United States Court of Appeals
For the First Circuit
No. 06-2038
WESLEY SPRATT,
Plaintiff, Appellant,
v.
RHODE ISLAND DEPARTMENT OF CORRECTIONS;
A.T. WALL, Director, Rhode Island Department of Corrections,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Lynette Labinger, with whom Roney & Labinger LLP Cooperating
Counsel, Rhode Island Affiliate, American Civil Liberties Union,
was on brief, for appellant.
Patricia A. Coyne-Fague, Chief Legal Counsel, Rhode Island
Department of Corrections, was on brief, for appellee.
April 6, 2007
TORRUELLA, Circuit Judge. Wesley Spratt ("Spratt") is a
prisoner in the Adult Correctional Institution ("ACI") in Rhode
Island. After prison officials prohibited Spratt from preaching to
his fellow inmates, he filed suit against the Rhode Island
Department of Corrections and its director, A.T. Wall
(collectively, "RIDOC") under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.
("RLUIPA"). The district court granted summary judgment to RIDOC.
After careful consideration, we reverse and remand for further
proceedings.
I. Background
Spratt is a prisoner in the maximum security unit and is
serving a life sentence for murder. See State v. Spratt, 742 A.2d
1194 (R.I. 1999). In 1995, Spratt underwent a religious awakening,
and began attending Christian services at the ACI. Impressed with
his commitment and devotion, the prison chaplains began allowing
Spratt to preach1 to inmates during weekly services. In 2000,
Spratt was ordained as a minister by the Universal Life Church.
From 1995 until 2003, no prison official interfered with Spratt's
religious activities.2 Spratt's preaching during this seven year
1
To be clear, we use the word "preach" to refer to the activity
of commenting or expounding upon some religious text. RIDOC
continues to allow Spratt to read scripture aloud during religious
services so long as he does not add any commentary.
2
RIDOC suggests that the then-warden of the prison, Warden
Whitman, may not have been aware of Spratt's preaching. However,
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period did not lead to any apparent disciplinary problems at the
ACI.
In 2003, then-Warden Whitman was replaced by Warden
Weeden, who remains the warden of the ACI. On October 15, 2003,
Spratt was told by a correctional officer that he was no longer
allowed to preach in the chapel. When Spratt approached Warden
Weeden about the matter, he was told that preaching by prisoners
was not allowed under prison regulations. Spratt formalized his
complaint in writing, and Warden Weeden responded that inmate
preaching was prohibited by RIDOC Policy # 26.01-2DOC, which states
that all religious services are scheduled, supervised, and directed
by institutional chaplains.3 Weeden also informed Spratt that if
he was found to be preaching, he would be subject to disciplinary
action. Spratt then filed a complaint with A.T. Wall, director of
RIDOC, stating the aforementioned facts, and asking that Wall allow
him to preach. Wall responded in a letter dated December 15, 2003,
which states:
Spratt stated in an affidavit, uncontroverted by RIDOC, that his
preaching was openly known to other prison officials, and that he
proudly spoke about his preaching activities during his yearly
classification reviews.
3
This policy, however, does not address the issue of whether
inmates may participate in religious services under the supervision
of approved clergy, as was the case with Spratt. We defer to
RIDOC's interpretation of this policy to prohibit an inmate from
expounding upon the scripture, but not to prohibit an inmate from
reading religious texts without commentary.
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Mr. Spratt, you do have the right to practice
your religion under the constitution subject
to reasonable restrictions. Because you are
not an acknowledged member of the clergy, you
do not have the right to proselytize or preach
to the inmate population. Therefore, your
request for my intervention is denied.
Spratt proceeded to file a pro se complaint against Wall
and RIDOC in the United States District Court for the District of
Rhode Island, asking for relief under the First Amendment, the
Fourteenth Amendment, and the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb-1(C) ("RFRA").4 Spratt's complaint stated that the
prison policy prohibiting inmate preaching did not satisfy the
"least restrictive means" test in RFRA, and asked for declaratory
relief, injunctive relief, and damages of $40.29 (the cost of legal
paper and copies). RIDOC filed an answer stating that they lacked
sufficient information to admit or deny Spratt's allegations, but
asserted various affirmative defenses. Spratt moved for summary
judgment, attaching various letters from prison clergy attesting to
his skill as a preacher, his minister's certificate, and the
aforementioned correspondence between himself and prison officials.
RIDOC responded with a cross-motion for summary judgment, asking
that the claims against Wall in his individual capacity be
4
Spratt initially filed suit under RFRA. However, RFRA was found
to be unconstitutional as applied to purely state (as opposed to
federal) action in City of Boerne v. Flores, 521 U.S. 507 (1997).
In its response to Spratt's complaint, RIDOC noted that Spratt
would likely refile his complaint under RLUIPA. Since then, the
district court and the parties have treated Spratt's complaint as
arising out of RLUIPA. We do not disturb this decision.
-4-
dismissed,5 and arguing that RIDOC had satisfied the requirements
of RLUIPA because (a) Spratt's religious exercise was not
substantially burdened and (b) even if it was burdened, RIDOC had
a compelling state interest which was accomplished by the least
restrictive means. RIDOC attached to their motion for summary
judgment a "statement of undisputed facts," which acknowledged that
"no material facts are in dispute in this matter."
The case was referred to a magistrate judge, who filed a
report and recommendation granting RIDOC summary judgment on
Spratt's First and Fourteenth Amendment claims,6 and staying the
RLUIPA claim pending the Supreme Court's resolution of Cutter v.
Wilkinson, 544 U.S. 709, 722-24 (2005), which considered various
constitutional challenges to RLUIPA.
After Cutter rejected the constitutional challenges to
RLUIPA, the magistrate judge ordered the parties to submit
additional briefing as to whether RLUIPA was applicable to RIDOC,
and as to the merits of Spratt's RLUIPA claim. RIDOC submitted a
supplemental memorandum acknowledging that it was subject to RLUIPA
because it accepted federal funding, and attached an affidavit from
Jake Gadsden, Assistant Director of Operations for the Rhode Island
5
This argument was never addressed by the district court, and we
express no opinion as to its merit.
6
Spratt filed an interlocutory appeal of this judgment, which we
denied on April 4, 2006. Spratt v. Walls, No. 05-1583 (1st Cir.
Apr. 4, 2006). Spratt does not appeal the grant of summary
judgment on these claims.
-5-
Department of Corrections. The affidavit briefly reviews Gadsden's
professional experience, and states that inmates may not lead
religious services in RIDOC facilities. Gadsden explains in the
affidavit that inmate preaching could be dangerous because "placing
an inmate in a position of actual or perceived leadership before an
inmate group threatens security, as it provides the perceived
inmate leader with influence within the administration." Gadsden
further states in the affidavit that "there is no less restrictive
manner to accommodate Spratt's desire to preach to an inmate
congregation, other than an outright ban," because even an inmate
preaching under RIDOC supervision would be perceived as having
influence. Finally, the affidavit states that Gadsden was familiar
with a program in the Texas Correctional System which he identified
as the "trustee" program, in which inmates were given certain
leadership roles. Gadsden states that Texas abolished the program
because the inmate leaders abused their positions to garner favors
from fellow inmates.
Spratt filed an affidavit in response, which states that
he acknowledges Gadsden's "noteworthy" credentials, but that
Gadsden's conclusions are "exaggerat[ion] and speculation." Spratt
also stated in a memorandum of law that he would willingly submit
to further RIDOC supervision of his preaching activities. He also
suggested that RIDOC could retain their policy against inmate
preaching but grant limited exemptions when enforcement of the
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policy would result in a violation of RLUIPA. Spratt noted that
RIDOC allows inmates to congregate and talk freely about non-
religious topics during recreational time, and that this had not
been found to pose a threat to prison security.
The magistrate judge issued a report and recommendation
granting RIDOC summary judgment on Spratt's RLUIPA claim. The
report found that Spratt had satisfied the first two elements of
the RLUIPA test: that preaching was part of Spratt's religious
exercise and that the religious exercise had been substantially
burdened by the RIDOC prohibition. However, the magistrate judge
concluded that RIDOC had established that inmate security was a
compelling state interest, and that the total ban on inmate
preaching was the least restrictive means by which to accomplish
that goal.
Spratt objected to the magistrate judge's report and
recommendation, and the issue was referred to a district judge.
The court held a hearing on the objection on April 6, 2006. At the
hearing on Spratt's objection, Spratt was represented by counsel
from the ACLU of Rhode Island. During the hearing, the court
initially seemed skeptical of RIDOC's claim that the Gadsden
affidavit was sufficient to overcome summary judgment, stating,
"What evidence do I have? See, that's the problem here. What
evidence is in the record that says it's got to be a total ban.
There's just no other solution. I'm looking at this very high
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burden and very little evidence." Nevertheless, the court adopted
and affirmed the magistrate judge's report and recommendation,
noting that "while the issue is somewhat of a close call, the
Magistrate Judge's [report and recommendation] on balance
represents both a fair and reasonable interpretation of the RLUIPA
claim."
II. Analysis
A. Standard of Review
We review a grant of summary judgment de novo, viewing
the record in the light most favorable to the non-moving party.
Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).
Summary judgment is appropriate only if there are no material
disputes of fact, and if the moving party is entitled to judgment
as a matter of law. Id.
B. RLUIPA
RLUIPA was enacted in 2000 as a response to the Supreme
Court's decision in City of Boerne v. Flores, which partially
struck down the previously enacted Religious Freedom Restoration
Act on the grounds that it exceeded Congress' power to regulate the
states under the Fourteenth Amendment. 521 U.S. 507, 529-36 (1997)
(holding that RFRA may not be applied to purely state, as opposed
to federal, action). Whereas RFRA had applied to all action by
"Government," RLUIPA is substantially narrower in scope, and the
portion of that statute at issue in this case applies only to "a
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program or activity [in an institution] that receives Federal
financial assistance." 42 U.S.C. § 2000cc-1(b)(1). Substantively,
RLUIPA provides that
No government shall impose a substantial
burden on the religious exercise of a person
residing in or confined to an institution, as
defined in [42 U.S.C. § 1997], even if the
burden results from a rule of general
applicability, unless the government
demonstrates that imposition of the burden on
that person--
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
Id. § 2000cc-1(a). Thus, a claim under RLUIPA includes four
elements. On the first two elements, (1) that an institutionalized
person's religious exercise has been burdened and (2) that the
burden is substantial, the plaintiff bears the burden of proof.
Id. § 2000cc-2(b). Once a plaintiff has established that his
religious exercise has been substantially burdened, the onus shifts
to the government to show (3) that the burden furthers a compelling
governmental interest and (4) that the burden is the least
restrictive means of achieving that compelling interest. Id.
1. Spratt's Burden
For purposes of this appeal, the state does not seriously
dispute that Spratt's evidence on his prima facie case is
sufficient to survive summary judgment. As an inmate in a state
correctional facility, Spratt is an institutionalized person within
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the definition of RLUIPA. See id. § 1997(1) ("The term
'institution' means any facility or institution--(A) which is
owned, operated, or managed by, or provides services on behalf of
any State or political subdivision of a State; and (B) which
is--(ii) a jail, prison, or other correctional facility . . . .").
Furthermore, it is clear that preaching is a form of religious
exercise. See McDaniel v. Paty, 435 U.S. 618, 626 (1978) ("[T]he
right to the free exercise of religion unquestionably encompasses
the right to preach, proselyte, and perform other similar religious
functions.").
As to the second prong, RIDOC devotes a footnote in its
brief to suggesting that Spratt's "exercise of . . . religion in
general is not being substantially burdened." Appellees' Br. at 11
n.6. RIDOC points out that "Spratt may still attend and
participate in religious services. He may pray, sing, or recite
during such services just as every other inmate may." Id. We have
not yet had the opportunity to define what constitutes a
"substantial burden" under RLUIPA. The district court decided that
a "substantial burden" is one that "put[s] substantial pressure on
an adherent to modify his behavior and to violate his beliefs,"
citing Thomas v. Review Board of Indiana Employment Security
Division, 450 U.S. 707, 718 (1981); see also Lovelace v. Lee, 472
F.3d 174, 187 (4th Cir. 2006) (applying the Thomas standard in a
RLUIPA case). Assuming arguendo that Thomas applies, RIDOC has not
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on this appeal seriously contested the issue and Spratt has stated
that RIDOC will not allow him to preach anytime or anywhere,
threatening that if he does so, he will be subject to disciplinary
sanctions. As such, for the purposes of this appeal, Spratt has
made a prima facie showing that his religious exercise has been
substantially burdened.
2. RIDOC's Burden
The burden thus shifts to RIDOC to demonstrate that its
ban on inmate preaching, as applied to Spratt, furthers a
"compelling governmental interest" and is the least restrictive
means of achieving that interest. 42 U.S.C. § 2000cc-1. We are
mindful, however, that in passing RLUIPA, Congress stated that we
should continue to give "due deference to the experience and
expertise of prison and jail administrators" in determining prison
policy. Cutter, 544 U.S. at 717 (internal quotation marks
omitted)(quoting 146 Cong. Rec. S7774, S7775 (daily ed. July 27,
2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)).
However, as the Congressional sponsors of RLUIPA stated,
"inadequately formulated prison regulations and policies grounded
on mere speculation, exaggerated fears, or post-hoc
rationalizations will not suffice to meet the act's requirements."
146 Cong. Rec. at S7775 (internal quotation marks omitted).
RIDOC asserts that it has a compelling state interest in
maintaining prison security. We agree. See, e.g., Cutter, 544
-11-
U.S. at 725 n.13 ("It bears repetition . . . that prison security
is a compelling state interest, and that deference is due to
institutional officials' expertise in this area."). However,
merely stating a compelling interest does not fully satisfy RIDOC's
burden on this element of RLUIPA; RIDOC must also establish that
prison security is furthered by barring Wesley Spratt from engaging
in any preaching at any time.
RIDOC has offered just one piece of evidence to support
this assertion: the Gadsden affidavit.7 This affidavit, which
cites no studies and discusses no research in support of its
position, simply describes the equation thus: if Spratt is a
preacher, he is a leader; having leaders in prison (even those
sanctioned by the administration) is detrimental to prison
security; thus, Spratt's preaching activity is detrimental to
prison security. But to prevail on summary judgment, RIDOC "must
do more than merely assert a security concern." Murphy v. Mo.
Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004). The Gadsden
affidavit offers only one reference to another prison in support of
its assertion that inmate preaching is a security concern: the
7
Spratt also objects that the Gadsden affidavit does not satisfy
the requirement that an expert affidavit "include the factual basis
and the process of reasoning which makes the conclusion viable."
Hayes v. Douglas Dynamics, 8 F.3d 88, 92 (1st Cir. 1993). Because
we find that the affidavit does not provide sufficient evidence to
sustain RIDOC's burden under RLUIPA, we need not address this issue
now. However, we suggest that on remand, the district court
determine whether the Gadsden affidavit satisfies the requirements
for the admissibility of an expert affidavit.
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affidavit mentions a situation in Texas which was described as a
"trustee" system. We believe that Gadsden was referring to the
"building tender" system present in Texas prisons in the 1970s.
This situation, of course, is radically different: building tenders
were inmates who were armed, served as official guards within the
prison, and who were serving in supervisory capacities in the
prison system. See generally Ruiz v. Estelle, 503 F. Supp. 1265,
1294-98 (S.D. Tex. 1980). Whereas it is quite easy to see how
armed prisoners granted nearly indiscriminate authority to
brutalize fellow prisoners are a threat to institutional security,
the same cannot be said about a preacher who offers a weekly sermon
under the direction of the prison chaplain.
Beyond the Texas "trustee system," Gadsden cites no past
instances where having inmates in leadership positions endangered
security, nor does he explain why a person who expounds on the
scripture during a weekly religious service would be considered a
leader. Self-serving affidavits that do not "contain adequate
specific factual information based on personal knowledge" are
insufficient to defeat a motion for summary judgment, let alone to
sustain one. Quiñones v. Houser Buick, 436 F.3d 284, 290 (1st Cir.
2006); see also Hayes, 8 F.3d at 92 ("Although an expert affidavit
need not include details about all of the raw data used to produce
a conclusion, or about scientific or other specialized input which
might be confusing to a lay person, it must at least include the
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factual basis and the process of reasoning which makes the
conclusion viable in order to defeat a motion for summary
judgment.").
In addition, RIDOC's initial explanation for the
preaching ban was that only ordained ministers were allowed to
preach, and that Spratt was not ordained. However, according to
materials submitted in connection with Spratt's motion for summary
judgment, he had been an ordained minister since 2000.8 RIDOC now
claims that its initial explanation was "incomplete," and that the
real reason is that no inmates are allowed to preach at all. At
the very least, the inconsistencies between RIDOC's various
explanations for its policy require further explanation.9
8
Spratt claims that in fact, the ban on preaching was enacted in
retribution for a dispute that he had with a guard. If this were
true, it would undercut the state's argument that the blanket ban
on preaching is essential to prison security.
9
RIDOC offers a third explanation for its prohibition on inmate
preaching. RIDOC suggests that inmate-led religious activities
could foment terrorism-related activity. See Appellee's Br. at 18
n.8 (citing Frank Cilluffo et al., Geo. Wash. Univ. Homeland Sec.
Policy Inst. and Univ. of Va. Critical Incident Analysis Group, Out
of the Shadows: Getting Ahead of Prisoner Radicalization (2006),
available at http://www.gwumc.edu/hspi/reports/rad/Out%20of%20the%
20shadows.pdf). The report cited by RIDOC describes the formation
of terror cells in prisons by radicalized Muslim inmates. This
explanation for the blanket ban on inmate preaching further
demonstrates that RIDOC has not engaged in any individualized
consideration of Spratt's preaching whatsoever. Cf. Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.
Ct. 1211, 1221 (2006) (requiring that the government engage in
individualized consideration of the necessity of a burden on
religious exercise).
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Finally, RIDOC claims that it was merely "lucky" that
institutional security was not threatened during Spratt's seven
year stint as a preacher, and that it need not wait for a dangerous
situation to occur before it takes steps to remedy the threat. See
Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993) (noting that
"failure to specify a past event" that threatened institutional
security "does not render irrational the adoption and
implementation of a . . . policy" to address future events that
might pose a threat). RIDOC also claims that its policy is long-
standing, and that prison officials who permitted Spratt to preach
were in violation of it. However, Spratt's seven-year track record
as a preacher, which is apparently unblemished by any hint of
unsavory activity, at the very least casts doubt on the strength of
the link between his activities and institutional security. While
we recognize that prison officials are to be accorded substantial
deference in the way they run their prisons, this does not mean
that we will "rubber stamp or mechanically accept the judgments of
prison administrators." Lovelace, 472 F.3d at 190.10
Even if we assume that RIDOC has shown a link between
Spratt's preaching and institutional security, RIDOC still has not
10
In Lovelace, the Fourth Circuit suggested that its result would
have been different if "assumptions about the governmental
interests involved here had been included in an affidavit by the
warden or some other [prison] official." 472 F.3d at 191. We do
not think that an affidavit that contains only conclusory
statements about the need to protect inmate security is sufficient
to meet RIDOC's burden under RLIUPA.
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shown that the blanket ban on all inmate preaching is the "least
restrictive means" available to achieve its interest. A prison
"cannot meet its burden to prove least restrictive means unless it
demonstrates that it has actually considered and rejected the
efficacy of less restrictive measures before adopting the
challenged practice." Warsoldier v. Woodford, 418 F.3d 989, 999
(9th Cir. 2005); Murphy, 372 F.3d at 989 ("It is not clear that
MDOC seriously considered any other alternatives, nor were any
explored before the district court."); cf. Casey v. City of
Newport, 308 F.3d 106, 114 (1st Cir. 2002) ("[T]he narrow-tailoring
test requires the district court to consider whether the regulation
challenged on First Amendment grounds sweeps more broadly than
necessary to promote the government's interest. That consideration,
in turn, cannot be done without some evaluation of the alternative
measures put in issue by the parties.").11 Rather than considering
alternatives, RIDOC argues that inmate preaching is an "all or
nothing" issue: any amount of inmate preaching, it contends, is
dangerous to institutional security under any circumstances. As
11
It is important to note that we do not construe RLUIPA to
"require prison administrators to refute every conceivable option
in order to satisfy the least restrictive means prong of RFRA."
Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996). However,
to meet the least restrictive means test, prison administrators
generally ought to explore at least some alternatives, and their
rejection should generally be accompanied by some measure of
explanation. A blanket statement that all alternatives have been
considered and rejected, such as the one here, will ordinarily be
insufficient.
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such, RIDOC argues, there are no "less restrictive alternatives."
However, it is not clear how RIDOC has come to this conclusion.
See Warsoldier, 418 F.3d at 999 (explaining that a California
prison had done "nothing to . . . discuss whether it has ever
considered a less restrictive approach" to a blanket ban on long
hair). RIDOC offers no explanation for why alternative policies
would be unfeasible, or why they would be less effective in
maintaining institutional security.
RIDOC responds by pointing to the Eighth Circuit's
decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996), in
which that court accepted prison administrators' contention that a
regulation requiring inmates to have short hair was the least
restrictive means of achieving prison security. However, the court
in Hamilton made this determination after considering lengthy
testimony by the prison administrators in the district court,
something which is notably absent here. Id. at 1555. In addition,
the Eighth Circuit relied on several district court decisions
upholding hair length regulations against RFRA challenges, at least
one of which appears to have considered and rejected alternatives
to the regulation. Id. at 1555 n.12. In contrast, RIDOC offers no
case finding that blanket bans on inmate preaching satisfy the
least restrictive means test, and none appear to exist.12 Finally,
12
Past decisions have found that restricting inmate preaching
"reasonably" furthered institutional security. See, e.g., Anderson
v. Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997) ("Requiring an
-17-
the Eighth Circuit explicitly acknowledged that "prison authorities
must do more than offer conclusory statements and post hoc
rationalizations for their conduct." Id. at 1554 n.10. Thus,
Hamilton lends little support to RIDOC's argument here.
In fact, RIDOC's "all or nothing" argument raises many
questions. Why are inmates banned from preaching when they are
free to become leaders under other circumstances? Likewise, why is
Spratt still allowed to stand in front of his congregation and read
scripture if it is his appearance in the pulpit that is
problematic? If it is the "teaching" element of scripture that is
so troubling, why are inmates permitted to assist instructors in
educational programs at the prison? Why would allowing preaching
only under strict prison supervision be a less effective solution
to the purported "threat to institutional security"? These
questions, all unanswered, suggest that RIDOC has not given
consideration to possible alternatives.13
outside minister to lead religious activity among inmates
undoubtedly contributes to prison security."); Hadi v. Horn, 830
F.2d 779, 785 n.9 (7th Cir. 1987). However, these cases were
decided under the pre-RLUIPA standard of Turner v. Safley, which
states that a "[prison] regulation is valid if it is reasonably
related to legitimate penological interests." 482 U.S. 78, 89
(1987). The RLUIPA standard, which requires that prison
administrators achieve a "compelling interest" by the "least
restrictive means," imposes a different burden on prison officials.
See Lovelace, 472 F.3d at 199-200 ("[T]he First Amendment affords
less protection to inmates' free exercise rights than does
RLUIPA.").
13
This list of questions is offered by way of example, and is not
exhaustive. We leave it to the district court to determine whether
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Furthermore, "[e]qually problematic . . . is that other
prison systems, including the Federal Bureau of Prisons, do not
have such . . . policies or, if they do, [they] provide . . .
exemptions." Warsoldier, 418 F.3d at 999. As Spratt points out,
the Federal Bureau of Prisons policy on religious practices appears
to contemplate inmate-led religious services in certain
circumstances. See Federal Bureau of Prisons, Program Statement:
Religious Beliefs and Practices, Statement P5360.09 (2004) ¶ 7(d)
("Inmate-led religious programs require constant staff
supervision."); id. ¶ 7(a) ("Inmates may recite formulaic prayers
in the language required by their religion. Sermons, original
oratory, teachings and admonitions must be delivered in English.").
We recognize that "prison officials . . . are infinitely more
familiar with their own institutions than outside observers,"
Hamilton, 74 F.3d at 1556 n.15, and that as such, evidence of
policies at one prison is not conclusive proof that the same
policies would work at another institution. However, in the
absence of any explanation by RIDOC of significant differences
between the ACI and a federal prison that would render the federal
policy unworkable, the Federal Bureau of Prisons policy suggests
that some form of inmate preaching could be permissible without
disturbing prison security.
RIDOC has adequately shown that its policy is the least restrictive
means of achieving prison security.
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Simply put, RIDOC must "demonstrate, and not just assert,
that the rule at issue is the least restrictive means of achieving
a compelling governmental interest." O'Bryan v. Bureau of Prisons,
349 F.3d 399, 401 (7th Cir. 2003). This does not conflict with our
policy of deferring to the judgment of prison administrators.
Rather, before we can evaluate whether deference is due, we require
that prison administrators explain in some detail what their
judgment is.14 Here, RIDOC "offer[s] conclusory statements that a
limitation on religious freedom is required for security, health or
safety." Weaver v. Jago, 675 F.2d 116, 119 (6th Cir. 1982). To
prevail on summary judgment, RIDOC must do more.
C. Remedy
Spratt asks that we enter summary judgment in his favor.
Alternatively, Spratt asks that we reverse summary judgment and
remand the matter for discovery and trial on the merits. Summary
judgment is proper only when "there is no genuine issue as to any
material fact." Fed. R. Civ. P. 56(c). Denial of summary judgment
is also appropriate where factual records are "disturbingly thin,"
14
The level of deference to be accorded to prison administrators
under RLUIPA remains an open question. RLUIPA's statutory
requirement that we apply strict scrutiny to prison policies that
substantially burden religious exercise may be in tension with the
legislative history which suggests that courts should continue to
defer to the expertise of prison administrators. Obviously, courts
will need to find some balance between scrutiny of and deference to
prison regulations. We need not resolve that question now because
RIDOC has yet to present any reasoned judgment to justify the
policies at issue in this case.
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"contain gaps," and require judgment calls which depend on evidence
not in the record but readily obtainable. See Mandel v. The Boston
Phoenix, Inc., 456 F.3d 198, 205-07 (1st Cir. 2006).
Notwithstanding Spratt's protestations to the contrary, it is clear
that there are factual disputes, including whether a ban on inmate
preaching furthers prison security, and whether a blanket ban is
the least restrictive means necessary. The factual record on these
issues is quite thin. As such, it would also be improvident at
this point to grant summary judgment in favor of Spratt. We have
held that entry of summary judgment for defendant was not
warranted. Each side, on remand, may present further evidence and
argument.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the
district court and remand for further disposition in accordance
herewith.
Reversed and Remanded.
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