UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lamont Paige Case No. 18-cv-670-SM v. Opinion No.

Warden, FCI Berlin and (former Religious Services Assistant, Jose Hohmann-Feliciano

O R D E R

Lamont Paige, who is an inmate at FCI Berlin and is

proceeding pro se, brings claims against FCI Berlin Warden

Hazlewood and former Chaplain Feliciano, alleging violations of

the Religious Freedom Restoration Act (“RFRA”), the free

exercise clause of the First Amendment, and the equal protection

clause of the Fifth Amendment. 1 Hazlewood and Feliciano move for

summary judgment. Paige objects.

Standard of Review

“Summary judgment is appropriate when the moving party

shows that ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’”

Joseph v. Lincare, Inc.,

(1st Cir. 2021)

1 Paige’s claims have been narrowed through preliminary review and subsequent motion practice. Another inmate has been dismissed as a plaintiff.

1 (quoting Fed. R. Civ. P. 56(a)). In making that determination,

the court construes the record in the light most favorable to

the nonmoving party. Thompson v. Gold Medal Bakery, Inc.,

(1st Cir. 2021). To avoid summary judgment, the

nonmoving party “must adduce specific facts showing that a trier

of fact could reasonably find in his favor” and “cannot rely on

conclusory allegations, improbable inferences, acrimonious

invective, or rank speculation.”

Summary judgment is

required if a party fails to make a sufficient showing to

establish an essential element of his case. Celotex Corp. v.

Catrett,

(1986).

Background

Paige is a practicing Sunni Muslim. The prison allows

Sunni Muslims to perform daily prayers as practiced in their

religion and to gather on Friday afternoon for prayer in the

chapel. In addition to the regular Friday afternoon prayer, on

Friday, September 1, 2017, there was an additional prayer

gathering scheduled for 9:30 a.m. to celebrate the Sunni Muslim

holy day of Eid al-Adha.

The morning prayer for Eid al-Adha was cancelled that

morning because of a security emergency. At the end of August,

the prison learned through an investigation that inmates might

have hidden weapons in the recreation yard near the Native

2 American sweat lodge and the handball court. On September 1,

the warden ordered a search of the recreation yard and the

Native American sweat lodge.

The prison officer conducting the search asked Feliciano to

help him because of Feliciano’s knowledge of what articles might

be legitimate Native American religious articles rather than

weapons. Because Feliciano was the only Religious Services

staff person scheduled to work that Friday morning, he had to

close the chapel and cancel the scheduled programs while he

helped with the search. The schedule resumed that afternoon,

and the Sunni Muslims held their weekly Friday afternoon

prayers.

The Religious Services Department at the prison also

arranges ceremonial meals for religious observances. To

schedule a ceremonial meal, the religious group was required to

make a request sixty days prior to the holy day. When Feliciano

had not received a request from the Sunni Muslim members for a

ceremonial meal on Eid al-Adha, he met with members in early

June of 2017 to remind them of the deadlines. He also asked an

inmate representative of the Sunni Muslim community about

meeting with Food Services. Despite those efforts, no

ceremonial meal was requested or scheduled for Eid al-Adha. 2

2 AlthoughPaige states that the defendants did not post a notice for Eid al-Adha, the defendants provided a copy of the

3 In August of 2017, the Assistant Food Services

Administrator and Feliciano met with a Muslim community

representative about scheduling a ceremonial meal. They agreed

on October 1, 2017, which was the Muslim holy day

Ashura/Muharram. Notice was provided of that meal, but no

inmates signed up. The meal was canceled because of a lack of

interest. 3

Paige brought a variety of claims arising from the

cancellation of the prayer gathering and the lack of a

ceremonial meal on Eid al-Adha. Following preliminary review

and motion practice the remaining claims are as follows:

1. Warden Hazlewood and (former) FCI-Berlin Chaplain Feliciano violated Paige’s rights under the Religious Freedom Restoration Act (“RFRA”):

a. By failing to allow the FCI-Berlin chapel to be open to Sunni Muslims for prayer on September 1, 2017, to mark the holy day of Eid-al-Adha; and

b. By failing to offer a ceremonial meal on September 1, 2017, to celebrate Eid-al-Adha.

notice that was posted. Paige provides no evidence to show, contrary to the evidence provided by the defendants, that a notice was not posted.

3 Paigestates that no one was interested in the meal on October 1 because that was not the holy day of Eid al-Adha. The defendants provided affidavit evidence that no one expressed interest in scheduling a meal on September 1, Eid al-Adha. And, despite the initial interest for a meal on Ashura/Muharram, no one signed up to attend.

4 2. Chaplain Feliciano and Warden Hazlewood violated Paige’s rights under the First Amendment Free Exercise Clause: a. By failing to allow chapel facilities to be open to Sunni Muslims for prayer on September 1, 2017, to mark the Muslim holy day of Eid-al-Adha; and

b. By failing to offer a ceremonial meal on September 1, 2017, to celebrate Eid-al-Adha.

3. Chaplain Feliciano and Warden Hazlewood violated Paige’s Fifth Amendment equal protection rights by allowing other religious groups to observe their holy days while not allowing Sunni Muslims to celebrate Eid-al-Adha for two years. (Limited to 2017)

Discussion

Paige contends that the cancellation of the morning prayer

gathering on September 1, 2017, and the lack of a ceremonial

meal for Eid Al-Adha violated his rights under the Religious

Freedom Restoration Act (“RFRA”) and the First Amendment. He

further contends that his right to equal protection under the

Fifth Amendment was violated because other religious groups were

allowed to celebrate their holidays in 2017. Hazlewood and

Feliciano move for summary judgment on the ground that Paige

cannot prove his claims.

A. RFRA Claim

Under RFRA, “‘[g]overnment shall not substantially burden a

person’s exercise of religion even if the burden results from a

rule of general applicability,’ unless the government

5 ‘demonstrates that application of the burden to the person—(1)

is in furtherance of a compelling governmental interest; and

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

governmental interest.’” Holt v. Hobbs,

, 357

(2015) (quoting 42 U.S.C. §§ 2000bb-1(a) & (b)). A plaintiff

asserting a RFRA claim bears the burden of showing that the

defendants substantially burdened “a sincere religious

exercise.” Perrier-Bilbo v. United States,

(1st Cir. 2020). “[N]ot every imposition or inconvenience rises

to the level of a ‘substantial burden.’”

.

1. Prayer Gathering

For purposes of the motion for summary judgment, the

defendants accept that cancellation of the prayer gathering on

September 1, 2017, put a substantial burden on Paige’s exercise

of his religion and that the prayer gather was a sincere

religious exercise. They contend, however, that the need to

search the prison’s exercise area and the Native American sweat

lodge for weapons and the need for Feliciano’s help in the

search, which left the chapel unstaffed, was a compelling

governmental interest that excuses the burden placed on Paige’s

exercise of his religion. In response, Paige contends that

because prison officials knew about the security issue before

6 September 1, there was no emergency on that day that required

the search.

Prison security is a compelling governmental interest. See

Dunn v. Ray,

(2021) (Justice Kagan, concurring);

Holt v. Hobbs,

, 362 (2015); Atomanczyk v. Texas

Dep’t of Criminal Justice,

, at *15-*16 (S.D.

Tex. July 12, 2021) (holding that prison safety and security

were compelling governmental interests in context of prisoner’s

ability to attend communal prayer service); Hudson v. Spencer,

, 201 (D. Mass. 2018). In considering

matters of prison safety and security, the court defers to the

experience and expertise of prison officials in carrying out

measures and procedures. Cutter v. Wilkinson,

(2005) (considering standard in context of Religious Land Use

and Institutionalized Persons Act). To carry their burden,

defendants must show that the action taken with respect to the

plaintiff furthered prison safety and security and was the least

restrictive means of doing so. Holt, 574 U.S. at 363.

In this case, the prayer gathering for Eid al-Ahad was

cancelled because of a security issue, which was information

that weapons had been hidden in the recreation yard near the

Native American sweat lodge. Although Paige may be suggesting

that no emergency existed, he provides no evidence to counter

the affidavits provided by the defendants to show that the

7 search of the recreation yard and the sweat lodge was necessary

that morning for safety and security in the prison. The record

provides no grounds to presume that the defendants conducted the

search in order to cancel the prayer gathering. Instead, record

evidence supports the contrary conclusion that the search was

necessary because of the security issue, and the deference due

the prison officials who made that decision further supports

that conclusion.

Therefore, the defendants have carried their burden of

showing that the prayer gathering was cancelled because of

prison safety and security. Under the circumstances, where

Feliciano’s knowledge was necessary to conduct the search and no

staff was available to maintain the chapel schedule in his

absence, the temporary closure of the chapel, which reopened in

time for afternoon prayer, was the least restrictive means

available of dealing with the security emergency. The

defendants have carried their burden of showing that

cancellation of the prayer gathering on Eid al-Adha did not

substantially burden Paige’s exercise of his religion in

violation of RFRA. The defendants are entitled to summary

judgment on Claim 1(a).

8 2. Ceremonial Meal

No ceremonial meal was scheduled for EID al-Adha on

September 1, 2017, because no one made that request. When a

meal was scheduled for Ashura/Muharram on October 1, 2017, no

one signed up to attend, so the planned meal was cancelled.

Paige makes no showing that at the relevant time he was

interested in either meal.

Under the circumstances presented, Paige has not shown that

his religious exercise was burdened by the lack of a ceremonial

meal on Eid al-Adha. Cf. Knight v. Shults,

, at

*5 (S.D. Miss. Feb. 11, 2019) (finding grounds for RFRA claim

where inmate properly requested Muslim ceremonial meal, which

was approved with a specified menu, but on the day of the meal

the menu was changed). Here, no inmate, including Paige,

indicated any interest in having a ceremonial meal on Eid al-

Adha. For that reason, no meal was scheduled. Therefore, Paige

has not shown that the defendants imposed a substantial burden

on his exercise of his religion. The defendants are entitled to

summary judgment on Claim 1(b).

B. First Amendment

“‘[A] prison inmate retains those First Amendment rights

that are not inconsistent with his status as a prisoner or with

the legitimate penological objectives of the corrections

9 system,’ including the right to the free exercise of religion.”

Gray v. Hanks, 20-cv-152-PB,

, at *2 (D.N.H. June

8, 2021) (quoting Pell v. Procunier,

(1974)).

For the reasons stated above in the context of the RFRA claims,

Paige has not shown that cancellation of the prayer gathering or

the lack of a ceremonial meal for Eid al-Adha were restrictions

that violated his right to exercise his religion. The

defendants are entitled to summary judgment on Claim 2.

C. Equal Protection

In his third claim, Paige contends that the defendants

violated his right to equal protection under the Fifth Amendment

by allowing other religious groups to observe their holy days in

2017 but not allowing the Sunni Muslims to observe Eid al-Adha.

To prove a claim for violation of the right to equal protection,

a plaintiff must show that that he was selectively treated,

compared to others who were similarly situated, and that the

selective treatment was based on an impermissible reason, such

as religion. 4 Aponte-Ramos v. Alvarez-Rubio,

(1st Cir. 2015). To be similarly situated, the circumstances in

4 FifthAmendment equal protection claims have the same elements as equal protection claims under the Fourteenth Amendment. Gonzales-Maldonado v. MMM Healthcare, Inc.,

, 247 n.2 (1st Cir. 2012).

10 other incidents used for comparison must be similar in all

relevant respects. Id. at 909.

Paige alleges that the defendants allowed other religious

groups to observe their holy days while preventing observance by

Sunni Muslims. Paige does not allege, far less provide proof,

that other religious groups were allowed to observe a holy day

in the chapel on the morning of September 1, 2017, when the

Sunni Muslim prayer gathering was cancelled. He also does not

allege, or provide proof, that other religious groups were

allowed to conduct observances of holy days despite a conflict

with a security emergency such as that which occurred on

September 1, 2017. Further, the record establishes that the

Sunni Muslims did observe holy days at the prison, such as

Ramadan, and were encouraged to observe Eid al-Adha and

Ashura/Muharram.

Therefore, Paige has provided no evidence to support his

claim under the Fifth Amendment. The defendants are entitled to

summary judgment on Claim 3.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 63) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

11 SO ORDERED.

______________________________ Steven J. McAuliffe United States District Judge

September 10, 2021

cc: Lamont Paige, pro se Michael T. McCormack, AUSA

12