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Furr v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

February 16, 2018

JESSE R. FURR, ADC #096099 PLAINTIFF
v.
WENDY KELLEY, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge Susan Webber Wright. Any party may file written objections to this Recommendation. Objections must be specific and must include the factual or legal basis for the objection. To be considered, objections must be received in the office of the Court Clerk within 14 days of this Recommendation.

         If no objections are filed, Judge Wright can adopt this Recommendation without independently reviewing the record. By not objecting, you may also waive any right to appeal questions of fact.

         II. Discussion:

         A. Background

         Plaintiff Jesse Furr, an Arkansas Department of Correction (“ADC”) inmate, filed this case without the help of a lawyer under 42 U.S.C. § 1983. He claims that ADC employees violated his rights guaranteed by the First Amendment's Free Exercise Clause, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and the Fourteenth Amendment's Equal Protection Clause by burdening his ability to practice his Native American religion. (Docket entry #2)

         Defendants have filed a motion for summary judgment. (#29) Mr. Furr has responded. (#37, #38)

         B. Standard

         Summary judgment is granted to a party when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine dispute as to any fact important to the outcome of the case. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986). As the moving parties, the Defendants must present evidence showing that there is no real dispute as to any material fact. Celotex Corp., 477 U.S. at 323. If they meet this burden, Mr. Furr must come forward with evidence showing of a genuine dispute that must be decided at a trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If he fails to come forward with evidence to contest the Defendants' evidence, the Defendants are entitled to summary judgment. Celotex Corp., 447 U.S. at 322-23.

         C. Facts

         The undisputed facts show that Mr. Furr sought a religious accommodation of his Native American religious beliefs[1]in 2015, specifically for permission to let his hair and beard grow. (#29-10) That request was granted. (#29-10) In 2015, Mr. Furr also petitioned the ADC for Native American religious services, but he says, he did not receive a response. (#2)

         In 2016, Mr. Furr began seeking items he needed to practice his Native American religion; specifically, a Native American spiritual advisor (“advisor”), and the use of a sweat lodge. (#29-24, p.38)

         On July 11, 2016, Mr. Furr filed grievance VU-16-796, complaining that ADC officials at the Varner Unit had refused to provide the essentials for him to practice of his Native American religion. (#29-2) Specifically, he sought access to an eagle feather, a ceremonial headdress, an advisor, a ceremonial pipe, tobacco, and a sweat lodge. (#29-2) In response to the grievance, the warden, Defendant Watson, noted that the chaplain, Defendant Mayfield, had already advised Mr. Furr that the accommodations he sought would create an undue burden on the ADC and threaten security. (#29-2) Mr. Furr appealed the decision. The deputy director affirmed Defendant Watson's decision and found Mr. Furr's appeal to be without merit on August 25, 2016. (#29-2)

         On September 19, 2016, Mr. Furr filed this lawsuit against ADC Director Kelley, Defendant Watson as the warden of the Varner Unit, and Defendant Mayfield as the chaplain of the Varner Unit. (#2, p.5) According to Mr. Furr, his Native American religion requires the use of an eagle feather, a ceremonial headdress, an advisor, a ceremonial pipe, tobacco, and a sweat lodge. (#2)

         In this case, Mr. Furr seeks: a declaratory judgment that Defendants violated the Free Exercise Clause of the First Amendment, his rights under RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment; injunctive relief ordering the Defendants to provide him with all the Native American religion necessities; compensatory damages; and punitive damages. (#2)

         D. Official Capacity Claims for Money Damages

         A civil litigant cannot recover money damages from state actors sued in their official capacities. Will v. Michigan Dep'tof State Police, 491 U.S. 58, 71 (1989). Accordingly, Mr. Furr's official capacity claims for money damages must be dismissed.

         E. Personal Capacity Claims for Money Damages

         Defendants argue that they are entitled to qualified immunity regarding Mr. Furr's personal-capacity claims for money damages. In determining qualified immunity, the Court must decide whether the facts as alleged, viewed in a light most favorable to Mr. Furr, establish the violation of a federally protected right. Scott v. Benson, 742 F.3d 335, 339 (8th Cir. 2014). If the facts do not add up to a violation, the Defendants obviously prevail.

         But even if there was a violation, the Defendants still prevail if the constitutional right at issue was not “clearly established” at the time of the incident. The critical question in determining whether a right was “clearly established” at the time of the incident turns on whether a reasonable official would have known that his or her actions were unlawful. Id. If the answer is “no, ” the Defendants are entitled to qualified immunity.

         The First Amendment provides that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. The Free Exercise Clause prohibits government action that infringes the practice of a sincerely held religious belief. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993); Munson v. Norris, 435 F.3d 877, 880 (8th Cir. 2006). Prison regulations that allegedly infringe on constitutional rights are judged under a “reasonableness” test. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). That is, “when a prison regulation impinges on an inmates' constitutional rights, the regulation is valid if it is reasonably related to a legitimate penological interest.” Id. (quoting Turner v. Safley, 482 U.S. 78, 81 (1987)).

         In applying Turner, courts employ a four-factor test. Turner, 482 U.S. at 81. Courts must consider: (1) whether there is a “valid rational connection” between the prison regulation and the government interest justifying it; (2) whether there is an alternative means available to the prison inmates to exercise the right; (3) what impact an accommodation would have on the guards, other inmates, and prison resources; and (4) whether there is an alternative that fully accommodates the prisoner “at de minimis cost to valid penological interests.” Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 982-83 (8th Cir. 2004) (quoting Turner, 482 U.S. at 89-91). A prisoner does not have to be afforded his preferred method of practicing his religion so long as he is afforded a sufficient means to practice. Id.

         Under RLUIPA, on the other hand, prisons are held to a higher standard of review than under the First Amendment. RLUIPA provides that, “[n]o government shall impose a substantial burden on the religious exercise” of an institutionalized person unless the government can demonstrate that the burden “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). “Religious exercise” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).

         Mr. Furr has the burden of showing that the ADC policy places a “substantial burden” on his ability to practice his religion. Holt v. Hobbs, 135 S.Ct. 853, ...


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