BILL O. McCLAIN, JR. v. David Rogers, et. al.

* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005*
Decided November 30, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-2098
BILL O. McCLAIN, JR.,
Plaintiff-Appellant,
v.
DAVID ROGERS, et. al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division
No. 1:03-cv-1140-SEB-VSS
Sarah Evans Barker,
Judge.
O R D E R
Indiana inmate Bill McClain, Jr., brought suit under 42 U.S.C. § 1983,
claiming that two guards and a chaplain prevented him from praying in the
recreation yard and worshiping together with other adherents of his faith, in
violation of his First Amendment right to the free exercise of religion. The parties
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2098 Page 2
filed cross-motions for summary judgment, and the district court granted the
defendants’ motion. McClain timely appealed and we now affirm.
McClain practices Asatru, a “nonmainstream” religion, see Cutter v.
Wilkinson, 125 S. Ct. 2113, 2116 (2005); Lindell v. McCallum, 352 F.3d 1107, 1108
(7th Cir. 2005) (noting ties to belief in white supremacy), and was praying alone in
his prison’s recreation yard when the defendant guards told him to stop. They
informed him that he could pray in his cell or in the chapel, but not in the yard.
McClain complained to the chaplain, who backed the guards. McClain brought suit
based on this incident; he also complained that the chaplain does not allow Asatruars
to worship in groups, though members of other religions are permitted to do so.
At summary judgment, the defendants asserted that they were following
policy. The guards, through answers to interrogatories, maintained that they were
merely enforcing a provision of the prison’s Offender Handbook, which prohibits
“religious meetings or gatherings on the yard.” Likewise, the chaplain testified by
affidavit that he was following a systemwide policy of the Department of Corrections
that permits adherents of some religions to worship as a group, but presently denies
that privilege to Asatruars. The group-worship policy was explained by a former
DOC Director of Religious Services and Community Involvement, who now serves as
a consultant on religious issues. She testified by affidavit that the DOC does not
consider group worship to be a required tenet of the Asatru faith, and does not permit
Asatruars to worship together because of security risks arising from the religion’s
ties to white-supremacist views. She also averred that applications for group worship
must be sponsored by a non-confined religious official, and that inmates who wish to
worship together must be led by an outside representative who has submitted to a
criminal background check, among other requirements. According to the consultant,
Asatruars applied for permission to worship as a group in 2000 but did not satisfy
these conditions, and no other request had been received since then.
In granting summary judgment for the defendants, the district court applied
the test announced in Turner v. Safley, 482 U.S. 78, 89 (1987), and held that,
although the policies enforced by the defendants infringed on McClain’s practice of
his religion, the undisputed evidence showed those policies to be reasonably related
to legitimate penological interests and thus valid. See O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987) (applying Turner standard to prison regulation affecting
religious practice). The district court then denied McClain’s motion to compel
discovery about the treatment of other religions and gangs, and denied his request
for injunctive relief. McClain, who is white, timely moved for reconsideration on the
basis that the challenged policies draw racial classifications and accordingly violate
his right to equal protection. The court denied that motion, reasoning that the

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No. 05-2098 Page 3
1 We note also that in the district court McClain never raised a claim under
the Religious Land Use and Institutionalized Persons Act of 2002, 42 U.S.C.
§§ 2000cc to 2000cc-5. Thus, to the extent that McClain makes reference in his brief
to Cutter v. Wilkinson, 125 S. Ct. 2113, 2116 (2005), which holds that RLUIPA does
not violate the Establishment Clause, we do not address his argument. See King v.
Ill. State Bd. of Elections, 410 F.3d 404, 424 (7th Cir. 2005) (arguments raised for the
first time on appeal are waived).
lawsuit does not claim a violation of equal protection and that, regardless, there was
no evidence that the challenged policies were based on race.
On appeal McClain effectively abandons his free exercise claim and argues
that the district court should have discerned an equal protection claim in his
complaint. He argues that the consultant’s statement that Asatru attracts white
supremacists supports his belief that the policies the defendants enforced are based
on race. And since racial classifications were at issue, he continues, the district court
should have applied strict scrutiny under Johnson v. California, 125 S.Ct. 1141,
1148 (2005), not the First Amendment analysis under Turner.
McClain raised his equal protection challenge too late. See Palmer v. Marion
County, 327 F.3d 588, 597 (7th Cir. 2003); Laborers’ Int’l Union of N. Am. v. Caruso,
197 F.3d 1195, 1197 (7th Cir. 1999).1**Moreover, Johnson has no application here
because the concern that Asatruars are more likely to espouse a belief in white
supremacy than adherents of other faiths is premised on the need to maintain prison
security, not on race, and under Turner would be deemed a neutral basis for
classification. See Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989). Thus,
recasting his religion claims as one under the Equal Protection Clause of the
Fourteenth Amendment cannot benefit McClain. See Conyers v. Abitz, 416 F.3d
580, 586 (7th Cir. 2005) (holding that complaint alleging interference with inmate’s
observance of religious fast raised free exercise challenge; separate equal protection
analysis was unnecessary); Reed v. Faulkner, 842 F.2d 960, 962 (7th Cir. 1988)
(noting that religious discrimination is governed by the religion clauses of the First
Amendment).
Finally, McClain argues for the first time in his reply brief that the district
court should have recognized a factual dispute about whether the asserted prison
policy prohibiting prayer in the recreation yard has been interpreted correctly by the
defendants and applied uniformly to members of all religions. That the policy
literally prohibits religious “meetings or gatherings” in the yard, and yet the
defendants admitted that McClain was praying alone, does suggest a question of

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No. 05-2098 Page 4
interpretation. And an April 2004 notice inviting Christians to gather with the
chaplain on the ball field for Easter services, a copy of which McClain attached to his
unsworn response to the defendants’ motion for summary judgment, might have
raised a question about the enforcement of this policy. But the notice was never
authenticated and was not properly before the district court, see Fed. R. Civ. P. 56(e);
Woods v. City of Chicago, 234 F.3d 979, 989 (7th Cir. 2000), and McClain offered no
other evidence contradicting the defendants’ understanding of the yard policy. In
any event, arguments raised for the first time in a reply brief are waived. Hess v.
Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 665 (7th Cir. 2005).
AFFIRMED.

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