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Fowler v. Crawford: 1983 | PRISION | 1ST AMENDMENT - prison OK prohibiting sweat lodge; RLUIPA uniform test, not result

1The Honorable Bobby R. Baldock, United States Court of Appeals for the
Tenth Circuit, sitting by designation.
United States Court of Appeals
No. 07-2946
Clifford Charles Fowler, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Larry Crawford; Steve Long; *
Dave Dormire; Arthur Wood; *
Robert Joe Gibson; Missouri *
Department of Corrections, *
Appellees. *
Submitted: April 14, 2008
Filed: July 25, 2008
Before GRUENDER, BALDOCK,1 and BENTON, Circuit Judges.
BALDOCK, Circuit Judge.
This appeal requires us to consider Missouri state prison officials decision to
deny inmate Clifford Fowler a sweat lodge in which to practice his Native American
faith. Fowler claims prison officials refusal to grant him such access violates 3(a)
2The Honorable Nanette K. Laughery, United States District Court for the
Western District of Missouri.
of The Religious Land Use and Institutionalized Persons Act (RLUIPA). See Pub. L.
No. 106-274, 3(a), 114 Stat. 804 (2000) (codified at 42 U.S.C. 2000cc-1).
Subsection 3(a) of RLUIPA provides in relevant part:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . 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;
(2) is the least restrictive means of furthering that
compelling governmental interest.
In a thorough opinion, the district court granted summary judgment to prison
officials. See Fowler v. Crawford, No. 05-4212-CV-C-NKL, 2007 WL 2137803
(W.D. Mo. July 23, 2007) (unpublished).2 The court concluded it was bound by our
decision in Hamilton v. Schiro, 74 F.3d 1545 (8th Cir. 1996), and held prison
officials denial of a sweat lodge to [Fowler] is in furtherance of a compelling
governmental interest in safety and security in maximum security prisons and is
currently the least restrictive means to ensure such safety and security. Fowler, 2007
WL 2137803, at *8. Our jurisdiction arises under 28 U.S.C. 1291. On appeal we
apply the same summary judgment standard as the district court, viewing the evidence
in a light most favorable to Fowler and giving him the benefit of all reasonable
inferences to be drawn therefrom. See Buboltz v. Residential Advantages, Inc., 523
F.3d 864, 867-68 (8th Cir. 2008). Applying this standard, we affirm.
Fowler, of Cherokee descent, is an inmate at the Jefferson City Correctional
Center (JCCC). Fowler is serving a life sentence without the possibility of parole for
second-degree murder. See Fowler, 2007 WL 2137803, at *2. JCCC is a maximum
security prison operated by the Missouri Department of Corrections (MDOC). JCCC
houses nearly 2000 adult male inmates. The inmates have been convicted of
committing serious felonies, or acts of violence while incarcerated. Over 200 of
JCCCs inmates are serving life without parole. The average sentence at JCCC is
twenty to thirty years imprisonment. See Joint Appendix at 76 (hereinafter JA).
Presently, JCCC permits Fowler and other inmates who practice the Native
American faith to hold a two hour meeting twice weekly in the prison chapel. As part
of their meetings, JCCC permits the group, comprised of roughly six inmates, to
possess a sacred bundle. The sacred bundle consists of a prayer pipe, sage, cedar,
sweetgrass, tobacco, a medicine bag, and prayer feathers. See JA at 43.
Because of Native Americans affinity with the Earth, Fowler has requested
access to an outdoor area in which to facilitate his groups bi-weekly meetings. See
JA at 44. Prison officials are willing to accommodate Fowlers request. Both JCCCs
Superintendent and Associate Superintendent, Defendants Dave Dormire and Arthur
Wood respectively, are currently and actively working with JCCCs Chaplain,
Defendant Robert Gibson, to secure an outdoor meeting area for JCCCs Native
American group. See JA at 74, 78, 84. Fowler claims, however, that an outdoor
meeting area is not enough. Specifically, Fowler demands within such area access to
a sweat lodge a minimum of 17 times a year: I want the sweat lodge a minimum
basically a minimum of 17 times a year, thats once a month. And then once for each
solstice and equinox, and once for a yearly celebration. JA at 44.
When asked about the use of an outdoor area in which to practice his Native
American faith, Fowler insisted a sweat lodge was essential to practicing his faith:
3Absent a sweat lodge, Fowler also rejects the idea of a medicine wheel (also
referred to in the record as a prayer circle) in the outdoor area:
A medicine wheel is a sacred thing, constructed upon ground
considered/designated as being sacred. It is a large altar, and anyone
who enters into or near it must be ritually purified through the sweat
lodge ceremony. To construct a medicine wheel in an area designated
for Native American religious practice, while denying use of a sweat
lodge, would be to desecrate one ceremony for lack of the other.
Q. You mentioned in your complaint that you also wanted an outdoor
area, at least, to practice your Native American beliefs in. If you
didnt get a sweat lodge as part of that outdoor area, would you
still be able to practice your religion in the outdoor area?
A. I wouldnt be able to to pray to the Great Spirit.
Q. Okay. Would that be better than your current chapel area to
practice your beliefs, an outdoor area?
A. Are you asking if I had an outdoor area, would that be better than
nothing at all? Is that basically
Q. Better than what you currently have?
A. Im sure that it would be somewhat better, but it still wouldnt
enable me to pray for the Great Spirit.
Q. You need the sweat lodge in order to do that?
A. Yes. I need to be able to purify in the sweat lodge in order to
properly use the sacred pipes to pray for the Great Spirit.
JA at 48-49. Fowler acknowledges that JCCC prison officials are working to create
an outdoor area for Native American group religious practice during regularly
scheduled meetings, but [s]uch an area is not a substitute for the sweat lodge, which
[Fowlers] beliefs require. Supplemental Joint Appendix at 253 (hereinafter SJA).3
Something which I will not do.
SJA at 531.
4A sweat lodge takes 4-5 hours to construct. According to Fowler, JCCCs
Native American group would construct the sweat lodge using two shovels, two post
hole diggers, one pick, and one handsaw. The structure is designed to last four years.
See JA at 45; SJA at 133. A detailed description of the construction process appears
at pages 132-33 of the SJA.
To fully appreciate the nature of Fowlers request, a detailed description of a sweat
lodge and the security concerns it engenders in an institutional setting is necessary.
Willow poles form the structure of a sweat lodge. Participants place several
poles, 1 inches in diameter and 14-16 feet long into the ground and bend them to
create a domed structure held together by a small cord.4 The size of the completed
lodge is approximately 4 feet high and 8-10 feet wide, accommodating 12-15
individuals. Blankets or tarps cover the entire structure to contain heat and dark. In
the center of the lodge, a depression approximately 3 feet wide and 2 feet deep is
designed to hold several cantaloupe-sized rocks. The dirt from the depression is
placed outside the entrance of the lodge to form an altar mound. See JA at 44-48; SJA
at 128-29.
Directly beyond the altar mound is a fire pit. The pit rests 12-15 feet outside
the lodges entrance and measures approximately 5-6 feet by 4 feet. Firewood is
stacked in the pit. The rocks are placed on the firewood and the wood is lit. Once the
rocks are hot, a participant carries 7-10 rocks, depending on their size, to the lodge
entrance with a shovel or pitchfork. The ceremonys facilitator receives the hot rocks
using a pair of deer antlers and places them in the depression at the center of the
lodge. See JA at 45-48; SJA at 128-29, 133.
A sweat lodge typically consists of four rounds. Participants enter the lodge
wearing only shorts, or a towel wrapped around their waist. A round begins when the
hot rocks are placed in the depression and the doorway flap is closed. The facilitator
intermittently pours water containing sage, cedar, and/or sweetgrass over the rocks to
produce steam, heat and humidity. During each round, the participants engage in a
prescribed set of songs and prayers. Participants may smoke the ceremonial pipe
during the round. See JA at 45-48; SJA at 128-29.
A round takes from 30 minutes to an hour to complete. Upon completion of a
round, the doorway flap is raised and additional hot rocks and water are brought into
the lodge. A new round then begins. The typical number of rocks used during the
ceremony is 30-40. The entire ceremony typically takes 6-7 hours to complete. To
conclude the ceremony, participants exit the lodge and remove the blankets or tarps
from the willow pole structure. The fire is burned down and sacred objects are stored
for safekeeping. The lodges skeletal structure remains standing. See JA at 44-48;
SJA at 128-29.
JCCC prison officials do not question the sincerity of Fowlers request for a
sweat lodge. Nor do they challenge the proposition that their decision to deny Fowler
a sweat lodge substantially burdens the exercise of his religious faith. See Fowler,
2007 WL 2137803, at *3. Numerous officials, however, have offered a myriad of
reasons why they believe Fowlers request for a sweat lodge compromises security at
JCCC to an unacceptable degree.
Defendant Wood, JCCCs Associate Superintendent, submitted an affidavit
attesting that incidents of violence have occurred at JCCC during call-out times for
religious services. JA at 77. Wood stated that religious groups, like the Native
American group at JCCC, who do not have regular volunteers from outside the
prison to oversee their ceremonies, pose a particular risk because meeting times may
5The 2003 version of MDOCs Institutional Services Policy and Procedural
Manual defines a Volunteer as [a] person who performs assigned duties in the
department without monetary or material compensation from the department,
following the prescribed application, interview, training and site orientation process.
SJA at 153. JCCCs Chaplain, Defendant Gibson, has been unable to locate a
volunteer familiar with the Native American faith to oversee the Native American
group meetings at JCCC. Defendant Gibson has contacted both Gayl Edmunds of the
Heart of America Indian Center in Kansas City, and Dolores Santha, a former
volunteer for the Native American group at MDOCs Potosi Correctional Center.
Neither Edmunds nor Santha was able to provide Defendant Gibson with any
information regarding possible Native American volunteers in the Jefferson City area.
See SJA at 371.
6Indeed, in their proposal to JCCC for a sweat lodge, the Native American
group indicated that [d]ue to extreme heat and humidity associated with the sweat
lodge ceremony, participating . . . inmate offenders will sign a statement releasing
[MDOC] from any and all liability prior to participation. SJA at 129.
be used for inappropriate purposes:5 Offenders, for instance, have used religious
programming time to engage in sexual misconduct and organize violence. JA at 77;
see also SJA at 595-98 (discussing specific instances of violence and sexual
misconduct during religious services at JCCCs predecessor institution).
In addressing Fowlers request for a sweat lodge, Defendant Wood explained:
The sweat lodge ceremony, in which offenders gather in an enclosed area screened
from the view of those outside the lodge, and during which offenders tend a fire,
handle firewood and large hot rocks, create hot steam, and use tools, including
shovels, poses a significant security risk. JA at 77. Wood cited the risk of sexual
misconduct, physical assault, and drug use, as well as fire and heat-related safety
concerns.6 Wood also explained that the sweat lodge would consume considerable
institutional financial and personnel resources and expend many institutional
personnel hours. JA at 78. Finally, Wood indicated that extending unique privileges
such as a sweat lodge to one group of inmates to the exclusion of others creates a risk
of resentment among the inmate population leading to the potential for unrest and
disturbance. See JA at 77-78.
Fellow MDOC officials reiterated Defendant Woods concerns about operating
a sweat lodge at JCCC. Defendant Steve Long, Director of Rehabilitative Services,
described his concern over the objects used during a sweat lodge, namely rocks,
willow poles, shovels, deer antlers, and split wood, all of which could be used as
weapons: We just try not to issue things like that to the [inmate] population if we
dont have to. JA at 27. Defendant Long described a sweat lodge as fraught with
risk. See SJA at 461-63.
Notably, MDOCs Potosi Correctional Center (PCC) at one time authorized a
b[i]-yearly sweat lodge ceremony only to discontinue it later. PCC is a maximum
security prison half the size of JCCC. Donald Roper, PCCs Superintendent, stated
that PCC discontinued operating the sweat lodge in 2006 due to increasing security
concerns amidst a guard stabbing at the prison. See JA at 51. At his deposition,
Roper expressed ongoing concerns over staffing issues, budget cuts, inmate screening,
and the security challenges posed by the sweat lodges dark confines. See JA at 68-
72. Terry Moore, MDOC Director of the Division of Adult Institutions, likewise
expressed his discomfort with a sweat lodge. When asked about the possibility of
installing a security camera inside the lodge to monitor the participants conduct,
Moore explained the interior of the lodge was dark and, in any event, the steam from
the rocks would fog a security cameras lens. See SJA at 458. When asked about the
feasibility of once again accommodating a sweat lodge at PCC, Roper responded that
if court-ordered, he would do so:
Im sure that we could make adjustments and probably accommodate a
sweat lodge. Is it a good situation? Absolutely not. Is there security
concerns? Absolutely. Would my chief of custody, my major, would he
have a runaway [i.e., be upset]? Yes, he would. He would write me
memos and point out to me all the safety and security concerns that he
7Smudging involves the burning of plants considered sacred, such as sage,
cedar, sweet grass, and tobacco or a tobacco blend called kinni-kinnick. Prior to a
Native American religious ceremony, the smoke from these burning plants is waved,
using a feather, over the participants, the sacred items to be used, and the area in
which the ceremony will be performed. See SJA at 122.
continuously had when the sweat lodge existed. And . . . now that it
doesnt exist, he would say the same thing, that there is a tremendous
amount of security concerns that evolved around the sweat lodge.
JA at 70. Roper emphasized: Im telling you, Im here, Ive been here, Ive done
this, and it has the potential to be a problem. JA at 71
Even Defendant Gibson, JCCCs Chaplain, expressed serious concerns about
accommodating a sweat lodge. Gibson worried about what might occur inside the
lodge and outside the view of prison security. He cited the physical well-being of the
participants, as well as the possibility of sexual improprieties and drug use: [T]heres
no way to know what goes on in there. SJA at 479. Gibson supported the idea of an
outdoor area where members of JCCCs Native American group would be permitted
to smudge, to smoke pipe and [do] those kinds of things . . . central to all tribes.7
Thats what I support, because its viewable, you can monitor it from any number of
locations and Im not as concerned with any kind of inappropriate activity . . . . SJA
at 480.
As we noted at the outset, Fowler asserts JCCC officials refusal to
accommodate his request for a sweat lodge 17 times a year violates 3(a) of RLUIPA.
See 42 U.S.C. 2000cc-1(a). RLUIPA is a direct congressional response to the
Supreme Courts decision in City of Boerne v. Flores, 521 U.S. 507 (1997). The
Court in that case held RLUIPAs predecessor, The Religious Freedom Restoration
Act (RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C.
2000bb - 2000bb-4), unconstitutional as applied to the States because it exceeded
Congress Fourteenth Amendment remedial powers. See City of Boerne, 521 U.S. at
529-36. Section 3 of RFRA broadly provided the Government could substantially
burden a persons exercise of religion only upon demonstrating that application of the
burden furthered a compelling governmental interest and was the least restrictive
means of furthering that interest. See 42 U.S.C. 2000bb-1 (invalidated by City of
Because RLUIPA essentially resurrected RFRAs language (while invoking
congressional authority under the Spending and Commerce Clauses), we concluded
in Murphy v. Missouri Dept Corr., 372 F.3d 979, 987 (8th Cir. 2004) that the
RLUIPA standard we would henceforth apply in the prison context was identical to
the RFRA standard we had previously applied under RFRA:
Although the legislative history is brief, several factors cause us
to conclude that Congress intended that the language of [RLUIPA] is to
be applied just as it was under RFRA. Congress did not intend to overly
burden prison operations, but rather intended to provide as much
protection as possible to prisoners religious rights without undermining
the security, discipline, and order of those institutions.
The following year, the Supreme Court agreed with our view while rejecting
an Establishment Clause challenge to RLUIPA. In Cutter v. Wilkinson, 544 U.S. 709
(2005), the Court recognized that [t]o secure redress for inmates who encountered
undue barriers to their religious observations, Congress [in RLUIPA] carried over
from RFRA the compelling governmental interest/least restrictive means
standard. Id. at 717. The Court repeatedly pointed out, however, that lower courts
in applying that standard must remain mindful of context: Lawmakers anticipated
. . . that courts entertaining complaints under 3 would accord due deference to the
experience and expertise of prison and jail administrators. Id. The Court cautioned
against construing RLUIPA to elevate accommodation of religious practice over an
institutions need to maintain order and safety:
We have no cause to believe that RLUIPA would not be applied
in an appropriately balanced way, with particular sensitivity to security
concerns. While the Act adopts a compelling governmental interest
standard, . . . [c]ontext matters in the application of that standard. See
Grutter v Bollinger, 539 U.S. 306, 327 (2003). Lawmakers supporting
RLUIPA were mindful of the urgency of discipline, order, safety, and
security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993)
(remarks of Sen. Hatch). They anticipated that courts would apply the
Acts standard with due deference to the experience and expertise of
prison and jail administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline, consistent
with consideration of costs and limited resources. Joint Statement
16699 (quoting S. Rep. No. 103-111, at 10) [Joint Statement of Sen.
Hatch and Sen. Kennedy on RLUIPA appearing at 146 Cong. Rec.
16698, 16699 (2000)].
Cutter, 544 U.S. at 722-23 (internal footnotes omitted). Lest doubt remain, the Court
repeated its message a final time: It bears repetition . . . that prison security is a
compelling state interest, and that deference is due to institutional officials expertise
in this area. Id. at 725 n.13.
That brings us to our decision in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.
1996), which, although decided under RFRA, is markedly similar to the case now
before us. Indeed, the district court opined that no reasonable judge could
distinguish this case from Hamilton. Fowler, 2007 WL 2137803, at *8. In Hamilton,
prison officials appealed from a grant of injunctive relief to an inmate. We held that
RFRA did not mandate inmate access to a sweat lodge at PCC, and reversed the
district court:
[T]he lower court got off on the wrong foot by not giving appropriate
deference to the decisions of prison administrators and appropriate
recognition to the peculiar and restrictive circumstances of penal
confinement. . . . [J]udgments regarding prison security are peculiarly
within the province and professional expertise of corrections officials,
8Although the panel split 2-1 in Hamilton, the dissent did not challenge the
underlying analysis of Hamiltons sweat lodge claim. Rather, the dissent took issue
with the constitutionality of RFRA. See Hamilton, 74 F.3d at 1557 (McMillian, J.,
dissenting) (arguing Congress lacked the power under 5 of the Fourteenth
Amendment to enact RFRA).
and in absence of substantial evidence in the record to indicate that the
officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in such matters.
Hamilton, 74 F.3d at 1553 (internal quotations omitted).8 We reasoned that despite
RFRAs strict scrutiny standard, the Acts legislative history plainly revealed that
context matters: [A] court applying RFRA must give due deference to the
expertise of prison officials in establishing regulations to maintain prison safety and
security, even when the court applies a heightened standard of review. Id. at 1554.
The concerns surrounding a sweat lodge that prison officials expressed in
Hamilton are identical to those JCCC officials expressed in this case. See id. at 1548-
49. Like here, prison officials in Hamilton appeared amenable to inmates of the
Native American faith meeting outdoors in plain view of security to pray and conduct
ceremonies. See id. at 1556. Much like Fowler asserts in this case, however,
Hamilton asserted that if he could not have access to a sweat lodge ceremony, he
would not and could not practice any aspect of his religion. Id. at 1548. Given
Hamiltons position, we concluded that his case presented us with
the unusual situation where the government has satisfied the least
restrictive means prong by demonstrating that other less restrictive
alternatives are not acceptable to plaintiff. . . . Hamiltons own all-ornothing
position supports the prison officials contention that an outright
prohibition against a sweat lodge ceremony is the least restrictive
means of achieving the compelling interests of prison safety and security
in this case.
Id. at 1556.
Like the district court, we are hard pressed to distinguish Hamilton from this
case. By all appearances, Hamilton dictates the outcome here. See South Dakota v.
United States Dept Interior, 487 F.3d 548, 551 (8th Cir. 2007) (recognizing the
established rule that a subsequent panel may not overrule a prior panels decision).
As we have seen, that we decided Hamilton under RFRA and Fowlers case arises
under RLUIPA is inconsequential. Left with little alternative, Fowler suggests time
has been Hamiltons undoing because subsequent to our decision, PCC officials
operated a sweat lodge for over a decade without major incident. Seeking to capitalize
on PCC officials exercise of discretion, Fowler first insists that the concerns prison
officials raised about operating a sweat lodge at JCCC are not compelling, but rather
exaggerated. Fowler then argues that, given PCCs past history, JCCC officials
cannot possibly prove an outright ban on a sweat lodge is the least restrictive means
of furthering the prisons interest in security.
A prisons interest in order and security is always compelling. See, e.g., Cutter,
544 U.S. 725 n.13; see also Murphy, 372 F.3d at 988 (acknowledging that MDOC
has a compelling interest in institutional security). Certainly, to ensure prison
policies are in furtherance of that compelling interest, officials security concerns must
be grounded on more than mere speculation, exaggerated fears, or post-hoc
rationalizations. S. Rep. No. 103-111, at 10 (1993), reprinted in 1993 U.S.C.C.A.N.
1892, 1900 (Senate Report on RFRA). But no reasonable jurist, affording due
deference to prison officials, can dispute that serious safety and security concerns arise
when inmates at a maximum security prison are provided ready access to (1) burning
embers and hot coals, (2) blunt instruments such as split wood and large scalding
rocks, (3) sharper objects such as shovels and deer antlers, and (4) an enclosed area
inaccessible to outside view. As PCC Superintendent Roper aptly explained: Im
telling you, Im here, Ive been here, Ive done this, and [a sweat lodge] has the
potential to be a problem. JA at 71. See Lovelace v. Lee, 472 F.3d 174, 190 (4th
Cir. 2006) (providing due deference to prison policy restrictions that take[] into
account any institutional need to maintain good order, security, and discipline or to
control costs); see also Coronel v. Paul, 225 F. Appx 575, 577 (9th Cir. 2007)
(unpublished) (citing Hawaii prison officials decision to discontinue sweat lodge
ceremonies because an investigation revealed that Hawaiian prison gangs were using
these services as a forum to organize disruption at the prison).
And this is to say nothing of a sweat lodges drain on prison securitys
manpower over the 6-7 hour duration of the ceremony. Such a drain becomes all too
real if unrest arises in one part of the prison while a sweat lodge ceremony is ongoing
elsewhere. See Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991) (Prison
administrators . . . have limited resources to provide the services they are called upon
to administer.). Prison officials need not endure assaults, drug indulgence, or sexual
improprieties before implementing policies designed to prevent such activities in an
uneasy atmosphere. Nor do prison officials charged with managing such a volatile
environment need present evidence of actual problems to justify security concerns.
See Murphy, 372 F.3d at 989. The record before us well documents JCCC officials
legitimate fears surrounding a sweat lodge. On this record, we have no difficulty
concluding JCCC officials met their burden under 3(a)(1) of RLUIPA and
established, as a matter of law, that prohibiting a sweat lodge at JCCC is
in furtherance of a compelling governmental interest. See 42 U.S.C. 2000cc-1(a)(1).
Fowler takes more forceful aim at 3(a)(2) of RLUIPA, the least restrictive
means component. See 42 U.S.C. 2000cc-1(a)(2). He initially asserts the district
court improperly placed the burden on him to establish a sweat lodge ban was not the
least restrictive means by which to alleviate officials security concerns. See id.
2000cc-2(b) (placing the burden on the Government to establish a compelling
governmental interest served by the least restrictive means). Fowlers argument is
9At the time PCC permitted a sweat lodge, MDOC guidelines on Native
American Spirituality provided that [s]weat lodges may be constructed at correctional
centers. JA at 173 (emphasis added). Sweat lodge ceremonies, however, are to be
allowed only when there is approved external spiritual leadership to lead practices and
only when all operational considerations are addressed to the satisfaction of the
Superintendent. SJA at 173 (emphasis added). Current MDOC policies do not
provide for the operation or construction of a sweat lodge at any MDOC institution.
See SJA at 378.
unavailing. The record before us plainly reveals that JCCC officials suggested
alternatives to and sought a compromise with Fowler, to no avail. They offered
Fowler an outdoor area where he may smoke the ceremonial pipe and practice other
aspects of his Native American faith in open view. See JA at 74, 78, 84. Officials
suggested a medicine wheel. See SJA at 531. They sought to locate an outside
volunteer to oversee JCCCs Native American group. See SJA at 371.9 See Spratt v.
Rhode Island Dept Corr., 482 F.3d 33, 41 n.11 (1st Cir. 2007) (suggesting that to
meet the least restrictive means test, prison administrators generally ought to explore
at least some alternatives). Nonetheless, Fowler has rejected anything short of a
sweat lodge a minimum of 17 times a year, insisting JCCC utilize whatever resources
and screening procedures are necessary to meet his demand. See JA at 44; see also
Aplts Reply Br. at 2 n.1 (stating Fowler would accept additional guard supervision,
including a guard inside the lodge).
Fowler also belatedly asserts that his request for a transfer to PCC, at a time
when that prison was accommodating a sweat lodge twice yearly with numerous staffimposed
restrictions, illustrates his willingness to accept something less than what he
ostensibly demands. But apart from Fowlers transfer request, we can find nothing
in the record to suggest that Fowler had any actual knowledge of the restrictions PCC
placed on the sweat lodge ceremony, including its frequency. Besides, Fowler surely
knows more about the practice of his Native American faith than JCCC officials. If
he was willing to accept something less than a sweat lodge 17 times a year, he should
have said so in no uncertain terms. Instead, he said exactly the opposite: I want the
sweat lodge a minimum basically a minimum of 17 times a year . . . . JA at 44.
Unfortunately for Fowler, the burden of production shifted to him once JCCC
officials had come forth with evidence that other means by which Fowler might
practice his Native American faith were unacceptable to him. Where a motion for
summary judgment is properly made and supported, as JCCC officials did here
consistent with their burden of proof, an opposing party must set forth specific facts
showing a genuine issue for trial. See Fed. R. Civ. P. 56(e)(2). That Fowler bore the
burden of production at this point hardly constitutes an improper shifting of
RLUIPAs burden of proof. It would be a herculean burden to require prison
administrators to refute every conceivable option in order to satisfy the least restrictive
means prong of RFRA. Hamilton, 74 F.3d at 1556; accord Spratt, 482 F.3d at 41
n.11 (applying RLUIPA).
Fowlers reliance on our decision in Murphy to suggest the district court
improperly shifted RLUIPAs burden of proof to him is misplaced. In Murphy, we
held prison officials could not meet their burden of establishing that the denial of
group worship privileges to Murphy, a white supremacist, was the least restrictive
means of furthering their interest in security, where the only evidence officials
presented was that Murphy was a racist and his religion limited participation to Anglo-
Saxons. Unlike this case, we explained that [i]t is not clear [whether] MDOC
seriously considered any other alternatives, nor were any explored before the district
court. Murphy, 372 F.3d at 989.
Of course, our own Justice Blackmun recognized that [a] judge would be
unimaginative indeed if he could not come up with something a little less drastic or
a little less restrictive in almost any situation, and thereby enable himself to vote to
strike [regulation] down. Illinois State Bd. Elec. v. Socialist Workers Party, 440 U.S.
173, 188-89 (1979) (Blackmun, J., concurring) (criticizing the least restrictive means
test as a slippery slope of uncertainty). But such a draconian construction of
10Nor is this a view of federalism we wish to endorse. We cannot imagine an
activity in which a State has a stronger interest, or one that is more intricately bound
up with states laws, regulations, and procedures, than the administration of its
prisons. Woodford v. Ngo, 548 U.S. 81, 94 (2006); see also Hamilton,73 F.3d at
1553 ([W]here state penal institutions are involved, federal courts have a further
reason for deference to the appropriate prison authorities. (internal quotations
RLUIPAs least restrictive means test would render federal judges the primary
arbiters of what constitutes the best solution to every religious accommodation
problem in state penal institutions. Lovelace, 472 F.3d at 215 (Wilkinson, J.,
dissenting).10 And, as we have seen, this would be inconsistent with congressional
intent. See Cutter, 544 U.S. at 722-23.
We must remain mindful that Cutter counsels restraint in this realm. There, the
Supreme Court repeatedly instructed us to provide due deference to the experience
and expertise of prison and jail administrators in construing RLUIPA. Id. at 723.
Otherwise, religious accommodation in the penological context threatens to become
the tail that wags the dog. Absent due restraint, inmate requests for religious
accommodations [may] become excessive, impose unjustified burdens on other
institutionalized persons, or jeopardize the effective functioning of an institution.
Lovelace, 472 F.3d at 217 (Wilkinson, J., dissenting) (quoting Cutter, 544 U.S. at
Undeterred, Fowler insists that JCCC officials have not established that an
outright sweat lodge ban is the least restrictive means of ensuring prison safety and
security. Again, Fowler cites PCCs previous operation of a sweat lodge essentially
to conclude they did it at PCC, they can do it at JCCC. Given the obvious security
concerns surrounding the sweat lodge itself, we are loathe to suggest that had Fowler
shown some willingness to soften his demand the outcome of this case might differ.
Courts have repeatedly recognized that evidence of policies at one prison is not
conclusive proof that the same policies would work at another institution. Spratt,
11Similarly, the Sixth Circuit in Hoevenaar v. Lazaroff, 422 F.3d 366 (6th Cir.
2005) rejected an inmates demand to wear a kouplock as part of his religious faith
despite evidence that earlier prison regulations had permitted individualized
exceptions to hair style without incident:
Although the district court noted that the prison did not produce data
demonstrating that the pre-1991 use of discretionary exceptions to prison
regulations resulted in more dangerous prisons, the testimony of [Major]
Guyton and Warden Lazaroff was sufficient to demonstrate that
individualized exceptions did not sufficiently protect the states interest
in security and safety, particularly in light of the deference accorded to
the judgment of prison officials regarding prison operations. Hoevanaar
did not rebut the states expert testimony regarding the problems with his
suggested alternatives by substantial evidence that the officials
exaggerated their response to security considerations.
Id. at 371-72.
482 F.3d at 42. In Hamilton, we acknowledged deposition testimony from prison
administrators in other states that their respective institutions conducted sweat lodge
ceremonies without major problems. Hamilton, 74 F.3d at 1548. Yet that was not
enough for us to strip PCC officials of their discretion in deciding whether to
accommodate inmates of the Native American faith with a sweat lodge.11
Of course, this is not to say that evidence of what other prisons have done to
accommodate inmates religious practices is irrelevant to our inquiry. See
Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007). But as prisons differ, so may
the means by which prison officials ensure order and stability:
Although prison policies from other jurisdictions provide some evidence
as to the feasibility of implementing a less restrictive means of achieving
prison safety and security, it does not outweigh the deference owed to
the expert judgment of prison officials who are infinitely more familiar
with their own institutions than outside observers.
Hamilton, 74 F.3d at 1557 n.15 (emphasis added). The point is that prison officials
may, quite reasonably, exercise their discretion differently based upon different
12For instance, JCCCs inmate population is over twice the size of PCCs inmate
population. Compare JA at 76 (estimating JCCCs inmate population at 1,973) with
SJA at 560 (estimating PCCs inmate population at 980). This alone suggests that
officials at JCCC may well be unable to accommodate religious practices that PCC
may accommodate. Another material difference is that PCC, while operating the
sweat lodge, apparently had outside volunteers to oversee its Native American group
and maintain the groups focus. JCCC in contrast has been unable to locate such
volunteers. Compare JA at 56-57 (deposition of former PCC Volunteer Dolores
Santha) with SJA at 371 (affidavit of JCCC Chaplain Robert Gibson).
institutional circumstances.12 RLUIPA mandates a uniform test, not a uniform
result. Hamilton, 74 F.3d at 1554 (internal quotations omitted).
A holding that RLUIPA requires JCCC to provide Fowler a sweat lodge simply
because PCC operated a sweat lodge for a number of years without incident would
adversely impact MDOC inmates. In effect, such a result would require every penal
institution within MDOCs jurisdiction to accommodate inmates of the Native
American faith with a sweat lodge because those institutions security interests are
surely no greater than those of JCCC, the highest level maximum security prison
within MDOC. This would discourage prison officials within MDOC from
accommodating inmates religious practices, knowing that if one institution
accommodated a particular religious practice, then all institutions would likely have
to accommodate the same practice, regardless of the facts and circumstances. For all
the foregoing reasons, we conclude JCCC officials met their burden under 3(a)(2)
of RLUIPA and established, as a matter of law, that prohibiting a sweat lodge at JCCC
is the least restrictive means by which to further the institutions compelling interest
in safety and security. See 42 U.S.C. 2000cc-1(a)(2).
In enacting 3 of RLUIPA, Congress sought to eliminate frivolous or
arbitrary barriers impeding prisoners exercise of religion. See Cutter, 544 U.S. at
716. One need not be analytically inclined to discern the difference between the
13For example, congressional hearings revealed some Muslim prisoners
complained about the lack of Hallal food that was a necessary part of their religious
observance, other Jewish prisoners complained about a lack of sack lunches that
would enable them to break their religious fasts after nightfall, still others complained
about a ban on lighting Chanukah candles although the prison permitted smoking and
votive candles. A clergyman described a year long battle over the use of Sacramental
Wine. The same witness explained that some prison officials treated with contempt
inmate possessions such as the Bible, the Koran, the Talmud, and Native American
sacred objects. Officials reportedly on occasion confiscated, damaged, or discarded
these possessions. See Cutter, 544 U.S. at 717 n.5. Case law reveals other seemingly
unnecessary restrictions on inmates religious practices. For instance one inmate, an
ordained minister, was not permitted to preach at weekly religious services. See
Spratt, 482 F.3d at 35. Another inmate complained that prison officials unduly limited
the number of religious books he could possess in his cell, although prison policies
allowed him personal property in the amount of four storage boxes. See Washington,
497 F.3d at 285.
arbitrary restrictions Congress sought to proscribe with RLUIPA, and JCCCs sweat
lodge ban.13 Providing inmates at a maximum security prison access to burning fires,
red hot rocks, split wood, shovels, and deer antlers alone generate a unique and
obvious set of security concerns. Add to this an enclosed area engulfed in steam and
void of light, outside the view of prison guards, and prison officials fears are further
legitimized. And we must not forget that the sweat lodge ceremony would expend
significant prison resources, undoubtedly diverting limited resources from other areas
of the prison. Considering all these factors, we find nothing frivolous or arbitrary
about JCCCs refusal to accommodate Fowlers request for a sweat lodge.
Recall that in Hamilton, we did not . . . foreclose the possibility of a successful
sweat lodge claim under different circumstances. Hamilton, 74 F.3d at 1557
(emphasis added). Indeed, where possible, we encourage[d] prisons to accommodate
the religious needs of inmates, including American Indian inmates. Id. And that is
precisely what officials at PCC subsequently did, operating a bi-yearly sweat lodge
for Native American inmates until, due to prison unrest, they determined in their
discretion that the balance between religious accommodation and prison security
tipped in favor of the latter. Similarly, JCCC officials have exercised their discretion
and determined that a sweat lodge at JCCC jeopardizes prison safety and security to
an unacceptable degree. This is precisely the exercise of discretion to which RLUIPA
requires us to defer.
Stripped of rhetoric, the question before us is not whether JCCC officials may,
but whether they must, provide Fowler with a sweat lodge. In other words, the
pertinent query is whether a federal appeals court, far removed from the realities of
institutional life at JCCC, or state prison officials well familiar with (1) the size and
nature of JCCCs population, (2) the staffing problems and budgetary restrictions
under which they labor, and (3) the various religious practices they are asked to
accommodate is best suited to make such a decision. The answer is clear when we
distinguish between disputed facts (which are altogether absent here) and disputed
matters of professional judgment. When we are presented only with disputes
regarding professional judgment, our inferences must accord deference to the views
of prison authorities where those views rest on more than mere speculation and
conjecture. Beard v. Banks, 126 S. Ct. 2572, 2578 (2006) (plurality).
The judgment of the district court is AFFIRMED.


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