Petition for Writ of Certiorari — Piper A. Rountree, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

PIPER A. ROUNTREE,

Petitioner

VS.

HAROLD CLARIcE, ET AL.,

Respondents

On petition for a writ of certiorari to

the federal 4th circuit court of appeals

PETITION FOR WRIT OF CERTIORARI

PIPER A. ROUNTREE

Petitioner Pro Se

Fluvanna Correctional Center

For Women

P.O. Box 1000

144 Prison Lane

Troy, VA 22974

I

4

1

41

QUESTIONS PRESENTED

I. The United States Supreme Court ruled that summary judgments shall

only be granted if the record shows (1) there is no genuine dispute, (2)

as to any material fact. Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572,

2578, 165 L.Ed. 2d 697 (2006). The evidence indicates that appellant filed

her own sworn pleadings and 14exhibits, including 6 other affidavits,

disputing appellees' claims. Additionally, the trial court judge admitted

that he was "unclear" about a material issue of fact concerning the

current and on-going in-room use [and inference of safety] of yoga mats.

(ECF 59, FN4). Thus, summary judgment was clearly erroneous since

genuine, disputes concerning material facts existed.

As a matter of law, the trial court erred in granting a summary

judgment on the appellant's RLUIPA claim since genuine

issues of material facts existed.

As a matter of law, the trial court erred in granting a summary

judgment on the appellant's Equal Protection claim since

genuine issues of material facts existed.

As a matter of law, the trial court erred in granting a summary

judgment on the appellant's First Amendment claim since

genuine issues of material facts existed.

1

4+

D. As a matter of law, the trial court erred in granting a summary

judgment on the appellant's Eighth Amendment claim since

genuine issues of material facts existed.

II. Appellant, as a pro se incarcerated person enjoys the same rights to

discovery answers and production requests, and to the same extent, as

is afforded every other litigant. Castle v. Jallah, 142 F.R.D. 618, 620

(E.D. Va. 1997).

Appellant was not afforded equal right to the

discovery process since discovery was denied appellant for reasons not

set out in the Federal Rules of Civil Procedure. Thereafter, summary

judgment issued before appellant was given a chance to complete

discovery with all parties.. Thus, the trial court erred in denying

appellant an adequate right to discovery.

II

A

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

[X] All parties do not appear in the caption of the case on the cover page. A list

of all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

In addition to the cover page named parties of Piper Ann Rountree, petitioner,

and Harold Clarke, respondent, the following are additional named respondents to

this lawsuit:

CHARLENE HARRIS, Assistant to Gary L. Bass, Virginia Dept. of

Corrections (VDOC);

PHYLLIS BASKERVILLE, Prior Warden, Fluvanna Correctional Center

for Women (FCCW);

GARY L. BASS, Regional Administrator, VDOC;

TAMMY BROWN, Warden, FCCW;

LOUIS B. CEI, Programs Director and Member of the Faith Review

Committee,' VDOC;

MICHAEL SHUPE Member of the Faith Review Committee, VDOC;

LAYTON LESTER, Member of the Faith Review Committee, VDOC

m

4

TABLE OF CONTENTS

OPINIONS BELOW ........................................................................................... 1

.

JURISDICTION................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED..................2,3

STATEMENT OF THE CASE ......................................................................... 4

REASONS FOR GRANTING THE WRIT .................................................... 26,27

.

CONCLUSION............................................................................................. 27

INDEX TO APPENDICES

APPENDIX A

Decision of the U.S. Court of Appeals for the 4th Circuit, No. 17-6677,

OCTOBER 3, 2017

APPENDIX B

(ECF 59 & 60) Opinion and Decision of the U.S. District Court for the 4th

Circuit, No. 7:15-cv-00220-GEC-RSB

APPENDIX C

(ECF 64 & 65) Opinion and Decision of the U.S. District Court, No. 7:15-cv00220-GEC-RSB, denying timely filed petition for rehearing. April 28, 2017

APPENDIX D

Religious Land Use of Institutionalized Persons Act, 42 U.S.C. §2000 cc-1 (a)(2000)

APPENDIX E

iv

4.

(ECF 51, end. A, effective 7-1-15) Virginia Department of Corrections

Policy 841.3

APPENDIX F

(ECF 51, end. B, effective 9-115, amended 1-26-16) Virginia Department

of Corrections policy 802.1

APPENDIX G

14th amendment (Equal Protections statute) of the U.S. constitution

APPENDIX H

Section 1983 of the Civil Rights Act

APPENDIX I

Federal Rules of Civil Procedure 26

APPENDIX J

Federal Rules of Civil Procedure 56

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Al- Alamin v. Gramley, 926 F. 2d 680, 686 (7th Cir. 1991)...................................12

American Fidelity & Gas. Co. v. London & Edinburgh Ins. Co.,

354 F. 2d 214, 216(4th Cir. 1965)..............................................................12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986)..............................................................5, 26

Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 2578,

.

165 L.Ed. 2d 697.(2006) . ............................................................... .5, 26

V

it

-

Cales v. Chesapeake & 0. Ry. Co., 46 F.R.D. 39, 40 (W.D. Va. 1969)..................5, 10

Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1997).................................23, 27

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552,

91 L. Ed. 2d 265 (1986)........................................................................24

Coward v. Jabe, 474 Fed. Appx. 961, 961 (C.A.4(Va.) 2012)...............................5, 6

Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079 (1972)........................................12

Employment Division, Dept. of Human Resources of Oregon v. Smith, 494

U.S. 872, 878-79, 110 S.Ct. 1595, 108 L.Ed. 876 (1990)..............................6

Farmer v. Brennon, 511 U.S. .825, 114 S.Ct 1970 (1994)......................................21

Imagexpo, L.L.C. v. Microsoft Corp., 281 F. Supp. 2d 846,

849-281(E.D. Va. 2003).......................................................................13

Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)..........................................5

Jehovah v. Clarke, 198 F.3d. 169 177 (4th Cir. 2015)..........................5, 7, 9, 10, 22

Lewis v. Jacks, 486 F. 3d 1025, 1028 (8th Cir. 2008)...........................................12

Lindell, v. Casperson, 360 F. Supp. 2d 932, 958 (W.D. Wis. 2005)........................12

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006).................................................7

Madison v. Riter, 355 F. 3d 310, 321-322 (4th Cir. 2003)........................................6

Mead West vaco Corp. v. Rexam PLC, 809 F. Supp. 463, 480 (E.D. Va.

2011)....................................................................................................................22

O'Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987).........................................17

Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct 2162 (2003)........................................21

Parks-El v. Fleming, 212 Fed. Appx. 245, 247 (4th Cir. 2007)............................7, 19

Vi

CASES

PAGE NUMBER

Sabin v. Home Owners' Loan Corp. 151 F. 2d 541, cert. den. (1946),

328 U.S. 840, 90 L.Ed. 1615, 66 S.Ct. 1011.............................................10

S.J. Groves & Sons Co. v. Ohio Turnpike Comm., 315 F.2d 235, 237

(6th Cir. 1963), cert. denied, 375 U.S. 824, 84 S.Ct. 65,,

11 L.Ed. 2d 57.....................................................................................16

Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009)................................................5

Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707,

718(1981) .......................................................................................... 6

Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct 2254, 96 L.Ed.

2d64(1987).......................................................................................17

Wall v. Wade, 741 F. 3d 492, 498-99 (4th Cir. 2014)...........................................18

Watson v. Brown, 446 Fed. Appx. 643, 644-46 (C.A. (Va.) 2011)...........................10

West V. Costen, 58 F. 5upp. 564, 564 (W.D. Va. 1983)..........................................5

Wilkins v. Gaddy,

---

U.S.

---,

130 S. Ct. 1175,1178-79,

175 L.Ed. 2d 995 (2010)..................................................................22, 23

(DUE TO LACK OF INMATE ACCESS TO SHEPARD'S, NONE OF THE CASES.

COULD BE SHEPARDIZED)

CONSTITUTIONS, STATUTES AND RULES

Fed. R. Civ. P. 26(b)(1)........................................................................23, 24, 27

Fed. R. Civ. P. 56(c).......................................................................................5

Vii

A

42 U.S.C. §2000 cc-1 (a)(2000)

.6, 7, 9, 10, 11, 12, 13, 14

14th amendment (Equal Protections statute) of the U.S. constitution....................12, 13, 16

Section 1983 of the Civil Rights Act ...................................................... 12, 13, 14

18t amendment to the U.S. constitution...........................................................17

8th amendment to the U.S. constitution ................................................. 21, 22, 23

Virginia Department of Corrections Policy 841.3 (ECF 51, end. A)........................4

Virginia Department of Corrections policy 802.1 (ECF 51, end. B)........................4

viii

£

i

In the

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment

below.

OPINIONS BELOW

[X]. For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

to the petition and is

[ X ] is unpublished.

The opinion of the United States district court appears at Appendix

The petition and is

to

IX I is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided this case was

OCTOBER 3, 2017.

[ X] No petition for rehearing was timely filed in this case.

[ ] A timely petition for rehearing was denied by the United States Court

of Appeals on the following date:

, and a copy of

the order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was

granted to and including

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U.S.C. §1254(l).

Page 1of 27

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1ST AMENDMENT TO THE UNITED STATES CONSTITUTION:

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of

grievances.

U.S.C.A. Const. Amend. I

SECTION 1983 OF THE CIVIL RIGHTS ACT (See Appendix H)

RELIGIOUS LAND USE OF INSTITUTIONALIZED PERSONS ACT,

42 U.S.C. 2000 CC-1 (A)(2000) (See Appendix D)

14TH AMENDMENT TO THE U.S. CONSTITUTION

(See Appendix G)

8TH AMENDMENT TO THE U.S. CONSTITUTION:

Section 1. Neither slavery nor involuntary servitude, except as a punishment

for crime whereof the party shall have been duly convicted, shall exist within

the Unites States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate

legislation.

U.S.C.A. Const. Amend. VIII

VIRGINIA DEPARTMENT OF CORRECTIONS POLICY 841.3 (See

Appendix E)

VIRGINIA DEPARTMENT OF CORRECTIONS POLICY 802.1 (See

Appendix F)

Page 2 of 27

FEDERAL RULES OF CIVIL PROCEDURE 26 (See Appendix I)

FEDERAL RULES OF CIVIL PROCEDURE 56 (See Appendix J)

Page 3 of 27

STATEMENT OF THE CASE

Petitioner, Piper Rountree, is an incarcerated inmate serving a "Life

Sentence" at the Fluvanna Correctional Center for Women in Virginia. She is also a

senior student and avowed monastic serving under one of the highest level Buddhist

Masters in the world. This matter arose when she requested to have her Buddhist

faith object—a yoga mat—sold on commissary since there were far, too few mats

available for use so that she could practice her faith in the same manner as other

faith groups who have their practice tools available for personal use and ownership.

The respondents, the administrators of the VDOC, claim that yoga mats may

not be sold on commissary for personal possession because they present a safety

hazard when owned individually. Where the respondents permits the mats to be

used in a group setting, allow the mats to be checked out for individual use,

somehow respondents claim that the nature of the ownership alone alters the same

mat from being acceptable to being a security threat. See VDOC policies 841.3 and

802.1

Contrary to the U.S. Supreme Court's rulings, the U.S. District Court for the

4th

Circuit granted summary judgment against petitioner on all issues despite

sworn affidavits and fact questions on material issues being raised. In the process,

the district court denied petitioner access to discovery she requested. The Court of

Appeals upheld the trial court's decision. Petitioner files this writ requesting relief.

SUMMARY JUDGMENT STANDARDS

Summary judgments standards are strict. Summary judgment is inappropriate if

there is any genuine factual issue or if there is any dispute over the reasonable inferences

Page 4 of 27

drawn from the undisputed facts in the record. Fed. R. Civ. P. 56(c); West v. Costen, 58 F.

Supp. 564, 564 (W.D. Va. 1983).

Summary judgment is granted only where there is no

genuine issue of material fact. Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572,

25.78, 165 L.Ed. 2d 697 (2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coward v. Jabe, 474 Fed. Appx. 961, 961 (C.A.4(Va.)

2012).

In fact, summary judgment should be granted only where it is perfectly clear

that no issue of fact is involved and inquiry into the facts is not desirable to clarify the

application of the laws; this is true even where there is no dispute as to the evidentiary

facts in the case but only as to the conclusions to be drawn from them. It is the person(s)

moving for summary judgments who bear the burden of showing both absence of a genuine

issue of a fact and the judgment is warranted as a matter of law.

In reviewing all the evidence, the Court must draw inferences most favorable

to the party opposing the motion for summary judgment, and such party is entitled

to be given the benefit of all favorable legal theories invoked by the evidence so

considered. West, supra, at 56.4. In motions for summary judgment, the "Court's.

task is not to determine the factual issues as presented in the documents before it

but to determine whether factual issues exist". Gales v. Chesapeake & 0. Ry. Co., 46

F.R.D. 39,40 (W.D. Va. 1969).

Additionally, pro se complaints must be construed liberally.

Jackson v.

Lightsey, 775 F.3d 170, .178 (4th Cir. 2014). Liberal construction of the pleadings is

particularly appropriate where, as here, there is a pro se complaint raising civil

rights issues. Smith v. Smith, 589 F.3d 736,738 (4th Cir. 2009). Jehovah v. Clarke,

198 F.M. 169, 177 (4th Cir. 2015).

Page 5 of 27

fi

ISSUE I

A. As a matter of law, the trial court erred in granting a summary

judgment on the petitioner's RLUIPA claim since genuine issues of

material facts existed.

"Our society has a long history of accommodation with respect to, matters of

belief and conscience. If Americans may not set their beliefs above the law,

there must be room to accommodate belief and the faith within the law."

Madison v. Riter, 355 F. 3d 310, 321-322 (4th Cir. 2003) [citing Employment

Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-79,

110 S.Ct. 1595, 108 L.Ed. 876 (1990)].

Along with this, RLUIPA states 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

government interest; and (2) is the least restrictive means of furthering that

compelling government interest." [emphasis added]. Madison, supra, at 314,

[quoting 42 U.S.C. §2000 cc-1 (a)(2000)].

-

A substantial burden on a religious exercise occurs when a government puts

substantial pressure on an adherent to modify his behavior and violate his beliefs.

Thomas v; Review Bd. of I nd. Employment Sec. Div., 450 U.S. 707, 718 (1981);

Coward, supra. To prove a violation of this right, an inmate must first state facts

sufficient to show that the challenged prison regulation substantially burdens his

right to free

Page 6 of 27

I

*

exercise of a sincerely held religious belief. Lovelace v. Lee, 472 F.3d 174, 187 (4th

Cir. 2006).

RLUIPA provides more stringent protection of prisoners' free exercise rights

than does the First Amendment, applying a strict scrutiny instead of

reasonableness. Jehovah, supra at 177.

"The least restrictive mean standard is exceptionally demanding and it

requires the government to show that it lacks other means of achieving its

desired goal without imposing a substantial burden on the exercise of

religion by the objecting party". Id. at 178.

A substantial burden on religious exercise occurs when a state or local

government through act or omission, puts substantial pressure on an adherent to

modify his behavior and to violate his beliefs.

Jehovah, -supra, at 180.

Furthermore, in "substantial burden" determinations, the religious practice does

not have to be mandated by the religion in order for the burden to be found

"substantial". Parks-El v. Fleming, 212 Fed. Appx. 245, 247 (4th Cir. 2007). The

question is whether or not the specific practice was substantially burdened, not

whether Plaintiffs religious practice, as a whole, was substantially burdened.

[emphasis added]. Id.

The petitioner stated that the respondents' refusal to allow her to personally

own a yoga mat for her daily religious practices substantially violates her sincere

Buddhist faith and daily practices because yoga mats are necessary for this

practice. The respondents both approved and disapproved yoga mats for use during

Buddhist practices. They authorized yoga mats for group practices & rituals, and

allowed mats to be checked-out for individual in-room Buddhist rituals for 5-6 years,

Page 7 of 27

but now claim that they are not "Buddhist faith objects". The respondents provided

no supporting affidavits from Buddhist experts supporting the conclusion that such

mats are not used by Buddhists on a daily basis. On the other hand, the petitioner

herself is a Vajra (highest level) Buddhist practitioner and acknowledged scholar,

authorized to teach the determined tenets of her faith, which require a cushioned

yoga mat for the several-times-daily meditation and yoga practices to be performed

in the cells.

This. is a sincere tenet of her Buddhist faith and practice. The

respondents seem to claim that petitioner's sincere religious beliefs and practices

requiring a yoga mat are not relevant considerations.

Furthermore petitioner attached 5 affidavits from world-acknowledged

experts on Buddhism, supporting the fact that yoga mats should be considered

Personal Faith Objects. ECF 56. His Excellence, the 7th Dzogchen Ponlop Rinpoche,

the Tibetan Master who defines Buddhist practices for the western world, affirms

that the use of these cushions and mats such as the yoga mats "has always been

central to the regular and proper practice of Buddhist meditation." ECF 5, Ex. 1.

Rev. Geoffrey Arnold, the Abbot of Zen Mountain Monastery also stated that the

"yoga mats [would be] to help [inmates] with their meditation... Sitting on the floor

is the tradition and has both practical and religious significance, and so the mats

and cushions are most important". ECF 56, Ex. 2. Rev. Lakshmi Barsel goes into

detail as to how and why the yoga mat is considered a necessary tool to the

Buddhists' meditation and yoga practices. A Zen Priest, stated that the Buddhists'

yoga practice is "practiced with bare feet, and the mats prevent the slipping and falling.

Page 8 of 27

The stability provided by a firm foothold during the stretches, spreads throughout

body and mind and encourages the practitioner to see through or beyond his or her

delusional thinking." FCCW's Chaplain Lichti stated that Buddhist yoga mats were

to be considered "religious objects" for the Buddhists. ECF 56, Ex. 6, p.5: Religious

Mat Checkout Agreement, line 5. Tina Seegers, Nurse Practitioner for Women's

Health, stated that the mats are necessary for providing:

"padding, support, and a barrier from the elements.., pressing ...palms,

knees, elbows and vertebrae onto the bare ground or floor can be painful.

Having additional support enables [inmates] to more comfortably perform

the pose... [A yoga mat] can be especially helpful when practicing on a lessthan-clean surface, such as floor space walked on by others. Individual

mats, needing only to be wiped with cloth and soap and water, provide a

sanitized and safe space. Given the confines of incarceration, the

importance of health maintenance is critical. Yoga provides physical and

mental well being in a 2' x 4' space... Buddhists use the yoga mats for daily

spiritual practice..." ECF 56, exhibit 5.

Each of these experts presented specific and concrete examples and reasons why the

yoga mats are to be considered Buddhist Faith Objects.

When conflicting affidavits from experts weigh in on the material issues of

fact, summary judgments are not appropriate. In this case, the petitioner stated

that she was an avowed Buddhist who worked to uphold her precepts, which

included "...her daily practice of physical movement, including yoga." ECF 56 at 18.

She further stated that her "practice is a substantial and sincere part of [her] faith."

Id. She described in detail the reasons and effect that the lack of a mat has on her

practice, including causing injuries, concluding that "practice without a mat

substantially interferes with her sincere practice since these factors form a

fundamental basis for her Buddhist practice." The petitioner disputed the

respondents' claim, stating that

Page 9 of 27

Y

s

she had not met her "Burden of Proof; however, "plaintiffs 'Burden of Proof

requirement is to be met at the point of trial, not in a summary judgment motion."

See Sabin v. Home Owners' Loan Corp. 151 F. 2d 541, cert. den. (1946), 328 U.S.

840, 90 L.Ed. 1615, 66 S.Ct. 1011. The RLUIPA claim only needs a pleading of facts

tending to show a substantial burden on [her] exercise of sincerely held religious

beliefs. Jehovah, supra, at 180.

On the other hand, it was the respondents' burden to show that banning a

yoga mat as a "Personal Faith Object" was the least restrictive means necessary to

achieve their objective in maintaining security. The prison administrators failed to

do this. Moreover, the district court further erred when it made a dispositive

credibility determination on the basis of competing affidavits. Watson v. Brown,

446 Fed. Appx. 643, 644-46 (C.A. (Va.) 2011). Specifically, the trial judge incorrectly

applied an evidentiary trial standard,i.e., ECF 59 at 10. It determining the

evidentiary weight of sworn statements, rather than applying a summary judgment

standard of determining whether or not issues of material facts exist. Gales, supra, at

40.

Petitioner further stated why and that her practices were burdened by

forcing her to abandon significant portion of her practices in meditation and yoga:

she cannot sit in meditation as required by her faith, nor can she perform yoga

safely, quietly, or with the required mindset needed. ECF 56 and 65. Petitioner

Rountree has been pressured to abandon or modify her behavior without a mat for

use in her room. This is not a mere difficulty, but rather requires her to completely

Page 10 of 27

abandon her needed practice, substantially modifying it in a manner contrary to her

precepts.

The prison administrators claimed that the safety and security of the prison

was threatened by Rountree's personal ownership of a yoga mat. However, these

same people found that yoga mats were and had been safe and secure enough to be

checked out to a large number of inmates for in-room use for 5-6 years. Moreover,

the respondents claim that a flexible rubber yoga mat is unsafe in the same cell

where hard plastic stools, metal canes, spiked metal walkers, 15 inch hard plastic

TVs, and other weapon-able items are considered safe. Thus, the questions of

"compelling" and "valid" governmental interests are raised. Certainly, a question of

the respondents' motives are raised since the trial court found that:

the Faith Review Committee furthers a compelling interest in uniformity of

policy at any Virginia Department of Corrections prison where an inmate might

seek to possess a yoga mat for religious reasons."ECF 59 at 11.

Thus, the purpose appears not to be security or sanitation, but a pretextual excuse

to establish a policy substantially interfering with the practice of Buddhism. The

trial court erred in finding no RLUIPA issue of material fact.

Page 11 of 27

B. As a matter of law, the trial court erred in granting a summary judgment on

the petitioner's Equal Protection claim since genuine issues of material facts

existed.

The Equal Protection clause requires that persons similarly situated be

treated alike. The facts set out in the Complaint and her affidavits support ongoing discrimination against the Buddhists as compared to other faith groups at

FCCW. ECF 39 at ¶ 37; ECF 56, Ex. 8, 9, 10, 11, 12, 13, 14. While the court

correctly stated that actions must be purposeful to rise an Equal Protection claim,

courts have universally inferred such discriminatory purpose from disparate

treatment of similarly, situated individuals.

Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079 (1972); Al- Alamin, v. Gramley, 926

F. 2d 680, 686 (7th Cir. 1991) ('[Equal Protection requires] qualitatively comparable

treatment between religious groups"); Lindell, v. Casperson, 360 F. Supp. 2d 932,

958 (W.D. Wis. 2005) ("the denial of a privilege to adherents of one religion while

granting it to others is discriminating on the basis of religion in violation of the

Equal Protection clause of the Constitution.") aff'd, 169 Fed. Appx. 999 (7th Cir.

2006); Lewis v. Jacks, 486 F. 3d 1025, 1028 (8th Cir. 2008) ("Discriminatory purpose

can be proved with various kinds of direct and circumstantial evidence but is most

often proved with evidence that similarly situated inmates were treated

differently.")

In order to grant a motion for summary judgment, it must be shown that,

there is no genuine issue to any material fact. Not merely must the historic facts be

free of controversy but also there must be no controversy as to the inferences drawn

from them. It is often that the basic facts are not in dispute but the parties

nevertheless disagree as to the inferences which may be properly drawn. Under

such circumstances, the case is not one to be decided on a motion for summary

judgment. American Fidelity & Gas. Co. v. London & Edinburgh Ins. Co., 354 F. 2d 214,

216 (4th Cir. 1965). However, in all situations, determination of inferences involves

Page 12 of 27

determining motives, as well. Both inferences to be drawn from the same set of

facts and motives are necessarily by their nature, questions of fact to be reserved for

trial. Imagexpo, L.L.C. v. Microsoft Corp., 281 F. Supp. 2d 846, 849-281(E.D. Va.

2003). Summary judgment is therefore inappropriate when evidence is susceptible

to different interpretations or inferences by trier of fact.

Here, petitioner had filed a prior §1983 and RLUIPA civil rights lawsuit

against the Virginia Department of Corrections' administrators in 2011. In 2015,

an agreed order issued allowing petitioner the right to use a Muslim prayer rug in

some of her Buddhist practices. The court dismissed the yoga mat portion of the

issue as not having been exhausted at that time. Nevertheless, this current suit

was filed because the primary mat a Buddhist uses is a yoga mat, for which a

Muslim prayer rug cannot be substituted. This suit was also filed because the

Virginia Department of Corrections' administration continue to provide for the

religious populations so inequitably that petitioner's own religious expression in her

Buddhist practice has been substantially "chilled". In fact, had the respondents

updated the discovery requests as requested and demanded in the original discovery

propounded, petitioner would be able to show that the respondents had a policy in

effect, which specifically promoted and furthers Christianity above other faiths.

ECF 62 and 38. Thus, the inferences to be drawn from the denial of the mat as a

faith object might be completely different had the prison administrators always

provided equitably for the Buddhists as far as needed faith objects, practice

literature, meeting times, or even support for their method of prayer

Page 13 of 27

However, in this scenario, petitioner maintained that respondents have had

a course and scheme of violating petitioner's rights under §1983 and RLUIPA.

Since the inference to be drawn from the denial of the yoga mat as a faith object is

one of deliberate and intention disregard for petitioner's religious rights, and one of

intended interference with such rights, the trial court erred in granting summary

judgment on the Equal Protection issue.

The court also claimed that it was justified in granting summary judgment

because, in its opinion, the mats potentially presented a security issue. ECF 59 at

With sworn pleadings and affidavits, Rountree showed that the mats were not

only safe, they prevented accidents from happening, and promoted well-being

within and between inmates. ECF 56 at 21-22; ECF 56, Ex. 2, 3, 4, 5, 10; ECF 65 at

Where the mats have been deemed safe in a group setting, safe enough to be

checked out and used in the cells for the last 5.6 years, the nature of this safety

does not change because petitioner now requests that they be personally owned by

an inmate rather than owned by a group. The validity of the respondents' claims is

suspect.

While the trial court points out that the respondents may uphold their ban of

yoga mats on an equal protection ground if they have a legitimate state interest and

if the challenged ban on owning a personal yoga mat is rationally related to such

legitimate purposes, fact issues remain on these points. Should the respondents

claim that a heightened degree of security needs to exist in a cell setting, then a

rationally related action would be to remove the historically weapon-able items from

Page 14 of 27

the cell. Yet these items remain as standard cell features. Muslim prayer rugs and

kufis can hide contraband and create sanitary problems; whereas a rubber, hypoallergenic and sanitary yoga mat cannot. It is not rational to claim that a floppy

rubber yoga mat, with a history of creating peace and happiness for both cell-mates,

creates a greater security or sanitary issue when actual problematic items are left

undisturbed. The question of motive precludes a summary judgment.

Otherwise, petitioner offered a multitude of examples of disparate treatment

of her as a Buddhist. Petitioner most comparable example was that the Muslims

have a mat which fully supports their practice, available day and night; however,

the Buddhists are only given a Muslim mat to own and use, which does not fully

support the more physical and variable demands required in the Buddhists'

practice. ECF 56 at 25. Petitioner also referenced the example of disparate

treatment in the other faith groups were allowed at least 17-30 hours a week to

meet, but petitioner was only permitted 1 hour each week to meet and use yoga

mats in her Buddhist group setting. The affidavits and exhibits attached to her

Response support the disparate treatment. ECF 56. Exhibit 8 explains in detail

that copies and religious texts have not been provided the Buddhists, whereas they

are provided to other faiths. The ability to access any yoga mats had been

suspended for a period of time until Warden Brown re-instituted the check out

procedure. ECF 56, Ex. 6. The Buddhists were refused their prayer beads (mala

beads) when other groups were given multiple and non-policy conforming prayer

beads. The Buddhists were not allowed their required notebooks for religious

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instruction, while the chaplain handed out similar notebooks and supplemental

books to other faith groups. The Buddhist's 1 hour meeting time is set at a time

when Rountree and 90% or so of the 100-160 other Buddhists have scheduling

conflicts. The policy providing that no religious group shall be given less than 2

sessions to meet for services and instruction was not permitted to apply to the

Buddhists. Individuals were blocked or discouraged by the chaplain from signing up

for the Buddhists' Fellowship, but allowed immediate enrollment into the

Protestant services. ECF 56, Exhibits 9, 10, 13.

"While the court correctly pointed out that actions must be purposeful to rise to

the level of an Equal Protection claim, courts universally infer such

discriminatory purpose from disparate treatment of similarly situated

individuals. At FCCW, the Buddhist Peace Fellowship comprises about 1/5th of

the population of inmates. It is the second or third largest religion in this

population. However, the Defendants have chosen to approve individual faith

objects for commissary sale to almost every other religion than the Buddhists. All

faiths represented at FCCW have multiple tools for their individual practices

available for purchase on commissary. ECF 56, ex 6. Of the 31 religious items

sold on commissary, only one is sold as a Buddhist Faith Object (the Buddha

medallion). Most of these items are used by each faith's daily practice as needed

tools. The only item sold to Buddhists happens to be one, which is rarely worn by

any Buddhist (since no Buddhist worships the image or statue of a Buddha).

Thus, such Buddhist medallion is not a helpful tool for the universally important

practice itself, as would be a yoga mat. Thus, discriminatory purpose can be seen

where an abundant of practice tools are provided all Other faiths represented at

FCCW except the Buddhists. " ECF 56.

The failure to allow personal ownership of yoga mats then becomes a point of

disparate treatment when such fundamentals and extra items are freely provided

other faith groups but not the Buddhists. Discriminatory intent must be presumed

as the primary motivation behind refusing petitioner a yoga mat in light of the

history and practices. Even the trial court concluded that it was a "question of

purpose". ECF 59 at 12. Both inferences from facts or purposes are questions of

fact not appropriate for a summary judgment. S.J. Groves & Sons Co. v. Ohio

Page 16 of 27

if

Turnpike Comm., 315 F.2d 235, 237 (6th Cir. 1963), cert. denied, 375 U.S. 824, 84

S.Q. 65, 11 L.Ed. 2d 57. In all events, where the court raised safety, purpose,

treatment, and inference issues, then granting a summary judgment on the Equal

Protection claim was erroneous.

C. As a matter of law, the trial court erred in granting a summary

judgment on the petitioner's First Amendment claim since genuine

issues of material facts existed.

Under the Free Exercise Clause of the First Amendment, prison officials

must reasonably accommodate an inmate's exercise of his sincerely held religious

beliefs. O'Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987). In

Turner

V.

Safley, the Supreme Court held that "when a prison regulation impinges on

inmates' constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests. 482 U.S. 78, 89, 107 S.Ct 2254, 96 L.Ed. 2d 64

(1987).

The Turner Court laid out a four-factor test for determining whether a prison

regulation that infringes on a an inmates' First Amendment rights is nonetheless

reasonable and therefore constitutionally valid:

First, is there a valid, rational connection between the prison regulation and

the legitimate governmental interest put forward to justify it? Second, are

there alternative means of exercising the right that remain open to prison

inmates? Third, what is the impact accommodation of the asserted

constitutional right will have on guards and other inmates and on the

allocation of prison resources generally? And finally, do there exist obvious,

•easy alternatives suggestingthat the regulation is an exaggerated response

to the prison concerns?" Id.

Page 17 of 27

Under the 18t test in Turner, petitioner stated that no valid rational

connection between security and forbidding ownership of a yoga mat exists. It is

not rational to say that mats can be checked out for in-room use, but they become a

security risk if personally owned. It is not rational that 20 yoga mats and 10

inmates in a room not quite twice as large as a cell is more safe than a single mat in

a single cell would be. It is not rational to ban a floppy rubber mat as a security

threat when a hard plastic stool and metal canes are left in the same space. The

connection between the absolute ban and the interest claimed appears invalid. The

interest then becomes so "remote as to render the policy arbitrary or irrational."

Wall v. Wade, 741 F. 3d 492, 498-99 (4th Cir. 2014).

Under Turner's 2d test, the court looks at whether alternative means remain

open to the prisoner for exercising the right. It is undisputed that Rountree's

sincere Buddhist yoga and meditation practice occurs during portions of every day

and night. While she is only currently able to check out a yoga mat for personal inroom cell use, this ability is contingent upon 1) membership in a Buddhist group

where membership becomes remains unlikely with meeting time conflicts and

attendance list limitations 2) availability of mats donated 3) finding sources for the

costly donation of mats 4) having DOC's policy support a donation of mats, 5)

adequate storage for donated mats, and 6) supporting administrative policies or

practices that may or may not make the mats available as needed. ECF 56 and 59.

While the nature of the mat does not change whether it is owned as a faith object or

checked out as a faith object, the burden on the administration is far less if it simply

Page 18 of 27

sells a mat outright rather than having to maintain a stock of mats to be checked

out.

As petitioner Rountree pointed out in her pleadings, the prison officials had

already provided yoga mats for checkout for the Buddhist Fellowship to use in their

rooms. These mats have been found to be safe and have been used in the individual

cells since about 2011. ECF 39 at ¶38, ECF 56 at 9-10 and 21-22 and Ex. 6 and 10;

ECF 59 at 3. However, the contingent access to and use of Fellowship mats does

not meet Rountree's needs. The prison officials provided no other solution to meet

the needs of petitioner Rountree, especially since she is not allowed access to yoga

and meditation space outside her cell as needed.

The court suggested that

petitioner could modify or do some portions of her practice, but this is neither the

requirement, nor does it meet her needs.

The question is whether or not the specific practice was substantially

burdened, not whether Plaintiffs religious practice, as a whole, was

substantially burdened. [emphasis added] Parks-El v. Fleming, 212 Fed..

Appx. 245, 247 (4th Cir. 2007).

Thus, no other solution remains open to Rountree for her practice.

Furthermore, the prison environment becomes more peaceful if it were to

offer the yoga mats as personal faith objects. ECF 56 and 59. To begin with,

inmates who regularly use, the mats become some of the more outstanding and

healthy inmates in prison, holding positions of leadership and authority. These

inmates model practices for peace, happiness, and successful community, living,

despite the obstacles imprisonment or life brings. The more inmates using mats in

housing units, the less violence and emotional upheaval in the population of such

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groups as compared to housing units without mat populations. The more peaceful

and healthy a population of inmates, the less Virginia Department of Corrections

has to pay for medical, safety, and security costs. See ECF 56, exhibit 5. Virginia

Department of Corrections also makes money from the sale of the mats to inmates.

Virginia Department of Corrections reaps a financial benefit from allowing yoga

mats as faith objects to be used in the prison cells.

Overall, the burden on the staff or administration has been non-existent

since in the last 5-6 years, no problems have resulted from the use of mats in the

cells. Thus, any downsides to the use of mats in the cells have been purely

speculative on behalf of the respondents. The impact of accommodating Rountree's

asserted constitutional right would have only positive results on guards and other

inmates and on the allocation of prison resources generally.

Petitioner Rountree proposes obvious, easy alternatives to manage the

prison's safety or sanitation concerns. For instance, in-room mats can be inspection

and approval • for cleanliness. Sanctions can be imposed for violations or if anyone

does anything other than meditate, pray, or perform yoga on the mat. Mostly, this

was already proposed in the Religious Mat Check-Out Agreement. ECF 56 p.S.

These conditions would meet the needs and concerns of the respondents

Otherwise, petitioner already suggested that the prison has alternatives to selling

,or checking out the mats: the mats can be donated through the Chaplain's office or

sent in by friends or family. Faced with these issues of material fact, the trial court

erred in granting a summary judgment on the, First Amendment issue.

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D. As a matter of law, the trial court erred in granting a summary

judgment on the petitioner's Eighth Amendment claim since genuine

issues of material facts existed.

The U.S.. Constitution guarantees that inmates shall be free from cruel and

unusual punishments, even in the face of incarceration. What is and is not an

Eighth Amendment violation will vary according to the person and situation.

Short-term problems are not always as significant as long term situations. Where

Rountree currently has a "Life" sentence with no end to her time of commitment,

respondents' ban means that Rountree would be forced to abandon her sincere

religious practices for the rest of her life. To be required to forego one's sincere

religious practices as a condition to her incarceration is a cruel and unusual

punishment within the meaning of the Eighth Amendment. Overton v. Bazzetta, 539

U.S. 126, 123 S.Ct 2162 (2003); Farmer v. Brennon, 511 U.S. 825, 114 S.Ct 1970

(1994). Thus, for petitioner, an avowed Buddhist, whose practice of Buddhism with

yoga, meditation, and prayer defines her every breath and thought, life without

daily access to her yoga mat for her. practices becomes unconscionable within the

scope of the Eighth Amendment. ECF 56 at 25-27.

Page 21 of 27

•1

The Eighth Amendment necessitates inquiry as to whether the prison

officials acted with sufficient culpable mental state (subjective component) and

whether the deprivation suffered or injury inflicted on the inmate was sufficiently

serious (objective component). Wilkins v. Gaddy,

U.S.

---,

130 S. Ct. 1175, 1178-

79, 175 L.Ed. 2d 995 (2010); Jehovah, supra at 182. When looking into the mental

state of the actors, a fact issue will always come into question. MeadWestvaco Corp.

v. Rexam PLC, 809 F. Supp. 463, 480 (E.D. Va. •2011). Here, the trial court

summarily dismissed Rountree's Eighth Amendment claim even though it admitted

that the subjective intent of the prison officials was involved. ECF 59 at 13.

Subjective intent of the officials involved requires a factual determination beyond

the scope of the summary judgment motion. Furthermore, the determination of

what is or is not a "necessity of life" for a religious person as Rountree becomes a

fact issue as to whether it is a deprivation within the meaning of the Eighth

Amendment. Where such fact issues are raised on petitioner's Eighth Amendment

claim, summary judgment was granted in error.

Finally, Rountree stated she suffered a physical injury with resulting mental

pain and suffering. More than a year ago, she suffered a hip and leg injury from a

fall caused by not having a yoga mat for her religious practices. The injuries still

persist and may likely persist for the rest of her life. These injuries were verified by

her affidavits. ECF 59 at Ex. 4, 5. The respondents' conclude that no injury took

place because their providers failed keep accurate medical records. ECF 56 at 1920, including exhibits 3, 5, and 10. That petitioner was not completely crippled or

Page 22 of 27

dead from the injury does not deprive her of her Eighth Amendment rights. See

Wilkins, supra at 1178-79. Thus, summary judgment on the Eighth Amendment

was in erred with genuine fact issues on material facts outstanding.

Issue II:

Was petitioner afforded an equal opportunity to the discovery

process as required in the Federal Rules of Civil Procedure?

Petitioner, as a pro se incarcerated person enjoys the same rights to discovery

answers and production requests, and to the same extent, as is afforded every other

litigant. Fed. R. Civ. Proc. 26 (b)1; Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va.

1997). Petitioner propounded the Discovery and Production requests to Harold

Clarke, one of the respondents. When he did not respond adequately, petitioner

filed a Motion to Compel. ECF 38. This was denied. ECF 40. Petitioner appealed

the denial. ECF 43. At the same time as an answer was filed listing the names and

positions of the new parties to the lawsuit, the prison administrators filed a motion

for summary judgment. ECF 49 and 50. Petitioner had no opportunity to

propound discovery on these new parties before she was ordered to respond to the

motion for summary judgment. ECF

.

52. As a preliminary statement in her

Response to the Summary Judgment motion, petitioner raised the issue of lack of

opportunity to complete discovery. Judge Conrad denied petitioner's discovery

complaints in a footnote of his main order granting the respondents the Motion for

Page 23 of 27

i

summary judgment. ECF 59 at 6, FN6. Petitioner objected to all Conrad's rulings

in her Motion for Reconsideration. ECF 65 at 2.

Petitioner was not afforded equal right to the discovery process since

discovery was denied petitioner for reasons not set out in the Federal Rules of Civil

Procedure. Fed. R. Civ. P. 26(b)(1). For instance, in her discovery requests to

respondent Clarke, petitioner asked for detailed financial information. The Court

upheld respondent's claim that the discovery was overbroad and burdensome;

however, when respondents' financial information, policies, motives, and practices

are in question, the discovery request was not overbroad.

Simultaneously with the denial of the discovery requests, the trial court

judge granted summary judgment. Summary judgment should not have been

granted since petitioner, the non-moving party had not been allowed sufficient time

for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91

L. Ed. 2d 265 (1986). Thus, Motion for Summary Judgment should have been

stayed or dismissed as being untimely since a request to review the ruling on

petitioner's objections to respondent's insufficient, discovery responses still was

pending for review. ECF 43. The response to this discovery was expected to

provide petitioner substantive information enabling her to proceed with her claim.

The information provided from such discovery would also allow her to adequately

amend her complaint, providing this court with whatever greater detail necessary

to respond to Defendants' claims of insufficiency of Plaintiff's allegations. Petitioner

subsequently discovered that had Clarke responded to her requests she would have

Page 24 of 27

,

been given policies and documents showing that the Virginia Department of

Corrections and its administrators mandated the, advancement of Protestant

practices over other faiths, including giving special perks and privileges to

Protestants. Financial information and other documents are still relevant, not

overbroad, or burdensome. Petitioner requested information in a manner and

method normally requested in the course of litigation but was treated differently

because she was an incarcerated person. Thus, the trial court erred denying

petitioner an adequate right to discovery.

Page 25 of 27

I

REASONS FOR GRANTING THE PETITION

The foundation of this country rests upon the sanctity of freedom of religion.

A favorable reo1ution of this case becomes paramount to ensure that the religious

guarantees so vital to our citizenship apply to all Americans, including the 15% who

are currently incarcerated. Additionally, a favorable resolution will help ensure

that all future generations of Americans experiencing incarceration will be able to

benefit from all the support their faiths have to offer. Finally, this decision would

enforce, heretofore theoretical guarantees that prisoners can fully rely upon the

guarantees of the constitution, the federal laws, as well as the procedures applicable

to federal court litigants.

In the present situation, Buddhists in the Virginia Department of Corrections

(VDOC) system do not have the ability to practice their faith since VDOC

administrators deny them their yoga mats, which are necessary for the Buddhists'

practice. For petitioner who serves a life sentence, such denial means that she

cannot practice her religion for the rest of her life.

The U.S. District Court for the 4th Circuit granted summary judgment

against petitioner on all issues, despite significant issues of fact having been raised,

despite the trial court judge stating that there was a question as to a material fact.

This is contrary to the Supreme Court's decisions that summary judgments should

be granted only if there are no genuine disputes as to any material facts. Beard v.

Banks, 548 U.S. .521, 529, 126 S.Ct. 2572, 2578,-165 L.Ed. 2d 697(2006); Anderson

v. Liberty Lobby, Inc.,, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

Page 26 of 27

S ..

a

a

The district court also denied petitioner an opportunity for discovery,

contrary to the federal rules of civil procedure and case law. Fed. R. Civ. Proc. 26

(b) 1; Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1997).

RELIEF REQUESTED

Petitioner respectfully prays that this Court humbly GRANTS this writ,

REVERSES the decision of the court of appeals and REMANDS the matter to the

United States District Court to proceed on the merits of the claims. This Petitioner

respectfully requests WHATEVER AND FURTHER RELIEF this Court may feel

appropriate to effect a just resolution for all parties concerned.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PL

.

Pipe A. Rountree, Petitioner Pro Se

#1004102FCCW

P.O. Box 1000

144 Prison Lane

Troy, VA 22974

December 28, 2017

Page 27 of 27