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Harris v. Wall

United States District Court, D. Rhode Island

November 18, 2016

JAMES HARRIS, Plaintiff,
v.
ASHBEL T. WALL, Defendant.

          ORDER

          WILLIAM E. SMITH, Chief Judge.

         Plaintiff James Harris, an inmate at the Adult Correctional Institutions (“ACI”), is challenging a Rhode Island Department of Corrections (“RIDOC”) policy that allows him to wear his religious head covering only when he is in his cell or when he is attending religious services. (Compl. 4, ECF No. 1.) Plaintiff, a Sunni Muslim, is seeking a temporary restraining order and preliminary injunction that he be allowed to wear a kufi without restriction throughout the ACI. (Mot. for TRO & Prelim. Inj. 1, ECF No. 3.) Magistrate Judge Patricia A. Sullivan held a hearing on Plaintiff's motion in July 2016 and filed a Report and Recommendation (“R&R”) (see attached) on August 15, 2016, recommending that the Court issue a limited, ninety-day injunction “directing RIDOC to expand its headwear policy to permit Plaintiff to wear a kufi of a specified design while exercising in the prison yard, subject to all of the existing limits on the wearing of secular head coverings.” (R&R 2, 28, ECF No. 27.) The R&R also recommended that the narrow injunction “be subject to immediate cancellation and withdrawal of the privilege if, in practice, it exacerbates RIDOC's identified security concerns.” (Id. at 2-3.)

         Defendant filed an objection to the R&R, arguing that the R&R erred by recommending that the Court issue a limited injunction allowing Plaintiff to wear a kufi in the prison yard. (Obj. to R&R 2, ECF No. 29.) Defendant contends that any increase in risk to the safety and security at the ACI, however slight, means that the balancing of the harms consideration of the preliminary injunction analysis must tip in favor of not changing the religious head-covering policy. (Mem. in Supp. of Def.'s Obj. to R&R 9, ECF No. 29-1.) Defendant also challenges the conclusions in the R&R that Plaintiff's religious belief is sincere and that the current policy substantially burdens his beliefs. (Id. at 21-22.) This Court has carefully considered Defendant's Objection and finds that it does not present any additional arguments to those thoroughly considered and addressed within the R&R.

         The R&R recommended the narrow injunction after carefully considering each of the elements for granting a preliminary injunction. By recommending such a narrow injunction, the R&R focused on accommodating two competing public policies: ensuring security and safety at the ACI and protecting Plaintiff's practice of his religion from overly-intrusive government interference pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1.

         The R&R clearly acknowledged the serious and legitimate security and safety concerns identified by the RIDOC about permitting Plaintiff to wear his kufi without restriction anywhere within the ACI facilities, concluding that “except for the narrow circumstances of the prison yard where secular caps are already allowed, the balance of the hardships tilts dramatically against the issuance of an injunction.” (R&R 26, ECF No. 27.) The R&R gave appropriate deference to the professional judgment of the ACI administrators while also acknowledging that RIDOC had failed to demonstrate that its complete ban on religious headwear is the least restrictive way to achieve its compelling interest in a safe and secure prison facility where existing RIDOC policy already allows for secular headwear (e.g., a baseball cap in summer and a knit cap in winter) during inmate time in the prison yard.

         Ultimately, this Court agrees with the findings and reasoned conclusions in the R&R, and hereby accepts the R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction is GRANTED IN PART, as follows: Defendant A.T. Wall, in his official capacity as the Director of RIDOC, shall alter the RIDOC s headwear policy to allow Plaintiff to wear a solid color, close-fitted, seamless, crocheted kufi when he is exercising in the prison yard in addition to when he is in his cell. The altered policy shall be subject to all of the existing limits on the wearing and use of secular head coverings, and the policy shall be subject to withdrawal if any of RIDOCs identified security concerns are realized from permitting Plaintiff to wear his kufi while exercising in the prison yard. The effect of this Order will be stayed for a period of thirty days from today's date, during which time RIDOC shall make any necessary amendments to its policies, regulations or search protocols to conform with the limited mandatory injunction imposed by this Order. Once the injunction takes effect, it shall be in effect for ninety days pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(2).

         Other than the limited injunction ordered above, Plaintiff's motion is DENIED.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          Patricia A. Sullivan, United States Magistrate Judge

         Pro se[1] Plaintiff James Harris, a prisoner at the Adult Correctional Institutions (“ACI”) and a self-identified devout Sunni Muslim, has sued Defendant A.T. Wall individually and in his official capacity as the Director of the Rhode Island Department of Corrections (“RIDOC”)[2]pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 (“RLUIPA”).[3] Plaintiff challenges a longstanding RIDOC policy (the “headwear policy”) that permits him to wear his religious head covering (the kufi[4]) only while he is in his cell or attending religious services. In this suit, he seeks declaratory relief and a permanent injunction “to ensure that he is allowed to freely exercise the right to exercise the religious belief of wearing a kufi through the ACI facilities without restriction.” ECF No. 3 at 1. Plaintiff claims that RIDOC's headwear policy imposes a substantial burden on his sincerely-held religious belief and that, while the policy may advance RIDOC's compelling interests in safety and security, it is not the least restrictive means of furthering those interests, as required by RLUIPA. RIDOC counters with two affidavits, one from Deputy Warden Jeffrey Aceto and the other from Lieutenant William Galligan, which detail the State's compelling penological interests in adopting and enforcing the headwear policy, while attempting to accommodate the religious beliefs of inmates like Plaintiff.

         Before the Court for report and recommendation, 28 U.S.C. § 636(b)(1)(B), are Plaintiff's motions for temporary restraining order and preliminary injunction; a hearing on the motions was conducted on July 1, 2016. Also pending is Plaintiff's oral motion for appointment of counsel, which has been referred for determination. See 28 U.S.C. § 636(b)(1)(A). For the reasons that follow, I recommend that the Plaintiff's motions for a temporary restraining order and preliminary injunction be granted in part by the issuance of a limited injunction directing RIDOC to expand its headwear policy to permit Plaintiff to wear a kufi of a specified design while exercising in the prison yard, subject to all of the existing limits on the wearing of secular head coverings. I further recommend that this slightly more-liberal policy be subject to immediate cancellation and withdrawal of the privilege if, in practice, it exacerbates RIDOC's identified security concerns. Beyond this narrow injunction, I recommend that Plaintiff's motions for a temporary restraining order and preliminary injunction be denied. In a separate memorandum and order, I have also denied the motion for counsel, subject to Plaintiff's right to renew the motion if this matter proceeds to the discovery phase, and subject to the acceptance of the case by a member of the Court's pro bono panel.

         I. FACTS[5]

         A. RIDOC's Policies and Compelling Penological Interest

         The RIDOC policies at issue in this case exist to protect the well-being and security of correctional staff, inmates and the public. Aceto Aff. ¶ 61. These policies were not adopted in a vacuum: during the 1970s, violence and other conditions at the ACI resulted in the judicial holding that it was an institution “unfit for human habitation and shocking to the conscience of a reasonably civilized person, ” Palmigiano v. Garrahy, 443 F.Supp. 956, 979 (D.R.I. 1977), while in the 1990s, gang activity continued to be a significant security concern. Galligan Aff. ¶ 18. RIDOC remains vigilant in seeking ways to reduce gang and sectarian violence at the ACI by eliminating, to the greatest degree possible, any differentiating factor in the inmate population that might be used as a gang identifier or that might serve as a basis for groups of inmates to segregate themselves from other inmates. Galligan Aff. ¶¶ 18-19; see Aceto Aff. ¶¶ 51-54 (permitting subgroups in prison to create “us vs. them” mentality is extremely dangerous and poses a direct threat to prison order and security).

         As the Galligan and Aceto affidavits make clear, in formulating its policies, RIDOC strives to anticipate what might increase the risk of violence or danger and has created a complex weave of policies to address the identified risks. For example, it monitors the experiences of other institutions; as a result, it knows that hats are readily used in a wide range of ways by members of gangs, such as the Aryan Brotherhood, to self-identity to other inmates. Aceto Aff. ¶ 33; see id. ¶ 35 (RIDOC believes that wearing the kufi in certain manner or only on certain days could be used to signal gang affiliation). Similarly, RIDOC staff is aware that the potential for factional violence inside the institution is exacerbated when racial or religious tensions erupt in the society outside the institution. This information is used to design policies to reduce gang, religious or racial violence to the greatest degree possible. Aceto Aff. ¶ 38 (news stories about religious tensions will manifest tenfold in prison population); id. ¶¶ 40-42 (noting that tensions were created when pork was eliminated from RIDOC menu to accommodate Muslim inmates). RIDOC also knows that even a perception of preferential treatment can trigger a potentially violent outburst, threatening the ability of RIDOC staff to maintain order. Aceto Aff. ¶¶ 40-44 (describing profane outburst by inmate who believed, wrongly, that fish was being served to accommodate Muslim inmates). Based on its past experience with sectarian violence, as well as information gained from the experiences of other institutions, RIDOC believes that there is a “very real” danger that permitting the wearing of the kufi (and other religious head coverings) throughout the ACI could facilitate gang activity or promote the identification of a subgroup as a distinct clique, creating the “risk of boiling over into factional violence.” Aceto Aff. ¶¶ 35, 37-38.

         A second serious danger that RIDOC must constantly address is the smuggling of contraband, particularly drugs, weapons, notes and food, into the ACI and from place to place within the institution. Galligan Aff. ¶ 15. RIDOC takes “proactive measures to stem the tide of this destructive practice, ” while acknowledging that is it virtually impossible entirely to eliminate contraband trafficking from any prison. Aceto Aff. ¶¶ 5, 9; see Galligan Aff. ¶ 15. Based on experience, RIDOC is aware that contraband is smuggled into the institution through a wide range of creative methods, including in sneakers, under hats, in sock bands, in body orifices and in the seams of clothing. Galligan Aff. ¶ 16. RIDOC has also observed that clothing can be switched, for example during family visits, to smuggle contraband. Aceto Aff. ¶¶ 7-9.

         To prevent contraband smuggling RIDOC conducts frequent inmate searches. Aceto Aff. ¶ 9. However, while RIDOC relies on both random and key-time searches, its resources are finite and at some point extensive searches become impracticable without a significant reallocation of resources. Aceto Aff. ¶ 9; see id. ¶ 18 (due to infeasibility of searching inmates constantly, inmates moving within ACI are searched either randomly or not at all). In addition, RIDOC's knowledge of the dangers of singling out a discrete group has caused it to conclude that religious tensions, and the related potential for violence, would increase if believers are targeted for searches. See Aceto Aff. ¶¶ 19-21 (if religious head coverings, such as the kufi, are permitted throughout ACI, additional searches would increase costs, add to burden on RIDOC staff, complicate searching, increase religious tension and detract from searches of other inmates). Based on these considerations, RIDOC believes that permitting the wearing of the kufi or other religious head coverings without limitation would tax its limited resources, undermine its strict uniform policy and hinder its ability to combat contraband smuggling. Aceto Aff. ¶ 21.

         A third RIDOC concern is the maintenance of prison order, which requires the swift and efficient conduct of searches, as well as monitoring by correctional officers and security cameras. Aceto Aff. ¶ 17. RIDOC believes that any head covering, including a kufi, would hinder inmate identification because identifying features can be obscured both from correctional officers and cameras, making it more difficult to track movements or determine an inmate's identity. Aceto Aff. ¶¶ 27-29. In addition, the proliferation of head coverings would make the search protocol more complex and increase the likelihood that something dangerous could be overlooked. See Aceto Aff. ¶¶ 11, 13, 17.

         To address these serious safety concerns while minimizing the need for additional searches (and the costs and tensions such searches would cause), RIDOC has implemented interconnected policies, [6] including specially-designed prison uniforms and aggressive restrictions on the ability of inmates to wear any article of clothing or adornment that is different or unnecessary. Aceto Aff. ¶¶ 10, 58-59; Galligan Aff. ¶¶ 17-19. RIDOC strives to achieve a complete uniformity which will facilitate searches and inmate identification, and which will eliminate anything that could be used to hide contraband or to signal gang or other affiliation. For example, the special uniform has eliminated pockets[7] because they were not only used to hide contraband but were also adjusted to signal gang affiliation. Aceto Aff. ¶ 12; see Galligan Aff. ¶ 18 (RIDOC eliminated belts because they were used to signal gang affiliation).

         A critical strand woven into the fabric of these interconnected policies is RIDOC's strict prohibition against inmates wearing any head covering - religious or otherwise - anywhere inside any RIDOC facility or outside in the prison yard. Galligan Aff. ¶ 11; Aceto Aff. ¶¶ 11, 25. The only exception is that inmates may wear a uniform knit cap in winter and a uniform baseball cap in summer while they are outside in the prison yard. Because of security concerns, inmates must carry the cap until they are outside and remove it immediately upon reentering the facility.[8] Aceto Aff. ¶¶ 23-24, 26.

         RIDOC's affiants aver that these policies have been very successful. The amount of searching has been reduced, permitting more productive deployment of resources. And the gang violence of the 1990s has been brought under control “due to steps DOC took to reduce gang activity, such as implementing standard prison uniforms.” Galligan Aff. ¶ 19. As Lieutenant Galligan noted, “[a]s a result, DOC facilities are now one of the best in the country at reducing and managing gang activity.” Id. Plaintiff disputes the efficaciousness of the policies, averring that, despite the ban on religious head coverings, contraband is easily smuggled; gang activity is “very present and current, ” resulting in a fight as recently as January 2016; inmates' hair can be styled in braids or ponytails to smuggle contraband and signal gangs; the secular caps permitted during exercise are tilted as gang signals; and Muslims are readily identified because of their dietary differences. Pl. Dec. II ¶¶ 11, 13, 26, 28; see id. ¶ 14.

         To accommodate the religious beliefs of inmates whose religion calls for the wearing of a head covering, while not compromising the safety and security of inmates, staff and the public, RIDOC has relaxed the headwear policy in limited circumstances. See Galligan Aff. ¶ 11; Aceto Aff. ¶ 11. Specifically, all inmates whose beliefs call for head coverings, no matter the religious affiliation, are allowed to wear religious headwear in their cells and during religious services. See Galligan Aff. ¶ 11; Compl. ¶ 17; Pl. Dec. II ¶ 23. However, when mingling with the rest of the inmate population, moving through the institution, exercising in the yard, researching in the library, working at a job, taking a class, or visiting with family and friends, all inmates must conform to the basic policy of wearing the specially-designed uniform with no head covering and no other visible apparel or adornment, except to the limited extent that a cap is necessary for protection from the cold or the sun while exercising outdoors.

         B. Plaintiff's Religious Beliefs

         Plaintiff has been an inmate at the ACI since March 23, 2006. Galligan Aff. ¶ 5. In 2005, a year prior to the commencement of his sentence, Plaintiff converted to Islam. Three years later, in 2008 (while serving his current sentence), he began wearing a kufi. At the hearing, Plaintiff stated that the ACI's policy limiting the wearing of the kufi (and other religious headwear) was in place when he first chose to wear it. Consequently, over the last eight years, Plaintiff has worn his kufi only in his cell and at religious services. See Pl. Dec. I ¶ 7; Galligan Aff. ¶ 11; Aceto Aff. ¶ 11.

         In his declarations and filings, as well as in his statements made during the hearing, Plaintiff explains that he wears the kufi based on his belief as a Sunni Muslim that he must follow the Islamic dress code as expressed in the “hadiths, ” or sayings of the prophet Muhammad, which require that men wear a turban or kufi to express respect and deference to Allah. Compl. ¶¶ 7, 9, 14-15; ECF No. 8-1 at 3, 9, 11. Plaintiff believes that wearing a kufi at all times[9] is an important act of worship that allows a Muslim to “earn blessings” and “become beloved to Allah.” Compl. ¶ 19; Pl. Dec. I ¶¶ 4-5. His belief includes the conviction that wearing a kufi is akin to automatic worship and that, if he dies without his kufi, he would be at risk of “being raised up among [non-believers] on the day of Judgement.” Pl. Dec. I ¶ 3. This belief is so powerful, Plaintiff alleges, that the RIDOC headwear policy has forced him to choose between following his religion or taking part in prison recreation and ...


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