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finding that restrictions on inmate's attempt to proselytize to fellow inmates during his recreation time does not place a "substantial burden" on the exercise of Plaintiff's religious rights
Summary of this case from Mitchell v. AnnucciOpinion
CIVIL ACTION NO. 9:17-1471-MGL-BM
07-26-2018
Larry James Tyler, Plaintiff, v. Patricia Ray, Toney Chavis, C.O. Hicks and C.O. Benjamin, Defendants.
REPORT AND RECOMMENDATION
This is a civil action filed by the Plaintiff, Larry James Tyler, pro se. Plaintiff, a frequent filer of litigation in this Court, is currently detained at the Darlington County Detention Center (DCDC), where he is awaiting civil commitment proceedings pursuant to the South Carolina Sexually Violent Predator Act (SVPA), S.C. Code Ann. §§ 44-48-10 through 44-48-170. See Complaint, ECF No. 1, at 2, 4; see also Tyler v. Byrd, No. 16-0400, 2016 WL 4414834, at * 1 (D.S.C. Jul. 27, 2016), adopted by 2016 WL 4374982 (D.S.C. Aug. 16, 2016).
Plaintiff has filed over twenty (20) pro se civil actions in this Court over the past few years, asserting a wide variety of claims. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)[a federal court may take judicial notice of the contents of its own records].
A district court may take judicial notice of materials in the court's own files from prior proceedings. See United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) [holding that the district court had the right to take judicial notice of a prior related proceeding]; see also Fletcher v. Bryan, 175 F.2d 716 (4th Cir. 1949).
Plaintiff has filed this lawsuit alleging that he is a Jehovah's Witness, and that his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA) are being violated because he is not being allowed to engage in certain religious activities at the jail. Plaintiff seeks both prospective injunctive relief and monetary damages. On September 13, 2017, Plaintiff amended his Complaint to add a new Defendant (Hicks) and some additional allegations that the Defendants are restricting his access to reading materials; see Court Docket Nos. 29, 35; and on October 6, 2017 Plaintiff again amended his Complaint to add another new Defendant (Benjamin) and related claims. See Court Docket Nos. 41, 47.
Another previously named Defendant, James Bogel, was dismissed as a party Defendant on October 30, 2017. See Order (Court Docket No. 52). See also Court Docket No. 42.
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on May 16, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on May 17, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to adequately respond, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed a response in opposition to the Defendants' motion on June 18, 2018, following which the Defendants filed a reply memorandum on June 25, 2018. Plaintiff filed a sur reply on July 9, 2018.
The Defendants' motion is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his verified Complaint that he is a civilly committed detainee at the Glenn Campbell (Darlington County) Detention Center. Plaintiff alleges that he is an ordained minister with Jehovah's Witnesses, and that he has informed the Defendant Ray (the Detention Center Director) that he needs to take his bible and religious literature with him when he leaves his cell because "this is the way that I worship and practice my religion to my God of the holy bible". Plaintiff alleges that he witnesses and helps people to learn God's requirements and to live within God's guidelines, and that the only time he is able to worship "freely" is when he is out of his cell, which is two and a half hours a day at recreation time, as this is the only time he is in contact with the other prisoners. Plaintiff alleges that Ray allows a bin to be in the recreation area that is full of bibles and other religious literature, which he [Plaintiff] has been told he can access and read during recreation, so he does not see why it would be any different to allow him to bring his own bible and literature out of his cell with him when he goes to recreation. Plaintiff alleges that the Defendant Chavis is the Sheriff of Darlington County, and that he has sought to come to an "understanding" with Chavis that the way he worships his God is to minister to others as God's representative.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Since Plaintiff has filed verified pleadings, the undersigned has therefore considered the factual allegations set forth in the verified Complaint in evaluating the merits of Plaintiff's claims.
Plaintiff further complains that after February 2017, he did not see his minister again until May 18, 2017. Plaintiff complains that the jail policy is that if you are not on recreation when the minister arrives, you can not go to worship. Therefore, Plaintiff alleges that he has been "deprived of worship service where the volunteers come in" due to this director or sheriff's policy. Plaintiff further alleges that a "Mr. Jones" told him that "the congregation" had never received any mail from the Plaintiff, even though Plaintiff alleges he writes the congregation every month. Finally, Plaintiff alleges that Ray and Chavis show partiality toward the Baptist volunteer over the Jehovah's Witnesses volunteer, because the Baptist minister comes in the door on Sunday and goes to every cell, passing out bibles and literature, including going to other dorms, while the Jehovah's Witnesses volunteers can only go to one dorm, and are not allowed to pass out their literature to each cell but can only do so in the worship service room. See generally, Complaint.
In his amendment adding Benjamin (a correctional officer) as a party Defendant, Plaintiff alleges that since the filing of his Complaint, "Benjamin has been harassing the Plaintiff and threatening to lock him in his cell if he did not take his bible and literature back in his cell". In his amendment adding Hicks (also a correctional officer) as a party Defendant, Plaintiff alleges that Hicks "is a corrections officer that has been threatening and harassing me for months about bring[ing] my bible and literature out of my cell". He further alleges that Hicks "locked [him] down" on September 1, 2017 (apparently for violating this policy). Plaintiff also added claims in this amendment alleging that the Defendant Ray has stopped him from receiving used soft bound books from the prisoner's book clubs, and that since he filed this lawsuit Ray has removed all books from the B Dorm as well as the book bin in the recreation room, although she did not do so in the other dorms. Plaintiff further alleges that Ray has "imposed severe limits on availability of reading material" because he has written to over fifteen book clubs this year, but that Ray refuses to ever let him know when his books have arrived (although Plaintiff also concedes that he received six books (apparently from these book clubs) between January and September 2017). See, Plaintiff's Amendments. Plaintiff seeks monetary damages, as well as declaratory and injunctive relief.
Plaintiff also attached an affidavit to his Complaint in which he attests that he is an ordained minister of the faith of Jehovah's Witnesses, that his religion's "form of worship" largely consists of witnessing to everyone they meet, teaching them what the God of the holy scriptures requires, and to "make the cycles everywhere, even to prisoners". Plaintiff further attests that the only opportunity he has to perform his proselytizing is when he is out of his room on recreation time two and a half hours a day, but that he has been threatened by the CO's (especially Benjamin) with "lock down in [his] cell" if he did not keep his bible and literature in his cell. Plaintiff attests that this is even though the jail allows other bibles and literature to be kept in a book bin in the recreation area. Plaintiff alleges that these policies (of the Director and the Sheriff), by placing a substantial burden on him, violate his religious rights. Plaintiff further alleges that at one point Ray told him that a state statute provides that he cannot bring religious material out of his cell. Plaintiff also attests that Ray and Chavis allow the Baptist volunteers to come in every dorm, and go to each cell and pass out bibles and literature, but that they will not allow Jehovah's Witness volunteers to do the same - that Jehovah's Witnesses can only go to one dorm each visit and are not allowed to go from cell to cell, but only to the worship service room. See generally, Plaintiff's Affidavit.
In support of summary judgment in the case, the Defendant Patricia Ray has submitted an affidavit wherein she attests that she is an employee of the Sheriff of Darlington County, where she serves as Director of the Darlington County Detention Center. Ray attests that Plaintiff has been detained at the Detention Center since October 30, 2015 pending SVP evaluation. Ray attests that at no time during Plaintiff's detainment has he been treated differently from any other inmate, nor has she or any other employee of the Detention Center denied him his ability to practice his religion. Ray attests that general population inmates (such as the Plaintiff) are provided recreation time each day for the purpose of exercise and also access to the day room for leisure activities. Ray attests that this recreation time is completely voluntary for the inmate, but that for the safety and security of the Detention Center, the officers, and the inmates, no personal property is allowed to be removed from the inmate's cell when they are out of their cell on recreation time. This includes books and religious literature.
Ray attests that this policy was put in place because inmates are allowed recreation time in shifts, with twenty to twenty-five inmates being out of their cells at the same time, while there is often only one officer to oversee the recreation time and maintain order in the unit. Ray attests that the policy that inmates not bring personal property from their cell with them to recreation time allows this officer to be able to adequately observe all inmates and ensure that weapons and contraband are not being brought into the recreation area. Ray attests that because there are limited resources and officers available to supervise inmates during recreation time, they have no viable less restrictive means to maintain the safety and security of the Detention Center, and that this policy is applied without discrimination to all inmates who choose to participate in the daily out of cell recreation time. Even so, inmates (including the Plaintiff) are free to converse with each other during this recreation time, and no inmate (including the Plaintiff) has ever been prevented from "witnessing" to other inmates who choose to listen. Ray attests that all inmates receive an inmate handbook and have been informed of the policy that restricts personal property from being removed from cells, and that Plaintiff has himself been made aware of this policy many times.
Ray attests that on February 28, 2017, Plaintiff removed his bible from his cell and brought it with him to the common area during recreation time, even though he had been warned multiple times in the past that this was a violation of policy. Ray attests that as a result of Plaintiff's conduct, the Defendant Benjamin placed Plaintiff on twenty-four (24) hour lock down for his refusal to follow Detention Center rules and for refusing to obey a direct order from Officer Benjamin. Ray further attests that Plaintiff has attempted to remove his bible from his cell during his recreation time on numerous other occasions, but when ordered to return his bible to his cell he did so, and he was then able to attend his recreation time.
Ray further attests that Detention center policy encourages volunteers and visitors to the jail in order to promote community relations and enhance inmate services. Ray attests that all volunteers must receive training from the Detention Center, and that all are treated equally. Ray attests that the Detention Center receives numerous religious volunteers from many religious denominations, all of who are encouraged to visit and are treated equally. Ray attests that at no time has she or any other employee of the Detention Center treated any volunteer differently because of their religious denomination, nor has she ever received any complaints from any religious volunteers claiming they are being treated unfairly or differently from any other volunteers. Ray attests that it is her understanding that although Plaintiff is the only practicing Jehovah's Witness currently detained at the Detention Center, he has received regular volunteer visitors from that religion. Ray further attests that if the Jehovah's Witness volunteers wished to meet with any other inmates, or if any other inmates wish to visit with these volunteers, they would be allowed to do so during that inmate's recreation time. Ray attests that this is the same policy for volunteers from any other religious denomination.
Ray attests that all inmates have the freedom to exercise their religious beliefs and visit with clergy members, to include attending religious services on Sundays when volunteers are available, and that these services are nondenominational and inmates of all religions are able to attend. Ray attests that because the Detention Center has limited resources and personnel, it does not employ a Chaplain and cannot provide religious services unless a volunteer visitor comes and provides the service. Additionally, religious services are held inside the individual units within the Detention center. Ray attests that because inmates are only allowed out of their cells during their out of cell recreation time, only the inmates who are on recreation time when the volunteers arrive are allowed to participate in the service. Ray attests that because there is often only one officer in the unit supervising the inmates on recreation time, inmates who are not currently on their scheduled recreation time are not able to come out of their cells and participate in this service, as doing so would place too many inmates out of their cells for the single officer to control, thereby severely threatening the safety and security of all individuals within the unit and the Detention Center. Ray further attests that the Detention Center is unable to "rotate" the recreation time for inmates who wish to attend religious services, because they do not control when the volunteers show up to hold religious services. Moreover, recreation time schedules are also set so as to separate inmates who are likely to cause security issues, and these rotations cannot be changed because of the risk that two inmates who are separated for security reasons could attend the same out of cell religious service.
Ray also attests that when an inmate feels his ability to practice his religion requires certain action, the Detention Center will and has made all accommodations where feasible consistent with the safety and security of security of the institution. For example, Ray attests that the religious volunteer who regularly visits the Plaintiff provided religious videos and asked that Plaintiff be allowed to view them on Easter Sunday, and that the Detention Center made a room and television available for the Plaintiff to view these religious videos during his scheduled recreation time on Easter Sunday. Ray also attests that Plaintiff has not been denied any of his mail during his detainment at the Detention Center, nor at any point have any books Plaintiff received through the mail been returned. However, Ray attests that inmates at the Detention Center are restricted to having five (5) books in their cells at a time, so whenever Plaintiff receives a new book in the mail, it is placed with his personal property. Plaintiff is then notified of the mail he receives, and he can choose to switch out the book in his cell with the new ones received, if that is what he wants to do.
Ray has attached to her affidavit a copy of the Jail Incident Report from February 28, 2017, where Plaintiff was charged by the Defendant Benjamin (not Hicks) with refusing to obey a direct order, disobeying an order, or disobeying a general jail rule. The Incident Report states that on that date, inmates were given instructions relating to the cleaning of their rooms and taking showers, but that Plaintiff refused to complete his shower or to clean his room. Plaintiff then brought his bible onto the rec floor to read, which he had been told several times not to do. The Incident narrative further indicates that because Plaintiff refused to follow the rules of his recreation time, Benjamin imposed a twenty-four (24) hour lock down on him for disregarding a general jail rule and direct order for recreation. See generally, Ray Affidavit, with attached Exhibit.
The Defendant Robia Benjamin has also provided an affidavit wherein he attests that he is an employee of the Sheriff of Darlington County, where he works at the Detention Center. Benjamin attests that on February 28, 2017 he was assigned to the B Dorm (where Plaintiff is housed), and that when Plaintiff left his cell for his recreation time, he removed his bible from his cell and brought it with him to the common area. Benjamin attests that he told Plaintiff that this was against Detention Center rules and that he had to return his bible to his cell, but that Plaintiff refused his direct order to do so. Benjamin attests that he then placed Plaintiff on a twenty-four (24) hour lock down period for refusing to follow Detention Center rules and refusing to obey a direct order. He also filled out an Incident Report pursuant to Detention Center policy. Benjamin attests that at all times in his dealings with this inmate he acted appropriately, that at no time did he ever treat Plaintiff differently from any other inmate, that he has had no involvement in allowing or preventing this inmate from attending religious services, that he has at no point ever restricted or limited any religious volunteer visitors from visiting the Plaintiff or any other inmate who is on recreation time, and that at no point has he ever denied Plaintiff mail or books he received in the mail. See generally, Benjamin Affidavit.
As an attachment to his memorandum opposing summary judgment, Plaintiff has submitted a "Declaration" in which Plaintiff restates many of the same points made in the affidavit attached to the Complaint. Plaintiff further states that "you will never see a Jehovah's Witness at someone's door without his bible and literature". Plaintiff states that this is important because "people do not believe your word by just saying a fact, [but must] see it with their eyes in writing" in order to believe. Plaintiff therefore states that when the Defendants take his bible and literature from him it prevents him from "witnessing" to other inmates. Plaintiff further argues that if there was a safety and security issue with bringing his bible and literature to the recreation area, then the Detention Center would not allow books and literature in the D Dorm in the recreation area, which they do. Plaintiff also states that Ray and Chavis allow inmates to bring their personal poker cards with them to play card games, although that would appear to be a violation of the policy that says no personal items can come out of the cell. Plaintiff states that Ray herself came into the dorm on two occasions to make him take his literature back into his cell, even though the Defendants can cite to no incident where the safety or security of the institution, guards or inmates has been placed at risk due to a bible or literature being in the recreation area. Plaintiff further argues that a "simple solution" to the Defendant's security concerns would be "to have my bible and literature quickly looked at by the C.O. each time I came out on recreation . . . .". See generally, Plaintiff's "Declaration". Plaintiff has also attached copies of some of his grievances relating to this issue, copies of some discovery, and selected pages from an Inmate Guide. Plaintiff also attached some excerpts from discovery responses to his sur reply.
Although this "Declaration" does not have any notations or affirmations indicating that it has been made under oath, in light of Plaintiff's pro se status, the undersigned has considered the factual statements in this "Declaration" as evidence for purposes of determining whether summary judgment is appropriate in this case. However, Plaintiff is directed to file an affirmation as to the factual statements in this Declaration within ten (10) days of the date of this Report and Recommendation. Plaintiff is specifically notified that failure to do so may result in the District Judge not considering these allegations.
Plaintiff has also attached copies of some medical and dental records, although it is unclear what those exhibits have to do with the claims being asserted in this lawsuit.
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review and consideration of the arguments and evidence submitted, the undersigned finds and concludes for the reasons set forth hereinbelow that the Defendants are entitled to summary judgment in this case.
I.
(Constitutional Claim)
Plaintiff's constitutional claim alleging a First Amendment violation is asserted pursuant to 42 U.S.C. § 1983. 42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
As a civilly committed inmate, Plaintiff has a liberty interest in receiving reasonable care in reasonably non-restrictive conditions of confinement. See Youngberg v. Romeo, 457 U.S. 307, 324 (1982). In considering the constitutionality of the conditions of Plaintiff's confinement, he most closely resembles the custody status of a pre-trial detainee. Lingle v . Kibby, 526 Fed.Appx. 665, 667 (7th Cir. Apr. 15, 2013) [Civilly committed persons are treated as pretrial detainees]; Valbert v. South Carolina Dep't. of Mental Health, No. 12-1973, 2013 WL 4500455 at * 9 (D.S.C. Aug. 20, 2013) [same]; Treece v. McGill, No. 08-3909, 2010 WL 3781695 at * 4 (D.S.C. Sept. 21, 2010)["A civilly committed individual under the SVPA most closely resembles the custody status of a pre-trial detainee."] (quoting LaSure v. Doby, No. 06-1527, 2007 WL 1377694 at * 5 (D.S.C. May 8, 2007)); Tillman v. Dixon, No. 10-5032, 2011 WL 5119187 at * 9 (W.D.Wash. Aug. 12, 2011)[The rights of those civilly committed are analyzed using same standards that apply to pretrial detainees], adopted by, 2011 WL 5118750 (W.D.Wash. Oct. 27, 2011); cf. Larch v. Gintoli, 04-1962, 2006 WL 895019, at ** 3-4 (D.S.C. Mar. 31, 2006). As such, Plaintiff's First Amendment claim is evaluated through the due process clause of the Fourteenth Amendment; see Bell v. Wolfish, 441 U.S. 520, 534-535, and n. 16 (1979); which requires that "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendment without fear of penalty". Cruz v. Beto, 405 U.S. at 322, n. 2; cf. Creveling v. Johnson, No. 11-667, 2011 WL 3444092, at * 4 (D.N.J. Aug. 4, 2011) ["While the nature of an SVP's confinement may factor in this balance [constitutionally protected rights verses the reasons set forth by the State for restricting their liberties] of what is reasonable, it is clearly established that the substantive due process protections of the Fourteenth Amendment apply to SVP's"] (citing Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001).
Considered pursuant to this standard of review, the undersigned finds that Plaintiff has failed to submit evidence sufficient to create a genuine issue of fact as to whether any named Defendant has violated his constitutional rights. Although detained persons retain their First Amendment rights, there is nothing unconstitutional about reasonable restrictions and policies being applied to those First Amendment Rights in order to maintain order and the security of the institution. Wall v. Wade, 741 F.3d 492, 499 (4th Cir. 2014) ["[F]ree exercise restrictions that are reasonably adapted to achieving a legitimate penological objective are permissible"]; cf. In re Long Term Administrative Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999) ["Prison officials 'should be accorded wide-ranging deference in adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security'"] (quoting Bell, 441 U.S. at 547)). As a civilly committed inmate, liability may be imposed for the conditions under which Plaintiff is being held only if the policies and practices at issue can be deemed arbitrary and capricious. Cf. Youngberg, 457 U.S. at 323 [liability may be imposed only when evidence is submitted to show that "the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment"]; Patten v. Nichols, 274 F.3d 829, 843 (4th Cir. 2001)[Defendant's actions must have "so substantially departed from professional standards that their decisions can only be described as arbitrary and unprofessional"]. Nothing in the evidence presented to this Court shows any such conduct by any named Defendant.
The undersigned addresses Plaintiff's claim hereinabove on the merits. Although the Defendants initially argue that they are immune from suit in their official capacities, liberally construing Plaintiff's allegations, the Defendants are being sued for damages in their individual capacities, which is a viable claim under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. at 71; Hafer v. Melo, 112 S.Ct. 358, 365 (1991); Goodmon v. Rockefeller, 947 F.2d 1186 (4th Cir. 1991); Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977). Ray and Chavis also argue that they are entitled to dismissal as party Defendants because there is no supervisory liability under § 1983. See Vinnedge v. Gibbs, 550 F.2d 926, 927-929 & nn. 1-2 (4th Cir. 1977). However, they can be held liable if Plaintiff's constitutional rights were violated as a result of an official policy or custom for which these two Defendants were responsible. See generally, Monell v. Dep't of Social Servs.; 436 U.S. 658, 694 (1978); Wetherington v. Phillips, 380 F.Supp. 426, 428-429 (E.D.N.C. 1974), aff'd, 526 F.2d 591 (4th Cir. 1975); Stubb v. Hunter, 806 F.Supp. 81, 82-83 (D.S.C. 1992); see Slakan v. Porter, 737 F.2d 368, 375-376 (4th Cir. 1984), cert. denied, Reed v. Slakan, 470 U.S. 1035 (1985); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), cert. denied, 115 S.Ct. 67 (1994); Fisher v. Washington Metro Area Transit Authority, 690 F.2d 1133, 1142-1143 (4th Cir. 1982) (citing Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980)). This is what Plaintiff has alleged in his Complaint. See also Plaintiff's Brief, pp. 14-15. Therefore, Ray and Chavis are not entitled to dismissal as Defendants based on a supervisory liability defense at this time.
Although these cases deal with conditions for prisoners, the Court may rely on cases from a prison setting in addressing the religious rights of SVPTP residents. Cf. Beaulieu v. Ludeman, 690 F.3d 1017, 1028 (8th Cir. 2012); Lingle, 526 Fed. Appx. at 667; Treece v. S.C. Dept. of Mental Health, No. 08-3909, 2010 WL 3781726 (D.S.C. Feb. 19, 2010).
First, there is nothing unconstitutional with the jail policy that prohibits prisoners from bringing their personal possessions with them, to include Bibles and other religious publications, when they come to recreation. Cf. Scott v Mecklenburg Correctional Center, No. 06-367, 2006 WL 2060322, at * 1-2 (E.D.Va. July 21, 2006) [Inmate failed to show free exercise violation where inmate was allowed to take certain small items to the recreation yard including a deck of cards, but could not take his Bible where defendant showed legitimate security concern that Bible or any other book could be used to conceal a weapon and would take significant amounts of manhours to search each time if allowed]; Perez v. Williams, No. 08-030, 2010 WL 1962773, at * * 4-5 (N.D.Tex. May 17, 2010) [Finding that Plaintiff failed to state a claim where he only alleged that he was denied to right to take his Bible to recreation yard due to security concerns], appeal dismissed, 2011 WL 857004 (5th Cir. 2011). Ray attests in her affidavit (and Plaintiff has provided no evidence to dispute) that there is often only one guard available to supervise over twenty (20) inmates at a time in recreation, that there is no way adequate checks can be made on what properties (including possible contraband) are being brought in by each individual inmate under these conditions, and that it would therefore be a security concern if inmates were allowed to bring materials such as books and pamphlets with them to recreation from their cells. Even so, Defendants assert, and again Plaintiff has provided no evidence to dispute, that he is free to proselytize during recreation to anyone who chooses to listen to him. The undersigned agrees with the Defendants that under these facts the policy prohibiting Plaintiff from bring his own Bible or religious pamphlets with him during recreation time does not "impose a substantial burden" on Plaintiff's right to practice his religion, since he remains free to exercise and promote his religion all he wants. Wall,741 F.3d at 498.
Notably, the facts here are distinguishable from those presented in Blakenship v. Setzer, 681 F. Appx. 274 (4th Cir. 2017), where the court held that a prison policy prohibiting inmates from carrying their Bible with them when being transported to a county jail, which resulted in the plaintiff being deprived of his Bible for several days at a time, significantly impeded the Plaintiff's ability to practice his religion in that case. Id., at. 278. Here, of course, Plaintiff is not being deprived of his Bible or religious materials at all. They are in his cell where he has ready access to them, and the relatively short time he voluntarily spends at recreation (where even Plaintiff concedes that for at least part of the time there was already a bin with reading material in it, including Bibles) without these materials fails to constitute a "substantial burden" on his ability to practice his religion. Wall, 741 F.3d at 498-499 [Noting that while states may not adopt policies that impose a "substantial burden" on a prisoner's right to practice his religion, free exercise restrictions that are reasonably adapted to achieving penological objectives are permissible].
Plaintiff has also failed to show that this policy violates the requirements of Turner v. Safley. Defendants have shown a valid penological interest in the policy at issue, that Plaintiff remains able to practice his religion notwithstanding the policy, that altering the policy to accommodate Plaintiff's demands would adversely impact the guards and jail resources, and Plaintiff has failed to meet his burden of showing that a ready alternative exists to accommodate his request which would satisfy the Defendant's legitimate penological interests. See Scott v. Mecklenburg Correctional Center, supra; Perez v. Williams, supra. While Plaintiff states in his reply "Declaration" that a "simple solution" would be to have the correctional officer on duty at recreation "quickly" look at the Bible and literature Plaintiff is bringing with him each time he comes out to recreation; see Declaration, p. 5; Ray has already explained in her affidavit that it is not practical for the often times lone correctional officer to individually search over twenty inmates every time they come to recreation. Cf. Scott, 2006 WL 2060322, at * 1-2. Plaintiff's purported "simple" solution is simply not practical. Johnson v. Rees, No. 06-100, 2006 WL 2051609 at * * 3-4 (E.D.Ky. July 20, 2006) [Finding that "[e]ven if the purposes for bringing such materials [Jehovah's Witness pamphlets] into the yard was entirely benign, it would require prison personnel to search the materials for contraband or weapons, and to accommodate all other prisoner requests to bring such materials into the yard for ostensibly-religious purposes."]. Hence, Plaintiff has failed to present evidence sufficient to establish a genuine issue of fact that this policy violates his constitutional rights. Turner, 483 U.S. at 89 ["...when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penalogical interests"]; cf. Youngberg, 457 U.S. at 323 [liability may be imposed only when evidence is submitted to show that "the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment"]; Patten, 274 F.3d at 845-846 [Granting summary judgment in SVP detainee case where the evidence was insufficient to give rise to a genuine issue of fact that the Defendants "so substantially departed from professional standards that their decisions can only be described as arbitrary and unprofessional"].
In Turner v. Safley, 482 U.S. 78 (1987) the Supreme Court set forth four factors for courts to consider in analyzing First Amendment claims challenging a prison regulation. 1) Whether there is a valid, rational connection between the regulation and the legitimate penological interest; 2) whether there are alternative means of exercising the right in question that remain open to prisoners; 3) the impact accommodation of the asserted constitutional right would have on guards and other inmates and on the allocation of prison resources; and 4) whether ready alternatives exist which accommodate the right and satisfy the penological interest. Id., at 89-90. Turner is applicable when analyzing constitutional claims made by civilly committed SVPs. Treece, 2010 WL 3781726, at * 12 [citing cases]. Even so, "[i]mplicit in the Turner approach is the principle that the four-factor analysis applies only after it is determined that the policy impinges on a First Amendment right". Ali v. Dixon, 912 F.2d 86, 89 (4th Cir. 1990).
Plaintiff's argument that the fact that there are already reading materials provided in a bin shows there is no danger presented by him bringing his Bible and pamphlets with him is similarly without merit. The materials in the bin have already been screened, while Plaintiff (and any other inmate coming to recreation) would have to be searched by the correctional officer if allowed to bring their own personal property to recreation to ensure no contraband (to include weapons) was being brought in.
Plaintiff's complaint about the Defendants regulating time of worship or about his being unable to meet with or worship with Jehovah's Witnesses volunteers when he is not on his recreation time also fails to set forth a constitutional claim. First, there is nothing unconstitutional about jail administrators regulating times and manners of religious services inside the institution. See generally Jones v. Bradley, 590 F.2d 294, 296 (9th Cir. 1979) ["Appropriate restrictions on chapel use, including requiring the presence of an outside sponsor for chapel meetings, are reasonable to maintain order and security"]; Rodgers v. Shearidin, Nos. 09-1962 & 10-3110, 2011 WL 4459092 at * 7 (D.Md. Sept. 22, 2011)["Restricting group meetings may be necessary to prevent the possibility of riots or gang meetings."]; see also Johnson Bey v. Lane, 863 F.2d 1308 (7th Cir. 1988)[Regulation prohibiting inmates from conducting their own religious services permissible]; Anderson v. Angelone, 123 F.3d 1197, 1198-1199 (9th Cir. 1997)[Prohibition of inmate-led religious services does not violate the First Amendment]. With respect to Plaintiff's complaint that the Jehovah's Witness volunteers were restricted to one dorm, Ray attests in her affidavit that Plaintiff was the only Jehovah's Witness at the jail (Plaintiff has provided no evidence to dispute Rays testimony), and further attests that the jail has no control over when religious volunteers (including Jehovah's Witness volunteers) come to the jail, if at all. Plaintiff has presented no evidence (and indeed does not even allege) that he is prohibited from meeting with Jehovah's Witness volunteers during his recreation time, if one is available. Plaintiff has also produced no evidence to show that he has tried in good faith to ask the volunteer to come when he is scheduled to be in the prison yard and has been unsuccessful in doing so. Cf. Inzunza v. Moore, No. 09-48, 2011 WL 1211434 at * 10 (N.D.Tex. Mar. 31, 2011) [Finding that until plaintiff produces evidence that he has in good faith attempted to find a volunteer to lead religious services of the faith plaintiff has chosen, and that his efforts have been unsuccessful, the issue is not ripe and no burden shifts to the defendant to locate a volunteer or to accommodate plaintiff].
Plaintiff's complaint could also be read as asserting a claim on behalf of these volunteer Jehovah's Witnesses themselves; that they are being improperly restricted from going from dorm to dorm or cell to cell like Baptist volunteers can do (Plaintiff's allegations assumed to be true for purposes of summary judgment). However, Plaintiff cannot represent the interests of others, or bring claims on behalf of others, in this lawsuit. Myers v. Loudon Co. Pub. Sch., 418 F.3d 395, 401 (4th Cir. 2005)[finding that a pro se person's right to litigate for oneself does not create a similar right to litigate on behalf of others]; cf. Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a prisoner cannot act as a "knight-errant" for other prisoners]; Oxendine v. Williams, 509 F.2d 1405, 1407 & n. * (4th Cir. 1975)[a pro se prisoner unassisted by counsel cannot be an advocate for others in a class action].
Significantly, Ray further attests that she has never received any complaint of any kind from a Jehovah's Witness volunteer that they have been discriminated against or prevented from providing services at the jail, and again Plaintiff has provided no evidence to dispute Ray's testimony, or to show how these volunteers' ministerial activities are being interfered with. Plaintiff has provided no deposition testimony, affidavits, or any other competent or probative evidence from anyone wishing to provide volunteer Jehovah's Witness ministry work at the jail to show that any undue burdens or restrictions are being paced on any such volunteers whatsoever. See Carmen v. San Fran. United Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) [The Court is "not required to comb through the record to find some reason to deny a motion for summary judgment"] (quotation omitted). As such, there is nothing unduly restrictive or burdensome to the Plaintiff present in the Defendants' policies regarding the treatment of religious volunteer visitors or his access to religious services in evidence in this case. Indeed, Ray attests in her affidavit that not only are inmates allowed to be ministered to during recreation when volunteers are there, but that they can attend religious services on Sundays when volunteers are available, and that when the religious volunteer who regularly visits the Plaintiff provided religious videos and asked that Plaintiff be able to view them on Easter Sunday, the Detention Center made a room and television available for the Plaintiff to view these religious videos during his scheduled recreation time on Easter Sunday. Plaintiff has not disputed this testimony. In any event, even if the Defendants' policy on outside volunteers coming to the jail was found to impose a "substantial burden" on Plaintiff's exercise of his religious rights, the Defendants have set forth a legitimate penological interest for why they do not allow jail inmates to go to recreation on their own schedules or anytime they want (such as when a particular religious volunteer may come to the jail). See also Ajaj v. United States, 479 F.Supp.2d 501, 539 (D.S.C. 2007)["Courts have long held that religious practices may be restricted by prison authorities if the restrictions imposed are reasonably related to legitimate, penological interests . . . . "]; Patton, 274 F.3d at 843 [For liability to attach, the defendants actions must have "so substantially departed from professional standards that the decisions can only be described as arbitrary and unprofessional"]. While Plaintiff argues that a less restrictive policy would be for the Defendants to extend the days and times outside ministers can come to the jail, there is no evidence (as previously noted) that any Jehovah's Witness volunteer is being denied access to the jail when they choose to come for ministry. This claim is without merit.
Plaintiff's claim concerning his mail and receipt of books or publications is similarly without merit. Although prisoners such as the Plaintiff do retain some First Amendment Rights with respect to reading material and receipt of books and other types of publications: see Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Witherow v. Paff, 52 F.3d 264, 265 (7th Cir. 1995)[Prisoners enjoy a First Amendment right to send and receive mail]; restrictions on the receipt of magazines, books and other publications by prisoners are again routinely upheld when the policies at issue are reasonably related to legitimate penological interests. Savko v. Rollins, 749 F.Supp. 1403, 1409 (D.Md. 1990) [Limitation on the amount of in-cell religious reading material contained in prison regulation is constitutional under Turner standards]. Ray attests that inmates are allowed to keep up to five (5) books in their cells at a time, and that when Plaintiff receives a new book it is placed with his personal property and Plaintiff gets to decide which books he will switch-out and keep in his cell. Plaintiff himself admits that he received six (6) books over the course of the first nine months of 2017, and he also concedes in his Complaint that he is allowed to keep his Bible and religious materials with him in his cell. Plaintiff's general and conclusory allegations that the Defendants' policies or practices surrounding his receipt of books and correspondence are violating his constitutional rights, without any actual supporting evidence, simply fail to set forth sufficient facts to present a viable claim. House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim]; Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) ["Even though pro se litigants are held to less stringent pleading standards than attorneys the court is not required to 'accept as true legal conclusions or unwarranted factual inferences.'"]; see also Drakeford v. Thompson, No. 09-2239, 2010 WL 4884897, at * 3 (D.S.C. November 24, 2010), citing Larken v. Perkins, 22 Fed. Appx. 114, 115 (4th Cir. 2001)[Noting that non-movant's "own, self-serving affidavit containing conclusory assertions and unsubstantiated speculation, . . . [is] insufficient to stave off summary judgment"]; cf. Nicholas v. Ozmint, No. 04-22471, 2006 WL 4445629 at * * 4-5 (D.S.C. Feb. 8, 2006), adopted by, 2006 WL 895017 (D.S.C. Mar. 31, 2006).
Finally, the Defendants also assert that they are entitled to qualified immunity for Plaintiff's constitutional claims in any event, and the undersigned agrees. The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), established the standard which the Court is to follow in determining whether a defendant is protected by qualified immunity.
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Harlow, 457 U.S. at 818. Additionally, the Court of Appeals for the Fourth Circuit has stated:
Qualified immunity shields a government official from liability for civil monetary damages if the officer's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. "In determining whether the specific right allegedly violated was 'clearly established,' the proper focus is not upon the right at its most general or abstract level but at the level of its application to the specific conduct being challenged." Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). Moreover, "the manner in which this [clearly established] right applies to the actions of the official must also be apparent." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992) . . . As such, if there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity.Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994)(internal citations omitted), cert. denied, 516 U.S. 824 (1995).
Based on the arguments, findings, and case law previously cited, the undersigned concludes that the conduct at issue here did not violate a clearly established stautory or constitutional right of which a reasonable person would have known, even assuming for purposes of summary judgment that a constitutional right was in fact violated. See Smith-El v. Steward, 33 Fed.Appx. 712, 717 (6th Cir. 2002)["Because a reasonable officer in [Defendant's] position had no reason to believe that the policy [at issue] violated clearly established law, he is entitled to qualified immunity."]; Lavado v. Keohane, 992 F.2d 601, 607-608 (6th Cir. 1993); Wiley, 14 F.3d at 995 ["[I]f there is a 'legitimate question' as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity"]. Therefore, to the extent the Defendants seek summary judgment for any claims for monetary damages being asserted by the Plaintiff due to their enforcement of the polices set forth in Plaintiff's Complaint, the Defendants are entitled to qualified immunity from damages on those claims.
II.
(RLUIPA Claim)
Plaintiff has also asserted his claims in this case pursuant to the RLUIPA, which provides that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the government demonstrates that imposition of the burden on that person 1) is in furtherance of a compelling governmental interest, and 2) is the least restrictive means of furthering that compelling governmental interest. See 2 U.S.C. § 2000cc-1(a).
There is no individual liability under the RLUIPA. See Rendelman v. Rouse, 569 F.3d 182, 188 (4th Cir. 2009); Haight v. Thompson, 763 F.3d 554, 571 (6th Cir. 2014); Stewart v. Beach, 701 F.3d 1322, 1334 (10th Cir. 2012); see also Malik v. Ozmint, No. 07-387, 2008 WL 701517, * 12 (D.S.C. Feb. 13, 2008). However, Plaintiff can pursue his claim under the RLUIPA against the Defendants in their official capacities for injunctive relief. Malik, 2008 WL 701517, at * 13; see also Turner v. Cleveland, No. 15-947, 2016 WL 6997500, at * 15 (M.D.N.C. Nov. 30, 2016) ["the Fourth Circuit has held RLUIPA only authorizes injunctive relief against a state official, whether sued in his/her individual or official capacity"] (citing Wall v. Wade, 741 F.3d 492, 496 n. 5 (4th Cir. 2004)). Since Plaintiff seeks injunctive and/or declaratory relief in this case, and giving Plaintiff's complaint the liberal construction to which he is entitled as a pro se litigant, the undersigned has assumed for purposes of summary judgment that Plaintiff has sued the Defendants under the RLUIPA in their official capacities.
RLUIPA analysis proceeds in two steps. First, the inmate "bears the initial burden to
demonstrate that the prison's policy exacts a substantial burden on religious exercise." Incumaa v. Stirling, 791 F.3d 517, 525 (4th Cir.2015). "If the inmate clears this hurdle, the burden shifts to the government to prove its policy furthers a compelling governmental interest by the least restrictive means." Id.Wright v. Lassiter, No. 15-6958, 2016 WL 626377 at * 1 (4th Cir. Feb. 17, 2016). Additionally, the RLUIPA requires a "more searching standard of review . . . than the standard used in parallel constitutional claims: strict scrutiny instead of reasonableness". Loveless v. Lee, 472 F.3d 174, 186 (4th Cir. 2006) (internal quotation marks omitted).
With respect to whether Plaintiff is "substantially burdened" in the exercise of his religious rights by not being able to have his personal Bible or religious pamphlets with him while he (apparently) attempts to proselytize to fellow inmates during his recreation time, the undersigned does not find that such a restriction places a "substantial burden" on the exercise of Plaintiff's religious rights under the applicable case law. See, discussion, supra; see also Johnson, 2006 WL 2051609 at * 5 [Prisoner failed to establish under RLUIPA his "substantial" burden where prison's regulation only prevented him from taking Jehovah's Witnesses literature to prison yard to distribute]. "Such a regulation does not prevent [plaintiff] from engaging in the conduct his faith requires, it only circumscribes the place and time." Id., (citing Weir v. Nix, 114 F.3d 817, 821-822 (8th Cir. 1997) [prison's prohibition of personal property in prison yard did not substantially burden inmates's rights under the Free Exercise Clause; he was free to use his Bible in his cell in order to prepare for evangelism and counseling that he sought to do with assistance of Bible in prison yard]. McGee v. O'Brien, 160 F.Supp. 3d 407, 418 (D.Mass. 2016) ["Limiting an inmate's ability to practice religion, but still allowing the practice, does not constitute a substantial burden."] [RLUIPA claim] (citing Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S.Ct. 1319 (1988)); cf. Rodgers, 2011 WL 4459092 at * 7 ["Restricting group meetings may be necessary to prevent the possibility of riots or gang meetings."]; Jones v. Roth, 950 F.Supp. 254, 257 (N.D.Ill. 1996); Johnson Bey, 863 F.2d at 1308 [Regulation prohibiting inmates from conducting their own religious services permissible]. Nor does the evidence relating to Jehovah's Witness volunteers being able to come to the jail and meet with jail inmates (of which Plaintiff is the only Jehovah's Witness) show that the jail policies at issue impose any "substantial burden" on Plaintiff's ability to exercise his religious rights and beliefs. See, discussion, supra. Cf. Baranowski v. Hort, 486 F.3d 112, 124-125 (5th Cir. 2007)[Refusal to allow Jewish inmates to congregate when rabbi or outside volunteer was not present, was not a substantial burden]; Countryman v. Palmer, No. 11-852, 2012 WL 4340659 at * 4 (D.Nev. Aug. 7, 2012)(citing Adkins v. Kasper, 393 F.3d 559 (5th Cir. 2009), cert. denied, 125 S.Ct. 2549 (2005)[Held prison did not place substantial burden on Plaintiff's request to congregate with other members of his faith when no outside volunteer was present]). Therefore, these claims are without merit. Incumaa, 791 F.3d at 525 [Inmate "bears the initial burden to demonstrate that the prison's policy exacts a substantial burden on religious exercise"]; Johnson v. Lewis, No. 13-148, 2016 WL 830831, at *4 5 (W.D.N.C. Mar. 3, 2016)[A " 'substantial burden' is one that puts substantial pressure on an adherent to modify his behavior and to violate his beliefs, [ ] or one that forces a person to choose between following the precepts of [his] religion and forfeiting governmental benefits, on the one hand, and abandoning one of the precepts of [his] religion on the other hand." (quoting Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (quotations, citation, and alterations omitted)].
Although these cases address the compelling governmental interest at issue under a constitutional standard, not under the standard of the RLUIPA, the findings by the courts in these cases are still material to Plaintiff's RLUIPA claim.
Moreover, even if Plaintiff had met his burden of demonstrating that the jail's policies at issue exact a substantial burden on his religious exercise, the Defendants have submitted evidence to show how their jail policies further a compelling governmental interest, and no evidence to show that there are any less restrictive means of furthering that compelling governmental interest has been presented. Notably, in determining this issue, the reviewing court must not substitute "its judgment in place of the experience and expertise of prison officials." Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir. 2006). As the United States Supreme Court held in Cutter v. Wilkerson,
We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests . . . . [Congress] anticipated that courts would apply the Act's standard with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of cost and limited resources." . . .Cutter, 544 U.S. at 722. See also Youngberg, 457 U.S. at 323-324 [Decisions made by the appropriate professional are entitled to a presumption of correctness, and liability may be imposed only when evidence is submitted to show a substantial departure from accepted professional judgment, practice or standards]; McAlistor v. Livingston, No. 05-3228, 2008 WL 11429762 at * 7 (S.D.Tex. Mar. 31, 2008).
The Defendants have met their burden in this case of showing that their personal property and religious volunteer policies are implemented in the least restrictive means of furthering the compelling governmental interest involved, even while allowing Plaintiff to exercise his religious beliefs. Versatile v. Johnson, No. 09-120, 2011 WL 5119259, * 4 (E.D.Va. Oct. 27, 2011)[Once a substantial burden is shown, the burden is on the defendant to show the practice at issue is the least restrictive means of furthering a compelling governmental interest], aff'd by, 474 Fed. Appx. 385 (4th Cir. 2012), cert. denied, 113 S.Ct. 1261 (2013). Plaintiff has presented no evidence to give rise to a genuine issue of fact that the RLUIPA is being violated in this case. Cutter, 544 U.S. at 726 [Explaining that "[s]hould inmate request for religious accommodation become excessive, and pose unjustified burdens on other institutionalized person, or jeopardize the effective function of an institution, the facility would be free to resist the imposition]; cf. Treece, 2010 WL 3781726, at * 13 ["There is no affirmative duty requiring that prison administrators provide each inmate with a spiritual counselor of his choice], citing Allen v. Toombs, 827 F.3d 563, 569 (9th Cir. 1987). Nor has Plaintiff provided any evidence to show that the Defendants' mail or book polices, to include restrictions on the number of books inmates are allowed to keep in their cells at one time, violate the RLUIPA. Johnson, 2016 WL 830831, at *4 5 [A " 'substantial burden' is one that puts substantial pressure on an adherent to modify his behavior and to violate his beliefs, [ ] or one that forces a person to choose between following the precepts of [his] religion and forfeiting governmental benefits, on the one hand, and abandoning one of the precepts of [his] religion on the other hand."] (quotations, citation, and alterations omitted)].
Therefore, the Defendants are entitled to summary judgment on Plaintiff's RLUIPA claim.
Conclusion
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge July 26, 2018
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).