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Heikkila v. Kelley

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

August 27, 2018

WENDY KELLEY, Director, Arkansas Department of Correction; RANDY WATSON, Warden, Varner Unit, ADC; and JOSHUA MAYFIELD, Administrator of Religious Services, ADC DEFENDANTS


         The following Recommended Disposition ("Recommendation") has been sent to Chief United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the date of this Recommendation. If you do not file objections, Judge Miller can adopt this Recommendation without independently reviewing all of the evidence in the record. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         Plaintiff Jimmy R. Heikkila (“Heikkila”) is a prisoner in the Varner Unit of the Arkansas Department of Correction (“ADC”). He claims Native American ancestry and professes faith in Native American Religion (“NAR”). He has filed this pro se action alleging that Defendants have burdened his ability to practice NAR and, in doing so, violated his First and Fourteenth Amendment rights, as protected by 42 U.S.C. § 1983, and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 (“RLUIPA”).

         In his Complaint, Heikkila alleged that Defendants ADC Director Wendy Kelley (“Kelley”), Warden Randy Watson (“Watson”), and ADC Religious Services Administrator Joshua Mayfield (“Mayfield”) violated his free exercise rights, under the First Amendment and RLUIPA, when they denied his requests to: (1) construct and use a sweat lodge; (2) smoke a ceremonial pipe; (3) possess a headdress, headband and eagle feather; and (4) meet with a religious advisor. Doc. 2-1, at 5.

         In his Amended Complaint, Heikkila alleged that Defendants violated his Fourteenth Amendment equal protection rights by denying NAR services, rituals and artifacts, but allowing Catholic, Christian and Muslim inmates to attend religious services, engage in religious rituals, and possess religious artifacts. Doc. 13.

         By way of relief, Heikkila requested declaratory and injunctive relief allowing: (1) the construction and use of a sweat lodge; (2) the use of ceremonial pipes, tobacco, and headband/headdress; and (3) access to a NAR advisor. Heikkila also sought nominal and punitive damages from Defendants for their alleged violation of his constitutional and statutory rights. Doc. 2-1, at 9.

         Defendants filed a Motion for Summary Judgment, a Brief in Support, and a Statement of Undisputed Facts. Docs. 37, 38 & 39. Heikkila filed a Response, two Briefs in Support, and a Statement of Facts. Docs. 41, 42, 43 & 44. [1]

         In their summary judgment papers, the parties indicate that they have now resolved all of Heikkila's claims regarding: (1) the headdress, headband and eagle feather; (2) the use of a ceremonial pipe and tobacco;[2] and (3) a NAR religious advisor. Doc. 38, at 4; Doc. 39, at 5-6; Doc. 42, at 1-2. Thus, Heikkila's only remaining constitutional and statutory claims rest on his contention that, in denying him the right to construct and use a sweat lodge, Defendants have violated his rights under RLUIPA, the First Amendment's Free Exercise Clause and the Fourteenth Amendment's Equal Protection Clause. See Doc. 37, Ex. AA ¶ 4 (Heikkila 11/20/17 Decl.) (“I continue to seek the Court's assistance in obtaining a sweat lodge. All other issues have been resolved by the parties as reflected by the terms of this declaration.”).

         Accordingly, because all of Heikkila's claims, except those related to his alleged right to construct and use a sweat lodge in the practice of NAR, have now been resolved, those claims are moot and should be dismissed, without prejudice.

         II. Relevant Facts Surrounding Heikkila's Claims

         Based on the supporting Declarations, Affidavits, Deposition Testimony, and allegations in Heikkila's pleadings, the relevant material facts, none of which are contested, are as follows:

         1. Heikkila, a Native American of Chippewa descent, has been an ADC inmate since 2002. He was convicted of rape and incest and is serving a forty-five year sentence. Doc. 37, Ex. A at 8-9 & 16 (Heikkila Dep.) & Ex. U (Heikkila Pen Pack); Doc. 41, Ex. 1 ¶ 2 (Heikkila 12/12/17 Decl.).

         2. He is currently incarcerated in the ADC's Varner Unit, a maximum security facility. Doc. 37, Ex. D ¶ 7 (Watson Decl.).

         3. On July 10, 2016, Heikkila notified the ADC that he was changing his religious affiliation to NAR. Thereafter, the ADC recognized that his new religious affiliation was with NAR. Doc. 37, Ex. I (Religious Affiliation Update).

         4. Only a handful of inmates at the Varner Unit currently practice NAR. In addition to himself, Heikkila identifies three others (Winston Holloway, Billy Fletcher and Kristian Jordan), and Defendants refer to a fourth Varner Unit prisoner, Jesse Furr. Doc. 37, Ex. C ¶ 17 (Mayfield Decl.); Doc. 42, at 16.

         5. On July 25, 2016, Heikkila filed a formal grievance seeking access to “the essentials” for practicing NAR: a NAR advisor; a sweat lodge; ceremonial pipes and tobacco; ceremonial headdresses/headbands; and an eagle feather. Doc. 37, Ex. B at 1 (Grievance VU-16-819).

         6. On August 8, 2016, Defendant Watson (who was then the Varner Unit warden) responded to Heikkila's grievance, stating that Defendant Mayfield (the ADC's Administrator of Chaplaincy Services) “advise[d] that your requested accommodations cannot be met without undue burden on the institution and threats to the good order and security of the institution” Doc. 37, Ex. B at 2. Heikkila appealed. On August, 17, 2016, the ADC deputy director found Heikkila's appeal to be “without merit ” Id., Ex. B at 3.

         7. On September 22, 2016, Heikkila initiated this lawsuit. Doc. 2-1.

         8. On November 20, 2017, Defendant Mayfield informed Heikkila that the ADC had given him permission to acquire an eagle feather, a ceremonial headdress, and a headband. Doc. 37, Ex. AA ¶ 2 (Heikkila 11/20/17 Decl.); Ex. AB (Mayfield Memo).

         9. The ADC also informed Heikkila that, when a qualified, free world NAR advisor was located, he or she would be permitted to conduct ceremonial pipe services with Varner Unit NAR inmates in the presence of ADC security staff.[3] Doc. 37, Ex. AA¶3.

         10. ADC policy allows inmates of all religious faiths to possess religious articles and literature, small religious medallions, a prayer mat or rug, and prayer/meditation beads. Doc. 37, Ex. C ¶ 37; Ex. E ¶ 20 (Kelley Decl.); Ex. S (ADC Religious Policy 625); Ex. AB.

         11. According to Heikkila, he is unable to “fully” and “effectively” practice his NAR beliefs without a sweat lodge, which is essential for the purification ceremonies that are an integral part of NAR. Doc. 37, Ex. AC ¶ 5; Doc. 41, Ex. 1 ¶ 3.

         12. In his deposition, Heikkila testified that, to have a sweat lodge at the Varner Unit, NAR inmates would need a NAR religious advisor “to instruct [them] at first, ” but, afterwards, NAR inmates should be allowed to conduct sweat lodge ceremonies without one. Doc. 37, Ex. A at 17.

         13. Two other NAR-affiliated Varner Unit prisoners stated under oath that a NAR spiritual leader, “medicine man” or priest was necessary to properly construct and use the sweat lodge.[4] Doc. 37, Ex. F ¶¶ 2, 5 & 10 (Fletcher Decl); Ex. W at 39-40, 45 & 65 (Furr Dep.).

         14. There are no free world NAR sponsors, NAR religious or spiritual advisors, or NAR volunteers at any ADC unit. Doc. 37, Ex. E ¶ 16.

         15. At no time during the tenure of Mayfield or Kelley has anyone ever volunteered or applied to be a religious advisor or spiritual leader for NAR inmates. Doc. 37, Ex. C ¶¶ 14-15; Ex. E ¶ 17.

         16. The ADC chaplaincy and security staff have no training or experience in NAR and are not qualified to perform NAR ceremonies or rituals. Doc. 37, Ex. C ¶¶ 29 & 32.

         17. Mayfield personally contacted a Native American tribal group in an attempt to find a free world religious advisor for the ADC's NAR inmates, but was unable to find any person willing to come to Arkansas to serve in that capacity. Doc. 37, Ex. C ¶¶ 11, 16-17.

         18. Heikkila and at least two other Native American inmates, and their families and friends, have been unable to find anyone in the free world that is willing to serve as a NAR religious advisor, spiritual leader or volunteer at the ADC. Doc. 37, Ex. A at 15-17; Ex. F ¶ 8; Ex. W at 40.[5]

         19. Heikkila originally sought access to a “traditional” sweat lodge, which he described as follows:

A sweat lodge is a structure that is approximately ten to fourteen feet wide and four to six feet high. The structure is covered in blankets and tarps and contains heat and steam. The participants are in the dark to represent the womb. In the center of the sweat lodge is a hole in the dirt containing several heated rocks. The dirt is placed outside the sweat lodge, to the right, beside the path that leads to the fire. Rocks are heated in the fire pit and carried into the sweat lodge by a fire tender using a shovel, pitchfork or deer antlers. A spiritual advisor receives the rocks and places them in the center of the sweat lodge. Participants then enter the lodge where they remain in darkness while the spiritual advisor pours water and herbs over the rocks to create steam and heat. The participants sweat, sing songs, pray and smoke ceremonial pipes. The sweat ceremony lasts for 20 minutes at a time with breaks. There are several sessions on the same day lasting approximately two hours.

Doc. 37, Ex. AC ¶ 2 (Heikkila 11/20/17 Decl.). The sweat lodge must be constructed in such a way that the participants inside the sweat lodge can touch the earth. Id., Ex. AC ¶¶ 4 & 6. Heikkila initially requested access to the sweat lodge 13-17 times per year. Id., Ex. AC ¶ 3.

         20. Heikkila offered to meet with Defendants to discuss options on “how a sweat lodge can be constructed and operated during ceremony, without posing unnecessary and unreasonable threats to security, ” but received no response. Doc. 41, Ex. 1 ¶ 5; Ex. 15A (Heikkila 8/7/17 Ltr.); Ex. 15B (Heikkila 9/10/17 Decl.).

         21. On September 25, 2017, Heikkila informed Defendants that he, and other inmates seeking to practice NAR, had agreed to accept a “non-traditional” sweat lodge, which he described as follows:

[T]he structure could be permanently built - inside the prison compound - with wood, bricks or cement blocks, designed for about fifteen inmates. The structure would have a roof but not a floor; this would permit the participants to sit upon the earth (which is significant). In the center of the structure, a small gas or electrical heating device can be permanently installed so as not to be moved or disturbed by participants, and thermostatically controlled, that will allow the participants to pour their mixture of water with herbs, roots, and barks, etc. on a heated surface to produce steam [in the same manner that certain heating devices in some types of saunas operate (indeed, such a heating device from a sauna could possibly be utilized for the sweat lodge)]. The room would be thermostatically controlled and with exhaust fans, to maintain a constant and safe temperature; a temperature approved by the ADC's health provider. And the structure would not be completely dark; that is, there would be sufficient lighting (determined by staff) to permit staff to observe the participants by means of a window or windows.

Doc. 41, Ex. 16 (Heikkila 9/25/17 Ltr.); see also id, Ex. 1 ¶¶ 6-7; Ex. 12 ¶ 12 (Fletcher 10/14/17 Decl.). Heikkila received no response from Varner Unit staff, but Defendants' counsel notified Heikkila that the proposal had been received. Id., Ex. 1 ¶ 8.

         22. According to Heikkila, all the material for the non-traditional sweat lodge would be donated by outside sources. Doc. 41, Ex. 1 ¶ 7. Heikkila also reduced his request for access to twelve times a year and ...

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