Leroy A. Lovelace v.  Jack Lee; Gene Shinault; K. Lester

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 LEROY A. LOVELACE,
Plaintiff-Appellant,
v. No. 04-7797 
JACK LEE; GENE SHINAULT; K.
LESTER,
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-03-395)
Argued: March 17, 2006
Decided: December 29, 2006
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Judge Motz joined. Judge
Wilkinson wrote a separate opinion concurring in the judgment in part
and dissenting in part.
COUNSEL
ARGUED: Matthew Anthony Victor, VICTOR, VICTOR & HEL-
GOE, L.L.P., Charleston, West Virginia, for Appellant. Mark Ralph

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Davis, Senior Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
ON BRIEF: Judith W. Jagdmann, Attorney General, Richmond, Vir-
ginia, for Appellees.
OPINION
MICHAEL, Circuit Judge:
Leroy Lovelace was an inmate at Keen Mountain Correctional
Center (Keen Mountain or prison), a Virginia state prison, in 2002
and 2003. He is a member of the Nation of Islam. In 2002 Keen
Mountain adopted a policy to accommodate inmates seeking to
observe Ramadan, the Islamic holy month of fasting and prayer.
Lovelace participated in the Ramadan observance program for
roughly six days in November 2002 before being removed from the
"pass list" (the list of participants) for allegedly breaking the fast. He
was consequently barred from the special meals for fast participants
and from Ramadan congregational prayers for the remainder of Ram-
adan, a total of twenty-four days. He filed an action against Warden
Jack Lee, Assistant Warden Gene Shinault, and Correctional Officer
K. Lester (the defendants), alleging violations of the First Amend-
ment, the Fourteenth Amendment, and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq.
The district court granted summary judgment to the defendants on all
claims. Lovelace appeals the summary judgment and two of the dis-
trict court’s procedural rulings.
For the reasons that follow, we vacate summary judgment in favor
of Officer Lester in his individual capacity on the RLUIPA and free
exercise claims, and we vacate summary judgment in favor of War-
den Lee on the claims asserted against him in his official capacity.
We affirm the remainder of the district court’s rulings.
Our dissenting colleague agrees that Lovelace’s case may proceed
against Officer Lester because "Lovelace has presented an issue of tri-
able fact as to whether correctional officer Lester intentionally vio-
lated his religious liberty," and "RLUIPA provides a cause of action
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to redress this type of infringement." Post at 38. The dissent dis-
agrees, however, with our decision to remand for further consider-
ation of Lovelace’s RLUIPA and constitutional claims against
Warden Lee in his official capacity. A remand on these claims, espe-
cially the RLUIPA claim, is necessary to ensure that the prison satis-
fies its obligation — an obligation it has not yet attempted to meet —
to justify the Ramadan policy’s broad restrictions of religious liberty.
The dissent nevertheless charges that we "use[ ] Keen Mountain’s
Ramadan policy as a platform from which to initiate an assault on
state correction institutions" and that our "approach exhibits . . . dis-
trust" of state prison officials. Post at 46-47. These statements are a
harsh indictment, but we trust the dissent will be alone in thinking
them to be true. Our directions come straight from RLUIPA, which
Congress enacted because it found that some prisons have restricted
religious liberty "in egregious and unnecessary ways." 146 Cong.
Rec. S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen.
Kennedy). Thus, according to RLUIPA, when a prison substantially
burdens an inmate’s exercise of religion, the prison must demonstrate
that imposing the burden serves a compelling government interest and
does so by the least restrictive means. With respect to Lovelace’s
claim against the warden, the thrust of our remand simply requires
Keen Mountain to make that demonstration. We confirm emphatically
that any substantive explanation offered by the prison must be viewed
with due deference, notwithstanding the dissent’s claim that we have
abandoned "even the pretense of deference," post at 53.
I.
A.
On September 22, 2002, Warden Lee issued a policy to accommo-
date Keen Mountain inmates seeking to fast during the holy month of
Ramadan. Observant Muslims fast between dawn and sunset during
the thirty days of Ramadan. According to the warden’s policy,
inmates approved to participate in the fast received special pre-dawn
(5:00 to 5:50 a.m.) and post-sunset (6:00 to 7:30 p.m.) meals in two
dining halls reserved for fasting inmates of various Islamic denomina-
tions: Dining Hall #1 for "World Community of Islam" inmates and
Dining Hall #2 for Nation of Islam (NOI) inmates.1 J.A. 27. Prayer
1The phrase "World Community of Islam" in the policy presumably
refers to the worldwide Muslim community, of which the two main sects
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services were held either before or after the special breakfast meal in
each reserved dining hall. Because participating inmates were
expected to adhere to the rules of the fasting period as outlined by the
World Community and NOI, they could not eat the regular cafeteria
meals offered during the daytime. Warden Lee instructed security and
food service staff to submit an incident report on any fast participant
seen taking a meal tray during daylight hours. Any inmate who vio-
lated the policy would be removed from the Ramadan observance
pass list, which meant that he would be barred from participating in
the fast and, by extension, the morning prayer sessions. In 2002 the
month of Ramadan extended from November 5 through December 4.
Lovelace, an NOI member and NOI liaison at Keen Mountain, was
among approximately seventy NOI inmates approved to participate in
the 2002 Ramadan fast. As NOI liaison, he had met with prison staff
before the fast began to discuss the Ramadan menu and propose pos-
sible menu alternatives. For example, he suggested the substitution of
real juice for Kool-Aid because Kool-Aid is "an artificial drink which
is in direct conflict with the teachings of [the Islamic] faith." J.A. 144.
Prison officials rejected these suggestions. At breakfast on November
11, roughly six days into the fast, Lovelace and other fast participants
discovered that "the milk being served [to them] was beyond its
stamped expiration date." J.A. 17. As NOI liaison, Lovelace informed
the kitchen staff about the inmates’ "refusal to accept the expired
milk." Id. The breakfast staff then replaced the seventy to seventy-
five individual servings of expired milk with fresh milk. Lovelace
describes his interaction with staff as "contentious" and notes that
Correctional Officer Lester was the security officer assigned to the
kitchen that morning. J.A. 181. Roughly twelve hours later, Lovelace
was refused his special evening meal. He was informed that he had
been removed from the pass list because, according to an incident
report submitted by Officer Lester, he had taken a lunch tray at
approximately 12:35 that afternoon, November 11. (The incident
report is not in the record, and Lovelace has never seen it.)
Lovelace filed two emergency grievances that evening and two the
following morning, asserting that he had not received a lunch tray and
are Sunni and Shi’a. NOI is a denomination founded in the United States
that considers itself a form of Islam.
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had not even entered the dining hall during fasting hours on Novem-
ber 11. The staff denied each of these grievances within several hours
on grounds (1) that the grievances did not meet the definition of
"emergency" (immediate risk of serious personal injury or irreparable
harm) and (2) that Lovelace should instead "address any further com-
plaints" by using the "inmate complaint/request" system. J.A. 37-40.
On November 12 Assistant Warden Shinault formally notified Love-
lace in writing that he was barred from "participation in Ramadan"
because of his infraction the previous day. J.A. 36. Proceeding as he
had been instructed, Lovelace filed a complaint with Mike Shaw, the
treatment program supervisor, on November 12 or 13. Shaw or his
colleague responded on November 13 that "[t]his [matter] will be left
to the Chaplain." J.A. 35. Lovelace filed two additional complaints,
one with the warden and one with the assistant warden, on November
13. Lovelace emphasized in the complaints, as he had in the emer-
gency grievances, that he was being denied his right to participate in
the Ramadan observance.
On November 14 Lovelace met with Shinault and Shaw and sug-
gested that they review certain evidence to correct Lester’s misidenti-
fication and reinstate Lovelace to the Ramadan pass list. This
evidence included cafeteria security (surveillance) tapes from the
afternoon of November 11 and as many as twenty witnesses who
were willing to attest that Lovelace had never left the housing unit
during lunchtime that day. Shinault told Lovelace that before ruling
on the complaint, he would meet with Lester and show him Love-
lace’s "face card," a photograph kept on file for every inmate, "to con-
firm Lester’s identification of [Lovelace]." J.A. 79. The following
day, November 15, Shinault summoned Lovelace to a meeting and
reiterated that Lovelace was ineligible to participate in the Ramadan
program because of Lester’s report, which Lester had "verified" (that
is, confirmed). J.A. 34. Shinault, however, had not shown Lester the
face card as he had said he would. Nor had he reviewed the security
tapes or interviewed witnesses, as Lovelace had urged.
Lovelace filed a formal grievance on November 20 or 21, 2002.
Warden Lee responded in a letter dated December 4 (the last day of
Ramadan) that Lovelace’s grievance was "unfounded." J.A. 30. The
warden’s letter stated that two officers had spoken with Lester, who
said he was "positive that it was [Lovelace] that he observed" eating
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a non-Ramadan meal. J.A. 30. Lovelace appealed this Level I
response to the regional director, asserting that prison officials and
staff had failed to respond in a timely and judicious manner and
thereby caused him irreparable injury. Regional Director Larry Huff-
man upheld Warden Lee’s Level I decision with minimal comment.
Huffman’s Level II response was dated January 4, 2003, one month
after the end of Ramadan. Thus, Lovelace was prevented from fasting
and participating in the NOI congregational prayers for twenty-four
of Ramadan’s thirty days, from the evening of November 11 through
the evening of December 4, 2002.
B.
Having exhausted his administrative remedies as required by the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), Lovelace filed
an action in the U.S. District Court for the Western District of Vir-
ginia on June 25, 2003. In his pro se complaint Lovelace alleged that
Warden Lee, Assistant Warden Shinault, and Officer Lester violated
his First Amendment free exercise rights, his Fourteenth Amendment
due process rights, and his statutory rights under RLUIPA, 42 U.S.C.
§§ 2000cc et seq. Lovelace sought a declaratory judgment, injunctive
relief, punitive damages, damages for emotional distress and other
injuries, and the appointment of counsel. The complaint, read in its
entirety, indicates that Lovelace sued Lester in his individual capacity
and sued Lee and Shinault in their official and individual capacities.
Shinault and Lester moved for summary judgment on September
10, 2003, before Lee was served with process. They attached to their
motion an unexecuted affidavit from Lester. In this affidavit Lester
acknowledged for the first time — more than nine months after the
end of Ramadan — that he had misidentified another inmate as Love-
lace. Lester said that the inmate who took the lunch tray on November
11, 2002, "resembled another inmate named Lovelace, who was no
longer at the institution," and that he only realized this mistake "after
the fact." J.A. 60. In his response Lovelace challenged Lester’s affida-
vit for being "unsigned and unnotarized" and therefore inadmissible
in summary judgment proceedings. J.A. 66-67. In addition, Lovelace
submitted evidence to discredit the affidavit’s contents. This evidence
included (1) a staff member’s statement, based on a data search, that
no other inmate named Lovelace had been housed in the prison in the
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five years prior to September 22, 2003, and (2) Lovelace’s own state-
ment, made under penalty of perjury, that a "deeper search revealed
no other Lovelace ever detained at [the Keen Mountain] facility." J.A.
68 n.1. Lovelace further asserted that Lester’s account of innocently
mistaking his identity was incredible because Lester was familiar with
Lovelace. In particular, Lester participated in a shakedown of Love-
lace’s cell (with Lovelace present) about six months prior to Novem-
ber 11, 2002; Lester on many occasions monitored the "chow hall line
where . . . [Lovelace had] verbally identified himself" from a distance
of roughly two feet; Lester had "numerous instances of incidental
interaction with [Lovelace] in the course of normal daily inmate
movement"; and Lester worked for three months in the control booth
in Lovelace’s housing unit. J.A. 69, 78.
On October 17, 2003, Lester submitted a second, executed affidavit
in which he still admitted misidentifying Lovelace but changed his
explanation. Instead of saying that he had confused Lovelace with
another inmate named Lovelace who was no longer at the prison, Les-
ter claimed that he had made an "honest . . . mistake[ ]" by confusing
Lovelace with "another inmate at the institution that looked like
Lovelace." J.A. 159. Lester acknowledged that several inmates had
"come to [him]" during Ramadan (as early as November 12, 2002,
according to Lovelace’s evidence) to dispute the identification, insist-
ing that Lovelace had remained in his housing unit during the entire
lunch period on November 11, 2002. Id. Yet Lester again alleged, as
he had in his first affidavit, that he did not realize his mistake until
"after Ramadan was over," when "someone pointed inmate Lovelace
out to [him]." Id. Lovelace objected to Lester’s second affidavit on
grounds that it was untimely and "wholly different" from the first.
J.A. 116. The district court took the second affidavit into consider-
ation over Lovelace’s objection.
In the meantime, Lovelace made several unsuccessful attempts to
locate and serve process on Lee, who was no longer Warden at Keen
Mountain and no longer employed by the Virginia Department of
Corrections. U.S. Marshals ultimately served Lee on February 18,
2004, although it is "unclear . . . whether . . . [he] was served with
a summons directing his response to the complaint." J.A. 97. Lee did
not respond, and marshals served him again on May 4, 2004. Lee did
not respond within the time allowed and on May 28 moved for an
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enlargement of time, which Lovelace opposed. Before the district
court ruled on this motion, Lee filed a motion for summary judgment
that paralleled and incorporated by reference Shinault and Lester’s
earlier motion. Lovelace countered that Lee had defaulted and there-
fore lacked standing to move for summary judgment. The district
court granted Lee’s motion for enlargement of time, deemed his sum-
mary judgment motion to be timely filed, and denied Lovelace’s
motion for a default judgment.
The district court granted summary judgment to Lee, Shinault, and
Lester on September 13, 2004. The court concluded that the defen-
dants were entitled to qualified immunity on the RLUIPA claim and
that "no constitutional violation occurred in relation to the free exer-
cise claim [because] the actions of defendants were negligent rather
than intentional." J.A. 168. The court did not address Lovelace’s due
process claim. Lovelace filed a timely appeal and was subsequently
assigned counsel.
II.
A.
We first consider Lovelace’s RLUIPA claim. Section 3 of RLUIPA
provides that "[n]o government shall impose a substantial burden on
the religious exercise of a person residing in or confined to an institu-
tion . . . even if the burden results from a rule of general applicabil-
ity," unless the government demonstrates that the burden is "in
furtherance of a compelling governmental interest" and is "the least
restrictive means of furthering that . . . interest." Religious Land Use
and Institutionalized Persons Act of 2000, § 3(a), 42 U.S.C. § 2000cc-
1(a). "Government" includes any official of a "State, county, munici-
pality, or other governmental entity created under the authority of a
State" and any other person "acting under color of State law." 42
U.S.C. § 2000cc-5(4)(A). Once "a plaintiff produces prima facie evi-
dence to support a claim alleging a violation" of RLUIPA, "the gov-
ernment shall bear the burden of persuasion on any element of the
claim, except that the plaintiff shall bear the burden of persuasion on
whether [the challenged practice or law] substantially burdens the
plaintiff’s exercise of religion." Id. § 2000cc-2(b). In particular, the
government must prove that the burden in question is the least restric-
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tive means of furthering a compelling governmental interest. Id.
§ 2000cc-1(a).
Congress crafted RLUIPA in response to Supreme Court decisions
holding that laws of general applicability that incidentally burden reli-
gious conduct do not offend the First Amendment. See Madison v.
Riter, 355 F.3d 310, 314 (4th Cir. 2003) (discussing Employment
Division v. Smith, 494 U.S. 872, 890 (1990)). In these decisions the
Supreme Court "openly invited the political branches to provide
greater protection to religious exercise through legislative action." Id.
at 315 (citing Smith, 494 U.S. at 890). Congress did just that by pass-
ing RLUIPA, mandating a "more searching standard" of review of
free exercise burdens than the standard used in parallel constitutional
claims: strict scrutiny instead of reasonableness. See Madison, 355
F.3d at 314-15 n.1; Freeman v. Texas Dep’t of Criminal Justice, 369
F.3d 854, 857-58 n.1 (5th Cir. 2004). In addition to prescribing strict
scrutiny, Congress mandated that RLUIPA be construed "in favor of
broad protection of religious exercise." 42 U.S.C. § 2000cc-3(g).
Congress, in other words, "intended to provide as much protection as
possible to prisoners’ religious rights" without overly encumbering
prison operations. Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 987
(8th Cir. 2004); see also Cutter v. Wilkinson, 544 U.S. 709, 723
(2005) (noting that lawmakers supporting RLUIPA "anticipated that
courts would apply the Act’s standard with due deference to the expe-
rience and expertise of prison and jail administrators").
RLUIPA’s heightened protection stemmed from Congress’s recog-
nition that the right of inmates (and other institutionalized persons) to
practice their faith is "at the mercy of those running the institution."
146 Cong. Rec. S7775 (July 27, 2000) (joint statement of Sen. Hatch
and Sen. Kennedy). As the Supreme Court has stressed, inmates are
subject to "a degree of [governmental] control unparalleled in civilian
society and severely disabling to private religious exercise." Cutter,
544 U.S. at 720-21. Congress thus passed RLUIPA to afford this con-
fined population greater protection of religious exercise than what the
Constitution itself affords.
Section 3 of RLUIPA, which protects institutionalized persons,
applies to programs or activities that receive federal financial assis-
tance. 42 U.S.C. § 2000cc-1(b)(1); see also Cutter, 544 U.S. at 715-
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16. Because the Virginia Department of Corrections (VDOC) receives
federal monies, section 3 applies to Keen Mountain and to the defen-
dants who are state officials or actors employed there. 42 U.S.C.
§ 2000cc-1(b)(1); see Madison, 355 F.3d at 314 (noting that VDOC
received $4.72 million from the federal government in 2002).
1.
Lovelace argues that his inability to observe Ramadan for twenty-
four of its thirty days — specifically, his inability to fast during day-
light hours and to attend NOI congregational prayers and services —
imposed a substantial burden on his religious exercise. RLUIPA
broadly defines "religious exercise" to include "any exercise of reli-
gion, whether or not compelled by, or central to, a system of religious
belief." 42 U.S.C. § 2000cc-5(7)(A). Lovelace’s observance of Rama-
dan, the Islamic holy month of fasting and prayer, qualifies as "reli-
gious exercise" under this definition. See Adkins v. Kaspar, 393 F.3d
559, 567-68 (5th Cir. 2004) (holding that Sabbath and holy day activi-
ties "easily qualify as ‘religious exercise’ under . . . RLUIPA’s gener-
ous definition").
We next consider whether the burden was substantial. RLUIPA
itself does not define "substantial burden," but the Supreme Court has
defined the term in the related context of the Free Exercise Clause.
According to the Court, a "substantial burden" is one that "put[s] sub-
stantial pressure on an adherent to modify his behavior and to violate
his beliefs," Thomas v. Review Bd. of Ind. Employment Sec. Div., 450
U.S. 707, 718 (1981), or one that forces a person to "choose between
following the precepts of her religion and forfeiting [governmental]
benefits, on the one hand, and abandoning one of the precepts of her
religion . . . on the other hand," Sherbert v. Verner, 374 U.S. 398, 404
(1963). Following this model, several other circuits have articulated
generally consistent definitions of "substantial burden" under
RLUIPA. See, e.g., Adkins, 393 F.3d at 570 (defining it as a burden
that "truly pressures the adherent to significantly modify his religious
behavior and significantly violate his religious beliefs"); Midrash
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.
2004) ("result[ing] from pressure that tends to force adherents to
forego religious precepts or . . . [tends to] mandate[ ] religious con-
duct"); San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
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1024, 1034 (9th Cir. 2004) ("a significantly great restriction or onus
upon [religious] exercise"); Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) ("[a burden] that neces-
sarily bears direct, primary, and fundamental responsibility for ren-
dering religious exercise . . . effectively impracticable"). We likewise
follow the Supreme Court’s guidance in the Free Exercise Clause
context and conclude that, for RLUIPA purposes, a substantial burden
on religious exercise occurs when a state or local government,
through act or omission, "put[s] substantial pressure on an adherent
to modify his behavior and to violate his beliefs." Thomas, 450 U.S.
at 718.2
Lovelace’s removal from the Ramadan observance pass list at
Keen Mountain qualifies as a substantial burden under RLUIPA.
Once removed from the pass list, Lovelace was excluded from special
(pre-dawn, post-sunset) Ramadan meals and therefore could not fast
during daylight hours. Unable to fast, he could not fulfill one of the
five pillars or obligations of Islam. Moreover, during twenty-four of
the thirty days of the holy month of Ramadan, he could not participate
in NOI group prayers or services held in the dining hall before or after
the special breakfast meal. This deprivation is critical because prior
to Ramadan the prison accommodated NOI inmates by allowing them
to attend weekly NOI services. These services were cancelled during
Ramadan when the policy was in effect. Thus, when the dissent says
that the Keen Mountain "policy [is] clearly a religious accommoda-
tion rather than a burden," post at 42, it overlooks the fact that the
policy works to restrict the religious exercise of any NOI inmate who
2In assessing this burden, courts must not judge the significance of the
particular belief or practice in question. RLUIPA "bars inquiry into
whether [the] belief or practice is ‘central’ to a prisoner’s religion." Cut-
ter, 544 U.S. at 725 n.13; see 42 U.S.C. § 2000cc-5(7)(A) (defining "reli-
gious exercise" to include "any exercise, whether or not compelled by,
or central to, a system of religious belief"). RLUIPA does not, however,
preclude inquiry into "the sincerity of a prisoner’s professed religiosity."
Cutter, 544 U.S. at 725 n.13; cf. Gillette v. United States, 401 U.S. 437,
457 (1971) ("The ‘truth’ of a belief is not open to question; rather, the
question is whether the objector’s beliefs are ‘truly held.’") (internal quo-
tation marks and citation omitted). There is no dispute that Lovelace sin-
cerely holds his religious beliefs.
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cannot or does not fast, but who still wishes to participate in group
services or prayers.3
We have not, as the dissent argues, "taken it upon [ourselves] to
create a claim for" Lovelace that the policy imposes a substantial bur-
den on religious exercise. See post at 40. Lovelace filed his papers pro
se in district court, but he needs no help from us in articulating his
substantial burden claim. He accurately points out that once an inmate
is removed from participation in the Ramadan fast under the policy,
the policy automatically bars him from participation in congregational
religious exercises, such as NOI services and group prayers. The dis-
sent appears to sanction this wholesale removal from group religious
exercise by saying that "[t]he breaking of the Ramadan fast suggests
a lack of genuine interest in any Ramadan activity," including group
prayers. Post at 52. We recognize, of course, that "prison officials
may appropriately question whether a prisoner’s religiosity, asserted
as a basis for a requested accommodation [here, pre-dawn and post-
sunset meals to allow daytime fasting], is authentic." Cutter, 544 U.S.
at 725 n.13. An inmate, however, could decide not to be religious
about fasting and still be religious about other practices, such as con-
gregational services or group prayer. Such an inmate’s right to reli-
gious exercise is substantially burdened by a policy, like the one here,
that automatically assumes that lack of sincerity (or religiosity) with
respect to one practice means lack of sincerity with respect to others.
RLUIPA does not permit either prison administrators or courts to
make such a blanket assumption. See 42 U.S.C. § 2000cc-5(7)(A)
(providing protection for "any exercise of religion") (emphasis
added); see also Reed v. Faulker, 842 F.2d 960, 963 (7th Cir. 1988)
(recognizing "the fact that a person [who] does not adhere steadfastly
to every tenant of his faith" may still be sincere about participating
in some religious practices).
3The dissent is off course in stating that the policy here "goes admira-
bly beyond the policies that other courts have upheld." Post at 46. Most
of the cases relied on by the dissent, post at 44-45, merely mention Ram-
adan policies in passing, they do not uphold them. Moreover, the chal-
lenges in the only two cited cases in which Ramadan policies were
upheld were brought under the First Amendment. See Brown-El v. Har-
ris, 26 F.3d 68, 69 (8th Cir. 1994); Tisdale v. Dobbs, 807 F.2d 734, 736
(8th Cir. 1986). As even the dissent acknowledges, post at 60, the inquiry
under RLUIPA is more rigorous than under the First Amendment.
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It makes no difference to this analysis that the burden on Love-
lace’s religious exercise resulted from discipline (punishment for his
alleged infraction), rather than from the prison’s failure to accommo-
date his religious needs in the first instance. See McEachin v.
McGuinnis, 357 F.3d 197, 204 (2d Cir. 2004) ("Courts have . . . found
free exercise violations in cases where generally applicable prison
policies were designed to accommodate inmates’ religious dietary
requirements, but the same allowances were not made for inmates
subjected to disciplinary restrictions."); Makin v. Colo. Dep’t of
Corr., 183 F.3d 1205, 1211-14 (10th Cir. 1999) (upholding district
court’s determination that denial of special Ramadan meals to inmate
confined in punitive segregation violated Free Exercise Clause). The
dissent quarrels with our use of the word "punishment" to describe the
action taken against Lovelace by the prison when it concluded, in the
defendants’ words, that Lovelace "flout[ed] prison rules" established
to accommodate the Ramadan observance. J.A. at 57. Regardless of
how Lovelace’s removal from the Ramadan pass list is characterized,
our point is that RLUIPA’s protections may apply even though Love-
lace’s alleged rule infraction triggered his wholesale exclusion from
group religious observances and exercises.
The dissent argues that there can be no substantial burden here
because the Keen Mountain Ramadan policy simply combines two
religious exercises into one "event" or observance, "a [pre- or post-
fast] meal accompanied by prayers." Post at 44. This argument
ignores a critical fact emphasized above: during Ramadan the prison
cancelled regular NOI services and precluded other gatherings for
group prayer. Thus, as Lovelace spells out in his own words: when
he was removed from the pass list, "he was effectively prohibited
from exercising his religious beliefs because he was not permitted to
fast, not permitted to attend NOI religious services, not permitted to
attend Friday [Jumu’ah] services, and not permitted to participate in
group prayers." J.A. 73 (punctuation and numbering omitted). The
policy was therefore arranged and written so that disqualification
from participation in one religious exercise (the fast) meant that nor-
mal avenues for communal worship (group services and prayers) at
the prison became unavailable automatically. When this broad dis-
qualification aspect of the policy was applied to Lovelace, he was
forced to "significantly modify his religious behavior," Adkins, 393
F.3d at 570, and his RLUIPA right to religious exercise was substan-
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tially burdened. Expecting prison officials to recognize that the denial
of routinely allowed religious exercises is a burden should not "drive
[them] crazy" or "exceed [their] knowledge or understanding" of reli-
gious practices, as the dissent claims will be the case. Post at 45.4
The dissent would excuse the burdensome or restrictive aspects of
the policy from any scrutiny because the purpose of the policy was
to allow inmates, under a prescribed program, to observe Ramadan.
But a policy can have a laudable purpose, as this one did, and still
impose a substantial burden on religious exercise, as this one did in
Lovelace’s case. That does not end the RLUIPA analysis, however,
because the policy’s burdens or restrictions could be justified by com-
pelling considerations of security or good order. The prison will
therefore have the opportunity to present its rationale on remand, as
we make clear in the discussion that follows.
2.
Because Lovelace has demonstrated that he suffered a substantial
burden on his religious exercise, the burden shifts to the defendants
to show that the Ramadan policy’s strict (and broad) removal provi-
sion is the least restrictive means of furthering a compelling govern-
mental interest. "‘Context matters’" in applying this "compelling
governmental interest" standard. Cutter, 544 U.S. at 723 (quoting
Grutter v. Bollinger, 539 U.S. 306, 327 (2003)). Courts should apply
this 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, con-
sistent with consideration of costs and limited resources." Id. at 723
(quoting joint statement of Sen. Hatch and Sen. Kennedy, RLUIPA’s
co-sponsors); see also Murphy, 372 F.3d at 987-88 (discussing legis-
lative history). Of these enumerated concerns, security deserves "par-
ticular sensitivity." Cutter, 544 U.S. at 722. RLUIPA, in other words,
4Our conclusion that Lovelace’s religious exercise rights were substan-
tially burdened when the application of the policy barred him from con-
gregational services and prayers is not remotely akin to a court "second-
guessing prisons’ determinations as to each subset of each inmate’s par-
ticular religious practices." Post at 45. Again, our analysis deals with
established practices well known to the prison authorities.
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is not meant to "elevate accommodation of religious observances over
an institution’s need to maintain order and safety." Id.
The dissent charges repeatedly that we ignore our own "exhorta-
tion[ ] . . . [to give] due deference to the experience and expertise of
prison and jail administrators." Post at 47-48. (Quotation marks and
citations omitted); see also, e.g., post at 48 (labeling majority’s posi-
tion as the "majority’s no-deference approach" or the "majority’s no-
deference view"). While our approach does suggest that a court
should not rubber stamp or mechanically accept the judgments of
prison administrators, see Shimer v. Washington, 100 F.3d 506, 510
(7th Cir. 1996), our approach underscores that those judgments must
nevertheless be viewed through the lens of due deference. Here, the
first job is to require Keen Mountain to take the unremarkable step
of providing an explanation for the policy’s restrictions that takes into
account any institutional need to maintain good order, security, and
discipline or to control costs. That explanation, when it comes, will
be afforded due deference.
The defendants have not adequately demonstrated on this record
that the Ramadan policy is the least restrictive means of furthering a
compelling governmental interest. They assert simply a "legitimate
interest in removing inmates from religious dietary programs where
the inmate flouts prison rules reasonably established in order to
accommodate the program." J.A. 57. They do not elaborate how this
articulated "legitimate interest" qualifies as compelling; they do not
present any evidence with respect to the policy’s security or budget
implications. Cf. Makin, 183 F.3d at 1213-14 (observing, in a First
Amendment case, that prison policy denying Ramadan meals served
no legitimate governmental interest owing to the lack of evidence that
the policy served asserted interests in deterrence, rehabilitation, secur-
ity, and cost saving). Given the superficial nature of the defendants’
explanation, we cannot at this stage conclude that the asserted interest
is compelling as a matter of law.
The dissent contends that we "fail[ ] to recognize [the] compelling
governmental interest[s]" here. Post at 49. Specifically, we are faulted
for failing to appreciate matters such as "the number of inmates Keen
Mountain prison administrators supervise, the budgetary restrictions
they labor under, the staffing problems they encounter," post at 47, or
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what risks they face in controlling the prison dining rooms and releas-
ing inmates from their cells before dawn and after dark. We discuss
none of these matters because none of them are advanced by the
prison in the policy or elsewhere as justifications for the policy’s bur-
dens on religious exercise. In short, the dissent’s assertion that the
Ramadan policy was "enacted with safety and security considerations
front and center," post at 49, is not verified by any statement placed
into the summary judgment record by a Keen Mountain official. This
shortcoming distinguishes this case from Beard v. Banks, 548 U.S.
___, 126 S.Ct. 2572 (2006) (plurality), which the dissent cites to sug-
gest that we are not deferring to the judgment of the prison officials.
See post at 38, 48. The plaintiff-inmate in Beard brought a First
Amendment challenge against a prison policy that denied newspapers
and other materials to a group of dangerous and recalcitrant inmates.
There, a thorough official explanation of the penological rationales
for the policy led the Supreme Court to defer to the prison authorities
on the summary judgment record. Specifically, in Beard, where the
prison had only to show a "legitimate interest," the deputy prison
superintendent had provided an undisputed deposition and affidavit
explaining, among other things, why "the regulations do, in fact, serve
the [penological] function identified." Beard, 125 S.Ct. at 2579. Here,
in contrast, where RLUIPA requires the prison to show a "compelling
interest," we have no sworn statement from the warden, the assistant
warden, or any other prison official that discusses any security, safety,
or cost consideration that justifies the restrictions in the Ramadan pol-
icy. That is the fundamental problem presented in this appeal, and it
cannot be solved, as the dissent would solve it, by a court suggesting
on its own the governmental interest that might be present.
The dissent also argues that the policy’s restrictions on religious
exercise justify themselves because the policy itself has explicit
security procedures for "keeping track of inmates and their out-of-
cell-activities" as they participate in the Ramadan program. Post at
49-51. The inclusion of details in the policy for its orderly and safe
execution, however, does not explain why the prison had a compel-
ling basis for eliminating a prisoner’s access to established congrega-
tional services because of an asserted failure to observe the fast.
RLUIPA assigns to the prison the burden of proving that the poli-
cy’s restrictions further a compelling governmental interest. 42 U.S.C.
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§ 2000cc-2(b). If the dissent’s assumptions about the governmental
interests involved here had been included in an affidavit by the war-
den or some other Keen Mountain official, the district court would
have been presented with a different case on summary judgment. But,
as matters stand, we are doing nothing more than requiring the prison
to meet its burden under RLUIPA.
Even if we assume that the asserted governmental interest is com-
pelling, the defendants have not shown that the policy, more precisely
its removal provision, is the least restrictive means of furthering this
interest. The removal provision is far reaching in that it excludes
inmates not only from the special Ramadan meals but also from the
Ramadan prayer services held in the dining hall immediately before
or after the morning meal. An NOI inmate, such as Lovelace, had no
other options for congregational worship. Regular NOI Friday ser-
vices were cancelled by the prison during Ramadan. Moreover, Love-
lace could not attend any related Muslim services as a substitute for
NOI services during the thirty-day span. The prison prohibits inmates
from attending more than one religious group’s services in a calendar
quarter. Because Lovelace had signed up for NOI services, he could
not attend Friday Jumu’ah (Muslim) services as an alternative to the
daily NOI prayers. To the extent that the removal provision prohibits
both special meal and group prayer access, the prison Ramadan policy
is arguably not the least restrictive means of furthering the asserted
governmental interest. Thus, at this stage, the defendants have not
demonstrated that the prison policy satisfies the strict requirements of
RLUIPA.5
The dissent contends that the remand we order turns "the least
restrictive means test [into] a tool by which lower courts may end-
lessly second-guess prison officials." Post at 53. To the contrary, we
instruct the district court to do what RLUIPA commands: assess with
5The dissent worries that our remand for the district court to apply
RLUIPA’s standard — whether the policy is the least restrictive means
of furthering a compelling prison interest — offers no guidance to dis-
trict courts. Post at 53. This worry is a needless one because courts are
well acquainted with the standard and its application. It has been applied
in cases involving constitutional and statutory free exercise claims for
decades. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963).
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due deference any explanation by the prison as to why denying an
inmate who breaches the fast the opportunity to participate in other
religious observances is the least restrictive way to deal with a com-
pelling problem. There is no basis in this case for a court to do what
the dissent urges, that is, to declare the least restrictive means test sat-
isfied without any substantive explanation from prison officials.6
We pause to emphasize that our decision today will not, as the dis-
sent predicts, "thrust [the federal courts] into a role . . . of micro-
managing state prisons." Post at 38. We also emphasize that the
dissent’s approach of coming up with its own justification for the
Ramadan policy’s burdens on free exercise essentially exempts prison
administrators from RLUIPA’s requirements. To begin with, the dis-
sent’s argument that our decision will thrust courts into the middle of
prison management is repeated and, indeed, pressed to the point that
it calls itself into question. See, e.g., post at 38 ("the majority has
turned [RLUIPA] into an administrative nightmare for the state penal
6The dissent sees constitutional peril in what it claims is our "desire to
accommodate Lovelace . . . individually," post at 54, and predicts that
under our approach "accommodation may devolve into an unlawful fos-
tering of religion" in violation of the Establishment Clause, post at 56
(quoting Corp. of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 334-35 (1987)). Specifically,
the dissent suggests that under our interpretation of RLUIPA’s narrow
tailoring requirement, prison grievance procedures might have to be
reconfigured to provide official decisionmaking on varying schedules
that adjust "to the timing and duration of different religious obser-
vances." See post at 54. We do not doubt our dissenting colleague’s sin-
cerity in raising this concern, but we respectfully suggest that he is too
quick on the draw in this instance. It is premature and unnecessary to
evaluate any remedy at this juncture because liability has not yet been
considered, let alone decided, under the proper standard. We are confi-
dent that no Establishment Clause concerns are raised by a remand that
requires Keen Mountain to explain its policy under the least restrictive
means standard prescribed in section 3 of RLUIPA, 42 U.S.C. § 2000cc-
1(a)(2). After all, the Supreme Court has held "that § 3 of RLUIPA fits
within the corridor between the Religion Clauses." Cutter, 544 U.S. at
720. And, we are also confident that should this case proceed beyond the
liability stage to the remedy stage, the district court will be mindful that
any relief awarded must fit within that corridor.
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institutions"); id. ("the majority subjects even the most progressive of
policies to the most intrusive judicial supervision"); post at 39 ("the
majority’s remand . . . is [ ] an invitation to finetune prison policy
from the judicial perch"); post at 47 ("the majority transforms
[RLUIPA] into an administratively unworkable . . . quagmire"); post
at 47 ("the majority’s no-deference approach is synonymous with fed-
eral court control of routine prison policy"); post at 48 ("the majority
. . . invites lower courts to substitute their own judgment for that of
prison officials"); post at 49 ("the majority’s approach would soon
draw federal courts into the minute details of penal institutions"); post
at 52 ("the majority . . . invites an open-ended and potentially wide-
ranging inquiry into prison administration"); id. (the "remand is itself
an instruction to the district court to delve into minute prison
details"); post at 53 (the majority’s "approach of remanding . . . will
have prison administrators chasing their tails" and permit "lower
courts [to] endlessly second-guess prison officials"); and post at 57
("the majority has placed federal courts at the center of daily prison
policymaking").
Today’s remand provides nothing akin to a license for courts to
plunge into prison policymaking or prison management. We merely
require that the prison itself explain in a responsive fashion why the
Ramadan policy’s burdens on religious exercise are justified under
RLUIPA’s standard. It is our dissenting colleague who delves into
prison policymaking by coming up with his own reasons as to why
the policy’s restrictions are necessary to insure safety and security. If
a court could, as the dissent would have it, offer explanations on its
own, then prisons would be effectively relieved of their responsibili-
ties under RLUIPA. Or what is more fundamental, court-generated
explanations would cut severely against Congress’s intent to provide
inmates with greater protections in the area of religious exercise.
3.
The dissent insists that all potential culpability for Lovelace’s total
inability to participate in any form of communal religious observance
during Ramadan lies with Officer Lester alone. But Lester did not
cancel regular NOI services, nor did he decide that inmates not
observing the fast would be not able to participate in group services.
A prison official made these decisions, and these decisions must be
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measured against RLUIPA’s standards. The Act’s laudable goal of
providing greater religious liberty for prisoners will be thwarted
unless those who run state prisons — wardens and superintendents
acting in their official capacities — satisfy their statutory duty. That
duty is to ensure and demonstrate that a compelling government inter-
est is present and the least restrictive means are used when an
inmate’s religious exercise is substantially burdened. Ordering a
remand to give the appropriate Keen Mountain official the opportu-
nity to make the required demonstration is not meant to punish the
prison, as the dissent suggests. See post at 42. Rather, it is a directive
for the prison official to do what Congress mandates in RLUIPA. If
only prison guards are held to account, RLUIPA will never be a true
"expression of our nation’s commitment to religious freedom." See id.
at 37-38.
4.
Insofar as Lovelace purports to sue Lee and Shinault in their offi-
cial capacities for issuing a policy whose text violates RLUIPA, there
is a claim only against Lee. It was Warden Lee, not Assistant Warden
Shinault, who issued the challenged policy as an official of the Com-
monwealth. For the reasons just discussed, Lovelace survives sum-
mary judgment on the merits of the official-capacity claim against
Lee. On this claim, Lovelace seeks declaratory and injunctive relief
as well as money damages. Damages are not recoverable on this claim
because in another opinion filed today, our court holds that a state’s
Eleventh Amendment immunity from suit for damages is not waived
in RLUIPA. Madison v. Commonwealth of Va., No. 06-6266, ___
F.3d ___ (4th Cir. 2006)(Madison II). The official-capacity claim
against Lee will nevertheless proceed because non-monetary relief is
sought, and qualified immunity is not available. See Ridpath v. Bd. of
Governors of Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006). We
will therefore vacate the summary judgment for Lee on the RLUIPA
claim against him in his official capacity.
B.
1.
Having addressed Lovelace’s claim that the policy as issued vio-
lates RLUIPA, we now consider his claim that the defendants applied
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the policy in violation of RLUIPA. Lovelace asserts this claim against
the defendants in their individual capacities, not as officials of the
Commonwealth. As noted above, RLUIPA liability exists only when
a defendant (1) fits the statutory definition of "government" (which
includes state officials and those acting under color of state law) and
(2) imposes a "substantial burden" on an inmate’s religious exercise
without compelling justification. The defendants meet the definition
of "government," and they arguably imposed a substantial burden
without compelling justification when they barred Lovelace from
Ramadan observance and other religious exercise, as indicated earlier.
To hold the defendants liable as individuals, Lovelace must further
prove that they acted with the requisite intent. Although RLUIPA
itself contains no state-of-mind standard, a fault requirement consis-
tent with Congress’s purpose must be incorporated from customary
tort principles. Of course, tort law’s spectrum of fault ranges from
negligence to intentionality.
We conclude that simple negligence, the "lowest common denomi-
nator of customary tort liability," does not suffice to meet the fault
requirement under section 3 of RLUIPA. County of Sacramento v.
Lewis, 523 U.S. 833, 848-49 (1998). Adoption of the negligence stan-
dard would open prison officials to unprecedented liability for bur-
dening an inmate’s religious exercise. The landscape of liability for
prison officials is determined, in large part, by constitutional provi-
sions. "[T]he Constitution does not guarantee due care on the part of
state officials; liability for negligently inflicted harm is categorically
beneath the threshold" of constitutional protections. Id. at 849. In such
terrain, it would be a very long step to sanction negligence suits under
RLUIPA. As we observed in Pink v. Lester, 52 F.3d 73, 77 (4th Cir.
1995), a due process and First Amendment case: "Absent a contrary
instruction from Congress, we are reluctant to increase the already
steady stream of litigation produced in [the prison] setting by sanc-
tioning negligence suits that serve no constitutional ends." This
expression of reluctance applies with equal force to RLUIPA cases
because, as the Supreme Court explained, "[l]awmakers supporting
RLUIPA were mindful of the urgency of discipline, order, safety, and
security in penal institutions." Cutter, 544 U.S. at 723. Congress
intended for RLUIPA to be applied "in an appropriately balanced
way," with "due deference to the experience and expertise of prison
and jail administrators." Id. (internal quotation marks omitted).
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Allowing negligence suits to proceed under RLUIPA would under-
mine this deference by exposing prison officials to an unduly high
level of judicial scrutiny.
Turning from the low end to the high end of the culpability spec-
trum, we conclude that RLUIPA at least reaches intentional conduct
because that is what the Free Exercise Clause reaches. See Employ-
ment Div. v. Smith, 494 U.S. at 890; Shaheed v. Winston, 885 F. Supp.
861, 868 (E.D. Va. 1995). As we said earlier, Congress passed
RLUIPA to give institutionalized persons greater protection of reli-
gious exercise than what the Constitution affords. Because the Consti-
tution prohibits intentional burdens on free exercise, RLUIPA must,
at a minimum, prohibit these burdens as well. Here, Lovelace alleges
that the defendants’ conduct was intentional. We therefore need not
decide today whether RLUIPA reaches beyond the Free Exercise
Clause to prohibit conduct, such as deliberate indifference, that is less
than intentional but more than negligent.
2.
Lovelace presents enough evidence of culpability to survive Offi-
cer Lester’s motion for summary judgment on the RLUIPA claim.
The evidence raises a genuine question whether Lester acted inten-
tionally in depriving Lovelace of his free exercise rights.
Lester was the correctional officer on duty during Lovelace’s con-
tentious confrontation with kitchen staff over the expired milk on the
morning of November 11, 2002. Later that day, Lester submitted an
incident report wrongly identifying Lovelace as receiving a lunch
tray. As Ramadan dwindled away over the next several weeks, Lester
repeatedly insisted that he had seen Lovelace take a lunch tray when
questioned by Assistant Warden Shinault, fellow officers, and
inmates. He never once wavered, even when faced with evidence
from other inmates that he might have erred. It was not until he faced
a lawsuit in September 2003, more than nine months after the end of
Ramadan, that Lester finally admitted his error. He submitted two
affidavits (the first unexecuted) in September and October 2003 giv-
ing inconsistent explanations for his error. He first claimed that he
had mistakenly identified an inmate who resembled another Keen
Mountain inmate named Lovelace. Lovelace, in a verified response,
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asserted that a data search revealed that no other inmate named Love-
lace had ever been housed at the facility. Lester then submitted his
second affidavit, changing his explanation to state that he had simply
confused Lovelace with another inmate. Cf. Vathekan v. Prince
George’s County, 154 F.3d 173, 180 (4th Cir. 1998) (noting that con-
tradiction between witness’s sworn and unsworn statements "creates
a question about his credibility").
As it turns out, Lester was familiar with Lovelace when he made
what he claimed was an honest mistake by misidentifying him. Lester
had searched Lovelace’s cell in Lovelace’s presence approximately
six months prior to the Ramadan incident on November 11, 2002, and
he had often monitored the chow hall line where Lovelace was
required to identify himself at close range. In addition, Lester had
worked in the control booth in Lovelace’s housing unit, and the two
had had routine interaction on many occasions. Even if Lester had
been unfamiliar with Lovelace at the time of the incident and had
been uncertain about the identification, he could simply have checked
the suspect inmate’s I.D. card in the cafeteria. Inmates carry I.D.
cards with them at all times, and (according to Lovelace) it is "stan-
dard procedure for security personnel to demand of an inmate his I.D.
card in order to retrieve the inmate’s name and I.D. number prior to
writing an incident report." J.A. 79. When questioned by fellow offi-
cers and inmates in the days following the incident, Lester could eas-
ily have checked Lovelace’s face card on file or other evidence, such
as cafeteria videotapes from the afternoon of November 11. Instead,
Lester "refused even to entertain the possibility that he had mis-
takenly identified another inmate as Lovelace." J.A. 147.
This proffered evidence indicates intentional conduct, which is
surely sufficient to establish fault under RLUIPA. A reasonable fact-
finder could conclude that Lester acted intentionally, perhaps even
maliciously, in misidentifying Lovelace and in failing to correct his
error during the remainder of Ramadan 2002. We therefore hold that
Lester is not entitled to summary judgment on the merits of the
RLUIPA claim.
In contrast, Lovelace’s evidence does not support a determination
that Assistant Warden Shinault and Warden Lee acted with the requi-
site degree of culpability to be held liable in their individual capaci-
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ties under RLUIPA. Shinault and Lee at most acted negligently by not
reinstating Lovelace to the Ramadan pass list. Shinault met with
Lovelace on November 14, listened to his grievances, and later that
day or the next confirmed with Lester that he had indeed seen Love-
lace retrieve the lunch tray on November 11. Although Shinault had
promised Lovelace that he would show Lester a face card to confirm
the identification, Shinault’s failure to do so does not prove intent to
deprive Lovelace of his religious exercise rights. It simply reveals that
Shinault was satisfied with Lester’s identification after Lester "again
confirmed" that he had "seen [Lovelace] eating a [lunchtime] meal."
J.A. 34, 79. Lee, in turn, reviewed the documents attached to Love-
lace’s grievance. He concluded that the grievance was "unfounded"
based on this review and the inquiries of two officers, who had earlier
questioned Lester as a result of Lovelace’s insistence that Lester had
erred. Lester assured these officers that he was "positive" he had seen
Lovelace eat a non-Ramadan meal. J.A. 30.
While Shinault’s and Lee’s efforts to ensure accuracy ultimately
proved inadequate — the misidentification went uncorrected for
months — they suggest only negligence, not intentional conduct with
respect to Lovelace’s religious exercise rights. That is, their decision
to trust Lester’s confirmation reflects at most a failure to take due care
with respect to the risk that Lester was mistaken or deceptive. Sum-
mary judgment in favor of Shinault and Lee in their individual capaci-
ties was thus proper on the RLUIPA claim.
C.
The question remains whether Officer Lester is entitled to sum-
mary judgment on qualified immunity grounds. Qualified immunity
is an affirmative defense that shields public officers performing dis-
cretionary duties from "liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).7 Here, the district court errone-
7Lester has not raised (and we leave open) the issue of whether
RLUIPA allows damages against state and local officials sued in their
individual capacities. District courts are split on this question. Compare
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ously granted Lester qualified immunity on the premise that there was
uncertainty about RLUIPA’s constitutionality at the time of the
alleged violation.
We apply a two-step analysis in assessing whether qualified immu-
nity is available. See Saucier v. Katz, 533 U.S. 194, 200-01 (2001).
We first consider whether the facts alleged, taken in the light most
favorable to Lovelace, show that Lester violated Lovelace’s statutory
rights under RLUIPA. Lovelace satisfies this part of the test, as our
earlier discussion establishes. Second, we consider whether these stat-
utory rights were clearly established at the time of the claimed viola-
tion. See id. For a right to be clearly established, the "contours of the
right must be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right." Anderson v. Creigh-
ton, 483 U.S. 635, 640 (1987).
Chronology and the origins of RLUIPA inform our analysis of
whether the rights in question were clearly established at the time
Lovelace was removed from the Ramadan pass list. RLUIPA was
enacted in September 2000; the alleged violation occurred more than
two years later, November and December 2002. RLUIPA was a modi-
fied version of the earlier RFRA, enacted in 1993, which the Supreme
Court invalidated as it applied to states and localities with its decision
in City of Boerne v. Flores, 521 U.S. 507 (1997). See Madison, 355
F.3d at 314-15 (discussing RFRA’s partial invalidation and RLUI-
PA’s subsequent enactment). In passing RLUIPA, Congress "resur-
rected RFRA’s language, but narrowed the scope of the act, limiting
Shidler v. Moore, 409 F. Supp. 2d 1060, 1071 (N.D. Ind. 2006) (recog-
nizing RLUIPA claims for individual money damages), Charles v.
Verhagen, 220 F. Supp. 2d 937, 953 (W.D. Wis. 2002) (same), Daker v.
Ferrero, No. 11:03-CV-02481-RWI, 2006 WL 346440, at *8 (N.D. Ga.
Feb. 13, 2006) (same), and Orafan v. Goord, No. 00CV2022, 2003 WL
21972735, at *9 (N.D.N.Y. Aug. 11, 2003) (same) with Gooden v. Crain,
405 F. Supp. 2d 714, 723 ("RLUIPA does not contemplate recovering
damages from individuals[.]"), Boles v. Neet, 402 F. Supp. 2d 1237, 1241
(D.Colo. 2005) (same), and Smith v. Haley, 401 F. Supp. 2d 1240, 1246
(M.D. Ala. 2005) (expressing doubt as to whether RLUIPA authorizes
individual damages).
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it to laws and regulations concerning institutionalized persons or land
use." Murphy, 372 F.3d at 987. As an additional change, Congress
"sought to avoid Boerne’s constitutional barrier by relying on its
Spending and Commerce Clause powers, rather than on its remedial
powers under section 5 of the Fourteenth Amendment as it had in
RFRA." Madison, 355 F.3d at 315. Congress thereby aimed to avoid
the constitutional problems that plagued RFRA. See 146 Cong. Rec.
S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Ken-
nedy). Even without this indication, RLUIPA, like all acts of Con-
gress, carried a strong presumption of constitutionality. See United
States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994) ("[W]e do
not impute to Congress an intent to pass legislation that is inconsistent
with the Constitution as construed by this Court."). Federal laws, in
other words, do not need judicial approval to take effect and be
clearly established. See Schwenk v. Hartford, 204 F.3d 1187, 1204
(9th Cir. 2000) ("State officials are . . . not entitled . . . to ignore a
new federal law in the hopes that a court will subsequently strike it
down. If officials choose to ignore a federal law, they do so at their
own peril.").
Section 3 of RLUIPA nonetheless encountered some hurdles before
the Supreme Court declared it constitutional under the Establishment
Clause in Cutter v. Wilkinson, 544 U.S. at 719-26. Prior to that deci-
sion, the Fourth, Seventh, and Ninth Circuits had upheld the provision
under the Establishment Clause while the Sixth Circuit had invali-
dated it. Id. at 718-19.
The district court relied on one such circuit case, our decision in
Madison v. Riter, 355 F.3d at 322, in ruling that Lester was entitled
to qualified immunity. Citing Madison, the district court stated that
RLUIPA "pose[s] difficult problems for constitutional scholars" and
was therefore not clearly established law at the time of the alleged
violation. J.A. 170. This rationale is problematic for two reasons.
First, we issued our opinion in Madison on December 8, 2003, more
than a year after the alleged violation at Keen Mountain. (Indeed, all
of the circuit court opinions cited in Cutter were decided after
November 2002. 544 U.S. at 718.) Second, we held that RLUIPA was
constitutional in Madison, not unconstitutional; surely Madison can-
not be grounds for questioning RLUIPA’s constitutionality and status
as a clearly established federal law. 355 F.3d at 322. It is true, as Les-
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ter points out, that our decision in Madison reversed the district court
decision declaring the RLUIPA section incompatible with the Estab-
lishment Clause. Madison v. Riter, 240 F. Supp. 2d 566, 582 (W.D.
Va. 2003), rev’d, 355 F.3d 310 (4th Cir. 2003). Yet even the district
court opinion in Madison, decided January 23, 2003, came after the
November 2002 incident here. In fact, no court had invalidated the
provision before November 2002. Lester therefore cannot rely on the
opinions that he cites, nor on any opinion invalidating the RLUIPA
provision, in arguing that RLUIPA’s constitutionality was unsettled
at the time of the incident. See Wilson v. Layne, 141 F.3d 111, 117
(4th Cir. 1998) (en banc), aff’d, 526 U.S. 603 (1999) (noting that reli-
ance on decisions issued after the events underlying the litigation,
whether issued by this court or others, is inappropriate for qualified
immunity purposes). Once RLUIPA took effect, it carried a presump-
tion of constitutionality. See X-Citement Video, Inc., 513 U.S. at 73.
Lester should have proceeded as though RLUIPA was constitutional
and conformed his conduct accordingly. See Schwenk, 204 F.3d at
1204.
The question still remains whether a reasonable prison guard
should have known that the conduct attributed to Lester violated
Lovelace’s free exercise rights under RLUIPA. The inquiry of
whether a right is clearly established "must be undertaken in light of
the specific context of the case, not as a broad general proposition."
Saucier, 533 U.S. at 201. The right, in other words, must be clearly
established in a "particularized, and hence more relevant, sense."
Anderson, 483 U.S. at 640. Although "[a] prior case holding identical
conduct to be unlawful is not required" for the right to be clearly
established, the unlawfulness of the conduct must be "manifest under
existing authority." Vathekan, 154 F.3d at 179; see also Hope v.
Pelzer, 536 U.S. 730, 739 (2002).
Because the facts support an inference that Lester acted intention-
ally in depriving Lovelace of his free exercise rights, Lester is not
entitled to summary judgment on qualified immunity grounds.
Although the outer boundaries of RLUIPA may have been uncharted
at the time, its core protections were not. As explained earlier,
RLUIPA incorporates and exceeds the Constitution’s basic protec-
tions of religious exercise.8 Under both the Free Exercise Clause and
8In its most basic protections, RLUIPA mimics the First Amendment.
RLUIPA incorporates the "substantial burden" test used in First Amend-
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RLUIPA in its most elemental form, a prisoner has a "clearly estab-
lished . . . right to a diet consistent with his . . . religious scruples,"
including proper food during Ramadan. Ford v. McGinnis, 352 F.3d
582, 597 (2d Cir. 2003); see also McEachin, 357 F.3d at 203-04 &
n.7 (collecting cases). A prison official violates this clearly estab-
lished right if he intentionally and without sufficient justification
denies an inmate his religiously mandated diet. See Meyer v. Teslik,
411 F. Supp. 2d 983, 991 (W.D. Wis. 2006). Thus, under both the
First Amendment and any straightforward interpretation of RLUIPA,
the unlawfulness of intentional and unjustified deprivations of Rama-
dan meals was apparent at the time of the incident.
Lester’s state of mind is therefore critical to determining whether
a reasonable person in his position would have understood that his
conduct violated clearly established rights. If Lovelace succeeds in
showing that Lester intentionally blocked his observance of Ramadan
in violation of RLUIPA’s basic protections, then Lester would not be
entitled to qualified immunity. Because there is on this record a genu-
ine issue of material fact as to whether Lester intentionally and pur-
posefully infringed Lovelace’s free exercise rights — rights clearly
established at the time under RLUIPA and the First Amendment —
Lester is not entitled to qualified immunity at this stage on the
RLUIPA claim. See Vathekan, 154 F.3d at 179-80; Poe v. Haydon,
853 F.2d 418, 426 (6th Cir. 1988).
III.
We turn now to Lovelace’s constitutional claims under the Free
Exercise and Due Process Clauses. He brings these claims under 42
U.S.C. § 1983.
ment inquiries and expressly refers to the Free Exercise Clause in allo-
cating its burden of proof. See 42 U.S.C. § 2000cc-2 ("If a plaintiff
produces prima facie evidence to support a claim alleging a violation of
the Free Exercise Clause or a violation of section 2000cc of this title, the
government shall bear the burden of persuasion on any element of the
claim" except the "substantial burden" element.). The primary difference,
as explained earlier, is that RLUIPA adopts a "more searching standard"
of review than that used for parallel First Amendment claims, strict scru-
tiny instead of reasonableness. Madison, 355 F.3d at 314-15 n.1; see also
Freeman, 369 F.3d at 857-58 n.1.
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A.
Lovelace contends that the prison Ramadan policy violated his
rights under the Free Exercise Clause. "Prison walls do not form a
barrier separating prison inmates from the protections of the Constitu-
tion." Turner v. Safley, 482 U.S. 78, 84 (1987). Inmates "clearly retain
protections afforded by the First Amendment, including its directive
that no law shall prohibit the free exercise of religion." O’Lone v.
Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted).
Inmates’ constitutional rights must be evaluated within the context of
their incarceration, however. The Supreme Court has long cautioned
that "courts are ill equipped to deal with the increasingly urgent prob-
lems of prison administration." Procunier v. Martinez, 416 U.S. 396,
405 (1974). "Running a prison is an inordinately difficult undertak-
ing," and the task is "peculiarly within the province of the legislative
and executive branches of government." Turner, 482 U.S. at 84-85.
As a consequence, courts must accord deference to the officials who
run a prison, overseeing and coordinating its many aspects, including
security, discipline, and general administration. O’Lone, 482 U.S. at
349-50; Turner, 482 U.S. at 84-85. This deference is achieved in part
through application of a reasonableness test that is less restrictive than
the test ordinarily applied to alleged infringements of fundamental
constitutional rights. O’Lone, 482 U.S. at 349. A prison regulation
that abridges inmates’ constitutional rights is "valid if it is reasonably
related to legitimate penological interests." Turner, 482 U.S. at 89.
Thus, as noted earlier, the First Amendment affords less protection to
inmates’ free exercise rights than does RLUIPA. See, e.g., Freeman,
369 F.3d at 857-58 n.1.
1.
Lovelace alleges that the prison Ramadan policy "fail[s] to meet an
objectively reasonable standard" as required under Turner. J.A. 21.
Lovelace challenges the policy’s broad removal provision, which
reads: "Inmates who are observed at other meals will be removed
from participation." J.A. 27. He focuses on the restrictions on reli-
gious exercise that flow from removal from the Ramadan program.
These restrictions imposed a substantial burden on Lovelace’s right
to practice his religion, as we have made clear in part II.A.1., supra.
See also O’Lone, 482 U.S. at 345 (implicitly recognizing the substan-
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tial burden placed on Muslim prisoners by a policy that prevented
them from attending weekly congregational services, but holding that
prison regulations in question did not violate First Amendment). The
defendants cannot justify restricting Lovelace’s free exercise rights
merely because he allegedly violated a rule and was subject to disci-
pline. See, e.g., McEachin, 357 F.3d at 204-05; Ford, 352 F.3d at 597;
Makin, 183 F.3d at 1213-14; Young v. Coughlin, 866 F.2d 567, 570
(2d Cir. 1989). Rather, a prisoner’s free exercise rights may only be
restricted by punitive measures to the extent that these measures are
"reasonably adapted to achieving a legitimate penological objective."
Young, 866 F.2d at 570. That is, the punitive measures must meet the
reasonableness test set forth in Turner.
The Turner test asks: (1) whether there is a "valid, rational connec-
tion" between the prison regulation or action and the interest asserted
by the government, or whether this interest is "so remote as to render
the policy arbitrary or irrational"; (2) whether "alternative means of
exercising the right . . . remain open to prison inmates," an inquiry
that asks broadly whether inmates were deprived of all forms of reli-
gious exercise or whether they were able to participate in other obser-
vances of their faith; (3) what impact the desired accommodation
would have on security staff, inmates, and the allocation of prison
resources; and (4) whether there exist any "obvious, easy alternatives"
to the challenged regulation or action, which may suggest that it is
"not reasonable, but is [instead] an exaggerated response to prison
concerns." Turner, 482 U.S. at 89-92 (internal quotation marks and
citations omitted).
The district court never examined the Turner factors in granting
summary judgment to the defendants. The court based its decision
entirely on the defendants’ state of mind, concluding that "no consti-
tutional violation occurred in relation to the free exercise claim as the
actions of defendants were negligent rather than intentional." J.A.
168. Asking whether the defendants acted with the requisite intent in
implementing the policy does not, however, address whether the pol-
icy by its own terms violates the Free Exercise Clause. More pre-
cisely, it does not address Lovelace’s claim against Lee for issuing the
policy in his official capacity as Warden of Keen Mountain. We
therefore vacate summary judgment in favor of Lee in his official
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capacity on the free exercise claim insofar as Lovelace seeks declara-
tory and injunctive relief.9
2.
We next consider the defendants’ state of mind in removing Love-
lace from the pass list and in failing to reinstate him. The district court
rightly concluded that only intentional conduct is actionable under the
Free Exercise Clause. To this end, the district court first noted that 42
U.S.C. § 1983, the basis for Lovelace’s First Amendment claim, does
not include an independent state-of-mind requirement. See Daniels,
474 U.S. at 329-30. Section 1983’s state-of-mind requirement is
instead controlled by the underlying constitutional right allegedly
infringed. See id. at 330.
In Daniels the Supreme Court held that an official’s negligent act
does not implicate the Due Process Clause. Id. at 328; see also Pink,
52 F.3d at 75. The Court reasoned that the language and purpose of
the Due Process Clause require a showing of "some measure of delib-
erateness," lest the Fourteenth Amendment become a "‘font of tort
law to be superimposed upon whatever systems may already be
administered by the States.’" Pink, 52 F.3d at 75 (discussing Daniels
and quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). In Pink v. Les-
ter we indicated that this rationale would apply equally to the First
Amendment "right to petition the government for redress of griev-
ances," since the operative word "abridge" in the First Amendment
9The dissent would affirm the dismissal of Lovelace’s free exercise
claim on the alternative ground that "the Ramadan policy imposes no
burden and . . . it meets Turner’s deferential test." Post at 60. A remand
is more appropriate for obvious reasons. First, as already stated, the pol-
icy, through its broad restrictions on several forms of religious exercise,
creates a substantial burden. Second, Turner at a minimum requires a
deferential examination of the prison’s rationale for the restrictions, but
the prison has yet to come forward with any substantive rationale. The
prison’s rationale for the restrictions and any facts relevant to the Turner
factors should be presented to the district court in the first instance. See
Ford, 352 F.3d at 596. Because we do not have "a proper record for
review," Lovelace’s free exercise claim will be remanded. See Ross v.
Commc’ns Satellite Corp., 759 F.2d 355, 363-64 (4th Cir. 1985).
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closely parallels the operative word "deprive" in the Fourteenth
Amendment, and in fact both words originally shared the same mean-
ing. Pink, 52 F.3d at 76-77; see id. at 76 ("Just as ‘deprivation’ sug-
gests an intentional denial, an ‘abridgement’ connotes a conscious act
[rather than a merely negligent one]."). Both Pink and Daniels arose
in the prison context, and we stressed in Pink that absent a directive
from Congress, courts should be wary of interfering with the opera-
tions of state penal institutions by "sanctioning [§ 1983] negligence
suits that serve no constitutional ends" but impose substantial social
costs (including unduly inhibiting government officials in their duties
by increasing their fears of monetary liability). Pink, 52 F.3d at 77
(citing Anderson, 483 U.S. at 638).
The district court extended the analysis in Daniels and Pink to
Lovelace’s First Amendment free exercise claim, reasoning that the
operative word "prohibit" in the First Amendment likewise connotes
a "conscious act" rather than a merely negligent one. J.A. 171.
Accordingly, the district court held that negligent interference with
free exercise rights is not actionable under § 1983. We agree and hold
that negligent acts by officials causing unintended denials of religious
rights do not violate the Free Exercise Clause. Accord Lewis v. Mitch-
ell, 416 F. Supp. 2d 935, 942-44 (S.D. Cal. 2005); Shaheed, 885 F.
Supp. at 868. Lovelace must assert conscious or intentional interfer-
ence with his free exercise rights to state a valid claim under § 1983.
Although the district court imposed the proper state-of-mind
requirement, it partially erred in finding that the defendants’ actions
"resulted from negligence and not from intentional action." J.A. 171.
The court correctly assessed the evidence against Shinault and Lee (in
their individual capacities), but it underestimated the strength of the
evidence against Lester. The facts, taken in the light most favorable
to Lovelace, raise a genuine dispute whether Lester acted intention-
ally in depriving Lovelace of his free exercise rights. For this reason,
summary judgment in favor of Lester on the First Amendment claim
was error.
In sum, we vacate the summary judgment in favor of Lester in his
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individual capacity and in favor of Lee in his official capacity on the
free exercise claim.10
B.
Lovelace also challenges the prison Ramadan policy on procedural
due process grounds. To succeed on this claim, Lovelace must show
that: he was denied a liberty interest protected by the Due Process
Clause, an interest that can arise either from the Constitution itself or
from state laws or policies, Wilkinson v. Austin, 545 U.S. 209, ___,
125 S. Ct. 2384, 2393 (2005); this denial imposed on him an "atypical
and significant hardship . . . in relation to the ordinary incidents of
prison life," Sandin v. Conner, 515 U.S. 472, 484 (1995); and the pro-
cess that the state prison employed was constitutionally inadequate,
Wilkinson, 125 S. Ct. at 2395-96 (2005). The adequacy of the proce-
dures in place is assessed by balancing three factors: (1) the private
interest affected by the government action; (2) the risk of erroneous
deprivation through the procedures used and the probable value, if
any, of alternative or additional procedures; and (3) the state’s inter-
est, including the function involved and the fiscal and administrative
burdens of added safeguards. Id. (citing Matthews v. Eldridge, 424
U.S. 319, 335 (1976)). This third factor encompasses the state’s inter-
est in prison management, particularly in allocating scarce resources
and in maintaining order, security, and discipline. See id. at 2396-97;
see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (recognizing
that there must be "mutual accommodation" between institutional
needs and inmates’ constitutional protections). Additionally, to estab-
lish liability under § 1983, Lovelace must show that the defendants
acted intentionally in depriving him of his protected interest. Because
the protections of the Due Process Clause are not triggered by the
"mere failure to take reasonable care," negligent deprivations are not
actionable under § 1983. Pink, 52 F.3d at 75; see also Daniels, 474
U.S. at 330-31.
10We do not decide whether Lester is entitled to qualified immunity on
the free exercise claim because he did not raise this defense in his motion
for summary judgment. Our earlier evaluation of whether Lester is enti-
tled to qualified immunity on the RLUIPA claim has some bearing on
this question, however.
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The district court failed to address Lovelace’s due process claim,
presumably because it had already concluded that "the actions of
defendants were negligent rather than intentional." J.A. 168. But this
conclusion (even if it were correct as to all the defendants) has no
bearing on Lovelace’s official-capacity suit against Warden Lee for
issuing the policy. Lovelace alleges that the policy by its own terms
allowed due process violations in the identification and removal of
offenders from the pass list.
We remand for further proceedings on the due process claim
against Lee in his official capacity. The district court must evaluate
in the first instance (1) whether Lovelace has a liberty interest in
Ramadan observance that is protected by the Due Process Clause and
(2) if so, whether the prison’s post-deprivation grievance process,
which lasted nearly two months and ended one month after Ramadan,
was unconstitutional in its failure to guard against erroneous depriva-
tions and arbitrary decisionmaking. See Wilkinson, 125 S. Ct. at 2396.
The dissent would have this court consider and dismiss Lovelace’s
due process claim against the warden in his official capacity, even
though the district court did not address the claim. Lovelace’s due
process claim might ultimately fail, but for now we should be "mind-
ful that we are a court of review, not of first view." Cutter, 544 U.S.
at 718 n.7. Several considerations counsel against our rejection of this
claim without the benefit of district court consideration. The second
Mathews v. Eldridge factor instructs a court to consider "the risk of
an erroneous deprivation . . . through the procedures used, and the
probable value, if any, of additional or substitute procedural safe-
guards." 424 U.S. at 335. Here, when Lovelace filed his unsuccessful
grievances and complaints, prison officials limited their inquiry to
determining that Officer Lester was standing behind his report that he
had seen Lovelace break the fast. The dissent suggests that this
inquiry was sufficient. Lovelace, however, urged prison officials to
take additional steps at the time: among other things, he requested
officials to view the cafeteria surveillance tapes for the lunch period
in question and to show Lovelace’s face card to Officer Lester in an
effort to determine whether Lester had correctly identified him. These
additional steps were not taken, and the prison has not discussed their
probable value, or lack of value, to the process. Nor has the prison
explained, under the third Mathews v. Eldridge factor, whether the
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additional steps would have imposed "fiscal and administrative" bur-
dens that made them impractical. Id. It is not "the worst kind of judi-
cial intrusion," as the dissent charges, post at 64, for us to have the
district court consider these relevant questions in the first instance.
IV.
Finally, Lovelace challenges two of the district court’s procedural
rulings. Lovelace first argues that the district court erred in granting
Lee’s motion for enlargement of time to respond to the complaint,
Fed. R. Civ. P. 6(b), and in denying his own motion for a default
judgment against Lee, Fed. R. Civ. P. 55(b). Lee stated in his motion
that he and counsel "had some difficulty establishing contact with
each other" and that "further delay occurred" when he and counsel
tried to determine when he was served with process. J.A. 103. Lee
filed this motion on May 28, 2004, four days after his response to
Lovelace’s complaint was due. Finding that Lee "ha[d] shown good
cause for his failure to file a timely response to the complaint," the
district court granted Lee’s motion for enlargement of time and
denied Lovelace’s motion for a default judgment. J.A. 162.
A district court has discretion to grant an enlargement of time
"upon motion made after the expiration of the specified period . . .
where the failure to act was the result of excusable neglect." Fed. R.
Civ. P. 6(b). We find no abuse of discretion here. The district court
had a reasonable basis for finding good cause (or excusable neglect)
for Lee’s delay, given that Lee had difficulty establishing contact with
counsel and filed a motion for an extension of time within four days
after his responsive pleading was due.
Lovelace also challenges the district court’s decision to consider
Lester’s second, executed affidavit on grounds that the affidavit was
"untimely [and] . . . incredible on its face." J.A. 190. Lee submitted
his executed affidavit on October 17, 2003, roughly five weeks after
he submitted his motion for summary judgment along with his first,
unexecuted affidavit. A district court has discretion to accept an
untimely affidavit. See Fed. R. Civ. P. 6(b), 6(d). While it is puzzling
that Lester did not offer any explanation for his five-week delay, we
cannot say that the district court abused its discretion in considering
the late affidavit, an important document in this case.
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V.
We vacate summary judgment in favor of Officer Lester in his
individual capacity on the RLUIPA and free exercise claims. We
vacate summary judgment in favor of Warden Lee on the claims
asserted against him in his official capacity. We affirm the remainder
of the district court’s rulings. Having vacated in part, we remand for
proceedings consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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Volume 2 of 2
WILKINSON, Circuit Judge, concurring in the judgment in part and
dissenting in part:
The Religious Land Use and Institutionalized Persons Act of 2000,
42 U.S.C. § 2000cc et seq. (2000), is an expression of our nation’s
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commitment to religious freedom. This case involves precisely the
type of policy that RLUIPA seeks to foster: because Muslim inmates
observing Ramadan must fast during daylight hours, prison officials
have provided them with separate meals at nonstandard times. Some-
how, the majority finds that even this may not have been enough. To
make matters worse, it finds that this enlightened policy — one which
fortunately exceeds the level of religious accommodation routinely
provided in other prisons — is questionable not only under RLUIPA
but on two different constitutional grounds.
With this result, the majority has turned the high congressional
command of religious accommodation into an administrative night-
mare for state penal institutions and district courts alike. Disregarding
the deference historically accorded prison administrators, see, e.g.,
Beard v. Banks, 548 U.S. ___, 126 S. Ct. 2572 (2006) (plurality); Cut-
ter v. Wilkinson, 544 U.S. 709 (2005), the majority subjects even the
most progressive of policies to the most intrusive judicial supervision.
Having opened the floodgates, the majority leaves us all at sea. It
offers no guidance to prison administrators or district courts. It
neglects to define — even in broad brush — what types of policies
it would have penal institutions adopt or what kinds of practices it
may or may not one day find acceptable. The only certainty that the
majority guarantees is litigation over matters large and small, with
federal courts thrust into a role they have sought assiduously to avoid
— that of micromanaging state prisons.
I am the first to agree that plaintiff Lovelace’s religious liberties
may have been impermissibly infringed. But that infringement
occurred as a result of the errant and possibly malicious actions of a
prison guard. The majority rightly holds that Lovelace has presented
an issue of triable fact as to whether correctional officer Lester inten-
tionally violated his religious liberty, and that RLUIPA provides a
cause of action to redress this type of infringement. In short, Lovelace
should and will have the chance to vindicate his right to religious lib-
erty in federal court.
But the majority cannot rest content. Its endless protestations to the
side, the idea that this case need only await appropriate deference to
the prison’s Ramadan policy on remand completely overlooks the fact
that the policy has never once been drawn into question. The majori-
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ty’s assurances about its benign little remand thus presuppose the
issue. Keen Mountain’s prison policy is not at issue here because it
seeks to accommodate, not to burden, religious freedom. The policy
is not at issue because it is keyed to what the Supreme Court has told
us a policy may rightly be keyed to: the sincerity of a religious belief,
rather than its truth. The policy is not at issue because it cannot be
said to have caused Lovelace’s alleged injury — indeed, that injury
was caused by an alleged policy violation. Finally, the prison policy
makes clear on its face the safety and security concerns that somehow
elude only the majority and that underlie the sole limitation placed on
the policy’s accommodation of inmates who are released from their
cells to participate in Ramadan: that they be sincere.
Thus the majority’s remand must be seen for precisely what it is:
an invitation to finetune prison policy from the judicial perch. While
a prison policy may well be called into question where it imposes a
substantial burden on religious freedom, this is not such a case. It is
plaintiff Lovelace who must prove under the statute that the policy,
as opposed to Lester’s violation of it, somehow imposed a substantial
burden upon his religious exercise, and he has not even begun to do
so. To enlarge a case involving an essentially individual act into a
wholesale attack upon a sound prison policy, on no fewer than three
different grounds, not only makes a mountain out of a molehill but
also reinforces the old adage that no good deed goes unpunished.
Under the majority’s view, the most progressive and enlightened
prison policy imaginable, a policy that accomodates every religion in
every way, would be called into question by a single policy violation.
Forcing prison officials to pay for their own progressive steps to pro-
tect religious liberty runs counter to the precise statutory and constitu-
tional provisions that the majority purports to enforce. I therefore
concur in the judgment remanding the case for further proceedings
against defendant Lester, but I respectfully dissent from the majority’s
RLUIPA, free exercise, and due process determinations as to the
prison policy itself.
I.
A.
RLUIPA provides that "[n]o government shall impose a substantial
burden on the religious exercise of a person residing in or confined
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to an institution," unless the government demonstrates that the burden
is the "least restrictive means" of furthering a "compelling govern-
mental interest." 42 U.S.C. § 2000cc-1(a). The majority asserts that
"Lovelace’s removal from the Ramadan observance pass list at Keen
Mountain qualifies as a substantial burden under RLUIPA." Maj. Op.
at 11. To the extent that the appellant’s removal was predicated on
false information reported by correctional officer Lester, there indeed
exists a genuine issue of fact as to whether Lester as an individual
imposed a substantial burden in violation of RLUIPA. See 42 U.S.C.
§ 2000cc-5(4).
But the majority goes further. It asserts that Keen Mountain’s Ram-
adan policy itself may have imposed a substantial burden on the
plaintiff’s religious exercise. How exactly this policy may have done
so is something that the majority utterly neglects to explain. Missing
is a crucial step, the determination of how the substantial burden suf-
fered by Lovelace arose from the prison policy itself.
This failure by the majority is all the more evident because it is
Lovelace, not the Department of Corrections, that bears the burden of
proving a substantial burden. See 42 U.S.C. § 2000cc-2(b). The appel-
lant here did not just fail to meet this burden; it is unclear that he ever
alleged that the policy created a substantial burden in the first place.
And, indeed, in a strict sense, I am not even convinced that Lovelace
has standing to seek equitable relief. His injury is traceable not to the
policy but to a prison guard who acted in total derogation of it. See,
e.g., Allen v. Wright, 468 U.S. 737, 751 (1984); Simon v. E. Ky. Wel-
fare Rights Org., 426 U.S. 26, 41 (1976) (Article III "requires that a
federal court act only to redress injury that fairly can be traced to the
challenged action of the defendant"). In addition, while Lovelace
surely has standing for his individual claim against the possibly mali-
cious violation of his religious liberty by correctional officer Lester,
an injunction is "unavailable absent a showing of irreparable injury,
a requirement that cannot be met where there is no showing of any
real or immediate threat that the plaintiff will be wronged again." City
of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). In any case, the
majority has taken it upon itself to create a claim for the plaintiff and
then to decide it in his favor, all the while never precisely articulating
the nature of the claim. All that is clear is that, according to the major-
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ity, the flagrant abuse of a prison policy by one individual somehow
impugns the policy itself.
The majority defines a "substantial burden" as "one that ‘put[s]
substantial pressure on an adherent to modify his behavior and to vio-
late his beliefs.’" Maj. Op. at 10 (quoting Thomas v. Review Bd. of
Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981)).1 It is impossi-
ble to imagine how the Keen Mountain Ramadan policy does any-
thing of the kind. The Ramadan fast occupies a special place as one
of the central tenets of Islam. Prescribed in the Muslim holy scripture
of the Qur’an, the month-long holiday is celebrated by Muslims
around the world as a time of great religious and cultural significance.
Far from burdening this observance, the Keen Mountain policy seeks
to accommodate it as much as possible within the prison setting. As
such, the policy lies entirely at the other end of the spectrum from the
types of intolerant actions that RLUIPA condemns.
But so eager is the majority to subject this policy to judicial scru-
tiny that it declines to discuss in any detail the substance of the policy
itself. This is a shame, because the policy manifestly represents an
admirable effort at religious accommodation. It recognizes and
respects the importance of the Ramadan fast as one of the "essential
tenet[s] of Islam." See J.A. 30. Over a month before Ramadan was
scheduled to begin, the warden issued a memorandum informing pris-
1The Supreme Court in Thomas actually held, "Where the state condi-
tions receipt of an important benefit upon conduct proscribed by a reli-
gious faith, or where it denies such a benefit because of conduct
mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden upon
religion exists." 450 U.S. at 717-18 (emphasis added).
The present case does not fit this definition at all. The state has condi-
tioned no benefit upon proscribed conduct. Instead, the state has pro-
vided otherwise unavailable benefits — group assemblies and out-of-
hours meals — in the interest of religious exercise and has only condi-
tioned them on behavior in accordance with, rather than proscribed by,
inmates’ religious beliefs. Thus the majority’s attempt to ground its stan-
dard in Supreme Court authority is unpersuasive. This inaccuracy is
immaterial, however, as the policy here does not constitute a substantial
burden under any reasonable definition of the term.
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oners of the dates of Ramadan and describing the special arrange-
ments that would be made for "[i]nmates wishing to participate in this
event." J.A. 27. Prisoners had over three weeks to request inclusion
by notifying the Chaplain, who would "place [their] names on a Mas-
ter Pass List to be utilized by Security and Food Service." Id. During
the month of the fast, Muslim prisoners were permitted to leave their
cells to congregate for special meals "before sunrise and after sunset."
Id. To accommodate this religiously required eating schedule, the
prison opened two dining halls — one for inmates belonging to the
Nation of Islam (NOI) and another for inmates belonging to the
World Community of Islam — for group meals at the nonstandard
hours of 5:00 am and 6:00 pm. In addition, "[p]rayer services [were]
held either before or after the breakfast meal in the dining hall." Id.
During Ramadan, the participating prisoners were "expected to adhere
to the rule of the fasting period as outlined by the Nation of Islam and
the World Community of Islam." Id. Anyone observed breaking the
fast by participating in regular daytime meals would lose his eligibil-
ity to participate in the program. Id.
How this policy could impose a "substantial burden" upon religious
exercise is quite beyond me. Like RLUIPA itself, this policy has both
the intent and effect of "facilitat[ing] opportunities for inmates to
engage in the free exercise of religion." See Madison v. Riter, 355
F.3d 310, 317 (4th Cir. 2003). Prisons should be encouraged to adopt
policies that accommodate inmates’ religious beliefs, not punished for
doing so.
B.
Not only is the Keen Mountain policy clearly a religious accommo-
dation rather than a burden, but it is keyed precisely to what the
Supreme Court has said such policies may take into account: the sin-
cerity of an inmate’s religious request. The Keen Mountain policy
accommodates Ramadan observance only for those inmates who actu-
ally observe the Ramadan fast. Such a sincerity requirement is in no
way a substantial burden on religious exercise. To the contrary, it is
the threshold inquiry of any religious accommodation claim. The
Supreme Court has long recognized in the free exercise context that
"while the ‘truth’ of a belief is not open to question, there remains the
significant question whether it is ‘truly held.’ This is the threshold
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question of sincerity which must be resolved in every case." United
States v. Seeger, 380 U.S. 163, 185 (1965)(emphasis added); see, e.g.,
O’Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987) (noting sincer-
ity of respondents’ religious beliefs at outset of free exercise analy-
sis).
The same outcome obtains under RLUIPA. The Supreme Court has
specifically instructed that, under RLUIPA, "prison officials may
appropriately question whether a prisoner’s religiosity, asserted as the
basis for a requested accommodation, is authentic." Cutter, 544 U.S.
at 725 n.13. "Prison officials . . . can and do assess the sincerity of
inmate’s religious beliefs in order to administer prison programs and
policies ranging from requests for exceptions to grooming policies or
personal property rules to approval for special meals." Gartrell v.
Ashcroft, 191 F.Supp. 2d 23 (D.D.C. 2002). There is simply no ques-
tion that, under RLUIPA, prisons may do exactly what this policy did:
ensure that religious accommodation extends only to sincere observ-
ers.
At the time that Lovelace was excluded from Ramadan, the sincer-
ity of his beliefs was precisely the issue.2 The policy was designed to
accommodate only sincere observers by the most reliable indicator
possible: the would-be observers’ own religious practice. Without
such an indicator, and without the ability to remove insincere partici-
pants, prisons would find themselves providing special religious
meals for fasts that the inmates themselves were not observing. Taken
to its extreme, such a policy would allow inmates to attend five group
meals a day with impunity.
For exactly such reasons, the Eighth Circuit upheld a policy almost
identical to the one at issue here. See Brown-El v. Harris, 26 F.3d 68,
69 (8th Cir. 1994). The court held that excluding an inmate who broke
the Ramadan fast from further participation in no way restricted his
religious freedom. Id. As the court said, "Rather than burdening Ram-
adan worshippers, the [prison] policy allows full participation in the
2The majority characterizes Lovelace’s removal from the Ramadan
pass list as "discipline (punishment for his alleged infraction)." Maj. Op.
at 13. The plaintiff was removed from the pass list not as a punishment
but because he appeared to have broken his own fast.
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fast and removes from the procedures only those worshippers who
choose to break the fast." Id. at 69-70. See also Jackson v. Mann, 196
F.3d 316, 320 (2d Cir. 1999) (prison officials may inquire into sincer-
ity of inmate requesting kosher meals); McElyea v. Babbitt, 833 F.2d
196, 198 (9th Cir. 1987) (prison authorities may deny insincere
requests for religious meals); 28 C.F.R. § 548.20(b) (2005) (Federal
Bureau of Prisons inmates may be removed from religious diet
accommodation for violation of diet requirements).
Nevertheless, the majority insists that the policy imposed a sub-
stantial burden, not because Lovelace was removed from Ramadan
meals, but either because he missed the group prayers that accompa-
nied the Ramadan meals or because he was not provided with alterna-
tive services. These arguments show how far afield the majority is
willing to go in order to implicate the prison policy in harm that arose,
if it did so at all, from the conduct of one individual.
As to the Ramadan group prayers, the majority misrepresents the
nature of the Keen Mountain policy. The prison allowed inmates to
leave their cells for one observance, a group meal accompanied by
prayers. The prison policy characterized this observance as one
"event," and inmates were on notice that, in order to maintain eligibil-
ity for the event, they were to observe the Ramadan fast. To suggest
that Lovelace was excluded from an independent prayer observance
is to mischaracterize the event as it was designed and explained to the
inmates.
Moreover, the group event as designed was more than adequate
religious accommodation. Other prison Ramadan policies have pro-
vided neither group meals nor group prayer. See, e.g., DeHart v.
Horn, 390 F.3d 262, 265 (3d Cir. 2004) (Ramadan meals served in
cells); Love v. Reed, 216 F.3d 682, 691 (8th Cir. 2000) (same); Benja-
min v. Coughlin, 905 F.2d 571, 579 (2d Cir. 1990) (same); Tisdale v.
Dobbs, 807 F.2d 734, 736 (8th Cir. 1986) (upholding Ramadan policy
serving bologna sandwiches to inmates in cells). And yet, the majority
implies that Keen Mountain must not only provide group meals and
group prayers but must provide them independently of each other,
though Lovelace never requested of Keen Mountain that he be permit-
ted to participate in one activity and not the other. Thus the majority
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once again takes an admirably progressive policy and finds inventive
ways to pick fault with it.
Even if the majority’s depiction of the policy were accurate, it
would be reasonable for a prison to consider adherence to the Rama-
dan fast, the central feature of Ramadan, an indicator of genuine inter-
est in Ramadan observance as a whole. See Mosier v. Maynard, 937
F.2d 1521, 1527 (10th Cir. 1991) (noting the "primacy of personal
statements and conduct" in evaluating the sincerity of requests for
religious accommodation); Beerheide v. Suthers, 82 F.Supp. 2d 1190,
1194 (D. Colo. 2000) (examining evidence of inmate’s other religious
practices in determining sincerity of request for Kosher meals). The
majority would apparently have courts second-guess prisons’ determi-
nations as to each subset of each inmate’s particular religious prac-
tices. In the majority’s view, an inmate might be sincere as to subtenet
A of a religious practice and insincere with respect to subtenets B and
C and administrators will have to sort through and accomodate. To be
blunt, a requirement this refined will exceed anyone’s knowledge or
understanding of the infinite variety of religious observance, and it
will drive prison administrators crazy.
As to alternative services, to say that Keen Mountain should have
provided them is to lose sight of the fact that Keen Mountain does
already provide a wide array of religious programming, including
Islamic services other than the Ramadan event at issue here. All the
prison asks is that inmates select their preferred observance in a
timely manner. Inmates signed up for Ramadan observances voluntar-
ily, fully aware that participation required adherence to the fast. An
inmate who preferred not to observe the fast could choose another
form of religious service, including regular Friday Jumu’ah services.
It cannot be a defect in a policy that it provides inmates with the reli-
gious accommodations they request. Nor is it a defect when Keen
Mountain is unable immediately to provide alternate accommodations
should inmates abandon their original intentions. Prisons require ade-
quate notice to accommodate changes in religious requests, and their
doing so in no way imposes a substantial burden on religious practice.
In this case, Lovelace did not change his mind about his obser-
vance preferences but instead alleges that a guard wrongly reported
him as having broken the observance he chose. The guard may cer-
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tainly have burdened Lovelace’s religious exercise. But the majority
seems to believe that Keen Mountain should have had backup reli-
gious accommodations at the ready for this contingency. This goes far
beyond RLUIPA’s requirements: it asks prisons not only to accom-
modate sincere religious requests but to anticipate and provide for any
possible complication. This argument only underscores the fact the
prison policy posed no violation of RLUIPA.
Thus, neither the plaintiff nor the majority has established that the
prison’s Ramadan policy imposes any kind of substantial burden on
religious exercise. It goes admirably beyond the policies that other
courts have upheld. In permitting inmates to leave their cells for
group meals and prayers, the policy stands out among its peers as par-
ticularly accommodating. In its restriction to sincere observers, it is
entirely in accordance with Supreme Court precedent, all of which
has characterized a sincerity requirement not as a substantial burden
but as a "threshold question" in matters of religious accommodation.
See Seeger, 380 U.S. at 185. To repeat: any substantial burden on
Lovelace’s religious exercise arose from one individual’s abuse of the
prison policy, not the policy itself.
II.
Even assuming that a prison policy so accommodating of religious
exercise as this one could impose a substantial burden, plaintiff’s
claim still fails because the policy is narrowly tailored to a compelling
government interest. See 42 U.S.C. § 2000cc-1(a). RLUIPA does not
give prisoners an unfettered right to religious accommodation. Rather,
the statute mandates "due deference to the experience and expertise
of prison and jail administrators." Cutter, 544 U.S. at 723. And, while
the Act adopts a compelling governmental interest standard, "context
matters in the application of that standard." Id. (internal quotation
marks omitted).
A.
To begin with, the majority’s approach exhibits not deference, but
distrust. Although due deference is nowhere more appropriate than in
the context of a state prison program that implicates order, safety, and
security, see Madison, 355 F.3d at 321, the majority uses Keen Moun-
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tain’s Ramadan policy as a platform from which to initiate an assault
on state correctional facilities. It affords, not "due deference," but no
deference to "the experience and expertise" of prison officials. Com-
pare Cutter, 544 U.S. at 723. The majority refuses to find any com-
pelling interest in regulating state prisons and looks for "arguabl[e]"
grounds on which to remand. Maj. Op. at 17. But, since it barely dis-
cusses the actual policy, it perforce does not suggest what would sat-
isfy its standard on remand. In remanding, the majority transforms a
landmark statute on religious liberty into an administratively unwork-
able and constitutionally infirm quagmire. At bottom, the majority’s
no-deference approach is synonymous with federal court control of
routine prison policy.
Sadly, it is not just in its readiness to find fault with prison policy
that the majority’s lack of deference is apparent. One looks in vain for
any appreciation of the number of inmates Keen Mountain prison
administrators supervise, the budgetary restrictions they labor under,
the staffing problems they encounter, or what other religious practices
they may be required to accommodate. One needs no remand to
understand these facts of life in a prison setting. Somehow, in the
majority’s theoretical judicial universe, considerations such as these
have melted into insignificance. They are highly significant for prison
administrators, however, because they are the practical and often
intractable difficulties with which officials must daily deal. The
majority’s unwillingness to discuss the particular, often ameliorative,
features of Keen Mountain’s policy is compounded by its equally ada-
mant refusal even to acknowledge the constraints of the setting in
which the policy must be implemented. Compare Cutter, 544 U.S. at
723 ("[C]ontext matters in the application of [the compelling interest]
standard.") (internal quotation marks omitted). It is this lack of appre-
ciation for reality outside the courtroom that will in time pose the
greatest threat to RLUIPA’s aims.
This approach cannot be squared with the Supreme Court’s recent
opinion in Cutter. To be sure, the majority quotes liberally from Cut-
ter’s repeated injunctions for caution. But the majority ignores its
own exhortations to consider Keen Mountain’s prison "context," Maj.
Op. at 14 (quoting Cutter, 544 U.S. at 723), in which "security
deserves ‘particular sensitivity,’" id. (quoting Cutter, 544 U.S. at
723), and where "due deference to the experience and expertise of
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prison and jail administrators " must be given, id. (quoting Cutter,
544 U.S. at 723). Compare Beard, 126 S. Ct. at 2581 ("The [court of
appeal’s] statements and conclusions here also offer too little defer-
ence to the judgment of prison officials."). If the majority’s intensify-
ing scrutiny of state prisons affords "due deference" to prison
officials, then those words have lost their meaning.
The majority’s no-deference approach conflicts with the approach
adopted by other courts of appeals. See, e.g., Borzych v. Frank, 439
F.3d 388, 390-91 (7th Cir. 2006); Hoevenaar v. Lazaroff, 422 F.3d
366, 370-72 (6th Cir. 2005); Brunskill v. Boyd, 141 Fed. Appx. 771,
776 (11th Cir. 2005). In Hoevenaar, for example, the Sixth Circuit
reversed the district court for failing to give proper deference to the
expertise and experience of prison officials. 422 F.3d at 370-72. The
district court there had fashioned its own exception to a prison hair-
style regulation for low-risk inmates. See id. at 368. The court then
concluded that its own version of the policy was a "less restrictive
means," and, as a result, that the actual prison policy violated
RLUIPA. Id. The Sixth Circuit reversed, holding that the district court
"under the guise of" the least restrictive means test had "improperly
substituted its judgment for that of prison officials." Id. at 370. This
was "just what the Supreme Court and Congress have warned
against." Id. (original emphasis omitted). The majority today makes
the same mistake: it invites lower courts to substitute their own judg-
ment for that of prison officials.
The majority’s no-deference view today also conflicts with our
own precedent. In Madison, we upheld RLUIPA against a facial
Establishment Clause challenge. 355 F.3d at 322. In so doing, we
rejected Virginia’s allegations that "RLUIPA’s compelling interest
test will bind [the Commonwealth’s] hands" and "hamstring the abil-
ity of the Commonwealth’s correctional officials to ensure order and
safety in the Commonwealth’s prisons." Id. at 321. RLUIPA would
do no such thing, we explained, because it "still affords prison admin-
istrators with flexibility to regulate prisoners’ religious practices." Id.
We found compelling the experience of federal correctional officials
who, under the materially identical provisions of RFRA, continued to
prevail in the overwhelming majority of cases alleging a substantial
burden. See id. The majority, however, countermands RLUIPA’s
effort to "afford[ ] prison administrators with flexibility to regulate
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prisoners’ religious practices." Id. Instead, the majority’s approach
would soon draw federal courts into the minute details of penal insti-
tutions, a result Cutter refused to countenance. See Cutter, 544 U.S.
at 723.
B.
Although the majority fails to recognize any compelling govern-
mental interest in regulating the pre-dawn and after-dark release of
inmates from their cells, this does not mean there are none. Indeed,
the majority suggests that in remanding it asks only that Keen Moun-
tain explain the policy’s restrictions by referencing "any institutional
need to maintain good order, security, and discipline or to control
costs." Maj. Op. at 15. But a number of those "institutional need[s]"
are clear from the face of the Ramadan policy: a policy enacted with
safety and security considerations front and center. See J.A. 27, 188.
To begin with, the policy provided for orderly administration of after-
hours meals. See J.A. 27. Inmates were expected, for example, to be
prompt and on time for meals — late participants were not to be
admitted. Id. The safety and security interests inherent in the policy
are just as evident. Indeed, the purpose of the Ramadan Master Pass
List was to provide the names of participating inmates (inmates who
would be released from their cells to participate in group activities
during nonstandard hours) to security and food service staff. Id.
Inmates were "out-counted" after every meal. Id. The policy also pro-
vided that meal times and schedules could be "altered" by the Security
Supervisor in order "to meet the needs of the operation of the institu-
tion." Id. Finally, prison security staff were charged with reporting
inmates observed at other meals to the Assistant Warden of Opera-
tions. Id.
In short, the "institutional need to maintain good order, security,
and discipline" by keeping track of inmates and their out-of-cell activ-
ities could not be more evident. See Maj. Op. at 15. The compelling
interest that the majority purports to demand is plainly contained
within the four corners of the very policy it calls into question.
Indeed, Keen Mountain’s compelling interests in safety, security, and
cost control escape no one but the majority. The institutional interests
certainly did not escape plaintiff Lovelace, who in his petition for
appeal noted that Keen Mountain administrators had "adamantly and
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steadfastly maintained that their actions against plaintiff were inten-
tional, purposeful, and necessary to maintain security." J.A. 188
(emphasis added).
One need not therefore "generat[e] explanations," Maj. Op. at 19,
to see that the Commonwealth’s "legitimate interest in removing
inmates from religious dietary programs" where the inmate fails to
comply with program rules, J.A. 57, evinces these security and other
interests — namely, order, discipline, and the effective functioning of
Keen Mountain. Nowhere are such interests more compelling than in
the after-hours release of prisoners from their cells. See Brown-El, 26
F.3d at 69 ("[P]rison staff is reduced at night and escape risks increase
after dark.").
I recognize that administrative convenience is normally seen as a
rational or legitimate interest, not a compelling one. It is hard to imag-
ine, however, how these general administrative interests, when
advanced in the prison setting, could be other than sufficiently inter-
twined with the more serious interests in safety and security so as to
render them compelling. As the Supreme Court recognized in Cutter,
it is simply impossible to divorce a prison’s compelling interests in
safety and security from internal administration and order. See Cutter,
544 U.S. at 723, 726.
The Ramadan policy releases a large number of inmates from their
cells at nonstandard hours for group meals and prayer. While one
might hope for good deportment on the part of those released, it can-
not be guaranteed. Personal animosities and religious rivalries may
exist and spill over into these gatherings. Some inmates, for example,
may think other inmates insufficiently observant and view them as
taking unfair advantage of the offered religious accommodation.
Some inmates may believe that others are taking more than their fair
share of food, particularly where, as here, they have been fasting all
day and are hungry. Tempers can flare from the simple act of some-
one cutting in line. We would hope that such differences would not
erupt in altercations, but we cannot be sure. Dining rooms occasion-
ally prove to be rowdy environments for camps and schools, not to
mention prisons. In this volatile setting, even the most rudimentary
dictates of caution suggest that we recognize as compelling the need
to administer the Keen Mountain Ramadan program in a safe and
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secure fashion. It is simply no answer to say that all of this will be
explored by the district court on remand because it is precisely the
sort of judicial finetuning invited by remand that the Supreme Court
has repeatedly deplored. See, e.g., Cutter, 544 U.S. at 723.
C.
I also disagree with any suggestion that the Virginia policy is not
narrowly tailored. See 42 U.S.C. § 2000cc-1(a). It is indeed difficult
to imagine a more narrowly tailored policy than the one Virginia now
has. The Ramadan policy tracks the religious rules of Ramadan itself
and "removes from the procedures only those worshippers who
choose to break the fast." See Brown-El, 26 F.3d at 70. The so-called
"broad" removal provision, see Maj. Op. at 3, contains only one limi-
tation: it merely ensures the good intentions of program participants.
It is critical for a correctional facility to verify that the individuals it
accommodates — with special meals, group prayer sessions, and the
like — are genuinely interested in the stated purpose of assembly.
And, as we have recognized, protecting religious freedoms creates the
temptation for inmates to win special privileges by advancing false
religious claims. See Madison, 355 F.3d at 319. Nothing in RLUIPA
requires authorities to discount this danger.
The policy’s removal provision, moreover, is narrowly tailored in
that it goes to great lengths to provide inmates a number of procedural
protections. The policy allows incident reports to be filed only with
Mr. Shinault, the Assistant Warden of Operations. J.A. 27. And the
policy further protects inmates from wrongful removal by specifying
that reports may be filed only by security and food service staff, not
by other inmates. Id.
The majority protests, however, that the removal provision is
"broad" and "far reaching" because it excludes inmates who violate
the tenets of Ramadan from prayer services as well as meals. Maj.
Op. at 3, 17. But, as noted earlier, the group meals and accompanying
prayers are a single religious accommodation, not separate events.
With respect to narrow tailoring, moreover, the distinction between
meals and group prayer is one without a difference. Freeing inmates
during pre-dawn and post-sunset hours may entail security risks
regardless of whether inmates are released from their cells to attend
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group prayer or to receive a meal. See Walker v. Blackwell, 411 F.2d
23, 25 (5th Cir. 1969) ("The movement of people after the sun is
down presents a problem."). Second, as the majority apparently con-
cedes with respect to the meals, an institution may verify the religious
sincerity of Ramadan participants. The difficulty, of course, is in the
majority’s distinction between meals and prayer. The breaking of the
Ramadan fast suggests a lack of genuine interest in any Ramadan
activity. If the majority recognizes this for the meals, it should recog-
nize it also for the prayers.
The majority also suggests that the Ramadan policy is not the "least
restrictive means" available because Lovelace was unable to attend
alternative religious services. Maj. Op. at 17. But the policy imple-
ments a broader institutional concern: Virginia’s Department of Cor-
rections, for obvious organizational and safety reasons, allows
inmates to participate in the religion of their choice, but only one reli-
gion, per calendar quarter. Compare 28 C.F.R. § 548.20(c) (inmate
may attend one religious group’s ceremonial meal per calendar year).
Such a policy is not just an appropriate means of achieving Keen
Mountain’s compelling interests in restricting inmate movement and
maintaining proper order. See Spavone, 420 F. Supp. 2d at 240. This
aspect of the policy — like the policy as a whole — honors and
respects the desire of Muslim inmates to observe the Ramadan fast.
The policy does this by recognizing the occasion of the fast as a prac-
tice of deep religious significance, not an exercise in who can sneak
an extra meal or spend more time out of a cell.
Rather than accepting the policy for the generous accommodation
it is or attempting to explain how the policy imposes a substantial bur-
den, the majority offers a remand. The remand offers no help whatso-
ever to the lower court or the litigants. The only instruction the
majority gives is that the district court should decide on remand
whether the policy is the "least restrictive way" of furthering prison
interests. See Maj. Op. at 18. Restating the legal standard, however,
provides no guidance, and the majority thus invites an open-ended
and potentially wide-ranging inquiry into prison administration. This
approach may well require extensive testimony on the part of prison
administrators and may devolve into a proverbial battle of the experts.
It is no answer to say that the district court might ultimately decide
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to uphold the policy on remand: remand is itself an instruction to the
district court to delve into minute prison details.
Second, narrow tailoring in the prison context cannot mean what
the majority suggests. I quite understand and agree that RLUIPA
directs prison administrators to employ the "least restrictive means."
See 42 U.S.C. § 2000cc-1(a)(2). But just last term in Cutter, the
Supreme Court made clear that RLUIPA does not "elevate accommo-
dation of religious observances over an institution’s need to maintain
order and safety," 544 U.S. at 722, and that RLUIPA does not relieve
courts from their normal habits of restraint and deference in this most
sensitive of settings, id. at 723 (quoting 146 Cong. Rec. S7775 (July
27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy)). One
need only read the majority’s opinion, however, to discover that it
means for the lower court to conduct a fact-intensive inquiry into
every conceivable prison policy that Keen Mountain might have
adopted. The majority is quite clear on this when it says that Keen
Mountain’s Ramadan policy is "arguably not the least restrictive
means" available to prison authorities. Maj. Op. at 17 (emphasis
added). Gone is even the pretense of deference: on remand, burdened
prison personnel must now field questions about how many and what
kind of alternative means might possibly exist for providing meals or
holding hearings. This approach of remanding individual grievances
for hearings on speculatively superior general policies will have
prison administrators chasing their tails. Thus does the remand wield
the least restrictive means test as a tool by which lower courts may
endlessly second-guess prison officials. See Hoevenaar, 422 F.3d at
370 (finding the lower court had "improperly substituted its judgment
for that of prison officials") . This is "just what the Supreme Court
and Congress have warned against." See id. (original emphasis omit-
ted).
D.
The majority’s real quarrel is not with the policy but with Love-
lace’s personal inability to observe Ramadan. But to require policies
to accommodate every set of individual circumstances not only
creates an administrative morass; it also places prison administrators
on a collision course with the values embodied in the Establishment
Clause and with core federalism principles.
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Under the majority’s approach, federal judges "become the primary
arbiters of what constitutes the best solution" to every religious
accommodation problem. See Turner v. Safley, 482 U.S. 78, 89
(1987). Questions regarding meals, dress, hygiene, hair styles, and
cell decor must now be addressed by federal courts, because all these
things can bear upon religious observance. It will be the unusual
activity indeed that cannot be connected to the religious tenets of
some subset of the prison population. Thus, if Keen Mountain is to
be faulted for not accommodating Lovelace individually, there will be
no limit to judicial entanglement in the day-to-day operations of pris-
ons. See Lewis v. Casey, 518 U.S. 343, 362 (1996). This cannot be
the result Congress intended. Indeed, Congress, which passed
RLUIPA, also enacted the Prison Litigation Reform Act of 1995, 42
U.S.C. § 1997e (2000), precisely to eliminate such "unwarranted
federal-court interference with the administration of prisons." Wood-
ford v. Ngo, 548 U.S. ___, ___, 126 S. Ct. 2378, 2387 (2006) (foot-
note omitted).
To satisfy the majority’s desire to accommodate Lovelace — or
any inmate — individually, it would appear that prisons would have
to hold hearings on dramatically different schedules in order to ensure
timely disposition of grievances relating to everything from one-day
observances such as Christmas, to days-long observances such as
Passover, to month-long observances such as Ramadan. To tie the
timeliness of hearings to the timing and duration of different religious
observances would seem an awkward and constitutionally problem-
atic task. The duration of some observances is not even agreed upon.
The Easter holiday, for example, might be understood to comprise the
period from the beginning of Lent to Easter Sunday, Maundy Thurs-
day to Easter Sunday, Good Friday to Easter Sunday, or Easter Sun-
day alone. The majority would place prison officials in the position
of making difficult judgments about religious questions and being
repaid for their efforts by an inmate’s complaints that he received a
hearing in time for Easter Sunday but not for Good Friday. Should the
majority attempt to cure this difficulty with something like a one-day
rule — by which religious grievances are addressed within a day —
such a rule might work well with respect to Ramadan but would be
disadvantageous to faiths with holidays of shorter duration. And, of
course, the actual hearings themselves would have to be scheduled
not only on an accommodating date but at an accommodating hour.
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To read into the requirement of narrow tailoring a requirement
approaching individual accommodation will run administrators
ragged. It will have no end.
One simply cannot divorce the device of strict scrutiny from setting
and context. See Cutter, 544 U.S. at 722-23. As the Supreme Court
has cautioned: "Subjecting the day-to-day judgments of prison offi-
cials to an inflexible strict scrutiny analysis would seriously hamper
their ability to anticipate security problems and to adopt innovative
solutions to the intractable problems of prison administration." Lewis,
518 U.S. at 361 (quoting Turner, 482 U.S. at 89). State prison systems
cannot accommodate, to the degree foreshadowed by the majority’s
remand, the religious beliefs and practices of hundreds of different
faiths. See Charles v. Verhagen, 220 F. Supp. 2d 937, 946-47 (W.D.
Wis. 2002) (it would be "utterly impractical to allow each of 300
denominations to have its own feast day"). Religions, by their very
nature, entail rich and varied forms of worship. Accommodating, in
the sense that the majority understands the word, even a small subset
of those practices may well stretch prison resources to the breaking
point. "Prison administrators, like most government officials, have
limited resources to provide the services they are called upon to
administer." Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir.
1991). The sheer number of religious dietary requirements could
stress the chef of a gourmet restaurant, much less an overburdened
staff in a prison kitchen. Likewise, the accommodation of religious
exercises at nonstandard hours creates added security risks, see
Brown-El, 26 F.3d at 69, and requires additional guards and staff, see
Walker, 411 F.2d at 25. These are not minor concerns — wardens
cannot, for example, "just hire anybody off the street." Id. at 26.
The RLUIPA envisioned by the majority also creates unnecessary
tensions between the Free Exercise and Establishment Clauses. But
RLUIPA represents Congress’ effort to navigate the "corridor
between the Religion Clauses." See Cutter, 544 U.S. at 720. It
requires courts to "take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries," and to ensure neu-
tral administration "among different faiths." Id. Indeed, the Supreme
Court declined to "read RLUIPA to elevate accommodation of reli-
gious observances over an institution’s need to maintain order and
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safety" precisely because the two Religion Clauses "tend to clash with
the other." Id. at 719, 722.
Under the majority’s contrary approach, however, "accommodation
may devolve into an unlawful fostering of religion." Corp. of the Pre-
siding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 334-35 (1987) (internal quotation marks omit-
ted). Whether or not the result posited by the majority would lead to
an Establishment Clause violation in fact, see Madison, 355 F.3d at
322, it would surely generate difficult constitutional questions. At a
minimum, the RLUIPA envisioned by the majority will lead to claims
of discrimination among faiths. For example, prison administrators
forced to provide specially tailored hearings and procedures risk the
appearance of impermissibly "singl[ing] out [ ] particular religious
sect[s] for special treatment." See Bd. of Educ. of Kiryas Joel Vill.
Sch. Dist. v. Grumet, 512 U.S. 687, 706 (1994). It is not difficult to
imagine one inmate perceiving all sorts of slights to his religious faith
because another inmate down the corridor received some special reli-
gious privilege or unique form of treatment. And even if prison offi-
cials manage to satisfy the various dress, dietary, scheduling, and
hearings requirements of all religious beliefs, such close tailoring of
prison procedures to the details of myriad faiths might constitute
excessive government involvement with religion beyond that which
the Constitution allows. See Lemon v. Kurtzman, 403 U.S. 602, 613
(1971).
Moreover, RLUIPA does not abrogate traditional understandings of
federalism and separation of powers in the context of prison manage-
ment. Rather, as this court has observed: "[C]oncerns of federalism
and comparative expertise militate against federal court supervision of
administrative decisions made by state departments of corrections."
Lenz v. Washington, 444 F.3d 295, 304 (4th Cir. 2006). "[I]t is ‘diffi-
cult to imagine an activity in which a State has a stronger interest, or
one that is more intricately bound up with state laws, regulations, and
procedures, than the administration of its prisons.’" Woodford, 548
U.S. at ___, 126 S. Ct. at 2388 (quoting Preiser v. Rodriguez, 411
U.S. 475, 491-92 (1973)). Courts are justified in assuming, therefore,
that RLUIPA intended to modify, but not to trample upon, states’ tra-
ditional prerogatives in this area. See Gregory v. Ashcroft, 501 U.S.
452, 457-61 (1991). In fact, the need to support these prerogatives
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with more than lip service is amplified by federalism concerns, as
RLUIPA deals exclusively with state, rather than federal, prisons. See
Turner, 482 U.S. at 85.
If Cutter conveyed no other message, it signaled to federal courts
that RLUIPA must "be applied in an appropriately balanced way."
544 U.S. at 722. But where the Supreme Court has said, "proceed
with caution," the majority has pressed the accelerator. Heedless of
the deference due the expertise of prison administrators, heedless of
basic principles of statutory interpretation, heedless even of the con-
stitutional dangers of its approach, the majority has placed federal
courts at the center of daily prison policymaking.
In so doing, the majority may be undermining the very ideal of reli-
gious freedom that RLUIPA is meant to protect. The Supreme Court
has counseled caution and deference precisely because, without them,
religious accommodation in the penological context threatens to
become the tail that wags the dog. Absent due restraint, "inmate
requests for religious accommodations [may] become excessive,
impose unjustified burdens on other institutionalized persons, or jeop-
ardize the effective functioning of an institution." See Cutter, 544
U.S. at 726. The Supreme Court has stated categorically that RLUIPA
does not license such excesses, and that, should they come to pass,
"facilit[ies] would be free to resist the imposition" by bringing as-
applied constitutional challenges to RLUIPA. Id. In not granting due
deference to prisons in cases like this one, the majority is virtually
ensuring that prisons will, in turn, now have to seek their own day in
court.
Rather than remanding for further hearings on narrow tailoring, the
valid policy at issue here should be upheld and Lovelace should be
allowed to proceed against Lester in his claim for deliberate abuse of
religious liberty.
III.
A.
Because RLUIPA broadly defines "government" to include "any
person acting under color of State law," I agree that prison officials
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may be sued in their individual capacities. See 42 U.S.C. § 2000cc-
5(4). But the availability of such suits says nothing about whether
money damages — in addition to injunctive and declaratory relief —
are "appropriate relief." I do not, however, take up the question of
money damages with respect to individual defendants because the
majority expressly reserves that question. Maj. Op. at 24-25 n.7.
B.
The majority also leaves open the question of whether RLUIPA
imposes liability for deliberate indifference or other "less than inten-
tional" conduct, Maj. Op. at 22. But this question is not difficult. At
the time that Congress passed RLUIPA, the standard for infringe-
ments of religious liberty was one of intent. See Employment Div.,
Dept. of Human Res. v. Smith, 494 U.S. 872, 878-79 (1990). There
is no indication at all in RLUIPA that Congress intended to change
or modify this intent standard to one of deliberate indifference. In this
case, the appellant never alleged a deliberately indifferent violation of
RLUIPA or argued for the creation of such a standard: Thus the
majority creates the issue and then leaves it open.
As to the issue more generally, Congress has said what Congress
has said. As the majority acknowledges, in drafting RLUIPA, Con-
gress did not create a state-of-mind standard. See Maj. Op. at 20-21.
Instead it enhanced religious protection through other parts of the stat-
ute, such as the standard of review and the burden of persuasion. See
42 U.S.C. §§ 2000cc-1(a), 2(b); see also City of Boerne v. Flores, 521
U.S. 507, 517, 529 (1997) (suggesting that RFRA, RLUIPA’s pre-
decessor, intended to enhance protection against intentional violations
of free exercise by altering burden of proof). Congress was well
aware of the legal backdrop against which it legislated, and where it
did not enunciate changes, we would be wise to assume it meant to
keep the same law. See Faragher v. City of Boca Raton, 524 U.S.
775, 792 (1998) (employing the "presumption that Congress was
aware of prior judicial interpretations and, in effect, adopted them").
"[I]t is not our function to engraft on a statute additions which we
think the legislature logically might or should have made." United
States v. Cooper Corp., 312 U.S. 600, 603 (1941).
A contrary assumption would not only contravene tenets of statu-
tory interpretation but would also impose a state-of-mind standard on
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states of which they had no notice, in violation of the Spending
Clause. "[L]egislation enacted pursuant to the spending power is
much in the nature of a contract, and therefore, to be bound by feder-
ally imposed conditions, recipients of federal funds must accept them
voluntarily and knowingly. States cannot knowingly accept conditions
of which they are unaware or which they are unable to ascertain."
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. ___, ___,
126 S. Ct. 2455, 2459 (2006) (citation and internal quotation marks
omitted). Here, the Commonwealth was not on notice of a deliberate
indifference standard at the time that it accepted federal funds under
RLUIPA. To suggest and then leave open the question of such a stan-
dard is commensurate with neither deference or restraint.
IV.
Not content to draw into question the prison policy under RLUIPA,
the majority finds fault with it on no less than two constitutional
grounds. According to the majority, a remand on these issues is
appropriate "for obvious reasons." Maj. Op. at 31 n.9. But to remand
in a straightforward case such as this not only violates "the policy of
judicial restraint regarding prisoner complaints" that the Supreme
Court requires, see Turner, 482 U.S. at 85 (internal quotation marks
omitted), but also ignores well settled principles of judicial economy,
see, e.g., Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997). An
appellate court may independently determine whether summary judg-
ment was appropriate on alternative grounds. See id. The Ramadan
policy poses no issue under either the Free Exercise or the Due Pro-
cess Clauses and a remand is thus both unnecessary and inappropri-
ate.
A.
In its eagerness to subject the Ramadan policy to judicial scrutiny,
the majority finds a free exercise problem here.3 Here summary judg-
3I agree with the majority that Lovelace’s free exercise claim against
defendants Lee and Shinault fails because their actions were at most neg-
ligent. I also agree that the facts, taken in the light most favorable to
Lovelace, raise a genuine dispute about whether Lester acted intention-
ally in depriving Lovelace of his free exercise rights.
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ment is proper both because the Ramadan policy imposes no burden
and because it meets Turner’s deferential test.
To remand for unspecified further proceedings on a prison policy
that imposes no burden overlooks settled law. While the majority is
correct that a prison regulation — even one that burdens religious
exercise — is valid if it survives Turner analysis, it altogether ignores
Turner’s antecedent inquiry. Turner "assumes as a predicate that the
plaintiff inmate has demonstrated that a constitutionally protected
interest is at stake," and that the challenged policy actually burdens
this interest. DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (en
banc). The free exercise inquiry thus ends where "[t]he answer to the
threshold question is that there is no infringement of religious free-
dom." Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v.
City of Lakewood, 699 F.2d 303, 308 (6th Cir. 1983). Where plaintiffs
have "failed to sustain their burden . . . of establishing . . . a substan-
tial burden on [plaintiffs’] exercise of religion" summary judgment is
therefore appropriate. Goodall ex rel. Goodall v. Stafford County Sch.
Bd., 60 F.3d 168, 173 (4th Cir. 1995).
The foregoing discussion of RLUIPA more than suffices to dispose
of the free exercise claims here. The Ramadan policy imposes no bur-
den, much less a substantial one. The majority’s analysis of burden
under the Free Exercise Clause therefore suffers the same infirmities
as its analysis of burdens under RLUIPA. The Turner inquiry, more-
over, prompts an even more deferential standard of review than does
RLUIPA. Turner says that prison policy need only be "reasonably
related to legitimate security interests." Turner, 482 U.S. at 91. "By
using the language of rational basis scrutiny, the Supreme Court
chose the most deferential possible standard of review," Long Term
Admin. Segregation of Inmates Designated as Five Percenters v.
Moore, 174 F.3d 464, 469 (4th Cir. 1999), a standard certainly more
deferential than that employed by Congress and the Court in the con-
text of RLUIPA.
Because the Ramadan policy imposes no burden, and because it is
"an eminently rational means of achieving the compelling govern-
mental and penological interests of maintaining order, discipline and
safety in prisons," see Hines, 148 F.3d at 358, summary judgment on
plaintiff’s free exercise claim was appropriate. See Goodall ex rel.
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Goodall, 60 F.3d at 173. To remand here stands the Free Exercise
Clause on its head.
B.
I agree with the majority that the plaintiff’s procedural due process
claim against defendants Lee and Shinault fails because their actions
were, at most, negligent, and negligent deprivation does not constitute
a violation of the Due Process Clause. See Daniels v. Williams, 474
U.S. 327, 328 (1986); Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995).
But the majority insists upon overturning the district court and
remanding for a determination of whether the prison grievance pro-
cess, as established by Warden Lee in his official capacity, violated
Lovelace’s due process rights.
Reversal and remand are once again unnecessary, because it is
clear from the record that no due process deprivation exists. Even
assuming that Lovelace was deprived of a protected liberty interest,4
the record nevertheless establishes that the procedures protecting his
interest were adequate. The prison’s complaint procedures afforded
him the attention of the institution’s highest administrators within
days. Lovelace filed informal complaints with the Warden and Assis-
tant Warden two days after the incident. One complaint was
addressed within a day and the other within two. Lovelace then
appealed this outcome through the two-stage Virginia Department of
Corrections formal grievance process, which culminated with a deci-
sion from the Regional Director on January 4, 2003.
The majority makes much of the fact that the formal grievance pro-
cess did not conclude until one month after Ramadan, see Maj. Op.
at 34, but surely the real issue is not how long the process took but
how quickly it began. The majority cannot be suggesting that the Vir-
ginia Department of Corrections should be faulted for providing
more, rather than fewer, levels of administrative review to prisoner
4A liberty interest "may arise from the Constitution itself . . . or it may
arise from an expectation or interest created by state laws or policies."
Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Lovelace’s liberty interest
in this case would presumably be his interest in observing the Ramadan
fast, derived from his constitutional free exercise right.
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complaints. Nor, I hope, is the majority asserting that every level of
administrative appeal should occur within the time parameters set by
any given religious holiday.
For prison officials to have provided Lovelace with more process,
either they would have had to tailor their grievance procedures to the
timeframe of Ramadan, or they would have had to do as Lovelace
urges and allow him more opportunity to present evidence of his
innocence. Under the three-factor Matthews v. Eldridge balancing
test, it is clear that either change would be unwarranted. See 424 U.S.
319, 335 (1976).5 In no way disparaging the private liberty interest
represented in the first Eldridge prong, it is outweighed by the con-
cerns embodied in the second and third. Under the second Eldridge
prong, it is uncertain that either alternative procedure would have
offered the plaintiff better protection against a correctional officer’s
blatant falsehoods. Id. Prison procedures are by nature designed to
place some modicum of trust in the people implementing them. It is
completely understandable that prison officials would rely upon the
eyewitness testimony of a guard and that prison policies would not be
geared to allow for face-to-face confrontations between guards and
inmates every time there were conflicting accounts of a particular
event. See Wolff v. McDonnell, 418 U.S. 539, 567 (1974) ("If con-
frontation and cross-examination of those furnishing evidence against
the inmate were to be allowed as a matter of course, as in criminal
trials, there would be considerable potential for havoc inside prison
walls.").
Meanwhile, under the third Eldridge prong, any change in proce-
dure would entail significant unjustifiable costs. See Eldridge, 424
U.S. at 335. Conforming grievance procedures to religious holidays
would present insurmountable administrative difficulties.6 One-day
5Eldridge requires courts to balance, "[f]irst, the private interest that
will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the proba-
ble value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute pro-
cedural requirement would entail." 424 U.S. at 335.
6By way of comparison, the Federal Bureau of Prisons explicitly pro-
vides that inmates removed from religious diets for failure to conform to
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holidays would be virtually impossible to accommodate, and prison
procedures in general would have to be tailored and retailored to the
demands of a blinding variety of religious calendars. Such an
approach would not only impose daunting administrative costs, but it
would also rob prison procedures of perhaps the most important fea-
tures of any fair process: uniformity and impartiality. It would more-
over have the perverse effect of encouraging inmates to put even
secular grievances in religious terms, in order to receive speedier or
special treatment. See Madison, 355 F.3d at 319. It is thus difficult not
to conclude that the prison’s uniform post-deprivation grievance pro-
cess is more constitutionally sound than the suggested alternatives.
See Parratt v. Taylor, 451 U.S. 527, 543-44 (1981) (post-deprivation
hearing sufficient to satisfy due process).
Similarly, demanding that Virginia prisons allow inmates more of
an opportunity to present evidence in administrative proceedings
would require a costly and potentially dangerous overhaul of state
prison procedures. See, e.g., Wolff, 418 U.S. at 568-69. The proce-
dures through which the plaintiff’s grievance was addressed are the
same procedures used to handle all inmate complaints, including other
alleged constitutional violations. In formulating those procedures, the
state has had to strike a difficult balance designed to identify bona
fide grievances, discourage frivolous ones, and promote both fairness
and efficiency. In considering due process challenges, "federal courts
ought to afford appropriate deference and flexibility to state officials
trying to manage a volatile environment." Sandin v. Conner, 515 U.S.
472, 482 (1995).
The problem from Lovelace’s perspective was not that the prison
did not offer a rapid response to his complaint but that its response
was negative. Virginia has devised a set of procedures that attempts
to strike the right balance in addressing a wide variety of inmate
their requirements "may not be immediately reestablished back into the
program." 28 C.F.R. § 548.20(b). Indeed, "[t]he process of reapproving
a religious diet for an inmate who voluntarily withdraws or who is
removed ordinarily may extend up to thirty days." Id. This timeframe is
deemed necessary "[i]n order to preserve the integrity and orderly opera-
tion of the religious diet program and to prevent fraud." Id.
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grievances. It cannot guarantee the right outcome in every circum-
stance, and where it does not, the courts remain open to the wronged
inmate. See Wolff, 418 U.S. at 579. But the courts are there to remedy
the particular wrong, not to overhaul the entire system. The majority
is using an individual wrong as a springboard for the worst kind of
judicial intrusion. In doing so, it has lost sight of the fact that
"[f]ederal courts sit not to supervise prisons but to enforce . . . consti-
tutional rights." Cruz v. Beto, 405 U.S. 319, 321 (1972).
V.
RLUIPA expresses the view that all persons, however circum-
stanced, should be able to derive the support and sustenance that
comes from the practice of their particular faiths. It also expresses the
hope that the personal strength derived through faith will manifest
itself in rehabilitative efforts, respect for others, and a record of good
institutional citizenship. These indisputable values are balanced, how-
ever, against the difficulties of managing confined and hence combus-
tible prison environments. See Cutter, 544 U.S. at 726. Not content
to recognize this case for what it is — a possibly legitimate complaint
by a Muslim prison inmate that his Ramadan fasting rights were
deliberately and maliciously violated by a prison guard — the major-
ity expands it to what it is not, an excuse for top-to-bottom finetuning
of an accommodating policy designed to foster the very values of reli-
gious expression set forth in RLUIPA.
If this policy does not merit the majority’s approval, then I am hard
pressed to think of one that will. It is unfortunate that a policy
designed to respect the Ramadan fast for the profound observance that
it is should become the means for potentially tying prisons up in
knots. No one argues that a court should blindly accept any justifica-
tion for a prison policy that interferes with religious exercise. But to
substitute its own judgment for the accommodative judgment of
prison administrators is just as bad. See Cutter, 544 U.S. at 717, 723,
725 n.13; Turner, 482 U.S. at 84-85, 89; Madison, 355 F.3d at 321.
It is difficult to overstate the administrative gridlock, penological mis-
judgments, and unwitting privileging of certain faiths over others that
courts will make while embarking on the majority’s course. With all
respect to my friends in the majority, they have gone much too far and
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in the process have created administrative and constitutional problems
that will come in time to endanger and diminish true religious liberty.
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