Opinion
Case No. 8:10-cv-2101-T-17TGW.
February 25, 2011
ORDER
This cause is before the court on Defendants McNeil, Trovillion, Trespalacios, Clark, and Taylor's motion to dismiss Plaintiff Brown's 42 U.S.C. § 1983 civil rights complaint. (Doc. 22). A review of the motion, Brown's response to the motion (Doc. 24) and applicable law, demonstrates that, for the following reasons, Defendants' motion to dismiss will be granted.
PLAINTIFF'S ALLEGATIONS
Brown alleges that Defendants have violated his constitutional rights by failing to provide him, a Nation of Islam follower, chapel services and religious videos separate and apart from the Islamic services currently provided by the institution. (Doc. 1, Section VII.) Brown claims that he is a devout member of the Nation of Islam (N.O.I.) religion and that N.O.I. is different from "conventional" Islam. Id. Brown states he has suffered mental stress for being forced to conform to the concept of Islam that is fundamentally different from his own. (Doc. 1, Section, VI.) He alleges that other religions are provided greater access to religious services and material. (Doc. 1, Section VII.) Brown seeks an "equal opportunity to practice his faith." (Doc. 1, Section VIII). Brown seeks injunctive relief in addition to compensatory and punitive damages from each Defendant. (Id.)
STANDARD FOR RULE 12(b)(6) MOTION TO DISMISS
On a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must view the complaint in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Thus, "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89 (2007). The rules of pleading require only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2), Fed.R.Civ.P.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court expressly "retired" the "no set of facts" pleading standard under Rule 8(a)(2) that the Court had previously established in Conley v. Gibson, 355 U.S. 41, 47 (1957). Twombly, 550 U.S. at 563.
While a complaint attacked by a Rule 12(b)(6) motion need not be buttressed by detailed factual allegations, the plaintiff's pleading obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. As a general proposition (and setting aside for the moment the special pleading requirements that attach to § 1983 claims subject to a qualified immunity defense), the rules of pleading do "not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570. Judicial inquiry at this stage focuses on whether the challenged pleadings "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555). Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. Twombly, 550 U.S. at 555-56.
Twombly applies to § 1983 prisoner actions. Douglas v. Yates, 535 F.3d 1316 (11th Cir. 2008). As the Eleventh Circuit has explained, "[w]e understand Twombly as a further articulation of the standard by which to evaluate the sufficiency of all claims brought pursuant to Rule 8(a)." Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 n. 43 (11th Cir. 2008).
The Supreme Court has since applied the Twombly plausibility standard to another civil action, Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009). In evaluating the sufficiency of Iqbal's complaint in light of Twombly's construction of Rule 8, the Court explained the "working principles" underlying its decision in Iqbal. 129 S. Ct. at 1949.
First, the Court held that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Second, restating the plausibility standard, the Court held that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show [n]' — 'that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). The Court suggested that courts considering motions to dismiss adopt a "two-pronged approach" in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. Importantly, the Court held in Iqbal, as it had in Twombly, that courts may infer from the factual allegations in the complaint "obvious alternative explanation[s]," which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer. Id. at 1951-52 (quoting Twombly, 550 U.S. at 567). Finally, the Court in Iqbal explicitly held that the Twombly plausibility standard applies to all civil actions because it is an interpretation of Rule 8. Id. at 1953.
DISCUSSION
Brown's claims should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). Because Brown is proceeding in forma pauperis, his complaint is subject to the provisions of 28 U.S.C. § 1915(e)(2), which provide:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915. Brown's complaint should be dismissed pursuant to provisions (ii) and (iii) of 28 U.S.C. 1915(3)(2) the aforementioned statute.
Provision (ii) — failure to state a claim on which relief may be granted.
Brown's allegations, considered separately or collectively, and read in the light most favorable to Brown, are insufficient to state a claim on which relief may be granted. In determining whether a complaint should be dismissed pursuant to § 1915(e)(2)(b)(ii), courts utilize the same guidelines as when proceeding under Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The allegations are accepted as true and are construed in the light most favorable to Plaintiff. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997); see also, Welch v. Lahey, 57 F.3d 1004, 1008 (11th Cir. 1995).
Brown has failed to allege specific constitutional violations. However, assuming Brown alleges that Defendants' actions violated Brown's First Amendment rights or the Equal Protection Clause of the Fourteenth Amendment, Brown has failed to state a cause of action on which relief may be granted.
First Amendment Claim
To the extent Brown challenges the Defendants' actions pursuant to the Free Exercise Clause of the First Amendment, Brown has not demonstrated a violation. A prisoner is not entitled to an unfettered exercise of his religious belief; but rather, a "reasonable opportunity" to exercise and practice his religion. Cruz v. Belo, 405 U.S. 319, 322 (1972). Additionally, "while inmates maintain a constitutional right to freely exercise their sincerely held religious beliefs, this right is subject to prison authorities' interests in maintaining safety and order." Jackson, at *2 (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987); Turner v. Safley, 482 U.S. 78 (1987); Cruz, 405 U.S. at 322). A prison regulation may impinge on an inmate's constitutional rights when the regulation is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. T o determine whether a prison policy is reasonable, a court must determine (1) whether there is a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forth to justify the regulation; (2) whether, under the restriction imposed, a prisoner has alternative means for exercising the asserted constitutional right; (3) the impact that accommodating the asserted constitutional right will have on prison staff, inmates, and the allocation of prison resources; and (4) whether the regulation in question is an "exaggerated response" to prison concerns. Id. at 89-91.
However, prior to determining whether a policy is reasonable pursuant to Turner, an infringement must first be established. Jackson, at *3. That is, whether a policy substantially burdens the Plaintiff's ability to practice his religion or prevents him for "engaging in conduct or having a religious experience" mandated by his faith. Id. The Supreme Court has held that a substantial burden is one that "puts substantial 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 (1981). Here, Brown does not allege that a worship group or ministry is essential to practicing his religion nor that watching religious videos is conduct mandated by his religion. (Doc. 1) He also does not state the failure to engage in these activities places a substantial burden on him to modify or violate his beliefs. (Id.) Further, while Brown claims that attending the "conventional" Islam services causes him mental stress, Brown attends these services by his own choosing. The Institution does not force or require prisoners to attend religious services. Brown is free to pray and perform his own individual religious exercises in a manner that does not violate the Department's rules and regulations. Based on the foregoing, Brown has not demonstrated that the Department's policy creates a substantial burden on Brown's ability to exercise his religion nor does it place pressure on him to modify or violate his religious beliefs.
However, assuming that the Institution's policy of providing religious services for a broad range of religious groups and not specific sects or subsets, does impinge on Brown's First Amendment rights, similar policies have survived Turner analysis against similar claims. See Boxer v. Donald, 169 Fed.App. 555, 2006 WL 463243 (11th Cir. 2006) (holding that the denial of inmate's request for Lost-Found Nation of Islam services did not violate his First Amendment rights); Shabazz v. Barrow, 2008 WL 647524, *1 (M.D. Ga. 2008) (finding no First Amendment violation where a member of the Nation of Islam was denied a separate worship service); Nation of Islam v. Michigan Dept. of Corrections, 1995 WL 631589, 1 (6th Cir. 1995) (finding that the decision to deny the Nation of Islam prisoners' request for individual services and meetings was reasonable).
In Al-Hakim v. Taylor, et al., 4:01cv187, the United States District Court for the Northern District of Florida reviewed the case of an inmate of the Florida Department of Corrections. Among his contentions, Al-Hakim claimed that the Nation of Islam did not have an official scheduled place and time for worship services at Wakulla Correctional Institution. See Exhibit 1 to this Order at page 2 (Report and Recommendation of Magistrate William C. Sherrill). Despite Plaintiff's allegation that the Department had combined the Nation of Islam service with that of another Muslim group, the Magistrate wrote:
Lack of available space and volunteers are limitations which make it reasonably necessary to combine services for groups of similar faiths. Various Islamic groups undoubtedly have distinctions and differences in their beliefs, but that does not mean that they cannot combine to worship. Indeed, the evidence shows that Christian religious groups combine to worship as well.See Exhibit 1 at page 17.
Accordingly, to the extent Brown claims the Defendants' actions were a violation of the First Amendment, he has failed to state a claim upon which relief may be granted.
Equal Protection Claim
To the extent Brown raises an Equal Protection claim, he has not demonstrated a violation. The Equal Protection Clause requires that the government treat similarly situated people in a similar manner. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To establish an equal protection claim, "a prisoner must demonstrate that (1) he is similarly situated to other prisoners who received more favorable treatment; and [that] (2) the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis." Sweet v. Sec'y Dep't of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006); see also Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n. 6 (11th Cir. 2008) (noting that "the equal protection clause prohibits only intentional discrimination"). Here, the facts do not support either component of the test.
First, as Brown states, he practices a sect of Islam that is different from the "conventional" Islam. Thus, Brown must first allege that similarly situated prisoners, such as inmates that are Baptist or Methodist, have been provided separate chapel services outside of the Christian services already provided. Cf. Boxer X, at * 4. Brown makes no such statement. Brown only states that services are provided for "Protestants, Jewish, Catholic, and Hebrew Israelites adherents." (Doc. 1, Section VII). However, even assuming Brown has alleged that the Institution provides similarly situated prisoners with more favorable treatment, that allegation only goes to the first equal protection requirement. With regard to the second requirement, the facts, viewed in the light most favorable to Brown, do not establish that the Defendants' decision to limit the number of chapel services provided by the Institution is a product of intentional discrimination.
Therefore, Brown has failed to allege and demonstrate an Equal Protection claim. See Patel v. United States Bureau of Prisons, 515 F.3d 807, 815-16 (8th Cir. 2008) (concluding that prisoner's equal protection claim failed because he had not shown that the prison's decision to serve kosher entrees and not halal entrees was motivated by intentional or purposeful discrimination).
Provision (ii) — seeks monetary relief against a defendant who is immune from such relief.
Eleventh Amendment Immunity
To the extent Brown sues Defendants in their official capacities, Defendants are immune from suit in federal court pursuant to the Eleventh Amendment. The Eleventh Amendment provides immunity by restricting federal courts' judicial power:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const. Amend. XI.
The Eleventh Amendment protects a State from being sued in federal court without the State's consent. McClendon v. Georgia Dep't of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001). Eleventh Amendment immunity also bars suits brought against employees or officers sued in their official capacities for monetary damages because those actions actually seek recovery from state funds. See Kentucky v. Graham, 473 U.S. 159, 165-68 (1985); Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th Cir. 1993). Eleventh Amendment immunity applies unless Congress validly abrogates that immunity or the state waives the immunity and consents to be sued. See Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990). It is well established that Congress did not intend to abrogate a state's Eleventh Amendment immunity in § 1983 damage suits. See Quern v. Jordan, 440 U.S. 332, 340-45 (1979); Cross v. State of Ala., State Dep't of Mental Health Mental Retardation, 49 F.3d 1490 (11th Cir. 1995). Additionally, Florida has not waived its sovereign immunity or consented to be sued in damage suits brought pursuant to § 1983. See Gamble v. Florida Dep't of Health Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir. 1986); Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986); Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990).
Brown brings this action in federal court pursuant to 42 U.S.C. § 1983. Brown fails to allege or prove that Congress has abrogated the State of Florida's immunity from suits of this nature, or that the State of Florida has otherwise waived its immunity from suit. Moreover, states and state officials acting in their official capacities are not persons for the purposes of lawsuits brought pursuant to Title 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Thus, to the extent that Brown is suing Defendants in their official capacity, his complaint must be dismissed.
Qualified Immunity
To the extent Brown sues Defendants in their individual capacities; they are entitled to qualified immunity. "Qualified immunity allows government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, and protects from suit "all but the plainly incompetent or one who is knowingly violating the federal law." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir 2001)). "Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004) (quotations marks omitted). The defense of qualified immunity serves important public policies. Ray v. Foltz, 370 F.3d 1079, 1082 (11th Cir. 2004) (citing Richardson v. McKnight, 521 U.S. 399. 408-11 (1997)). Qualified immunity protects "government's ability to perform its traditional functions by providing immunity where necessary to preserve the ability of government officials to serve the public good or to ensure that talented candidates were not deterred by the threat of damage suits from entering public service." Id. (citing Richardson at 408). The doctrine provides immunity from suit, and is not just a defense to be raised at trial. Id.
To be entitled to qualified immunity, a defendant must first establish that he was acting within the scope of his discretionary authority. Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 865 (2008). Here, it is apparent from the face of the complaint that Brown has sued Defendants for performing official duties within the scope of her discretionary authority as employees of the Florida Department of Corrections.
Once the defendant has established that he or she was acting within his or her discretionary authority, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Id. When evaluating a claim for qualified immunity, a court must determine (1) whether the facts alleged, viewed in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right, and (2) whether, under the facts alleged, there was a violation of "clearly established law." See Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 820-21 (2009) (modifying Saucier v. Katz, 533 U.S. 194 (2001)). In applying either prong of the Saucier test, the facts alleged by Brown do not demonstrate that Defendants are not entitled to qualified immunity.
First Amendment
To the extent Brown contends that the Defendants violated the Free Exercise Clause of the First Amendment by not providing a separate and individual service for Nation of Islam followers, Brown has not demonstrated that Defendants are not entitled to qualified immunity. Regarding the first prong of Saucier, Brown has not alleged or demonstrated that Defendants' actions constituted a violation of the First Amendment. In addressing the second prong, whether Defendants violated a clearly established constitutional right, there is no binding precedent that would have made it clear to Defendants that any of their actions violated Brown's constitutional rights. "In order to determine whether a right is clearly established, we look to the precedent of the Supreme Court of the United States, this Court's precedent, and the pertinent state's supreme court precedent, interpreting and applying the law in similar circumstances." See Oliver v. Fiorino, 586 F.3d 898, 905, 907 (11th Cir. 2009). If there is no precedent on point, a right is clearly established only if the law has "earlier been developed in such [a] concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that what he is doing violates federal law." Crawford v. Carroll, 529 F.3d 961, 977-78 (11th Cir. 2008) "We have noted that, [i]f the law does not put the [official] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." See Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
As demonstrated supra, there is no precedent or law mandating that prisoners belonging to specific sects or subsets of religious denominations receive separate religious services. On the contrary, case law from this circuit supports the opposite conclusion. See cases above and Boxer v. Donald, 169 Fed.App. 555 (11th Cir. 2006). Accordingly, to the extent Brown raises a First Amendment claim, Defendants are entitled to qualified immunity.
Equal Protection
To the extent Brown contends that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment, Brown has not demonstrated that Defendants are not entitled to qualified immunity. With regard to the first prong, when viewing the facts in the light most favorable to Brown, he established a constitutional violation, Brown has not demonstrated a constitutional violation. See Oliver, 586 F.3d at 905. Brown has not established that Defendants: (1) treated similarly situation prisoners more favorably; and [that] (2) their decision to limit the number of religious services was result of invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis. As to the second prong, again, there is no precedent or law which would have placed Defendants on notice that their conduct would amount to a violation of the Equal Protection Clause. Thus, Defendants are entitled to qualified immunity for Equal Protection claims raised by Brown.
Respondeat Superior is not cognizable in a Section 1983 action.
To the extent Brown attempts to hold Defendants liable for the actions of their subordinates, Brown is not entitled to relief. The doctrine of respondeat superior is not applicable to section 1983 actions. See La Marca v. Turner, 995 F. 2d 1526 (11th Cir. 1993) and Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982). Supervisory authority does not create liability for the acts of subordinates under section 1983, "without any evidence that the supervisory employee participated in or condoned the alleged deprivations." Geter v. Wille, 846 F. 2d 1352, 1355 (11th Cir. 1988). "The mere right to control, without any control or direction having been exercised and without any failure to supervise is not sufficient to support 42 U.S.C. 1983 liability." Monell v. Department of Social Services, 436 U.S. 658, 694 n. 58 (1979).
Section 1997e(e) bars claims for compensatory and punitive damages for mental or emotional injury suffered while in custody where there is no showing of physical injury.
Pursuant to Section 1997e(e) Brown may not seek compensatory or punitive damages for mental or emotional injuries suffered while in custody where there is no showing of physical injury. In Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007), the Court held that the plaintiff prisoner who demonstrated no physical harm was not entitled to compensatory or punitive damages. Accordingly, claims for compensatory and punitive damages arising from alleged mental and emotional injuries must be dismissed.
Brown has failed to state a cause of action the entitles him to injunctive relief.
Brown has not demonstrated that injunctive relief is warranted in this case. First, while Brown states he seeks injunctive relief, he does not specify the action(s) with which he seeks to have this Court direct the Defendants comply. (Doc.1, Section VIII) Second, assuming Brown seeks an order directing the Department to provide Nation of Islam services and/or videos, Brown has not demonstrated the requisite criteria for injunctive relief. (Doc. 1) This Court has the discretion of whether to grant or deny a temporary restraining order or preliminary injunction. Carillon Importers, Ltd. v. Frank Pesce Intern. Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983)); Johnson v. Radford, 449 F.2d 115 (5th Cir. 1971). In exercising its discretion, the Court will consider whether: (1) there is a substantial likelihood that Brown will prevail on the merits; (2) there exists a substantial threat that Brown will suffer irreparable injury if the injunction is not granted; (3) the threatened injury to Brown outweighs the threatened harm the injunction will do to the defendant; and (4) the granting of the preliminary injunction will not disturb the public interest. CBS Broadcasting, Inc. v. Echostar Communications Corp., 265 F.3d 1193, 1200 (11th Cir. 2001); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); Johnson v. United States Dep't of Agric., 734 F.2d 774 (11th Cir. 1984); Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567 (5th Cir. 1974)." preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites." All Care Nursing Serv. v. Bethesda Mem'l Hosp., 887 F.2d 1535, 1537 (11th Cir. 1989) (quotations omitted). See Baer v. McNeil, 2010 WL 2306429 *1 (N.D. Fla. 2010)
Brown has not met the first criteria, specifically, a substantial likelihood that he will prevail on the merits. Brown has also failed to demonstrate that a substantial threat to an irreparable injury exists if the Institution does not provide a separate and individual service for Nation of Islam followers. As to the third factor, the issuing of such an injunction, would adversely affect Defendants and their discretion over operational and management matters of the correctional institution. Last, Brown has not demonstrated that granting his request for injunctive relief will not disturb the public interest. As Brown has failed to meet his burden of persuasion as to each of the requisites required for an injunction, his request for injunctive relief must be denied.
Accordingly, the Court orders:
That Defendants' motion to dismiss the complaint (Doc. 22) is granted. Plaintiff's complaint is dismissed, without prejudice. The Clerk is directed to close this case.
ORDERED at Tampa, Florida, on February 25, 2011.
THIRD REPORT AND RECOMMENDATION
Plaintiff, an inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 alleging First Amendment violations. Doc. 1. Defendants filed a special report, doc. 50, with numerous attachments and Plaintiff filed a response and cross motion for summary judgment. Doc. 52. Plaintiff was advised of his obligation to respond to the special report which was construed as a motion for summary judgment. Doc. 54. Having filed his response prior to issuance of that order, Plaintiff thereafter filed a "notice of filing Plaintiff's affidavit in opposition to summary judgment." Doc. 55.
Allegations of the complaint, doc. 1
Plaintiff alleged in his complaint that while he was "giving a Friday religious sermon" while incarcerated at Wakulla Correctional Institution, a correctional officer (Defendant Treadwell) told him to stop teaching and allegedly used force. Doc. 1. Plaintiff states that he was teaching that "the (white) man [is] the Devil who killed Jesus the Black man 2000 years ago." Id. Defendant Treadwell allegedly told Plaintiff that he was too loud and to lower his voice. Id. Plaintiff claimed that another Muslim group that was also meeting at the same time in the "chow hall was not interrupted." Id.
Plaintiff filed a grievance regarding the matter. Doc. 1. Plaintiff was called out to meet with Defendant Watson and discuss Plaintiff's "belief [sic] and teaching." Id. Thereafter, Plaintiff was placed in administrative confinement on grounds that he was teaching hate. Plaintiff alleges that his placement was "used as a ruse and to enact retaliation for" his beliefs. Id. Defendant Watson allegedly threatened to continue Plaintiff's confinement if he gave "such sermons." Plaintiff contends his rights to freedom of speech, the free exercise of his religious faith, due process, and equal protection are violated. Id. Additionally, Plaintiff claimed that during the grievance process he was labeled "a hate teacher," and that the Nation of Islam does not have an "official scheduled place and time for worship service[s] at Wakulla C.I." Id.
As relief, Plaintiff seeks a declaratory judgment, and injunction prohibiting the Defendants "from violating the freedom of speech to preach and teach his religion at Wakulla C.I. that Jesus is a Black man and the Devil white man killed him." Doc. 1. Plaintiff also seeks $100,000.00 monetary damages from each Defendant. Id.
Legal standards governing a motion for summary judgment
On a motion for summary judgment Defendants initially have the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If they do so, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). However, "the evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor." WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988).
"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed.R.Civ.Proc. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.
Either a claimant or defendant may move for summary judgment, with or without supporting affidavits, upon all or any part of a claim. Fed.R.Civ.P. 56(a) and (b). In this case, both Defendants and Plaintiff have filed motions for summary judgment. Doc. 50, 52. Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Plaintiff, as the claimant, "is entitled to a summary judgment only when no genuine issue of material fact exists, the papers on the motion demonstrate his right to relief, and every one of the defenses asserted legally are insufficient." 10A C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure § 2734, at 405 (1983). On the other hand, the burden on a defendant moving for summary judgment is to demonstrate an absence of evidence to support the Plaintiff's case. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986); see also, Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (defendant moving for summary judgment must either show that the non-moving party has no evidence to support its case, or present affirmative evidence demonstrating the non-moving party will be unable to prove its case). Since Plaintiff (as the party with the burden of proof) has a heavier burden on summary judgment, the Court will consider the Defendants' motions first. If Defendants' motion is denied, the Court will consider whether Plaintiff is entitled to judgment as a matter of law.
A "genuine issue" requires that there be such evidence that a reasonable jury could return a verdict for the party seeking summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
Relevant Rule 56 evidence
At the time of the events in question, Plaintiff was incarcerated at Wakulla Correctional Institution. Doc. 50, p. 3; ex. A. On Friday, January 18, 2001, Plaintiff "was asked to lower the volume of his delivery of the Khutbah so as not to interfere with the order of the other activities of the facility; the inmate [Plaintiff] was allowed to continue with his presentation." Doc. 50, ex. B. On that date, "two inmates were attempting to deliver Khutbahs concurrently, which caused an atmosphere of confusion and disorder, and therefore, to preserve the security and good order of the Institution, [an officer] requested that [Plaintiff] reduce the volume of his delivery." Id.; see also ex. C. Following that incident, Plaintiff's participation in Jumah Services was neither suspended nor revoked, and Plaintiff continued "to actively participate in Jumah on Friday afternoons and in the Islamic Studies offered by Chaplaincy Services every Sunday evening." Doc. 50, ex. B.
Defendants submit that Plaintiff was not interrupted "because of doctrinal teachings, but because he was teaching 'hate' that had the potential to negatively affect the security of the institution." Doc. 50, ex. M. It is the "policy of the Department to extend the greatest amount of freedom and opportunity for the pursuit of religious beliefs and practices" so long as they are "consistent with the security and good order of the institution." Id.
Plaintiff sent an informal grievance to Chaplain Hope asking that officers be directed "not to interfere when" Plaintiff is "giving a sermon." Doc. 50, ex. A. Plaintiff also requested that officers not "supervise Muslim" services or stop sermons by telling "the person to be quiet." Id. Plaintiff said that they "shout just like the Chirstians [sic] and other practioners [sic]. . . ." Id. The response on that grievance advised Plaintiff that the rules allow inmates to "participate in religious services by providing special music, reading scripture, leading in prayer, brief testimonies, etc., but they may not be allowed to lead services or deliver the sermon." Id. Nevertheless, the response to Plaintiff's formal grievance indicates that, despite the rule, Plaintiff was "allowed to offer a Khutbah (Sermon from the Koran) during the regularly scheduled Jumah Service, if it [was] presented in an orderly manner." Doc. 50, ex. B.
Plaintiff also directed a grievance, which he designated as an "emergency," to Defendant Watson. Doc. 50, ex. D. The grievance was dated by Plaintiff on March 19, 2001, and responded to by Defendant Watson on March 20, 2001. Id. Although much of the grievance is cryptic, Plaintiff does ask that Defendant Watson "instruct the supervisors [to] desist their covert practices upon [Plaintiff] because [he] teach[es] the right order of creation to [his] brothers." Id. The response states that if Plaintiff starts "teaching hatred, racial prejudices, the staff will stop you every time." Id. Defendant Watson explained that he had been advised by both staff and other inmates in Plaintiff's Muslim group that Plaintiff was "intent on presenting teaching issue[s] that are not part of the Muslim religion." Id. Defendant Watson's response ended by telling Plaintiff he was "expected to comply with departmental rules regulations while partiscipating [sic] in Religious activities." Id.
At around the same time Defendant Watson received or responded to Plaintiff's "emergency" grievance, Plaintiff was given a report of administrative confinement. Doc. 50, ex. E. The report stated that Plaintiff was being placed in "administrative confinement pending an investigation per [Defendant] Watson." Id. Plaintiff refused to make a statement. Id.
The grievance was dated by Plaintiff on March 19th, and responded to on March 20th. Doc. 50, ex. D. The report of administrative confinement is dated March 19th. Doc. 50, ex. E.
On March 20, 2001, Plaintiff submitted an informal grievance to Ms. Newsome complaining that his placement in confinement was discriminatory and that 24 hours had passed without charges being filed against him. Doc. 50, ex. G. It was responded to on March 22nd and advised Plaintiff that his placement in confinement was "appropriate" and that there was no requirement that an inmate be served with a disciplinary report "within 24 hours." Id. On that same day, Plaintiff wrote a formal grievance to the Superintendent alleging that he was not given a reason for his confinement and that Ms. Newsome racially discriminates against Black inmates. Doc. 50, ex. H. The grievance was denied. Id.
On the same date Plaintiff sent the informal grievance to Ms. Newsome, he also submitted an informal grievance (designated an "emergency") to Superintendent Norwood. Doc. 50, ex. I. The grievance was responded to on March 29th by Defendant Watson instead of Mr. Norwood, and advised Plaintiff that his grievance was not an emergency and that he was "not placed in confinement as redress" but placed there "pending investigation into allegations that [Plaintiff was] teaching hatred racist views in the Muslim services." Id. Furthermore, it indicates that Defendant Watson spoke with Plaintiff about his religious views and teachings, and confirmed that Plaintiff was teaching as alleged but, nevertheless, Defendant Watson decided to release Plaintiff from confinement without formal discipline. Id. Plaintiff was released from segregation on March 26th and returned to open population. Doc. 50, ex. F.
Plaintiff also grieved his claim that there is a "policy that a[n] officer can stop [Plaintiff] from teaching hatred at any time." Doc. 50, ex. J. Plaintiff argued that it was not an officer's "duty to judge [his] religious" teachings or beliefs and asked that a memo be issued to permit him to freely teach his religious beliefs. Id. Plaintiff again reaffirmed that he is "a member of the Nation of Islam and we do teach the white man is the devil of the Holy Bible." Id. The response stated that Plaintiff would "not be allowed to teach Hatred, as" stated in his grievance and also denied Plaintiff's request for a memo. Id. However, the response also notes that Defendant Watson personally spoke with Plaintiff and expects "total compliance" indicating that Plaintiff would be permitted to continue participating in the Muslim services. Id. Indeed, additional evidence submitted by Defendants clearly shows that Plaintiff was scheduled to give a sermon on April 4, 2001. Doc. 50, ex. O.
It does not appear that Plaintiff ultimately gave that sermon as he was placed back in confinement after receiving a disciplinary report for disorderly conduct. See doc. 50, exhibits N, O.
Plaintiff appealed to the superintendent the denial of that grievance and claimed his rights to freedom of speech and religion were being infringed. Doc. 50, ex. K. Plaintiff argues that it is unconstitutional for Defendant Watson to "deny [him] nor censor [his] sermons." Id. That grievance was responded to by Defendant Denson and stated that Defendant Watson was not restricting Plaintiff's freedom or speech or religion. Id. The response stated that Plaintiff had verbally acknowledged in his meeting with Defendant Watson that Plaintiff "would teach hate for the white man even if [he was] placed in confinement for doing so." Id. It then stated that Plaintiff had the "right to worship as" he chose, and that the Muslim religion was authorized, but that Defendant Denson could not find where the Muslim faith "teaches hate for the white man or that the white man is a devil." Id. Nevertheless, Plaintiff was told that he would be "allowed to practice [his] religion the same as other inmates of the Muslim (Islam) faith" but that he could not "teach anything that incites [or] causes unrest in the inmate population that might cause a riotous situation." Id.; see also doc. 50, ex. L.
Defendants have submitted evidence that Muslim inmates are "permitted to take the time from assigned duties to pray five times a day" and that "Friday is the most important day of worship in Islam." Doc. 50, ex. B-1. Jumah prayer, which begins "with a formal sermon (Khutbah) and is followed by the prayers, is scheduled on Fridays for Muslim inmates within the Department of Corrections. Id. Additionally, "Taleem services are studies on Islamic beliefs, culture and/or history" and are offered at various other times. Id.
Plaintiff filed his own affidavit asserting that Defendant Treadwell "used physical force by touching [him] and telling [him] to stop teaching [the] Friday Jummah [sic] sermon because [he] was loud." Doc. 55, attachment (hereinafter "Plaintiff's affidavit"). Plaintiff stated that another inmate was "on the other side of the chow hall likewise giving a sermon in the same loud voice" but Defendant Treadwell never advised the other inmate to lower his voice. Plaintiff's affidavit, p. 1. Plaintiff claims Defendant Treadwell acted with "bias because of the subject matter of the sermon" that Jesus was a Black man and was killed by White Romans." Id. Plaintiff complains that even while at Central Florida Reception Center, staff put Plaintiff in administrative confinement for teaching the above stated doctrine. Id., at 2. Plaintiff acknowledges being transferred away from Wakulla Correctional Institution on July 21, 2000." Plaintiff's affidavit, p. 2.
Plaintiff also submitted another affidavit in which he states that there was "a Nation of Islam study at Taleem" which had been rotating with another Muslim group. Doc. 59, attachment. However, the rotation was stopped and, apparently, the service is now a combined "orthodox" Muslim service. Id. Plaintiff contends that the decision to join services was made by "the Chaplaincy Service at D.O.C." Id.
Furthermore, Plaintiff has included a letter addressed to him regarding his concerns over "non-Nation of Islam Muslim volunteers and the lack of specific Nation of Islam teaching and videotapes." Doc. 59, attachment. That letter explained that there are currently four Muslim volunteers who conduct weekly Islamic studies and that it is difficult to attract "qualified Muslim volunteers." Id. Additionally, it explained that "[i]t is the policy of the department to provide religious activities for Muslim inmates that are inclusive of the various Islamic groups." Id. The policy, applicable to Muslim volunteers, is also similarly "followed for Christian religious activities." Id. Plaintiff was advised that he could "order and purchase religious literature for" his own personal study. Id.
Additional evidence consists of a brochure which describes differences between Islam and Farrakhanism. Doc. 59, attachment. The brochure describes Farrakhanism as being "The Nation of Islam" and states that "[t]he only thing common between [Islam and Farrakhanism] is the jargon, the language used by the both." Id. Many differences between the two groups are evident, and several of those differences appear to be significant. Id. Plaintiff also submitted an affidavit from another inmate who states that "the teaching of the Nation of Islam is not identical in practice and many other aspects of Orthodox Islamic teachings." Doc. 62, attachment (Pough affidavit). Plaintiff has also presented copies of grievances in which he complains that other Muslim groups dominate the services. Doc. 63, attachment. The response on the appeal states that "[i]t is the policy of the department to provide religious activities fro Muslim inmates that are inclusive of the various Islamic groups. This policy includes Jumah services." Id. The response also advised that "[a] similar practice is followed for Christian religious activities." Id. The response given to Plaintiff by Defendant Denson and Chaplain Hope on the formal grievance adds that "Islamic observances include a diverse group of Islamic inmates, that range from extreme orthodox to the Nation of Islamic adherents." Id. It is also explained that "[f]reedom of thought and expression is allowed in the services to the extent that it does not hinder the good order and security of the facility." Id.
Finally, Plaintiff submitted numerous affidavits of other inmates. Darryl Lorenza Smith's affidavit states that he has heard Plaintiff's sermons and did not believe them to be "hateful or racist nor did his speaches [sic] cause riot with White or Black inmates." Doc. 52, attachment. Inmate Smith also stated that he was present when Defendant Treadwell "used force to stop [Plaintiff] from teaching because of his subject. . . ." Inmate Smith stated that Defendant Treadwell "used a false reason as being to [sic] loud when other Muslims was [sic] teaching in the same tone of voice." Id. Several other inmates, two of whom identify themselves as Caucasian, stated in their affidavits that they heard Plaintiff speak and did not find his teachings to be of hatred for white men or any other race. Doc. 52, attachments (Hudson affidavit, Winters affidavit, and Starling affidavit). Additionally, affidavits from two other inmates report that Defendant Watson directed the cancellation of the rotation of worship services which, in effect, keeps "the Nation of Islam teaching out of the program." Doc. 62, attachment (W. Watson affidavit and Johnson affidavit).
Legal Analysis
Analysis begins with the well-established understanding that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948). A prisoner retains only those rights that are "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974). While prisoners retain some First Amendment rights, including the First Amendment right of free exercise of religion, regulations or policies "alleged to infringe constitutional rights [in prison] are judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." O'Lone v. Estate of Shabazz, 482 U.S. 340, 349, 107 S. Ct. 2400, 2404, 96 L. Ed. 2d 282 (1987). O'Lone directs courts to give respect and deference to the judgment of prison administrators even in First Amendment challenges raised within the confines of prison. Id. Prison officials "are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. . . ." Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S. Ct. 1800, 1807, 40 L. Ed. 2d 224 (1974). Courts are simply "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Procunier, 416 U.S. at 404-05, 94 S. Ct. at 1807. Therefore, this Court is required to uphold prison regulations challenged by inmates if they are "reasonably related to legitimate penological interests." O'Lone, 482 U.S. at 350, utilizing the standard of Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L.Ed. 2d 64 (1987).
In City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 1997), the Court held the Religious Freedom Restoration Act, (RFRA) 42 U.S.C. § 2000bb, et seq., unconstitutional as exceeding Congress's authority under the Constitution. The Court's decision marks the return to the standard employed in O'Lone v. Shabazz, 482 U.S. 342 (1987) in the context of prison cases.
Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. . . . Judicial recognition of that fact reflects no more than a healthy sense of realism.Procunier, 416 U.S. at 404-05, 94 S. Ct. at 1807.
For Plaintiff to succeed on his free exercise and freedom of speech claim, Plaintiff must demonstrate that prison officials have employed a policy or regulation, not reasonably related to any legitimate penological interest or security measure, which burdens a practice of his religion or prevents him from engaging in conduct or having a religious experience which the faith mandates. This interference must be more than an inconvenience; the burden must be substantial and significantly interfere with Plaintiff's practice of his religious beliefs. Cf. Thornburgh v. Abbott, 490 U.S. 401, 418, 109 S. Ct. 1874, 1884, 104 L. Ed. 2d 459 (1989) (noting that O'Lone found prison regulations valid in part because the prisoners were permitted to participate in other Muslim religious ceremonies). Also relevant is whether an "alternative means of exercising the right . . . remain open to prison inmates." O'Lone, 482 U.S. at 351. An "absence of ready alternatives" may be "evidence of the reasonableness of a prison regulation." Turner, 482 U.S. at 90, 107 S. Ct. at 2262. Yet, it does not mean that prison officials "have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint."Turner, 482 U.S. at 90-91, 107 S. Ct. at 2262. This is a "reasonableness" test, not a "least restrictive" alternatives test. Id., at 91, 107 S. Ct. at 2262.
In the case at bar, there is evidence that Plaintiff was told to lower his voice. There is also evidence that Plaintiff admits he was "shouting." However, being told to be more quiet is not unconstitutional, whether in prison or outside of prison. Furthermore, that another inmate was not told to lower his voice is not evidence of discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment. There were two groups meeting in a single space. Common sense requires that one group could not shout or it would disturb the other group. Moreover, Plaintiff has not presented any evidence that he was discriminated against because he has not shown that similarly situated persons were treated differently by the state actor without reasonable and non-arbitrary grounds. See Hendking v. Smith, 781 F.2d 850 (11th Cir. 1986). A showing that Plaintiff was treated differently from similarly situated inmates is essential to demonstrating an equal protection violation. See Fuller v. Georgia State Bd. of Pardons and Paroles, 851 F.2d 1307, 1310 (11th Cir. 1988). Yet Plaintiff has not shown that any alleged discrimination was on account of his race, his religion, or some other identifiable basis. Peck v. Hoff, 660 F.2d 371, 373 (8th Cir. 1981) (without allegation that class to which plaintiff belonged received treatment which was "invidiously dissimilar to that received by other inmates," there was no basis for an equal protection claim). Plaintiff has not shown that Defendants acted with a discriminatory purpose in telling him to lower his volume; rather, the evidence reveals Plaintiff was simply speaking too loudly under the circumstances.
The evidence also shows that Plaintiff was attempting to teach, and continued to desire to teach, his religious belief that Jesus was a Black man and that the White man killed him, and that the White man is the Devil. Well established law does not permit prison officials to censor inmate communication simply because they disagree with the belief expressed or desire to eliminate "factually inaccurate statements." Procunier, 416 U.S. at 413, 94 S.Ct. at 1811. Defendants, however, have asserted that their actions were to promote the legitimate "penological interests of orderliness and security within the prison setting." Doc. 50, p. 15.
The record in this case reveals a disagreement over whether Plaintiff's statements are hatred. However, that dispute is not material and need not prevent ruling on the summary judgment motion. Whether or not such statements evidence "hatred," it is obvious that the statements were meant to arouse emotions among prisoners against "the White man." Such statements are made to cause separation between the Black and White races. A sermon instructing "the White man" is "the Devil" is intended to be a comment on the entire Caucasian race, and calling a race of people "the Devil" can reasonably be interpreted as promotion of prejudice against that group of people. Plaintiff has argued that his comments did not incite a riot. However, even if the comments would "not lead directly to violence, [they could] exacerbate tensions and lead indirectly to disorder." Thornburgh, 490 U.S. at 416, 109 S.Ct. at 1883. Prison officials are permitted to exclude and prevent communications "that, although not necessarily 'likely' to lead to violence, are determined . . . to create an intolerable risk of disorder under the conditions of a particular prison at a particular time." Thornburgh, 490 U.S. at 417, 109 S.Ct. at 1883. In other words, prison officials need not await the outbreak of a riot to take reactive, defensive action but are permitted to assess the potential for problems and take proactive measures. Defendants actions were justified and permitted by the Constitution.
Within society at large, there is little doubt that Plaintiff could freely express his beliefs and could preach them on a street corner, to the extent that his words are not "fighting words" meant to incite harm against a group of people. But inside the walls of a prison, such expressions take on a different significance. In prison, racial tensions exist just under the surface and may be ignited by a tiny spark of even an unintended comment. It is commonly noted that prisons are a "volatile" environment. Thornburgh, 490 U.S. at 413, 109 S.Ct. at 1881. For that very reason, "it is essential that prison officials be given broad discretion to prevent [] disorder." Id.
There is a legitimate governmental interest in maintaining a safe and secure prison, and prison officials "have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 995, 19 L.Ed.2d 1212 (1968) (upholding a decree "that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails."). Because courts must give prison officials "latitude in anticipating the probable consequences of allowing certain speech in a prison environment,"Procunier, 416 U.S. at 414, 94 S.Ct. at 1812, quoted in Thornburgh, 490 U.S. at 409, 109 S.Ct. at 1879, telling Plaintiff not to teach that the White man is the Devil is permitted.
The exercise of Plaintiff's individual rights must be balanced by "due regard for the 'inordinately difficult undertaking' that is modern prison administration." Turner, 482 U.S. at 85, 107 S.Ct. at 2259, cited in Thornburgh, 490 U.S. at 407, 109 S.Ct. at 1878. That balance is met under these facts where the evidence shows Plaintiff was given instruction about what he would not be permitted to teach, and was still scheduled in the future to give sermons and continued to participate in religious activities.
Plaintiff also had other avenues of religious expression open to him to further his particular Islamic faith. Lack of available space and volunteers are limitations which make it reasonably necessary to combine services for groups of similar faiths. Various Islamic groups undoubtedly have distinctions and differences in their beliefs, but that does not mean that they cannot combine to worship. Indeed, the evidence shows that Christian religious groups combine to worship as well.
In this case, accommodation of Plaintiff's asserted right to speak as he desires in a sermon could detrimentally affect the prison environment. In sum, the policy here which limits what Plaintiff could say in his sermons is in line with O'Lone and meets the reasonableness test of Turner v. Safley. No violation to Plaintiff's First Amendment rights has been shown.
As for Plaintiff's claim that he was placed in administrative confinement on grounds that he was teaching hate, Defendants have argued that Plaintiff did not exhaust administrative remedies. Doc. 50, p. 11. In reviewing the grievances submitted, it does not appear that Plaintiff filed an appeal to the Secretary's Office as to this claim, a required third step in the grievance process. Thus, there is merit to Defendants' argument.
Nevertheless, even had Plaintiff completed all three steps, this claim would still fail. Plaintiff filed a cryptic grievance to Defendant Watson about being a Muslim and having the "authority to decipher the symbols of hate and racism. . . .". Plaintiff then requested Defendant Watson to require officers "to desist their covert practices upon [Plaintiff] because" he taught "the right order of creation to [his] brothers." Receiving such a strange grievance, Defendant Watson acted appropriately in putting Plaintiff in administrative confinement so that an investigation could be made. The investigation revealed the substance of Plaintiff's sermons and what Plaintiff desired to say. After Defendant Watson confirmed that Plaintiff's comments in the sermons were, in his opinion, "teaching hatred racist views," and after talking with Plaintiff about his religious teachings, Plaintiff was released from confinement. It is permissible to stop activity in a prison until it can be determined whether continuation of that activity would be detrimental to prison safety. Plaintiff was put in a segregated area while the investigation was conducted and released after only a week. No injury has been shown to Plaintiff and the investigation into sermons which had the potential to cause unrest in the inmate population was a reasonable response by prison officials. Plaintiff has not has not come forward with any evidence to the contrary and has not shown that the investigation was "a ruse" as alleged by Plaintiff in the complaint.
In light of the foregoing, it is respectfully RECOMMENDED that Defendants' motion for summary judgment, doc. 50, be GRANTED, and that judgment be entered in favor of Defendants on all claims. Accordingly, Plaintiff's cross motion for summary judgment, doc. 52, should be DENIED. IN CHAMBERS at Tallahassee, Florida, this 22nd day of August, 2002.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the court is the magistrate judge's third report and recommendation (doc. 79) docketed August 22, 2002. The magistrate judge recommends that the defendants' motion for summary judgment be granted. The plaintiff has filed objections (doc. 80) to the report and recommendation.Upon review of the record, this court has determined that the recommendation should be adopted.
Accordingly, it is ORDERED:
1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order of the court.
2. The defendants' motion for summary judgment (doc. 50) is GRANTED.
3. The plaintiff's cross motion for summary judgment (doc. 52) is DENIED.
4. The clerk shall enter judgment in the defendants' favor on all claims.
DONE AND ORDERED this 18th day of December, 2002.