Barron v. Menard

Barron v. Menard, 46-1-16 Wncv (Teachout, J., Apr. 7, 2017)

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 46-1-16 Wncv

DAVID BARRON

Plaintiff

v.

LISA MENARD, Commissioner,

Vermont Department of Corrections, et al.

Defendants

DECISION

The State’s Motion for Summary Judgment,

Motion to Amend, and Motion to Strike

Plaintiff David Barron, a Vermont inmate currently housed in a Michigan facility, claims

that the Department of Corrections has wrongfully burdened his sincerely held religious beliefs

in numerous ways. He seeks injunctive relief and compensatory damages of $3,000,000, half of

which, he asserts, he would like to donate to a children’s hospital in Vermont. The State has

filed a motion for summary judgment arguing that Mr. Barron’s claim fails under the Free

Exercise Clause of the U.S. Constitution, the corresponding provision of the Vermont

Constitution, Vt. Const. ch. I, art. 3, and 28 V.S.A. § 803, and that each defendant has qualified

immunity.1 In opposition to summary judgment, Mr. Barron clarifies that his claim is based on

his rights under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–

2000cc-5 (RLUIPA). The State objects that Mr. Barron failed to raise any RLUIPA claim in the

complaint. The court concludes that the complaint fairly encompasses RLUIPA and, for the

reasons described below, denies summary judgment at this time.

Mr. Barron describes himself as “a Witchcraft High Priest founder in the denomination

Irish Celtic Gothic Witchcraft called Spider Witchcraft/Wicca who started learning his craft at

the age of 10 years-old learning Irish Celtic Witchcraft through his Mother, and then adopted

Gothic Wicca through Raven Digitals.” He claims to have been practicing for 36 years and

teaching for 18. There is no dispute that, when he was transferred to the Michigan facility, he

started making requests for various supplies or other “accommodations” related to his Wiccan

beliefs. He filed some evidence of related administrative requests with his complaint, including

one formal grievance.2

1

The named defendants include the Vermont Commissioner of the Department of Corrections and several

employees of the Michigan facility. The complaint does not specify whether Mr. Barron intended to sue Defendants

in their personal or official capacities, or both. Commissioner Menard’s waiver of service indicates that she waived

service in her personal capacity only. There is no return of service indicating that she was served in her official

capacity. Each of the other named defendants waived service with no indication of capacity. It is unclear in which

capacities they appear in this case. Because this matter does not affect this decision, for simplicity, the court will

refer to all defendants collectively as the State.

2

Mr. Barron claims to have filed many accommodation forms with the DOC. It is not clear whether the one

The formal grievance forms that are in the record show that his requests became more

detailed and expansive as he proceeded through the administrative process. His final grievance

form, the appeal to the commissioner, is dated December 9, 2015, and there is no indication in

the record that he received a response. He filed the complaint in this case on January 25, 2016.

Mr. Barron’s administrative filings clearly reflect citations to RLUIPA. In his complaint,

however, he expressly cites the U.S. and Vermont constitutions and 28 V.S.A. § 803 only. In

seeking summary judgment, the State addressed those grounds and did not brief RLUIPA. In

opposition, Mr. Barron relies almost exclusively on RLUIPA as the basis for his claims and

argues that the court should interpret the complaint to encompass RLUIPA.3

RLUIPA provides that:

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; and

(2) is the least restrictive means of furthering that compelling governmental

interest.

42 U.S.C. § 2000cc-1(a). This standard is substantially more protective of free exercise rights

than the First Amendment, Cutter v. Wilkinson, 544 U.S. 709, 714–16 (2005), and presumably

the Vermont Constitution.4 But see Sossamon v. Texas, 563 U.S. 277, 285 (2011) (RLUIPA

does not operate to waive a State’s sovereign immunity to damages claims); Holland v. Goord,

758 F.3d 215, 224 (2d Cir. 2014) (“RLUIPA does not authorize claims for monetary damages

against state officers in either their official or individual capacities.”).

Despite the lack of any express mention of RLUIPA in the complaint, the thrust of the

complaint does not imply that Mr. Barron intended to abandon RLUIPA once his administrative

grievance came to court. RLUIPA provides a different legal basis for Mr. Barron’s claim, but it

is not an altogether different claim from his constitutional ones. The allegations that support all

of Mr. Barron’s claims are the same.

The court construes pleadings “so . . . as to do substantial justice,” V.R.C.P. 8(f), and

because Mr. Barron clearly relied on RLUIPA in his administrative filings, the court interprets

the complaint to encompass RLUIPA as a basis for his claims. His failure to cite that statute in

the complaint is a technical omission only.5

grievance in the record is his only one or whether there are others.

3

It is unclear whether Mr. Barron is seeking to proceed exclusively in reliance on RLUIPA at this point, or whether

he wishes to rely on the U.S. and Vermont constitutions and 28 V.S.A. § 803.

4

It appears to be substantially more protective than 28 V.S.A. § 803 as well.

5

In briefing, Mr. Barron cites the Americans with Disabilities Act. It is unclear why. However, it is clear that

neither his administrative grievance nor the complaint in any way implies that he was trying to raise an ADA claim.

2

The State did not seek summary judgment on the basis of RLUIPA. In its reply, it

cursorily offers that its motion should be granted on the RLUIPA claim for the same reasons that

it should be granted on the constitutional claims, which it addressed. This is insufficient,

however. RLUIPA is more protective and the analysis is not the same as for the constitutional

claims. In addition, the summary judgment record was not developed adequately for the court to

rule on RLUIPA. See Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (“But RLUIPA . . . contemplates

a ‘more focused’ inquiry and ‘requires the Government to demonstrate that the compelling

interest test is satisfied through application of the challenged law ‘to the person’—the particular

claimant whose sincere exercise of religion is being substantially burdened.” (citations omitted)).

Even if the court otherwise were able to rule on the constitutional claims, it would not do

so at this time. If Mr. Barron is entitled to relief under RLUIPA, there may be no need to

address his constitutional claims. If he is not entitled to any relief under RLUIPA, he may not be

entitled to any relief on his constitutional claims. Thus, this case may well not require any

rulings on any constitutional issues. “[I]t has long been judicial policy not to address

constitutional questions unless their determination is essential to disposition.” State v. Baxter,

145 Vt. 295, 299 (1984).

Although the State’s motion for summary judgment must be denied, the parties’ filings in

connection with the motion have made clear that there are problems related to the subject matter

of the case. It is unclear which accommodations presently sought by Mr. Barron were raised

during the administrative process. The administrative grievance paperwork that is in the record

reflects changing and expanding requests. The DOC appears to have treated it as a limited

request for a religious feast to the extent that it responded at all. In the complaint, Mr. Barron’s

requests are substantially broader than anything appearing in the grievance paperwork. In his

opposition to summary judgment, his requests are yet more extensive. It is unclear what issues

have been properly preserved. The court can only address issues that have been properly raised

and reviewed during the administrative process. Pratt v. Pallito, 2017 VT 22, ¶ 16 (“[T]o

properly preserve an issue, a party must present the issue to the administrative agency ‘with

specificity and clarity in a manner which gives the [agency] a fair opportunity to rule on it.’”

(citation omitted)); Cutter, 544 U.S. at 723 n.12 (“State prison officials make the first judgment

about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA

without first exhausting all available administrative remedies.”); see also Jordan v. State Agency

of Transp., 166 Vt. 509, 511 (1997) (discussing the closely related concept of exhaustion of

administrative remedies).

It appears that some of Mr. Barron’s requests may be moot. The State asserts that it has

granted some, many, or all of Mr. Barron’s requests for purchases already, without further

specifying. Mr. Barron asserts that some of those are inadequate and does not address others.

Also, the State notes that Mr. Barron could have requested the purchase of some items of interest

from the inmate recreation fund. Mr. Barron’s only response was that he was unaware that he

could do so until the State pointed it out in this case.6

There is no ADA claim in this case.

6

This points up an important reason for the exhaustion requirement. An administrative response to a grievance may

3

Many of Mr. Barron’s requests may be fully outside the scope of RLUIPA. Many of the

disputed “accommodations” are not accommodations but demands that Mr. Barron is making for

the DOC to affirmatively produce funding for religious supplies that he finds desirable for his

Wicca practice and his professed interest in teaching it to others. However, while providing an

appropriate accommodation from a policy that substantially burdens one’s religious beliefs may

cause a government to incur some expense, it creates no right in any person “to receive

government funding for a religious activity.” 42 U.S.C. § 2000cc-3(c); see, e.g., Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1320 (10th Cir. 2010) (noting that RLUIPA does not require the

government “to affirmatively subsidize religion”). If it did, the interest in protecting free

exercise rights would quickly overwhelm establishment clause limitations.

Other requests are simply too unclear to address at this time. His requests around food

are especially unclear. He clearly wants to eat pork, which apparently is not available in his

facility, and objects that Halal and Kosher meals are available. There is no clearly articulated

religious basis for needing to eat pork. It also is unclear whether he is alleging that he is being

forced to eat Kosher or Halal meals and that doing so in some way forces him to violate his

beliefs. He also makes allegations about either processed or unprocessed meat, but it is entirely

unclear what “processing” he is referring to and why vegetarian meals are inadequate.

Finally, the State’s principal argument against granting Mr. Barron’s requested

“accommodations” is not based on evidence responsive to a specific request and its burden of

proof—it is simply that if it did the same for everyone it would not be able to maintain order and

financial viability. The U.S. Supreme Court has clearly rejected this type of broad-brush

argument under RLUIPA. Holt, 135 S.Ct. at 866 (“At bottom, this argument is but another

formulation of the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for

you, I’ll have to make one for everybody, so no exceptions.’ We have rejected a similar

argument in analogous contexts, and we reject it again today.” (citation omitted)). It fares no

better here.

For these reasons, the State is not entitled to summary judgment at this time.

The State seeks leave to amend its answer to include qualified immunity among its

defenses. Mr. Barron has not opposed this motion, and the court grants it.

The State asks the court to strike Mr. Barron’s surreply because he did not seek leave to

file it. This motion is denied. The surreply has no material effect on the court’s decision.

Before the case proceeds any further it is necessary to assure that any remaining

unsatisfied requests for accommodations were properly presented administratively.. In other

words, it is necessary for Mr. Barron to clearly specify the particular accommodations he

currently continues to seek and for which he seeks relief and for the court to be assured that

those specific items were addressed at the administrative level and thus are proper for this court’s

consideration. See the Order below for a procedure for clarifying this issue.

actually resolve it and avoid wasting everyone’s resources on unnecessary litigation.

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ORDER

1. The State’s motion for summary judgment is denied;

2. The State’s motion to amend is granted;

3. The State’s motion to strike is denied;

4. No later than May 1, 2017, Mr. Barron shall submit an itemized list of specific

actions on the part of the State for which he seeks relief, and failure to submit such a

list shall result in dismissal of this case with prejudice.

5. If Mr. Barron files the itemized list described in paragraph 4, the State shall have 15

days to submit a response with any argument that the item was not identified and

raised by Mr. Barron at the administrative level and therefore the court should not

address it, and if such a reply is filed, Mr. Barron shall have an additional 15 days to

file a response to it.

Dated at Montpelier, Vermont this ____ day of April 2017.

_____________________________

Mary Miles Teachout

Superior Judge

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