GEORGE L. RUSSELL, III, District Judge.
THIS MATTER is before the Court on Defendants', Defendants Warden Bobby P. Shearin, Warden Frank Bishop, Jr, and Chaplain Kevin Lamp, Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 17). The Motion is ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary.
Plaintiff Terry L.S. Dorsey is an inmate at North Branch Correctional Institution ("NBCI"). Beginning in March of 2013, Dorsey asked Kevin Lamp, Chaplain at NCBI, at least two times about Native American religious services. (Compl. at 2, ECF No. 1). Dorsey learned that Defendant Shearin, who was then Warden at NBCI, would not permit Native American services at NBCI because of their use of ceremonial tobacco. (
Dorsey filed Administrative Remedy Procedure ("ARP") request No. NBCI-1558-13 asking for Native American Worship Services at NBCI, which Shearin denied. (
In a written decision dated August 31, 2015, ALJ Brady concluded that Dorsey's reclassification to Maximum II security status did not comply with DOC policy or with COMAR 12.02.24.04B and C or with COMAR 12.0207.03A or B. (
On May 5 2015, Dorsey filed ARP NBCI 0886-15 complaining that he has not been able to attend religious services because he is classified as a Max II security inmate. (ECF No. 24-1 at 17-18). On July 10, 2015, the Warden denied the ARP as without merit, noting that Dorsey had been at NBCI for three years but in the general population for "a couple of days" due to his behavior. (
In his Opposition, Dorsey argues that the Native American worship services provided at NBCI is based on Lakota tradition and does not offer him the opportunity to study his Blackfoot Native American beliefs. (Pl.'s Opp. at 3, ECF No. 24). Dorsey raised this concern in ARP NBCI-2424-15, which he filed on November 25, 2015, and was denied on January 22, 2016. (ECF No. 24-1 at 12; ECF No. 17-3 at 10). On March 31, 2016, his appeal was dismissed by the Commissioner who wrote: "Your claim that the volunteer group, Iron House Council, strictly practices the Lakota form of worship is inaccurate assessment. Iron House Council members are of various Native American tribes of which some are even of the Blackfoot tribe . . ." (ECF No. 24-1 at 11). The Commissioner's denial indicated that the group is afforded latitude to practice and study other tribes, and noted that Dorsey had failed to specify the differences between what was being practiced and his practice requirements. (
Defendant Lamp maintains that Native American religious worship requires congregate ceremonies to be held outdoors on sacred ground covered in grass. (Lamp Decl., ECF No. 24-2). Because there is little grassy area at NBCI and there is no outside area covered in grass far enough from secure areas, NBCI determined that no place was consistent with good security practices. (
Defendants provided copies of Dorsey's housing records. Case Manager Randy Durst summarized this information in his Declaration. (ECF No. 17-4 at 1).
Dorsey was issued passes to attend Native American worship on August 26 2014; September 2, 9, 16, and 23, 2014; November 3, 10, 17, and 24, 2015; and December 1, 8, 22, 29, 2015. ECF No. 17-3 at pp. 12-21. Defendants do not state when Dorsey was reclassified to Maximum II status.
Dorsey sued Defendants under 42 U.S.C. § 1983 alleging they violated his right to practice religion under the Free Exercise Clause of the First Amendment and unlawfully retaliated against him under the First Amendment.
Standard of Review
In considering a Rule 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted therein as true.
In reviewing a motion for summary judgment, the Court must draw all justifiable inferences in the non-moving party's favor.
A "material fact" is one that might affect the outcome of a party's case.
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'"
Defendants rely on exhibits attached to their Motion. Because the Court will consider Defendants' exhibits, the Court must convert the Motion to Dismiss to a Motion for Summary judgment.
As a general rule, when one party files a motion for summary judgment, the non-movant cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the motion.
i. Exhaustion of Administrative Remedies
Defendants first argue Dorsey has not exhausted his Free Exercise claim nor his retaliation claim. Dorsey's ARP record shows that on August 27, 2014, Dorsey filed an ARP claiming his First Amendment rights were violated when he was placed on Max II status, preventing him from attending religious services. (ECF No. 17-3 at 8). Similarly, on May 5, 2015, Dorsey filed ARP NBCI-0886-15 complaining that he has not been able to attend religious services because he is classified as a Max II security inmate. (ECF No. 24-1 at 17-18). On January 1, 2016, Dorsey appealed ARP NBCI-2424-15 to the Commissioner of the Division of Correction asserting that NBCI retaliated against him by placing him in segregation. (
ii. First Amendment Retaliation Claim
Dorsey brings a claim under the First Amendment to the Constitution's bar on retaliation. "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution."
Here, while Defendants argue Dorsey's reclassification was premised on a legitimate security concern, the ALJ concluded that the reclassification did not comply with DOC policy and state regulations. And while the reclassification itself may not have implicated a liberty interest, it precluded his attendance at congregate religious services that, if made with retaliatory animus, burdened his religious observance. Thus, viewing the facts in the light most favorable to Dorsey, the Court concludes there is insufficient evidence on the record as to whether Dorsey demonstrated the elements of a First Amendment retaliation claim. Accordingly, the Court will deny the Motion subject to renewal within thirty days. The Motion is subject to renewal within thirty days to provide the Court additional information through declarations or other verified pleadings addressing the reasons for Dorsey's classification and their surrounding details, the date he was reclassified, and a list of the persons responsible for the reclassification.
iii. First Amendment Free Exercise Claim
Dorsey also alleges Defendants violated his rights under the Free Exercise Clause of the First Amendment to the United States Constitution. Inmates "clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion."
Defendants provide insufficient information for the Court to determine whether the restrictions on Dorsey's attendance are reasonable. For example, the record does not explain why congregate services are available to prisoners at the Max I level, but not at the Max II level, and how the prison regulation restricting congregant services is reasonably related to legitimate penological interests. There is also insufficient information about the Iron House Council's religious services and the religious tenets it encompasses. Accordingly, the Court will deny the Motion subject to renewal within thirty days. The Motion is subject to renewal within thirty days to provide the Court additional information addressing whether the restrictions on Dorsey's attendance are reasonable under the Free Exercise Clause.
iv. Religious Land Use and Institutionalized Persons Act Claim
Because Dorsey is proceeding
RLUIPA offers greater protections than the First Amendment: it precludes the government from imposing a "substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government demonstrates that the imposition of the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. §2000cc-1. A prison regulation imposes a substantial burden when it forces a person to "choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion . . . on the other hand."
Here, neither party has addressed the merits of Dorsey's claim under RLUIPA. Accordingly, the Court will deny the Motion subject to renewal within thirty days. The Motion is subject to renewal within thirty days to provide the Court additional information addressing Dorsey's claim under RLUIPA.
For the foregoing reasons, Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 17) is DENIED. The Motion is subject to renewal within thirty days to provide the Court the additional information described above. A separate Order follows.