United States District Court, E.D. Arkansas, Pine Bluff Division
JIMMY R. HEIKKILA ADC #122299 PLAINTIFF
WENDY KELLEY, Director, Arkansas Department of Correction; RANDY WATSON, Warden, Varner Unit, ADC; and JOSHUA MAYFIELD, Administrator of Religious Services, ADC DEFENDANTS
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.
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
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.
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.
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.
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.
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; 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.”).
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.
Relevant Facts Surrounding Heikkila's Claims
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:
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.).
is currently incarcerated in the ADC's Varner Unit, a
maximum security facility. Doc. 37, Ex. D ¶ 7
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
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.
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).
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.
September 22, 2016, Heikkila initiated this lawsuit. Doc.
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
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. Doc. 37, Ex.
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.
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.
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
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. Doc. 37, Ex. F ¶¶ 2, 5 &
10 (Fletcher Decl); Ex. W at 39-40, 45 & 65
There are no free world NAR sponsors, NAR religious or
spiritual advisors, or NAR volunteers at any ADC unit.
Doc. 37, Ex. E ¶ 16.
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.
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
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.
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
Heikkila originally sought access to a
“traditional” sweat lodge, which he described as
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.
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.).
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
[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
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