about

Christian medallions shows that Sacred Circle members are treated

the same as other religious practitioners. Defendants’ motion

for summary judgment as to this claim is granted.

b. Separate Meeting Times for Different Nations

Farrow next alleges that Christian inmates may “break into

all its denominations [sic]” whereas the Sacred Circle is not

permitted to have different worship and education meetings for

-31- the members of different tribal nations. T r . at 29-30. The

prison’s schedule for religious observance shows that this is

simply not the case. While there are separate services for

Catholics and Protestants,12 there are not individual meeting

times for the various Protestant denominations. See Def.’s Ex.

D. Farrow has not shown that he is treated differently than

other inmates who wish to worship in a group setting; all have

limited opportunity for narrowly-tailored religious services.

Moreover, Farrow has not shown that defendants have structured

the worship schedule based on an impermissible motive. In fact,

defendant Young testified that although religious groups

generally must have a volunteer facilitator, the Sacred Circle is

permitted to meet without one because of the difficulty in

securing volunteers. T r . at 145. Defendants’ motion for summary

judgment as to this claim is granted.

c. Traditional Native American Foods

Finally, Farrow has made an equal protection argument

regarding the availability of traditional Native American foods.

12 The schedule actually refers to “Christian Services,” as distinguished from “Catholic Services.” I understand “Christian Services” to mean Protestant services.

-32- He has not alleged any facts, however, showing that prison

officials treat other faith groups differently than they treat

the Sacred Circle with regard to food. I therefore grant

defendants’ motion for summary judgment as to this claim.

D. Qualified Immunity

Farrow has sued the defendants in their individual

capacities for money damages.13 Defendants argue that they are

qualifiedly immune from such claims. I agree.14

13 Farrow does not specify whether his request for money damages stems only from his constitutional claims (which, with the exception of the sweat lodge claim, have proven unsuccessful) or from his alleged RLUIPA violations. RLUIPA authorizes “appropriate relief against a government.” 42 U.S.C. § 2000cc-2. There is substantial uncertainty, however, as to whether this language even provides a right to money damages. These issues have not been briefed by the parties, and I decline to address them here. Accordingly, I deny without prejudice defendants’ motion for summary judgment seeking qualified immunity from RLUIPA-based damages. If Farrow is in fact seeking damages for violations of RLUIPA, he shall file a notice with this court within 10 days. Defendants shall then be free to move for summary judgment challenging his claim for damages under RLUIPA on grounds including (1) that there is no express or implied private right of action for damages under RLUIPA; (2) that RLUIPA violations are not cognizable under

; and (3) even if RLUIPA violations are cognizable under § 1983, defendants are nonetheless entitled to qualified immunity. 14 Because I have granted summary judgment at the liability stage on Farrow’s other free exercise claims, I need only address qualified immunity with respect to the sweat lodge issue.

-33- “[T]he doctrine of qualified immunity protects public

officials from civil liability ‘insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Cox v . Hainey,

5 , 29 (1st Cir. 2004) (quoting Harlow v . Fitzgerald,

0 0 , 818 (1982)). The First Circuit uses a three-part test

based on Supreme Court jurisprudence for determining whether a

public official is entitled to qualified immunity. Courts must

ask: “(i) whether the plaintiff’s allegations, if true, establish

a constitutional violation; (ii) whether the constitutional right

at issue was clearly established at the time of the putative

violation; and (iii) whether a reasonable officer, situated

similarly to the defendant, would have understood the challenged

act or omission to contravene the discerned constitutional

right.” Limone v . Condon,

9 , 44 (1st Cir. 2004).

“[W]hen performing the first prong of the analysis, it is

generally inadequate to state [the constitutional right as] a

very generalized proposition.” Riverdale Mills Corp. v . Pimpare,

5 , 62 (1st Cir. 2004). For example, I should not frame

the right in dispute as the constitutional right to the free

exercise of religion. See

At the same time, courts must

-34- avoid “construing the relevant rights/rules with such specificity

that the predictably scant jurisprudence on point would never

satisfy the ‘clearly established’ threshold [of the second

prong].” Acevedo-Garcia v . Monroig,

4 7 , 564 (1st Cir.

2003).

The outcome of the qualified immunity inquiry often

“‘depends substantially upon the level of generality’” with which

the constitutional right is described in the first prong of the

analysis.

(quoting Anderson v . Creighton,

(1987)). This is not such a case. Even when the constitutional

right is defined quite narrowly, there is an abundant body of

case law on point because “[t]he issue of the right of inmate

practitioners of the Native American religion to have access to a

sweat lodge has been the subject of widespread and pervasive

litigation over the past [fifteen years].” Youngbear v .

Thalacker,

0 2 , 906 (N.D. Iowa 2001).

Accordingly, I conclude that the appropriate question in the

first prong of the qualified immunity analysis is whether an

inmate has a free exercise right to make use of a sweat lodge. I

decline to answer that question because I have determined that a

hearing is appropriate to flesh out the factual context of

-35- Farrow’s sweat lodge claim.15

Assuming an inmate does have a constitutional right to

participate in the sweat lodge in certain circumstances, the

second prong of the qualified immunity analysis dictates that I

determine whether or not that right was clearly established at

the time it was violated. In order to make this determination, a

“court must canvass controlling authority in its own jurisdiction

and, if none exists, attempt to fathom whether there is a

consensus of persuasive authority elsewhere.” Savard v . R.I.,

15 Courts generally should take the three prongs of the qualified immunity analysis sequentially, so as to achieve “proper development of the law of qualified immunity.” Limone, 372 F.3d at 4 4 . This rule, which follows the Supreme Court’s decision in Saucier v . Katz,

(2001), “is not completely inflexible.” Riverdale Mills,

2 . Sometimes, the “law elaboration function” of the sequential analysis will not be appropriate, “such as where the claim depends on a ‘kaleidoscope of facts not yet fully developed.’”

(quoting Dirrane v . Brookline Police Dep’t,

5 , 69- 70 (1st Cir. 2002)); see also Brosseau v . Haugen, 125 S . C t . 596, 600-1 (2004) (Breyer, J., concurring) (expressing doubt about the validity of a rigid sequential analysis); Ehrlich v . Town of Glastonbury,

8 , 57 (2d Cir. 2003) (explaining that courts must “use their good sense and limit [the sequential analysis] to those cases where it was meant to apply”). Because I have determined that further factual development will be useful on the issue of whether or not there has been a constitutional violation, this is a case where it is appropriate to skip directly to the second prong of the analysis. Elaboration of the law is not avoided, but merely delayed.

-36-

3 , 28 (1st Cir. 2003). Accord Wilson v . Layne,

(1999); Brady v . Dill,

0 4 , 116 (1st Cir.

1999). As there is no controlling First Circuit decision on

point, I must examine case law from other jurisdictions.

A number of the nation’s state and federal prisons provide

Native American inmates with access to a sweat lodge. See, e.g.,

Henderson v . Terhune,

(9th Cir. 2004)

(California state prisons permit sweat lodges); Allen v . Toombs,

, 565 n.5 (9th Cir. 1987) (sweat lodge ceremony held

once a week in Oregon state prison, but high security inmates not

allowed to participate); Brown v . Schuetzle,

, 1012 (D.N.D. 2005) (sweat lodges have operated in North

Dakota state prisons since 1978); Runningbird v . Weber, N o . 03-

4018-RHB,

at *1 (D.S.D. June 8 , 2005) (sweat

lodge ceremony provided in South Dakota state prison);

Greybuffalo v . Bertrand, N o . 03-C-559-C,

at *9 (W.D. Wis. November 1 , 2004) (monthly sweat lodge

ceremony available in Wisconsin state prison); Crocker v . Durkin,

159 F. Supp. 2d. 1258, 1264 (D. Kan. 2001) (sweat lodge available

in Leavenworth U.S. Penitentiary); Indian Inmates of Nebraska

Petitentiary v . Grammar,

(D. Neb. 1986),

-37- aff’d,

(8th Cir. 1987) (sweat lodge available in

Nebraska state prison since 1976). Further, at least one federal

district court has determined that prisoners have a Free Exercise

Clause right to a sweat lodge. See, e.g., Youngbear,

(one-year delay in construction of a sweat lodge,

when it could have been built promptly, violated inmates’ free

exercise rights).

On the other hand, several courts have determined that the

Free Exercise Clause does not require prisons to provide sweat

lodge ceremonies for Native American religious practitioners.

See, e.g., Hamilton,

(sweat lodge not required

under Free Exercise Clause 16 ); Wilson v . Moore,

(N.D. Fla. 2003) (same); Gonzalez v . Litscher,

5 0 , 960 (W.D. Wis. 2002), aff’d,

(7th

Cir. 2003) (unpublished) (sweat lodge not required, at least for

maximum security inmates, under Free Exercise Clause); Tart v .

Young,

9 0 , 594 (W.D. V a . 2001) (sweat lodge not

required under Free Exercise Clause).

16 Despite this decision, a sweat lodge has subsequently been built at the prison in question in Hamilton. Pounders v . Kemper,

4 1 , 943 n.2 (8th Cir. 2003) (unpublished)

-38- The case law is sufficiently unsettled for me to conclude

that there is no consensus of authority as to a prisoner’s right

to make use of a sweat lodge.17 Therefore, the right is not

clearly established and defendants are qualifiedly immune from

Farrow’s claim for damages.18 See Thomas v . Gunter,

(8th Cir. 1997) (prison officials entitled to qualified

immunity with regard to inmate’s request for increased access to

prison sweat lodge); Wilson, 270 F. Supp. 2d. at 1355 (prison

officials qualifiedly immune as against prisoner’s free exercise

claim to a sweat lodge); Youngbear,

(even

though defendants’ one-year delay in constructing a sweat lodge

violated inmates’ free exercise rights, defendants were entitled

to qualified immunity).

For the above-described reasons, I find that defendants are

17 The First Circuit has also noted that where the existence of a right depends on the outcome of a balancing test, the right will generally not be clearly established, “‘at least in the absence of closely corresponding factual or legal precedent.’” Fabiano v . Hopkins,

4 7 , 457 (1st Cir. 2003) (quoting Frazier v . Bailey,

2 0 , 931 (1st Cir. 1992)). 18 Because I have determined that the constitutional right in question was not clearly established, I need not reach the third prong of the qualified immunity inquiry.

-39- entitled to qualified immunity from Farrow’s claim for money

damages, and defendants’ motion for summary judgment as to this

claim is granted.

V . CONCLUSION

For the above-described reasons, I deny defendants’ motion

for summary judgment (Doc. N o . 24) as to Farrow’s request for

access to a sweat lodge under RLUIPA and the Free Exercise

Clause. I also determine that defendants are entitled to

qualified immunity with respect to Farrow’s claim for damages

under the Free Exercise Clause. In all other respects, the

motion is granted.

SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge

October 2 0 , 2005

cc: Prayer Feather Farrow, pro se Michael K. Brown, Esq.

-40-