Herbert Lee Hathcock, Jr. v. Jeffrey S. Cohen

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 23, 2008

No. 07-13596

Non-Argument Calendar THOMAS K. KAHN

CLERK

________________________

D. C. Docket No. 05-60019-CV-AJ

HERBERT LEE HATHCOCK, JR.,

Petitioner-Appellant,

versus

JEFFREY S. COHEN, Detective of Broward Sheriff

Department,

SGT. MICHAEL CLARK,

JOSEPH AIMEE RUSSO, Detective,

BENYA A. KOOS, Detective,

SHERIFF KENNETH JENNE, Sheriff of Broward County,

et al.,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 23, 2008)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Herbert Hathcock, a pro se state prisoner appeals the district court’s grant of

summary judgment on his 42 U.S.C. § 1983 action alleging defendants violated his

right to the free exercise of his Islamic religion. After review, we affirm.

I. BACKGROUND

Between July 21, 2004 and July 12, 2005, Hathcock was a pretrial detainee

in jails operated by the Broward County Sheriff’s Office (“BSO”). Defendant

Rick Braswell is the BSO’s Jail Chaplain. Defendant Emilio Ponz is a Sergeant at

the Joseph Conte Facility (“Conte”), a jail that housed Hathcock. Hathcock, a

practicing Muslim, claims that, while in Broward County jails, he was prevented

from (1) wearing a headcovering called a Kufi cap, (2) attending weekly Friday

prayer services, known as Jumu’ah, and (3) eating kosher meals on some days

during Ramadan.

A. Broward County Jail Policy

The BSO’s religious services policy is Standard Operating Procedure Policy

Number 7.14 (“SOP 7.14”). The policy allows inmates to practice their religion

unless there is “documentation indicating a direct threat to the security or orderly

operation” of the jail or “the activity . . . would pose a danger to staff.” SOP 7.14.

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The Chaplain coordinates religious services and uses volunteers or volunteer

clergy. SOP 7.14(A). The policy requires volunteers who conduct religious

services to contact the Chaplain for clearance, training, and scheduling of

programs. SOP 7.14(B).

According to Chaplain Braswell, SOP 7.14 does not prohibit any religion

from holding ceremonies at the jail “provided that there is an outside religious

leader or volunteer who can be located and who agrees to conduct and preside

over the services.” The BSO requires outside volunteers, rather than inmates, to

perform religious ceremonies to maintain security and discipline in the jail by

avoiding “the risks associated with leaving inmates unsupervised and to avoid

creating an environment where inmates would have too much power.” Chaplain

Braswell must approve any volunteer who performs religious services at the jail.

The BSO uses volunteer Imams, Muslim religious leaders, to conduct

Jumu’ah services. Consequently, the frequency of Jumu’ah services turns on the

availability of volunteer Imams and is not set by Chaplain Braswell. While

Hathcock was in BSO jails, Jumu’ah services usually were held twice a month.

Any inmate could attend scheduled services if he requested to do so. Inmates may

also meet privately with their own clergy, discuss their religion with other inmates

and pray in their cells.

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With regard to religious apparel and items, SOP 7.14(D) states:

Authorized religious items and liturgical apparel are those essential to

the practice of one’s faith. . . . Any religious items or liturgical apparel

not approved by the chaplain’s office will be considered contraband and

confiscated. . . . Inmate requests for religious items and liturgical apparel

will be sent to the chaplain’s office for approval. . . . The Broward

Sheriff’s Office DODCC or the chaplain will not supply inmates with

liturgical apparel or religious items. Each inmate is responsible for

obtaining approved liturgical apparel or religious items through a

representative of his . . . faith, a friend, or a family member. . . . Inmates

will be allowed to wear approved liturgical apparel in their cell,

dayroom, and to and from religious services.

SOP 7.14(D). According to Chaplain Braswell, under SOP 7.14, inmates at BSO

jails may possess religious apparel “essential to their individual faith,” such as a

Kufi cap for a Muslim inmate. The Chaplain and the BSO do not supply religious

apparel, but will give inmates donated religious items if available. Inmates may

submit their own religious items or apparel, or those provided by outside parties,

to the Chaplain’s Office for approval.

As to “special diets” required by a religion, SOP 7.14(E) states:

Special diets corresponding to religious holidays or required by religious

doctrine are available upon the inmate’s written request to the chaplain.

Confirmation will be given as soon as possible thereafter. . . If the

chaplain approves the request, it will be forwarded to the food services

supervisor who will, in coordination with the chaplain, plan and

implement the special diet.

SOP 71.4(E). Chaplain Braswell approves requests for special diets after

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confirming the sincerity of the inmate’s beliefs through the inmate’s religious

leader.

B. Hathcock’s Religious Requests

On August 16, 2004, shortly after transfer to Conte, Hathcock submitted a

request asking whether the facility provided Muslim inmates with a Quran and

Jumu’ah services. The Chaplain’s Office responded the next day that a Quran was

forthcoming, Jumu’ah services were held the first and third Fridays of every

month, and Hathcock’s name had been added to the Muslim Service List.

On August 16, 2004, Hathcock submitted another request asking for a Kufi

cap, as follows:

Do you have any Kofi Caps[?] If you do can you please send me one[?]

If not can I have one sent in from home or is it some way/other that a

Muslim inmate can obtain one?

Hathcock asked when Jumu’ah services were performed and if he could attend.

On August 27, the Chaplain’s Office responded that Hathcock could “bring in

[his] religious materials to [the Chaplain’s Office] between 9am – 4 pm Monday

thru Friday,” Jumu’ah services were held every Friday at 12:30 p.m., and

Hathcock’s name would be added to the list to attend services.

On August 23, 2004, a deputy at the jail approached Sergeant Ponz

regarding Hathcock’s Kufi cap request. Ponz told the deputy that Hathcock

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needed to submit a request to the Chaplain’s office, but did not forbid Hathcock

from wearing a Kufi cap or order any subordinate to prevent Hathcock from doing

so. Ponz never had any direct contact with Hathcock. On the same day, the

deputy told Hathcock that Sergeant Ponz said Hathcock could not wear his Kufi

cap in the jail.

The deputy, at Ponz’s behest, gave Hathcock an inmate request form and

told him to submit it to the Chaplain for permission to wear the Kufi cap.

Hathcock prepared and submitted to the deputy his August 23 inmate request

form, but did not receive a response because the Chaplain’s Office never received

it.1

Hathcock maintains that his August 23, 2004 inmate request was not to

obtain a Kufi cap, but for permission to wear one already in his possession. In any

event, Hathcock appears to have begun wearing a Kufi cap at some point. Shortly

after being transferred to the North Broward Bureau jail,2 Hathcock lost the cap

when he left it in his uniform, which was sent to the laundry. On September 30,

1

Hathcock filed a second inmate request on August 30, complaining that he had not

received a response to his August 23 inmate request and asking if he could wear his Kufi cap to

court. On September 16, Hathcock filed a third inmate request stating that he had already

submitted an inmate request for permission to wear a Kufi cap and asking for help getting the

approval he needed. The record is silent as to the response to these two inmate requests.

2

Between September 20 and October 22, 2004, Hathcock was in an isolation cell because

of possible MRSA (Methicillin-resistant Staphylococcus aureus) exposure.

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2004, Hathcock completed an inmate request asking the Chaplain’s Office to

provide him with a replacement Kufi cap and asking when Jumu’ah services were

held. The Chaplain’s Office responded the next day that their religious apparel

was donated, they did not have any Kufi caps available, and Jumu’ah services

were held the second and fourth Fridays of each month.

The Chaplain’s Office has no record of whether any religious materials were

ever submitted to it for approval for Hathcock’s use. However, Chaplain Braswell

indicated that, had Hathcock submitted a Kufi cap, a prayer rug or a Quran for

inspection, they would have been approved as items essential to Hathcock’s

Muslim faith, and Hathcock would have been permitted to wear the Kufi cap in his

cell, in the dayroom and to and from religious services.

On October 6, 2004, Hathcock submitted another inmate request asking for

permission to have a Kufi cap, a prayer rug and a Quran sent to him “from the

outside” for Ramadan. The Chaplain’s Office responded the next day that

Hathcock could have someone bring the items to the Chaplain’s Office between

9:00 a.m. and 4:00 p.m., Monday through Friday.

While housed in BSO jails, Hathcock was on the list to attend Jumu’ah

services and could attend whenever they were held, except when he was in

isolation. Between July 22, 2004 and April 25, 2005, when Hathcock filed this

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action, Hathcock attended Jumu’ah services thirteen times, missing only three that

were held while he was not in isolation.

On September 11, 2004, Hathcock asked about receiving kosher (pork-free)

meals during Ramadan, which began on October 16, 2004. Hathcock was told to

submit the required form to the Chaplain’s Office, which he did on September 15.

Hathcock listed his place of worship as “this jail” and stated that he did not

remember the name of his Imam, but did know that he was in the jail “on Fridays.”

After reviewing the form, on September 22, the Chaplain’s Office asked Hathcock

to provide them with his place of worship and his Imam’s name and contact

number. On October 7, Hathcock submitted another request for kosher meals, but

the Chaplain’s Office advised Hathcock that it could not confirm the sincerity of

his belief based on the information Hathcock had provided and that his request

was being forwarded to an Imam.

On October 20, Imam Unal Coban interviewed Hathcock and completed a

form indicating that Hathcock’s belief was sincerely held. On October 21,

Chaplain Braswell approved Hathcock’s special diet request and forwarded it to

Food Services. However, prison logs indicate that Hathcock had already received

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his first kosher meal on October 17.3 But, on October 26, 27 and 28 the kitchen

deputy told Hathcock he was not on the Ramadan list and refused to give him

kosher meals. On October 28, Hathcock filed a grievance stating that he had not

received his Ramadan dinner since being transferred to North Broward Bureau

jail. The jail Ombudsman’s same-day response indicated “Food Services is

checking into this. It will be corrected.” Chaplain Braswell is not involved with

food preparation and indicated that any kosher meals Hathcock did not receive

was due to oversight by kitchen personnel.

C. District Court Proceedings

Hathcock filed this § 1983 action against numerous defendants, raising

many claims for relief. Most of Hathcock’s claims were dismissed pursuant to 28

U.S.C. § 1915, rulings Hathcock does not challenge in this appeal.4 The district

court permitted Hathcock’s claims regarding the Kufi cap, Jumu’ah services and

Ramadan meals against defendants Sergeant Ponz and Chaplain Braswell to

proceed.

The defendants moved for summary judgment based on qualified immunity.

3

On October 20, Hathcock submitted a grievance form complaining that his Ramadan

meals were being served cold.

4

Hathcock filed an interlocutory appeal of the district court’s order dismissing some, but

not all, claims. This Court dismissed Hathcock’s appeal sua sponte for lack of jurisdiction.

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The magistrate judge’s report (“R&R”) construed Hathcock’s complaint to assert

claims under both the First Amendment and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and

recommended granting the defendants’ motion. Over Hathcock’s objections, the

district court adopted the R&R and granted summary judgment to the defendants.

Hathcock filed this appeal.5

II. DISCUSSION

A. RLUIPA Claims

The district court concluded that Hathcock’s RLUIPA claims failed on the

merits. After the district court’s order, this Court concluded that RLUIPA does

not create a private action for monetary damages against prison officials sued in

their individual capacity. Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007).

Thus, Hathcock may not bring a claim for monetary damages against Ponz and

5

We review de novo a district court’s grant of summary judgment, applying the same

legal standards as the district court. Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.

1999). Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c) (2007). All evidence and reasonable factual inferences are

viewed in a light most favorable to the non-moving party. Rojas v. Florida, 285 F.3d 1339,

1341-42 (11th Cir. 2002).

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Braswell in their individual capacities.6 To the extent Hathcock seeks injunctive

or declaratory relief, his RLUIPA claims are moot because he was transferred from

the custody of the BSO to the Florida Department of Corrections on May 5, 2005.

See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (explaining an

inmate’s § 1983 claim for injunctive or declaratory relief are moot once the inmate

has been transferred). Accordingly, the district court did not err in granting

summary judgment to the defendants on Hathcock’s RLUIPA claims.

B. First Amendment Claims

As to defendants’ qualified immunity defense, we employ the two-step

inquiry in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001). First, we

determine whether the defendants’ conduct violated the plaintiff’s constitutional

rights. Id. at 201, 121 S. Ct. at 2156. If no constitutional right has been violated,

our inquiry ends and the defendants are entitled to qualified immunity. Id. If the

facts show a constitutional violation, we determine whether the constitutional right

6

Inmates may bring RLUIPA claims for nominal damages (but not compensatory or

punitive damages) against defendants in their official capacities. Smith, 502 F.3d at 1270-71,

1275-76. However, the district court concluded that Hathcock’s RLUIPA claims were against

Ponz and Braswell individually. Hathcock does not challenge this conclusion on appeal and,

thus, we do not address it further. See Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1228 n.2

(11th Cir. 2005) (explaining that issues not raised by an appellant in the appeal brief are deemed

abandoned). Furthermore, because we conclude that Hathcock’s individual capacity RLUIPA

claims are not cognizable, we do not address whether the district court correctly concluded that

these claims failed on the merits.

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was clearly established at the time the violation occurred. Id.

1. Kufi Cap

We first conclude that the actions of Ponz and Braswell in enforcing SOP

7.14(D) and requiring Hathcock to obtain approval before wearing his Kufi cap

did not violate Hathcock’s First Amendment right to practice his Muslim faith.

It is undisputed that (1) SOP 7.14(D) permits inmates to wear approved religious

apparel in their cell, dayroom and to and from religious services; and (2) a Kufi

cap would be approved apparel. Thus, before Hathcock could wear his Kufi cap,

he needed to submit the cap for inspection and obtain approval from the

Chaplain’s Office.

Although “prisoners do not shed all constitutional rights at the prison gate,

. . . [l]awful incarceration brings about the necessary withdrawal or limitation of

many privileges and rights.” Sandin v. Conner, 515 U.S. 472, 485, 115 S. Ct.

2293, 2301 (1995) (citation and quotation marks omitted). A prison regulation,

even though it infringes the inmate’s constitutional rights to some degree, is an

actionable constitutional violation only if the regulation is unreasonable. Hakim

v. Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000).7 We evaluate whether the prison

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The Turner factors are: “(1) whether there is a ‘valid, rational connection’ between the

regulation and a legitimate governmental interest put forward to justify it; (2) whether there are

alternative means of exercising the asserted constitutional right that remain open to the inmates;

12

regulation is reasonable using the four factors in Turner v. Safley, 482 U.S. 78,

107 S. Ct. 2254 (1987). Id. Thus, inmates retain the right to free exercise of

religion subject to prison regulation consistent with the Turner reasonableness

standard. See id. at 1248.8

The BSO’s procedures in SOP 7.14(D) are clearly reasonable. Those

procedures requiring inspection and approval of apparel have a valid rational

connection to a legitimate interest in ensuring that inmate apparel does not pose a

threat to safety or security in the prison. Furthermore, the BSO’s policy leaves

open alternative means of exercising the asserted right. Indeed, BSO’s policy

strikes a balance generously in favor of the inmate’s religious exercise given that

an inmate’s use of religious apparel is virtually unrestricted following approval.9

(3) whether and the extent to which accommodation of the asserted right will have an impact on

prison staff, inmates, and the allocation of prison resources generally; and (4) whether the

regulation represents an ‘exaggerated response’ to prison concerns.” Pope v. Hightower, 101

F.3d 1382, 1384 (11th Cir. 1996) (quoting Turner, 482 U.S. at 89-91, 107 S. Ct. at 2261-62).

8

Hathcock’s appellate brief makes passing reference to the violation of his equal

protection and due process rights under the United States and Florida Constitutions, but offers no

substantive argument or legal analysis of these claims. Such passing references are insufficient

to raise these claims on appeal. See Greenbriar, Ltd v. City of Alabaster, 881 F.2d 1570, 1573 n.6

(11th Cir. 1989) (finding an issue waived where only a passing reference and no substantive

argument was made in the appeal brief).

9

Notably, other circuits have upheld policies imposing more onerous restrictions and

outright bans on religious headwear as reasonably related to security, disciplinary and sanitary

considerations. See Young v. Lane, 922 F.2d 370, 375-77 (7th Cir. 1991); Benjamin v.

Coughlin, 905 F.2d 571, 578-79 (2d Cir. 1990); Standing Deer v. Carlson, 831 F.2d 1525, 1528

(9th Cir. 1987); Rogers v. Scurr, 676 F.2d 1211, 1215-16 (8th Cir. 1982).

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This inspection and approval policy is not an exaggerated response to prison

concerns. Thus, under the Turner standard, SOP 7.14(D) is reasonably related to

legitimate penological purposes and its enforcement by Ponz and Braswell does

not violate Hathcock’s constitutional rights.

2. Jumu’ah Services

The BSO employs one full-time chaplain, Braswell, who coordinates

religious services. The chaplain relies upon volunteer clergy to perform many

religious services at the jail. The frequency of religious services depends upon the

availability of volunteers. The BSO does not permit inmates to conduct religious

services because of security concerns related to inmate supervision and affording

inmates who might conduct the services “too much power.”

Chaplain Braswell’s reliance on volunteer clergy to conduct some religious

services is reasonably related to the BSO’s security and budgetary concerns. See

Lawson v. Singletary, 85 F.3d 502, 510 (11th Cir. 1996); see also Overton v.

Bazzetta, 539 U.S. 126, 135, 123 S. Ct. 2162, 2169 (2003) (explaining that courts

are “particularly deferential” to prison administrator’s regulatory judgments

regarding security and allocation of financial resources). Furthermore, alternative

means remained open given that Jumu’ah services were held at least twice a month

and Hathcock could pray or worship in his cell on the Fridays when an Imam was

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unavailable, speak with other Muslim inmates about his religion and arrange

private meetings with outside spiritual advisors. See McCorkle v. Johnson, 881

F.2d 993, 996 (11th Cir. 1989) (explaining that the inquiry into alternative means

asks “whether, under the restrictions imposed, the plaintiff is deprived of all means

of practicing his religion” (quotation marks omitted)).

Hathcock argues that guards could supervise inmate-conducted religious

services. However, the Turner standard “does not impose a least-restrictive-

alternative test, but asks instead whether the prisoner has pointed to some obvious

regulatory alternative that fully accommodates the asserted right while not

imposing more than a de minimis cost to the valid penological goal.” Overton,

539 U.S. at 136, 123 S. Ct. at 2169. Providing additional guards to supervise

inmate-conducted religious services represents more than a de minimis cost.

Given the BSO’s legitimate security, budgetary and personnel concerns and

the alternatives offered inmates for private practice of their faith, we conclude that

it is reasonable for Chaplain Braswell to rely on volunteer Imams to conduct

Jumu’ah services, even though it resulted in services being held every two weeks.

Accordingly, Hathcock’s First Amendment rights were not violated.

3. Ramadan Meals

A jail should accommodate an inmate’s religious dietary restrictions, subject

15

to budgetary and logistical limitations, but only when the belief is “truly held.”

Martinelli v. Dugger, 817 F.2d 1499, 1504-06, 1508 (11th Cir. 1987). Therefore,

BSO’s approval process for special religious diets corresponding to religious

holidays is reasonable.

Hathcock received kosher meals for Ramadan beginning on October 17,

2004. His failure to receive a kosher meal on October 16, the first day of

Ramadan, was due, at least in part, to his own failure to provide sufficient

information for the Chaplain’s Office to confirm the sincerity of his belief.

Chaplain Braswell approved Hathcock’s request for kosher meals one day after an

Imam interviewed Hathcock and confirmed the sincerity of Hathcock’s belief.

Although Hathcock did not receive kosher meals on October 26, 27 and 28,

Hathcock has not shown that Chaplain Braswell was involved with this incident or

that the meals were intentionally withheld. Rather, the record demonstrates that

this occurred due to an oversight by kitchen personnel. Moreover, when Hathcock

complained on October 28 that he had not received kosher meals, the

ombudsman’s response indicated that the error would be corrected. Given that

Hathcock does not contend that he failed to receive a kosher meal on October 29,

it appears the error was corrected. These facts do not demonstrate a First

Amendment violation.

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III. CONCLUSION

For the forgoing reasons, the district court properly granted summary

judgment to the defendants on Hathcock’s First Amendment and RLUIPA

claims.10

AFFIRMED.

10

To the extent Hathcock argues that the district court erred in denying his post-judgment

motion to amend his complaint (which he now characterizes as a motion to alter or amend the

judgment pursuant to Rule 59(e)), we lack jurisdiction to review the district court’s denial of this

motion because Hancock did not amend his already-filed notice of appeal or file a second notice

of appeal after the district court denied this motion. See Fed. R. App. P. 4(a)(4)(B)(ii).

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