United States District Court, E.D. Arkansas, Pine Bluff Division
JESSE R. FURR, ADC #096099 PLAINTIFF
WENDY KELLEY, et al. DEFENDANTS
Procedures for Filing Objections:
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
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.
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)
have filed a motion for summary judgment. (#29) Mr. Furr has
responded. (#37, #38)
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.
undisputed facts show that Mr. Furr sought a religious
accommodation of his Native American religious
beliefsin 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)
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)
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)
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)
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
Official Capacity Claims for Money Damages
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.
Personal Capacity Claims for Money Damages
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
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
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)).
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
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).
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, ...