Garry A. Borzych v. Matthew J. Frank

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3907
G ARRY A. B ORZYCH ,
Plaintiff-Appellant,
v.
M ATTHEW J. F RANK , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-0632-C—Barbara B. Crabb, Chief Judge.
____________
S UBMITTED F EBRUARY 17, 2006—D ECIDED M ARCH 2, 2006
____________
Before B AUER , E ASTERBROOK , and E VANS , Circuit Judges.
E ASTERBROOK , Circuit Judge. Garry A. Borzych contends
in this action under 42 U.S.C. §1983 that prison officials in
Wisconsin violated the Constitution and §3 of the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. §2000cc-1, by refusing to allow him to possess the
books Creed of Iron, Temple of Wotan, and The NPKA Book
of Blotar, which he says are necessary to practice his
religion. Borzych identifies his religion as Odinism (or
Odinic Rite), which like Asatru and Wotanism entails the
worship of Norse gods. Borzych maintains that these books
are religious texts. Wisconsin’s prison system contends, by

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2 No. 05-3907
contrast, that the books are non-religious and promote
white-supremacist violence.
Borzych’s best argument rests on RLUIPA, which prohib-
its prisons that receive federal funding from substantially
burdening an inmate’s religious exercise unless the step in
question is the least restrictive way to advance a compelling
state interest. See Cutter v. Wilkinson, 125 S. Ct. 2113
(2005); Lindell v. McCallum, 352 F.3d 1107 (7th Cir. 2003).
See also Gonzales v. O Centro Espírita Beneficente União do
Vegetal, No. 04-1084 (U.S. Feb. 21, 2006) (discussing the
materially identical provision in the Religious Freedom
Restoration Act, 42 U.S.C. §2000bb-1). The first amend-
ment, by contrast, does not require the accommodation of
religious practice: states may enforce neutral rules. See
Employment Division of Oregon v. Smith, 494 U.S. 872
(1990). See also O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987). Given this difference, it is unnecessary to discuss
the Constitution further.
Defendants concede that Odinism is a religion, and the
district court assumed that denying Borzych these books
substantially burdened this religion’s exercise. The judge
concluded, however, that defendants’ interest in preserving
security in the prison system is compelling because these
books advocate violence. The court also found that banning
the books is the least restrictive means to advance that
interest, which meant that Borzych does not have a winning
claim under RLUIPA. 2005 U.S. Dist. LEXIS 19840 (W.D.
Wis. Sept. 9, 2005).
We doubt that keeping these books out of the prison
substantially burdens anyone’s religious exercise. Borzych’s
only evidence on this point is his unreasoned say-so, plus
equivalent declarations by other inmates. This is insuffi-
cient to create a material dispute that would require a trial.
See Kaufmann v. McCaughtry, 419 F.3d 678, 682-83 (7th
Cir. 2005); Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th

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No. 05-3907 3
Cir. 1996). No objective evidence supports his assertion that
the books are important to Odinism. Defendants submitted
the report of Timothy Tangherlini, a professor at UCLA
with expertise in folklore and Old Norse language and
literature, who concluded that Temple of Wotan and Creed
of Iron are not Odinic or even religious but are secular
works promoting racism. As for The NPKA Book of Blotar:
its own author says that it is not an authoritative text on
Odinic practices and that the rituals it describes “are by
nature fictitious”. A book about fictitious rituals, rather
than actual ones, is not vital to any religious practice.
At all events, the record establishes that the prison
system’s ban is the least restrictive means to promote a
compelling state interest in safety. Borzych does not
seriously contest the district court’s conclusion that these
books advocate violence. An interest in curtailing violence
within prison walls is compelling. Borzych asserts that the
warden has exaggerated the security concerns, but a
prisoner’s view of what promotes prison security is hardly
objective. Borzych maintains that the prison has excluded
these books simply because they endorse white-supremacist
views, but this misstates Wisconsin’s position. Defendants’
principal argument is that the books promote violence to
exalt the status of whites and demean other races; it is the
means rather than the underlying racist view that the
defendants contend (and we hold) may be forbidden in
prisoners’ reading matter.
Borzych suggests that the defendants redact the passages
that advocate violence. Redaction, though, is not a realistic
option, given that the books range in length from 175 to
more than 400 pages, and their promotion of violence is
thoroughgoing. All three books as a whole promote violence
as an acceptable way of advancing racist beliefs. Paul
Hestekind, a correctional sergeant with training in gang
behavior, testified by affidavit that all three books are

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4 No. 05-3907
products of a group led by David Lane, a former member of
the Ku Klux Klan now in prison for his involvement in the
murder of a Jewish radio talk show host. This and other
evidence is quite sufficient to support the district court’s
decision.
Borzych makes an additional argument: that
the Wisconsin prison system’s Internal Management
Procedure 6, on which the defendants relied in banning the
three books, is overbroad and thus an impermissible
infringement on his right to speech. (IMP 6 consolidates
several former policies, including IMP 6 and IMP 6A.
Although the former versions were consolidated into IMP 6
shortly before Borzych filed his suit in the district court, the
defendants continue to refer to the prior designations.) IMP
6 provides in part:
The Department does not permit activities that
advocate racial or ethnic supremacy or purity, or
that attacks a racial, religious or ethnic group,
promotes hate crimes, jeopardizes the security and
order of the institution, or violates federal or state
laws or Department administrative rules, policies
or procedures. . . .
Literature that advocates racial or ethnic suprem-
acy or purity, or that attacks a racial, religious or
ethnic group, promotes hate crimes, jeopardizes the
security and order of the institution, violates
federal or state laws or Department administrative
rules, policies or procedures will not be permitted.
Vagueness in this language holds out the prospect of
misuse. A prison’s attempt to exclude all literature that
“advocates racial or ethnic supremacy” would be hard to
sustain against a challenge under RLUIPA by an adherent
to a religious sect whose creed includes distinctions among
racial or ethnic groups. But IMP 6 cannot be described as

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No. 05-3907 5
uniformly forbidden by either the statute or the first
amendment. That we have already sustained Wisconsin’s
application of this rule to exclude three particular books
shows as much.
Analysis under RLUIPA is specific, a point the Supreme
Court made in O Centro Espírita when dealing with the
Religious Freedom Restoration Act, see slip op. 9-10, and
that is equally applicable to the RLUIPA. Neither statute
requires (or permits) courts to nullify whole regulations just
because they have a potential for improper application to a
particular faith or belief. Whatever scope overbreadth
analysis has in criminal prosecutions—a subject that has
divided the Justices in the wake of United States v. Salerno,
481 U.S. 739, 745 (1987)—it has little or none in civil
litigation dealing with prisons’ internal operations. See
Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986). Some
open-ended quality is essential if a prison is to have any
guidelines; it is impossible to foresee all literature that may
pose a threat to safety and security. The overbreadth in this
regulation is not “substantial” in relation to its proper
applications. See Virginia v. Hicks, 539 U.S. 113, 123-24
(2003). Cf. Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973). If Wisconsin’s prison system prevents Borzych from
possessing additional books, those decisions may be chal-
lenged as made. It would be no more than an advisory
opinion to attempt to resolve now all questions that could
a ri s e u n d e r t h e r e g u l a t i o n . Cf. Ayotte v.
Planned Parenthood, 126 S. Ct. 961, 967-68 (2006).
A FFIRMED

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6 No. 05-3907
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-2-06

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