Petition for Writ of Certiorari — Richard R. Watkinson, Petitioner v. Alaska Department of Corrections, et al.

No. ________

In The

Supreme Court of the United States

RICHARD R. WATKINSON,

V.

Petitioner,

ALASKA DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Howard W. Anderson III

TRULUCK THOMASON, LLC

3 Boyce Ave.

Greenville, SC 29601

864-331-1751

howard@truluckthomason.com

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

QUESTIONS PRESENTED

This Petition involves a prisoner who previously

received religious accommodations without incident.

But after an administrative reinterpretation of the

applicable prison policies, he—but not secular

groups—was then denied those previous accommodations. He now faces additional burdens in obtaining the material that he needs for his religious celebrations, burdens that the district court found have

precluded him from consistently obtaining the material he needs for his religious celebration.

The Free Exercise Clause should have protected

the Petitioner. But the circuits are divided about

whether a “substantial burden” is a prerequisite to a

prisoner’s Free Exercise Claim. The Petitioner had

the misfortune to have sued in a Circuit requiring

such a showing. Further, the Ninth Circuit below

failed to recognize that discrimination against prisoner religious practice ought to receive strict scrutiny, rather than mere reasonableness review, because

government neutrality toward religion is not “inconsistent with proper incarceration.” Johnson v. California, 543 U.S. 499, 510 (2005) (quotation omitted)

(applying strict scrutiny rather than reasonablenessreview to racial classifications in prisons).

Even if the Free Exercise Clause did not require

strict scrutiny, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§

2000cc-1 et seq., does. But the Ninth Circuit failed to

find a substantial burden and thus never reached

the strict-scrutiny analysis.

ii

Accordingly, two questions are presented here:

1. Does the Free Exercise Clause permit a prison

to deny accommodations to the Petitioner for

his religious exercise that it already allows for

secular activities, especially where the denial

hinders him from obtaining the material necessary for his religious practice?

2. Does RLUIPA permit a prison to deny accommodations to Petitioner for his religious exercise that it already allows for secular activities, especially where the denial hinders him

from obtaining the material necessary for his

religious practice?

LIST OF PARTIES

Below Respondent Earl Houser’s name appeared

as “Earl Hauser” but should have read “Earl

Houser.” Additional respondents are James Duncan

and Scott Dial. Keith Rogers and John Conant were

parties in the district court but were dismissed.

LIST OF RELATED PROCEEDINGS

Judgment in the District Court:

Watkinson v. State of Alaska et al., No. 3:17-cv00236-JMK (D. AK). Judgment entered January

26, 2021.

Judgment in the Court of Appeals:

Watkinson v. Alaska Department of Corrections et

al., No. 21-35084 (9th Cir.). Judgement entered

May 2, 2022.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................. I

LIST OF PARTIES ........................................................ II

LIST OF RELATED PROCEEDINGS .............................. II

TABLE OF AUTHORITIES ........................................... IV

OPINIONS AND ORDERS BELOW ................................ 1

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

CONSTITUTIONAL AND STATUTORY PROVISIONS...... 1

STATEMENT OF THE CASE .......................................... 3

I.

Proceedings in the District Court .................... 3

A.

The Parties’ Stipulations ........................... 3

B.

The Bench Trial ......................................... 4

II. The Appeal to the Ninth Circuit ...................... 9

REASONS FOR GRANTING THE PETITION ................ 11

I. This Court Should Consider the Free Exercise

Claim Because the Circuits Are Divided About

How to Evaluate Constitutional Religious Liberty

Claims from Prisoners. ......................................... 11

II. This Court Should Also Review the RLUIPA

Claim to Determine Whether a Nonconstitutional

Ground for Reversal Exists. ................................. 15

CONCLUSION ............................................................ 19

TABLE OF CONTENTS OF THE APPENDIX

WATKINSON V. STATE OF ALASKA, NO. 21-35084 [DKT.

40-1] (9TH CIR. MAY 2, 2022). ..................................... A1

WATKINSON V. STATE OF ALASKA, NO. 3:17-CV-00236JMK [DKT. 102] (D. AK. DEC. 31, 2020) .................... A6

iv

TABLE OF AUTHORITIES

Cases

Butts v. Martin, 877 F.3d 571 (5th Cir. 2017) ......... 13

Carson v. Makin, __ U.S. __, 142 S. Ct. 1987 (2022)

............................................................................... 14

Cutter v. Wilkinson, 544 U.S. 709 (2005) ................ 16

Espinoza v. Montana Dep’t of Revenue, 591 U.S. __,

140 S. Ct. 2246 (2020) .......................................... 14

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981)............ 15

Holt v. Hobbs, 574 U.S. 352 (2015) .................... 16, 18

Johnson v. California, 543 U.S. 499 (2005) ... i, 14, 15

Jones v. Williams, 791 F.3d 1023 (9th Cir. 2015) ... 12

Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) 13

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.

2002) ...................................................................... 16

Murphy v. Mo. Dep't of Corr., 372 F.3d 979 (8th Cir.

2004) ...................................................................... 13

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)... 11

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) .............................................. 17

See Sts. Constantine & Helen Greek Orthodox

Church, Inc. v. City of New Berlin, 396 F.3d 895

(7th Cir. 2005) ....................................................... 17

Thompson v. Holm, 809 F.3d 376 (7th Cir. 2016) ... 13

Trinity Lutheran Church v. Comer, __ U.S. __, 137 S.

Ct. 2012 (2017)................................................ 14, 15

Turner v. Safley, 482 U.S. 78 (1987) ........9, 11, 12, 15

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005)

............................................................................... 16

Williams v. Morton, 343 F.3d 212 (3d Cir. 2003) .... 13

v

Statutes

28 U.S.C. § 1254 ......................................................... 1

28 U.S.C. § 1291 ......................................................... 1

28 U.S.C. § 1331 ......................................................... 1

42 U.S.C. § 2000cc-1 ............................................. 2, 16

Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1 et seq.

...................................................................... i, 15, 17

Constitutional Provisions

U.S. Const. Amend. I ................................................. 1

1

Richard R. Watkinson respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS AND ORDERS BELOW

The Ninth Circuit Court of Appeals did not select

its opinion for publication. It is reprinted in the Appendix. [A1-A5].

The district court did not select its opinion for publication. It is reprinted in the Appendix. [A6-A36].

JURISDICTION

The district court had jurisdiction under 28 U.S.C.

§ 1331. Judgment entered on January 26, 2021.

The U.S. Court of Appeals for the Ninth Circuit

had jurisdiction under 28 U.S.C. § 1291.

This Court has jurisdiction to review the judgment

of the Ninth Circuit. 28 U.S.C. § 1254(1). Judgment

entered on May 2, 2022.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. Amend. I:

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.

2

***

42 U.S.C. § 2000cc-1:

(a) General rule

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution, as

defined in section 1997 of this title, 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.

(b) Scope of application

This section applies in any case in which—

(1) the substantial burden is imposed in

a program or activity that receives

Federal financial assistance; or

(2) the substantial burden affects, or

removal of that substantial burden

would affect, commerce with foreign

nations, among the several States, or

with Indian tribes.

3

STATEMENT OF THE CASE

I. Proceedings in the District Court

Petitioner Richard R. Watkinson is a prisoner of

the Alaska Department of Corrections (“DOC”). He

filed suit in the U.S. District Court for the District of

Alaska because previous religious accommodations

were revoked following a reinterpretation of the

DOC’s existing policies and procedures.

A. The Parties’ Stipulations

The parties made numerous trial stipulations, including the following.

Mr. Watkinson is an Asatru adherent and a prisoner of the DOC, which is subject to the RLUIPA. At

all relevant times, the DOC has recognized the Asatru

faith for congregate worship. Mr. Watkinson’s congregation, called the Blodtyrggr Kindred, “accept[s] any

inmate who wishes to attend services or other congregant activities….”

By policy, the DOC has authorized a prisoner welfare fund (“PWF”) at each facility, funded by a 3% surcharge on commissary items. PWF funds “may be expended for charitable, recreational and educational

purposes when approved and authorized in writing by

the Superintendent or their designee.” By policy, prisoner groups can submit proposals to the Superintendent for PWF funds, “to pay for special events, recreation equipment, special programs and appliances purchased for prisoner use and/or benefit.” Neither of the

relevant policies “authorizes PWF funds to be used for

activities of a particular religious group.”

4

In 2014, the DOC’s Goose Creek Correctional Center (“GCCC”) began purchasing firewood for sweat

lodges with PWF funds. In May 2016, following a successful grievance from Mr. Watkinson, GCCC also allowed Asatru practitioners to obtain firewood through

the PWF. In the DOC decision resolving his grievance,

a DOC administrator wrote that “if the facility is [later] no longer able to provide firewood through the

[PWF, then Mr. Watkinson would be] allowed to request reasonable alternatives to obtain it.”

Beginning in or about February 2017, Respondent

Dial began to prohibit the Asatru faith group from using PWF-purchased wood, while continuing to allow

the sweat lodge to use PWF-purchased firewood.

The PWF did, and still does, purchase firewood for

the GCCC sweat lodge.

From 2015-17, Mr. Watkinson and the other members of his Kindred donated money from their offender

trust accounts (“OTAs”) to the PWF, which the PWF

pooled and held for them. Their virtual balance within

the PWF was then used to purchase juice and honey,

which is used in Asatru religious celebrations. Purchasing juice and honey through the PWF resulted in

significant savings for Mr. Watkinson. But in June

2017, Respondent Dial stated that the DOC would no

longer allow virtual balance.

B. The Bench Trial

The district court held a bench trial to consider

whether to grant Mr. Watkinson the declaratory and

injunctive relief that he sought. It ruled against him.

5

1. Mr. Watkinson’s Requested Relief

Mr. Watkinson sought a declaratory judgment:

• That he had been wrongfully denied the “the

right to compete for PWF funds to purchase

firewood and food/beverage products,”

• That the PWF policies are illegal insofar as

they “categorically exclude” religious groups

like his Asatru Kindred “from being eligible to

obtain PWF funds,” and

• That the DOC must permit prisoners like him

to “donate funds to reimburse the PWF for purchases that would not otherwise have sufficiently broad appeal to merit PWF purchase

without inmate reimbursement, subject to the

Superintendent’s ability to deny particular requests for religiously neutral reasons.”

He also sought an injunction requiring the DOC

and its employees: “1. [t]o cease discrimination

against religion in general and Asatru in particular

with respect to the PWF; and 2. [t]o develop criteria

independent of religion for evaluating PWF funding

requests within 45 days of the entry of judgment.”

2. The District Court’s Findings of Fact

The district court accepted that Mr. Watkinson is

an adherent of the Asatru faith. [A11-A12 ¶2]. As part

of Mr. Watkinson’s religious practice, he attends a

weekly ceremony, called a blot, which requires firewood. [A12 ¶3]. Additionally, he uses juice and honey

for his religious celebration. [A12 ¶3].

6

“Cultural and non-religious groups are able to

submit requests to utilize funds from the PWF, but

they are not guaranteed to receive what they request.

Religious groups are not able to obtain funding from

the PWF.” [A12-A13 ¶4 (footnotes omitted)]. Under

the DOC’s policies, the DOC “‘is not responsible for

the procurement of any faith group property or

equipment.’” [A13 ¶5 (quoting DOC policy 816.01)].

In 2017, Respondent Duncan, the statewide DOC

chaplaincy coordinator, determined that Mr. Watkinson and the other Asatru practitioners would no longer be allowed to use PWF firewood. [A11 ¶1, A13-14

¶7. Respondent Dial announced that change at GCCC.

[A14 ¶7].1

After the DOC stopped allowing Mr. Watkinson to

use PWF firewood and to maintain a virtual balance

in the PWF for his juice and honey purchases, “there

were times when he was not able to obtain the items

because the Asatru faith group did not have the ‘financial accommodations’ to be able to buy enough, or

the families of members were unable to donate items

or funds in time for the ceremony.” [A14-A15 ¶9]. The

district court accepted Mr. Watkinson’s unrebutted

testimony “that the new interpretation of Alaska’s

DOC’s policy [has] subjected him to increased personal expense, delay, and un-certainty in obtaining firewood, juice, and honey, as he is no longer able to utilize the PWF to obtain these items.” [A14 ¶8 (footnote

omitted)].

1 Mr. Watkinson testified at trial that he would now

face disciple for using PWF firewood.

7

By contrast, the sweat lodge continues to receive

PWF-purchased firewood. [A17 ¶15]. It is “accessible

to all inmates; however, … it is run in a ‘Lakota Sioux’

way, in which there are several rounds of prayer….

[It] is operated by a Native American cultural group

that is separate from the Native American religious

groups at GCCC.” [A17 ¶15].

At trial, a DOC administrator testified that the

DOC no longer permits Mr. Watkinson to maintain a

virtual account within the PWF because “the Department of Administration and bank rules both prohibit

the Alaska DOC from creating individual accounts for

groups within the PWF.” [A15 ¶10]. Of course, the

PWF had previously been able to create and maintain

such an account for Mr. Watkinson and the other Asatru practitioners. [A13 ¶6]. No particular statute or

regulation was ever cited as substantiating that testimony. Indeed, in deposition testimony admitted into

evidence at trial, the administrator admitted that he

was “not sure if there’s a statute or a regulation that

prohibits [a virtual balance] or whether it [is] just a

policy issue.” Further, although Mr. Watkinson and

the Asatru are no longer able to maintain a virtual

balance in the PWF, “[a] prisoner organization at the

‘Hiland Mountain’ facility maintains its own account

through the PWF. The group facilitates a greenhouse

project and sells plants…. [DOC] and banking institutions allow this group to continue maintaining its own

balance due to the longstanding nature of the program.” [A17 ¶14 (footnotes omitted)].

The DOC also proffered concerns that allowing virtual accounts may allow fraud and other criminal activity “through ‘strong-arming.’” [ER 15 ¶10 (footnote

omitted)]. Yet the district court recognized that the

8

DOC had “produced no evidence of actual fraud that

has occurred” in connection with virtual accounts.

[A30]. And in his deposition, admitted into evidence,

the DOC administrator had testified that he was “unaware of any security problems that did or could arise

in that process.”

Further, the DOC worried that “it is ‘not legal’ to

allow religious groups to use the PWF to purchase religious items”, given the Establishment Clause. [A16

¶12 (footnote omitted)].

Finally, the DOC administrator maintained in his

testimony “that it is ‘not feasibly administratively

possible’ to distribute PWF funds to religious groups

in a way that gives each group its ‘fair share,’ due to

the diversity of the inmate population.” [A16 ¶13

(footnote omitted)]. He worried “that if Alaska DOC

were to make PWF funds available for religious purposes, ‘the fund would wind up being a hundred percent [consumed by religious endeavors]…,’ which

would run counter to its goals of providing recreational and educational activities for the benefit of the entire prison population.” [A16 ¶13 (footnote omitted)

(alteration in original)].

3. The District Court’s Conclusions of Law

The district court ruled against Mr. Watkinson on

his RLUIPA claim. It found that he had not established a substantial burden on his religious practice

because RLUIPA does not require subsidization of religious belief and because he can obtain firewood donations from family and can purchase juice and honey

from the commissary, [A19-A22 ¶¶6-8].

9

In the alternative, the district court concluded that

the DOC’s good-faith Establishment Clause concerns

over the prior accommodations for Mr. Watkinson

constituted a compelling state interest. [A24 ¶10]. The

district court also said that potential security concerns

from the accommodations counted as a compelling

state interest. [A25 ¶11].

The district court concluded that the prohibition on

“utilizing the PWF to purchase religious items,”

whether with or without a virtual balance, was the

least restrictive means of furthering the state’s compelling interests. [A26 ¶12].

As for Mr. Watkinson’s Free Exercise Claim, the

district court found no constitutional violation. [ER

022 ¶13]. For the same reasons as for the RLUIPA

claim, the district court found that the PWF’s rules

pose no substantial burden on Mr. Watkinson’s religious exercise. [A27 ¶14]. In the alternative, the district court determined that the restrictions on his Free

Exercise were reasonable under Turner v. Safley, 482

U.S. 78 (1987). [A28 ¶15].

Finally, the district court rejected Mr. Watkinson’s

Equal Protection Claim. [A32-A33 ¶17]. It believed

that there was no evidence of intentional religious discrimination. [A33-A35 ¶18]. Alternatively, it believed

that the different treatment between Mr. Watkinson

and between the sweat lodge and the Hiland group

was reasonable under Turner. [A34-35 ¶18].

II. The Appeal to the Ninth Circuit

The Ninth Circuit affirmed. [A1-A5].

10

With respect to the RLUIPA claim, it affirmed the

district court because the DOC’s “policies do not deny

[Mr. Watkinson] access to any item necessary for his

religious ceremonies, and Plaintiff may procure all

necessary items without access to the PWF.” [A3 ¶1].

As for his Free Exercise claim, the Ninth Circuit

held that the same failure to show a substantial burden for RLUIPA purposes precluded a Free Exercise

violation. [A4]. Alternatively, it held that the prohibition on religious use of the PWF was “reasonably related to legitimate penological interests: avoiding constitutional issues that might arise from funding one

specific religious group, maintaining prison security,

avoiding favoritism, and ensuring that PWF funds

support charitable, recreational, and educational opportunities available to the entire prison population.”

[A4 ¶2 (citations omitted)].

As for Equal Protection, the Ninth Circuit held

that that claim could not succeed, either. [A4-A5 ¶3].

The reason was that “[t]he prison director testified

that the groups are not similarly situated because the

sweat lodge is a cultural rather than a religious activity. [It] accord[ed] deference to such testimony in determining whether two groups are similarly situated.”

[A5 ¶3].

11

REASONS FOR GRANTING THE PETITION

I.

This Court Should Consider the Free Exercise Claim Because the Circuits Are Divided

About How to Evaluate Constitutional Religious Liberty Claims from Prisoners.

“[P]risoners do not forfeit all constitutional protections by reason of their conviction and confinement in

prison. Inmates clearly retain protections afforded by

the First Amendment, including its directive that no

law shall prohibit the free exercise of religion.” O’Lone

v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations and quotations omitted). Yet incarceration renders necessary some restrictions on inmates’ constitutional rights, “both from the fact of incarceration and

from valid penological objectives….” Id.

This Court has previously applied the general

framework set forth in Turner v. Safley, 482 U.S. 78

(1987), to decide how much of a restriction on an inmate’s Free Exercise rights the Constitution permits.

O’Lone, 482 U.S. at 349 (applying Turner to a case involving challenge to restriction on congregate worship). Under that test, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89. In making that reasonableness determination, courts must

consider four factors:

• “First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to

justify it.” Id. (quotation and citation omitted).

But not just any objective will suffice: “[T]he

12

governmental objective must be a legitimate

and neutral one….” Id. at 90.

• “A second factor relevant in determining the

reasonableness of a prison restriction…is

whether there are alternative means of exercising the right that remain open to prison inmates.” Id.

• “A third consideration is the impact accommodation of the asserted constitutional right will

have on guards and other inmates, and on the

allocation of prison resources generally.” Id.

• “Finally, the absence of ready alternatives is

evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that

the regulation is not reasonable but is an exaggerated response to prison concerns.” Id. (citations and quotation omitted).

While the lower courts all believe that Turner controls how to evaluate a Free Exercise challenge to a

prison regulation, they are deeply divided about when

to conduct the analysis. One group of courts—

including the Ninth Circuit, below—has held that a

prisoner must first show that the prison regulation at

issue places a “substantial burden” on religious practice before the Turner factors might render the regulation unconstitutional. Jones v. Williams, 791 F.3d

1023, 1031 (9th Cir. 2015) (“A person [including a

prisoner] asserting a free exercise claim must show

that the government action in question substantially

13

burdens the person’s practice of her religion.” (citation

omitted)).2 But other courts have not required a showing of a substantial burden before considering the

Turner factors. Butts v. Martin, 877 F.3d 571, 586 (5th

Cir. 2017) (“Generally, this Court has not required a

preliminary showing that a regulation substantially

interferes with an inmate’s religious rights before assessing whether the regulation is reasonably related

to a penological interest.” (footnote omitted)).3

2 Accord, e.g., Thompson v. Holm, 809 F.3d 376, 379

(7th Cir. 2016) (requiring prisoner to show that “the

defendants personally and unjustifiably placed a

substantial burden on his religious practices” (citations omitted)); Levitan v. Ashcroft, 281 F.3d 1313,

1320 (D.C. Cir. 2002) (“[T]he First Amendment is

implicated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on

the litigant’s religious practice.”).

3 Accord, e.g., Williams v. Morton, 343 F.3d 212, 217

(3d Cir. 2003) (“Officials argue that it is…a prerequisite for the inmate to establish that the challenged

prison policy ‘substantially burdens’ his or her religious beliefs. There is no support for that assertion.”); Murphy v. Mo. Dep't of Corr., 372 F.3d 979,

983 (8th Cir. 2004) (“In analyzing this [Free Exercise] claim, we consider first the threshold issue of

whether the challenged governmental action infringes upon a sincerely held religious belief and then apply the Turner factors to determine if the regulation

restricting the religious practice is reasonably related to legitimate penological objectives.” (quotations

omitted)).

14

For his part, Mr. Watkinson would submit that the

Ninth Circuit’s substantial-burden prerequisite is

wrong, at least in a case like this one. After all, this

case involves the government treating non-religion

better than religion. The PWF is categorically authorized to subsidize secular uses of firewood and edible

items like honey and juice. But religious requests for

those same items are categorically prohibited. [A12-13

¶4 (“Religious groups are not able to obtain funding

from the PWF.” (footnote omitted)].

In the civilian context, this Court has not required

plaintiffs in similar situations to show an actual burden on their religious practice, much less a substantial

one. For example, this Court recently held that the

Free Exercise Clause barred Maine from excluding

religious schools from its voucher program. Carson v.

Makin, __ U.S. __, 142 S. Ct. 1987 (2022). In Espinoza

v. Montana Dep’t of Revenue, 591 U.S. __, 140 S. Ct.

2246 (2020), the Court held that Montana could not

forbid publicly funded scholarships to be used to for

religious schools. And in Trinity Lutheran Church v.

Comer, __ U.S. __, 137 S. Ct. 2012 (2017), the Court

held that Missouri could not exclude a grant applicant

just because the applicant was a church. In those cases, what mattered was that the government required

secularism to receive a benefit at all. See Trinity Lutheran, __ U.S. at __, 137 S. Ct. at 2024 (“The State

has…expressly den[ied] a qualified religious entity a

public benefit solely because of its religious character.

Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.” (footnote omitted)).

Furthermore, as Mr. Watkinson argued below, the

Turner reasonableness test should not even apply at

15

all here. In Johnson v. California, 543 U.S. 499 (2005),

which applied strict scrutiny instead of Turner reasonableness to a policy of racial segregation in prisons,

this Court made clear that Turner applies “only to

rights that are inconsistent with proper incarceration.” Johnson, 543 U.S. at 510 (quotation omitted).

The right to be free from racial discrimination “is not

a right that need necessarily be compromised for the

sake of proper prison administration,” thus making

Turner irrelevant. Id. at 510. The right to expect religious neutrality from the government ought to be held

just as fully compatible with proper prison administration as is the right to be free from racial discrimination. After all, religious discrimination is also “odious to our Constitution. “Trinity Lutheran, __ U.S. at

__, 137 S. Ct. at 2025.

Reviewing the Free Exercise claim would bring

much-needed clarity to the lower courts about how to

evaluate claims that prisons refuse to place religion on

equal footing with non-religion.

II. This Court Should Also Review the RLUIPA

Claim to Determine Whether a Nonconstitutional Ground for Reversal Exists.

Consistent with the policy of judicial restraint,

“prior to reaching any constitutional questions, federal

courts must consider nonconstitutional grounds for

decision.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 99

(1981) (citation omitted). Because RLUIPA provides a

statutory basis for the relief Mr. Watkinson sought

below, this Court should review Ninth Circuit’s rejection of the RLUIPA claim, too.

16

Using its Commerce Clause authority, Congress

enacted RLUIPA to provide “expansive protections for

religious liberty” in prisons. Holt v. Hobbs, 574 U.S.

352, 358 (2015). See also Mayweathers v. Newland,

314 F.3d 1062, 1069 (9th Cir. 2002) (“[Under RLUIPA,] prison officials remain free to run their prisons as

they see fit. RLUIPA just prohibits prison officials

from unduly burdening inmates’ free exercise of religion in the process…. If states disagree with the requirements of RLUIPA, they remain free to forgo federal funding and opt out of its mandates.”). Congress

enacted the statute after it “documented, in hearings

spanning three years, that frivolous or arbitrary barriers impeded institutionalized persons' religious exercise.” Cutter v. Wilkinson, 544 U.S. 709, 716 (2005)

(quotation omitted).

In state prisons where RLUIPA applies, like in

Alaska, the government cannot lawfully “impose a

substantial burden on the religious exercise” of a prisoner, “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). Thus, Congress intentionally substituted

strict scrutiny for the government-friendly Turner

reasonableness test. See e.g., Warsoldier v. Woodford,

418 F.3d 989, 998 (9th Cir. 2005) (“RLUIPA replaced

Turner’s ‘legitimate penological interest’ test with a

‘compelling government interest’ test.” (citation omitted)).

The Ninth Circuit below, however, never engaged

in otherwise-applicable strict-scrutiny analysis because it thought that Mr. Watkinson had not shown a

17

substantial burden. Mr. Watkinson respectfully submits that the Ninth Circuit was wrong. As a matter of

fact, the district court found that “the new interpretation of Alaska DOC’s [PWF] policy [has] subjected

[Mr. Watkinson] to increased personal expense, delay,

and uncertainty in obtaining firewood, juice, and honey…. [T]here were times when he was not able to obtain these items….for the [blot] ceremony.” [A14 ¶8].

That ought to have been enough—as a matter of

law—to qualify as a substantial burden. See Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City

of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005) (collecting cases) (finding that “delay, uncertainty, and

expense” sufficed to show a substantial burden under

RLUIPA and rejecting the notion that a burden must

be “insuperable” to be substantial).

Had the Ninth Circuit reached the strict-scrutiny

analysis, it should have ruled for Mr. Watkinson.

While the district court was certainly correct that

complying with the Constitution is a compelling governmental interest, [A24 ¶10], it was wrong to have

believed that the Constitution somehow requires intentional discrimination against religion with respect

to consideration to grant-funding requests. “[T]he

guarantee of neutrality is respected, not offended,

when the government, following neutral criteria and

evenhanded policies, extends benefits to recipients

whose ideologies and viewpoints, including religious

ones, are broad and diverse.” Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995)

(citations omitted) (holding that the Establishment

Clause did not allow a university to refuse to allow religious student groups to compete for funds available

to secular student groups).

18

Likewise, while the district court was correct that

maintaining prison security is a compelling governmental interest, [A25 ¶11], it was wrong to have believed that those considerations justified the reinterpretation of the PWF policy. During the almost two

years preceding the reinterpretation of the policy, no

actual or threatened security issues arose. The district

court should have focused on the real-world experience here rather than deferring to mere hypothetical

concerns from a prison administrator:

[Caselaw only requires] deferring to

prison officials’ reasoning when that

deference is due—that is, when prison

officials offer a plausible explanation

for their chosen policy that is supported

by whatever evidence is reasonably

available to them. But the deference

that must be “extend[ed to] the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling

governmental interest by fiat.” Yellowbear v. Lampert, 741 F.3d 48, 59

(CA10 2014). Indeed, prison policies

“‘grounded on mere speculation’” are

exactly the ones that motivated Congress to enact RLUIPA. 106 Cong. Rec.

16699 (2000) (quoting S. Rep. No. 103111, p, 10 (1993)).

Holt, 574 U.S. at 371 (Sotomayor, J., concurring).

Because RLUIPA could provide a statutory basis to

award relief to Mr. Watkinson, this Court should con-

19

sider that basis before it reaches the constitutional

claim.

CONCLUSION

For the forgoing reasons, this Court should grant

this Petition and reverse the judgment below.

Dated: August 1, 2022

Respectfully submitted,

RICHARD R. WATKINSON

s/Howard W. Anderson III

Howard W. Anderson III

Counsel for Petitioner

TRULUCK THOMASON, LLC

3 Boyce Ave.

Greenville, SC 29601

864-331-1751

howard@truluckthomason.com

No. ________

In The

Supreme Court of the United States

RICHARD R. WATKINSON,

V.

Petitioner,

ALASKA DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

APPENDIX

Howard W. Anderson III

TRULUCK THOMASON, LLC

3 Boyce Ave.

Greenville, SC 29601

864-331-1751

howard@truluckthomason.com

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS OF THE APPENDIX

WATKINSON V. STATE OF ALASKA, No. 21-35084

[dkt. 40-1] (9th Cir. May 2, 2022). ............................ A1

Watkinson v. State of Alaska, No. 3:17-cv-00236JMK [dkt. 102] (D. Ak. Dec. 31, 2020) .................... A6

A1

FILED

MAY 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD R. WATKINSON,

Plaintiff-Appellant,

v.

ALASKA DEPARTMENT OF

CORRECTIONS; EARL

HAUSER; JAMES DUNCAN; SCOTT DIAL,

Defendants-Appellees,

No. 21-35084

D.C. No. 3:17-cv00236-JMK

MEMORANDUM*

and

KEITH ROGERS; JOHN

CONANT,

Defendants.

Appeal from the United States District Court

for the District of Alaska.

Joshua M. Kindred, District Judge, Presiding.

February 15, 2022, Argued and Submitted

San Francisco, California

* This

disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

A2

Before: McKEOWN and W. FLETCHER, Circuit

Judges, and VRATIL,** District Judge.

Plaintiff Richard Watkinson—a prisoner in the

Alaska Department of Corrections ("ADOC") and a

practitioner of Asatru—appeals from the district

court's judgment for Defendants ADOC, Earl

Hauser, James Duncan, and Scott Dial. Plaintiff

claims that Defendants violated the Religious Land

Use and Institutionalized Persons Act ("RLUIPA"),

42 U.S.C. § 2000cc et seq., Plaintiff's First Amendment right to free exercise of religion, and Plaintiff's

Fourteenth Amendment right to equal protection.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review district court findings of fact for clear

error. Winding Creek Solar LLC v. Peterman, 932

F.3d 861, 864 (9th Cir. 2019). We review de novo the

district court's conclusions of law and determinations on mixed questions of law and fact. Cal. First

Amend. Coal. v. Woodford, 299 F.3d 868, 872-73 (9th

Cir. 2002).

1. Plaintiff argues that the Defendants substantially burdened his religious exercise in violation of

the RLUIPA by preventing him from using firewood

purchased through ADOC's Prison Welfare Fund

("PWF") for religious purposes and from using the

PWF to pool funds with other prisoners to purchase

his juice and honey at discounted rates from outside

bulk vendors. The RLUIPA provides that "'[n]o gov-

** The Honorable Kathryn H. Vratil, United States District

Judge for the District of Kansas, sitting by designation.

A3

ernment shall impose a substantial burden on the

religious exercise' of prisoners unless the government can demonstrate that the burden both serves a

compelling government interest and is the least restrictive means of advancing that interest." Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir.

2002) (quoting 42 U.S.C. § 2000cc-1(a)). Plaintiff

bears the initial burden of persuasion as to whether

a policy "substantially burdens" his religious exercise. 42 U.S.C. § 2000cc-2(b). A substantial burden

must be more than a mere inconvenience, imposing

"a significantly great restriction or onus upon [religious] exercise." San Jose Christian Coll. v. City of

Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004).

The RLUIPA does not require a state to facilitate or

subsidize the exercise of religion or pay for devotional accessories. Cutter v. Wilkinson, 544 U.S. 709, 720

n.8, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005); see

Mayweathers, 314 F.3d at 1068-69.

ADOC policies do not deny Plaintiff access to any

item necessary for his religious ceremonies, and

Plaintiff may procure all necessary items without

access to the PWF. Defendants' policies thus did not

substantially burden the exercise of Plaintiff's religious practice, and the district court did not err in

determining that Defendants did not violate the

RLUIPA. See Hartman v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1125 (9th Cir. 2013) (prison not

required to provide an additional religious accommodation of a full-time Wiccan chaplain).

2. Plaintiff argues that Defendants violated his

First Amendment rights for the same reasons. The

Free Exercise Clause of the First Amendment states

that the government shall make no law "prohib-

A4

it[ing] the free exercise of religion." O'Lone v. Est. of

Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 96 L.

Ed. 2d 282 (1987). Though the right to engage in religious practices does not terminate at the prison

door, the right "is necessarily limited by the fact of

incarceration." Jones v. Williams, 791 F.3d 1023,

1032 (9th Cir. 2015) (citation omitted). As with the

RLUIPA, a prisoner asserting a free exercise claim

must show that the government policy has substantially burdened his practice of religion. Id. at 1031. If

the burden is substantial, the challenged conduct

will be valid if "reasonably related to legitimate penological interests." Id. at 1032 (quoting O'Lone, 482

U.S. at 349).

For reasons stated above, the district court did

not err in determining that Defendants' conduct did

not substantially burden Plaintiff's religious exercise. Furthermore, even if it did so, PWF policies

were reasonably related to legitimate penological interests: avoiding constitutional issues that might

arise from funding one specific religious group,

maintaining prison security, avoiding favoritism,

and ensuring that PWF funds support charitable,

recreational, and educational opportunities available

to the entire prison population. See Thornburgh v.

Abbott, 490 U.S. 401, 415, 109 S. Ct. 1874, 104 L. Ed.

2d 459 (1989); Walker v. Beard, 789 F.3d 1125, 1138

(9th Cir. 2015). The district court thus did not err in

denying relief on Plaintiff's Free Exercise claim.

3. Plaintiff argues that Defendants violated his

Fourteenth Amendment rights when they treated

the Native American cultural group differently from

Asatru practitioners by allowing the Native Ameri-

A5

can group to use PWF-purchased firewood at the

prison sweat lodge.

The Equal Protection Clause states that no state

shall "deny to any person . . . the equal protection of

the laws." U.S. Const. amend XIV, § 1. To state an

equal protection claim, an inmate must identify a

group of individuals to whom he is similarly situated

and allege intentional and disparate treatment. See

McCollum v. Cal. Dep't of Corr. & Rehab., 647 F.3d

870, 880-81 (9th Cir. 2011). The similarly situated

group need not be similar in all aspects but must be

similar "in respects that are relevant to the state's

challenged policy." Gallinger v. Becerra, 898 F.3d

1012, 1016 (9th Cir. 2018).

The prison director testified that the groups are

not similarly situated because the sweat lodge is a

cultural rather than a religious activity. We accord

deference to such testimony in determining whether

two groups are similarly situated. See O'Lone, 482

U.S. at 349; Thornton v. City of St. Helens, 425 F.3d

1158, 1168 (9th Cir. 2005) ("Evidence of different

treatment of unlike groups does not support an equal

protection claim."). The district court did not clearly

err in relying on that testimony to determine that

the two groups are not similarly situated for purposes of the Equal Protection Clause.

AFFIRMED.

A6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

RICHARD R. WATKINSON,

Plaintiff,

Case No. 3:17-cv00236-JMK

vs.

STATE OF ALASKA, DEPARTMENT

OF CORRECTIONS; EARL

HOUSER,

JAMES DUNCAN; and SCOTT

DIAL,

MEMORANDUM

OF DECISION

Defendants.

I. INTRODUCTION

This matter came before the Court for bench trial,

which commenced on November 9, 2020, and concluded with the parties submitting written closing

arguments on November 13, 2020, and December 9,

2020, respectively.1 Plaintiff, Richard Watkinson,

alleges Defendants State of Alaska Department of

Corrections (Alaska DOC), Earl Houser,2 James

1 Dockets 92; 99.

2 The parties misspelled Mr. Houser's name on various plead-

ings. In this Order, the Court uses the name listed on the State

of Alaska Employee directory.

A7

Duncan, and Scott Dial in their official capacities,

violated his rights under the Religious Land Use

and Institutionalized Persons Act (RLUIPA)3 and

the First and Fourteenth Amendments of the United

States Constitution.4

II. PROCEDURAL HISTORY

On November 8, 2017, Mr. Watkinson, an inmate

incarcerated at the Goose Creek Correction Center

(GCCC) in Wasilla, Alaska, filed a Complaint pro se

against the Alaska DOC and five of its employees in

their individual and official capacities alleging three

causes of action.5

First, Mr. Watkinson alleged his constitutional

First and Fourteenth Amendment rights were violated when Defendants "discriminat[ed] against the

religion of Asatru"; "treat[ed] practitioners of the

Asatru faith as if they were members of an STG

group6 based solely upon their race and religious

preference . . . [and] retaliat[ed] against Plaintiff

and Asatru practitioners for pursuing fair treatment

3 Docket 1 at 2-3.

4 Id.

5 Mr. Watkinson's Complaint named as Defendants: John Co-

nant, the Superintendent of GCCC "at all times relevant";

"Earl Hauser," who is Earl Houser, the "current" Superintendent; James Duncan, Chaplaincy Coordinator for the Alaska

DOC; Scott Dial, a correctional officer of the Alaska DOC; and

Keith Rogers, a correctional officer of the Alaska DOC. Id. at 13.

6 STG refers to a "Security Threat Group." Id. at 4.

A8

and their religious rights . . . ."7 Second, Mr. Watkinson alleged his constitutional First and Fourteenth Amendment rights were violated when Defendants: (1) engaged in "discriminatory and biased

practices that discourage[d] prisoners from the practice of Asatru, while encouraging the practice of other religions"; (2) "subject[ed] practitioners of the

Asatru faith to treatment not leveled at other religious practices"; (3) "den[ied] a benefit to Asatru

practitioners that is afforded to other prisoners

and/or religious practices"; and (4) "creat[ed] a negative environment that places Asatru practitioners

under emotional distress . . . ."8 Third, Mr. Watkinson alleged Defendants "placed a substantial burden

upon Plaintiff['s] religious practice" in violation of

RLUIPA by: (1) "unnecessarily separating Asatru

practitioners from their consecrated religious items";

(2) preventing Plaintiff and other Asatru practitioners from observing "religious High Feasts"; (3) "preventing Asatru practitioners access and utilization

of the Prisoner Welfare Fund in support of [] religious practice"; and (3) "forcing Plaintiff and Asatru

practitioners to pay exorbitant prices for all natural

juice from the facility commissary."9 Mr. Watkinson

requested various declaratory and injunctive relief,

punitive damages in the amount of $50,000 against

each named defendant, and costs.10

7 Id. at 17-18.

8 Id. at 18-19.

9 Id. at 19-20.

10 Id. at 21-22.

A9

On December 5, 2017, Howard Walton Anderson,

III, entered an appearance on behalf of Mr. Watkinson.11 Alaska DOC filed an Answer to Mr. Watkinson's Complaint on June 18, 2018; Defendants Conant, Dial, Duncan, Houser, and Rogers filed an Answer on October 22, 2018.12 On March 29, 2019, the

Court dismissed, as per the parties' stipulation, "all

claims against Defendants John Cogant [sic] and

Keith Rogers" without prejudice, "all claims against

Defendant State of Alaska—except those relating to

the Prisoner Welfare Fund under 42 U.S.C. 2000cc

et seq and/or for declaratory and injunctive relief"

without prejudice, and "all claims against Defendants Earl Hauser [sic], Scott Dial, James Duncan, and Keith Rogers—except those relating to the

Prisoner Welfare Fund," without prejudice.13

On January 22, 2020, Mr. Watkinson moved to

withdraw his prayer for damages, and the Court

granted his request for leave to pursue only declaratory and injunctive relief against Defendants, as

well as costs and fees.14 His demand for a jury trial

was withdrawn.15 Mr. Watkinson now specifically

requests that this Court declare: (1) "[t]he Defendants violated his RLUIPA, First Amendment, and

11 Docket 7.

12 Dockets 14; 24.

13 Dockets 29; 30. It appears that the parties only meant to pre-

serve claims against Defendants Houser, Dial, and Duncan,

and mistakenly included Rogers in this list. See Docket 68 at 1

(Joint Statement of Issues) (listing Earl Houser, James Duncan, and Scott Dial as the remaining defendants).

14 Dockets 59; 62.

15 Docket 80 at 2.

A10

Equal Protection Rights, in that they have unlawfully deprived him of the right to compete for PWF

funds to purchase firewood and food/beverage products"; (2) that "DOC Policy and Procedure § 302.10,

Paragraph III and/or Policy & Procedure 815.03

Paragraph (V)(A)-(C) are illegal insofar as they categorically exclude religious organizations from being

eligible to obtain PWF funds"; and (3) "Mr. Watkinson and other religious practitioners can individually or collectively donate funds to reimburse the PWF

for purchases that would not otherwise have sufficiently broad appeal to merit PWF purchase without

inmate reimbursement, subject to the Superintendent's ability to deny particular requests for religiously neutral reasons."16

"Mr. Watkinson also requests that the Court order

the Defendants: (1) [t]o cease discrimination against

religion in general and Asatru in particular with respect to the PWF; and (2) [t]o develop criteria independent of religion for evaluating PWF funding requests within 45 days of the entry of judgment."17

III. FINDINGS OF FACT AND CONCLUSIONS

OF LAW

Federal Rule of Civil Procedure 52(a) provides

that "in an action tried on the facts without a jury . .

. the court must find the facts specially and state its

conclusions of law separately." Having considered

the testimony of the witnesses, the exhibits admit16 Docket 92 at 14.

17 Id. at 14-15.

A11

ted into evidence, and the parties' arguments and

filings, this Court now makes the Findings of Fact

and Conclusions of Law as set forth below.18

A. Findings of Fact

1. The Parties. Mr. Watkinson is a prisoner of

the Alaska DOC and is incarcerated at GCCC.19

Alaska DOC is a state agency charged with the care

of prisoners and is subject to RLUIPA. Defendant

Houser is the Superintendent of GCCC, where Lieutenant Dial is a correctional officer.20 Defendant

Duncan is the Chaplaincy Coordinator for Alaska

DOC.21

2. The Asatru Faith. Mr. Watkinson is a practitioner of Asatru, a recognized faith group within the

Alaska DOC, and belongs to a congregation known

as the Blodtryggr Kindred.22 Asatru is a polytheistic

religion with roots in ancient Scandinavia, and followers worship deities such as Thor, Odin, and

18 This Memorandum of Decision does not purport to recite all

of the evidence submitted and arguments made by the parties.

See Fed. R. Civ. P. 52(a) Advisory Committee's Note (1946

Amendment). ("[T]he judge need only make brief, definite, pertinent findings and conclusions upon the contested matters;

there is no necessity for over-elaboration of detail or particularization of facts.").

19 Docket 80 at 3.

20 Id.

21 Id.

22 Id. at 3-4.

A12

Freya.23 The Court finds the testimony of Mr. Watkinson to be credible.

3. Religious Items. Firewood is used by Asatru

practitioners during a weekly ceremony known as a

blot.24 During the blot, a fire is built, which has spiritual and religious significance to Asatru practitioners.25 Three drinking rounds are held using juice

and honey to simulate mead, and worshipers speak

in honor of certain gods, goddesses, or heroes.26

4. The Prisoner Welfare Fund (PWF). Alaska

DOC administers the PWF at GCCC in accordance

with DOC policy 302.10 ("Prisoner Welfare Fund").

The PWF is "[a] fund established at an institution in

order to provide loans or grants to prisoners or prisoner organizations for activities not funded by general appropriations from the Department."27 The

PWF may only be used for "charitable, recreational

and educational purposes when approved and authorized in writing by the Superintendent or their

designee."28 Cultural groups and non-religious

groups are able to submit requests to utilize funds

23 Id. at 4.

24 Docket 93 at 20.

25 Id.

26 Id. at 20, 24-25.

27 Docket

69-1 at 1 ("It is the policy of the Department that

money in the Prisoner Welfare Fund will be used to the benefit

of the prisoners or prisoner organization for activities not

funded by the Department through general appropriations.").

28 Id. at 2.

A13

from the PWF, but they are not guaranteed to receive what they request.29 Religious groups are not

able to obtain funding from the PWF.30 The PWF is

funded by a three percent (3%) surcharge on most

commissary items.31

5. Faith Group Property Policy. DOC policy

816.01 (“Faith-Based Programming and Chaplaincy

Services”) provides that "[t]he Department is not responsible for the procurement of any faith group

property or equipment."32

6. Access to the PWF. Prior to a reevaluation of

Alaska DOC's policy in May 2017 (discussed infra),

Mr. Watkinson was able to donate money from his

Offender Trust Account (“OTA”) to the PWF, which

would be held for the benefit of the Asatru faith

group.33 Asatru members could pool their money together and access the fund to the purchase firewood,

juice, and honey for their worship. This allowed the

Asatru faith group to circumvent the prison commissary, where the items otherwise are available. Items

are subject to a mark-up in price if purchased

through the commissary.34

7. Alaska DOC's Reevaluation of the PWF

Policy. In February 2017, Defendant Duncan sent

29 Docket 93 at 51-52.

30 Id. at 51.

31 Docket 80 at 4.

32 Docket 69-12 at 5.

33 Docket 80 at 6.

34 Dockets 80 at 7; 88 at 4.

A14

an email to Keith Rogers (a correctional officer)

agreeing with Mr. Rogers' analysis that the PWF

should not be used to purchase firewood.35 Subsequently, Defendant Dial announced that the Alaska

DOC had reevaluated its policy with respect to the

PWF and determined that it would no longer allow

the Asatru faith group to obtain firewood purchased

with funds from the PWF.36 Mr. Watkinson filed

grievances, but was unsuccessful in reversing the

prison's new application of its policy.37

8. Burden on Religious Exercise. Mr. Watkinson testified that the new interpretation of Alaska

DOC's policy subjected him to increased personal

expense, delay, and uncertainty in obtaining firewood, juice, and honey, as he is no longer able to utilize the PWF to obtain these items.38 He testified

there were times when he was not able to obtain the

items because the Asatru faith group did not have

the "financial accommodations" to be able to buy

enough, or the families of members were unable to

donate items or funds in time for the ceremony.39

Defendants did not present any evidence to refute

this testimony.

9. Obtaining Firewood, Honey, and Juice

Through Other Means. Mr. Watkinson testified he

was able to purchase juice and honey through the

35 Docket 69-7.

36 Dockets 80 at 7; 69-8.

37 Dockets 69-4; 69-5; 69-10; 69-13.

38 Docket 93 at 26-28.

39 Id. at 27.

A15

prison commissary,40 and that Asatru practitioners

were able to facilitate arrangements for their families to purchase items and have a vendor deliver to

the prison.41 Prison officials encouraged Mr. Watkinson to seek assistance from the wider Asatru

faith community for donated goods.42 Again, the

Court finds this testimony credible.

10. Concerns About Fraud. Jeremy Hough, Director of Institutions for the Alaska DOC, testified

that Department of Administration and bank rules

both prohibit the Alaska DOC from creating individual accounts for groups within the PWF.43 He testified that Alaska DOC has contacted banks about

setting up separate accounts, which have denied the

permission required to do so.44 These institutions

are concerned about "possible fraud," and other

criminal activity achieved through "strong-arming"

"that can go on under the guise of a club, organization, or religious practice."45 The Court found the

testimony of Mr. Hough to be credible.

11. Virtual Balance. According to Mr. Hough, no

other religious or cultural group maintained or

maintains a virtual balance within the PWF at

40 Id. at 26-27.

41 Id.

42 Docket 69-13.

43 Docket 93 at 41.

44 Id. at 49.

45 Id. at 48.

A16

GCCC.46 Plaintiff did not present any evidence to

the contrary.

12. Legal Concerns. Mr. Hough stated it is his

understanding that it is "not legal" to allow religious

groups to use the PWF to purchase religious items.47

Alaska DOC cited to concerns about constitutional

establishment clause violations.48

13. Administrative Efficiency and Fairness.

Mr. Hough testified that it is "not feasibly administratively possible" to distribute PWF funds to religious groups in a way that gives each group its "fair

share," due to the diversity of the inmate population.49 He further testified that if Alaska DOC were

to make PWF funds available for religious purposes,

"the fund would wind up being a hundred percent

[consumed by religious endeavors] because that's

where the push would be,"50 which would run counter to its goals of providing recreational and educational activities for the benefit of the entire prisoner

population. Plaintiff presented no evidence to the

contrary, and the Court finds this testimony to be

credible.

46 Id. at 34.

47 Id. at 42. The Court interprets Mr. Hough's testimony as a

statement of Alaska DOC's policy and belief, rather than a legal conclusion.

48 Id. at 14.

49 Id. at 40, 42.

50 Id. at 43.

A17

14. The Hiland Mountain Group. A prisoner

organization at the "Hiland Mountain" facility maintains its own account through the PWF.51 The group

facilitates a greenhouse project and sells plants.52

According to Mr. Hough, the Department of Administration and banking institutions allow this group

to continue maintaining its own balance due to the

longstanding nature of the program.53 Plaintiffs do

not refute this assertion.

15. The Sweat Lodge. The PWF is drawn upon

to purchase firewood for a sweat lodge at GCCC.54

The sweat lodge is accessible to all inmates; however, Mr. Watkinson testified it is run in a "Lakota

Sioux way," in which there are several rounds of

prayer.55 Defendants presented no evidence to the

contrary, and the Court found this testimony to be

credible. Further, the sweat lodge is operated by a

Native American cultural group that is separate

from the Native American religious groups at

GCCC.56 Mr. Watkinson has attended the sweat

lodge at GCCC close to a dozen times.57

51 Id. at 48.

52 Id.

53 Id. at 49.

54 Dockets 80 at 5; 88 at 2.

55 Docket 93 at 19, 43. According to Mr. Hough, "[n]o preference

is given to any particular offender, nor is it denoted as to their

religious affiliation." Id. at 43. Plaintiff did not refute this assertion.

56 Id. at 63-64.

57 Id. at 19.

A18

B. Conclusions of Law

1. Federal Substantive Law Applies. The

Court applies federal substantive and procedural

law.

2. Standard of Review. "[T]he decision to grant

declaratory relief is a matter of discretion[.]"58

3. The Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA "prescribes

that no government shall impose a substantial burden on the religious exercise of prisoners unless the

government can demonstrate that the burden both

serves a compelling government interest and is the

least restrictive means of advancing that interest."59

"Religious exercise" under RUILPA includes "any

exercise of religion, whether or not compelled by, or

central to, a religious belief."60 "Government," under

RLUIPA, includes a "person acting under color of

State law."61

4. RLUIPA is Applicable. Here, both parties

agree that RLUIPA applies to Alaska DOC's actions

58 United States v. State of Wash., 759 F.2d 1353, 1356 (9th Cir.

1985).

59 Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002)

(citing to 42 U.S.C. § 2000cc-1(a) (2000)) (internal quotation

marks omitted)).

60 Warsoldier

v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005)

(citing to § 2000cc-5(7)(A)).

61 Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,

921-22 (9th Cir. 2011) (citing 42 U.S.C. § 2000cc-5(4)(A)(iii)).

A19

because the agency receives federal financial assistance.62

5. Mr. Watkinson's Beliefs are Religious and

Sincere. It is undisputed that Mr. Watkinson is a

member of a bona fide religion and sincere in his beliefs. The parties agree that the blot ceremonies described by Mr. Watkinson, which involve the use of

firewood and drinking of juice and honey, constitute

a religious exercise of Asatru in accordance with

RLUIPA.63

6. Mr. Watkinson Bears of Burden of Proving

Defendants Substantially Burdened His Religious Exercise. Mr. Watkinson bears the burden of

showing Defendants imposed a substantial burden

on his religious exercise.64 RLUIPA does not specifically define what constitutes a "substantial burden";

however, the Ninth Circuit has described the burden

as one that "must impose a significantly great restriction or onus upon such exercise."65 A substantial

burden "must place more than an inconvenience on

religious exercise,"66 and the Supreme Court has

62 42 U.S.C. §§ 2000cc(b)(1); Dockets 80 at 9; 88 at 5.

63 See Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S. Ct. 2113,

161 L. Ed. 2d 1020 (2005) ("The exercise of religion often involves not only belief and profession but the performance of

physical acts such as assembling with others for a worship service or participating in sacramental use of bread and wine.")

(internal quotations omitted).

64 Warsoldier, 418 F.3d at 994.

65 Id. at 995 (emphasis added).

66 Guru Nanak Sikh Soc. of Yuba City v. Cty of Sutter, 456 F.3d

978, 987 (9th Cir. 2006).

A20

found a substantial burden where the state's conduct creates "substantial pressure on an adherent to

modify his behavior and to violate his beliefs."67 Although "compulsion may be indirect,"68 RLUIPA

"does not impose affirmative duties on states that

would require them to facilitate or subsidize the exercise of religion."69 The statute must be construed

broadly in favor of protecting an inmate's right to

exercise his or her religious beliefs.70

Mr. Watkinson's fundamental argument is that Defendants have substantially burdened his practice of

Asatru by no longer affording him the benefit of accessing monies from the PWF for the purchase of

juice and honey at a discounted rate, or for the purchase of firewood that the facility already obtains.

Defendants assert that the failure to subsidize Mr.

Watkinson's religious celebrations cannot be construed as a substantial burden on his ability to practice Asatru. The Court agrees with Defendants.

7. RLUIPA Does Not Demand the State Pay

for or Subsidize Items of Worship. RLUIPA explicitly denies creating a right for religious organiza-

67 Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Bd. of

the Ind. Employment Sec. Div., 450 U.S. 707, 717-18, 101 S. Ct.

1425, 67 L. Ed. 2d 624 (1981)).

68 Warsoldier, 418 F.3d at 995.

69 Mayweathers v. Newland, 314 F.3d at 1068-69.

70 Warsoldier, 418 F.3d at 995.

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tions to receive funding from the government.71 As

Defendants state in their closing brief, the Supreme

Court has held that "[d]irected at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an

inmate's devotional accessories."72 Simply put, affirmative subsidization of religious activities is not

mandated under RLUIPA. The fact that Asatru

practitioners previously benefitted from access to

the PWF, or the fact that other cultural groups benefit from the administration of the fund, is not evidence of a substantial burden on Mr. Watkinson's

religious practice. Indeed, other courts have found

that "a prison's voluntary decision to exceed RLUIPA's requirements should not subject it to further

RLUIPA liability."73

71 See

42 U.S.C. § 2000cc-3(c) ("Nothing in this chapter shall

create . . . a right of any religious organization to receive funding or other assistance from a government, or of any person to

receive government funding for a religious activity, but this

chapter may require a government to incur expenses in its own

operations to avoid imposing a substantial burden on religious

exercise.").

72 Cutter, 544 U.S. at 720 n.8 (citing Charles v. Verhagen, 348

F.3d 601, 605 (7th Cir. 2003) (overturning a prison prohibition

on the possession of Islamic prayer oil but placing the responsibility for purchasing the oil on the prisoner)) (emphasis added)).

73 Knows His Gun v. Montana, 866 F. Supp. 2d 1235, 1241 (D.

Mont. 2012) ("Plaintiffs' claims concerning inadequate or inappropriate materials that are provided by the prison—including

wood, tarps, and tobacco—fail because RLUIPA does not require prisons 'to pay for an inmate's devotional accessories.'")

(citing Cutter, 544 U.S. at 720 n.8).

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8. Defendants Have Not Substantially Burdened Mr. Watkinson's Religious Practice. Importantly, the evidence introduced at trial did not

show that Defendants have, in any way, "deni[ed]

[Plaintiff an important benefit] because of conduct

mandated by religious belief, thereby putting substantial pressure on [him] to modify his behavior

and to violate his beliefs."74 Mr. Watkinson still may

purchase juice and honey from the prison commissary, or arrange for family members to purchase the

juice and a vendor to deliver it to the prison.75 Mr.

Watkinson also testified that GCCC allows family members to deliver firewood for the blots, and

that he was encouraged by prison officials to "request reasonable alternatives to obtain it."76 Indeed,

Mr. Watkinson still can avail himself of the PWF

funds for secular purposes, and testified that he does

just that by attending the sweat lodge and utilizing

the firewood purchased by the PWF for that purpose.77 The Court cannot find that Mr. Watkinson

faces a substantial burden under RLUIPA when he

is not meaningfully obstructed from or penalized by

practicing his sincerely held religious beliefs. He,

thus, has not established a violation of RLUIPA.78

74 Warsoldier, 418 F.3d at 995 (citing Thomas, 450 U.S. at 717-

18).

75 Docket 93 at 27.

76 Dockets 93 at 24; 69-5 at 1.

77 Docket 93 at 19.

78 See Riggins v. Clarke, 403 Fed. Appx. 292, 295 (9th Cir. 2010)

(finding State corrections officials' refusal to allow prisoner to

purchase prayer oils did not violate his right to exercise his religion under RLUIPA).

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9. Defendants Bear the Burden of Showing a

Compelling Governmental Interest. Assuming,

arguendo, Mr. Watkinson could produce evidence of

a substantial burden on his practice of Asatru, the

Court still would find that Defendants have met

their burden to then show Alaska DOC's policies are

the least restrictive means of furthering compelling

governmental interests. Defendants advance four

compelling interests. First, "DOC has a compelling

governmental interest in not treating various religious groups unequally or unfairly, both as a matter

of justice and in order to avoid fomenting interreligious strife."79 Second, "DOC has a compelling governmental interest in funding 'charitable, recreational and educational' activities among the prison

population through PWF."80 Third, Defendants identified an interest "in not intermingling the funds of

particular religious groups with those designated for

other purposes, for reasons of administrative efficiency and to prevent fraud."81 Fourth, Defendants

allude to establishment clause concerns with supporting religious activities by using intermingled

state funds.82 Defendants assert that requiring religious groups to separately purchase items intended

for their group's religious practice is the least restrictive means of furthering those governmental interests.83

79 Docket 99 at 11.

80 Id.

81 Docket 88 at 6.

82 Docket 93 at 14.

83 Docket 88 at 6.

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The Ninth Circuit has found compelling government

interests in prison security84 and in complying with

the Constitution.85 The Supreme Court has

acknowledged that RLUIPA's standard of review

should be applied with "due deference to the experience and expertise of prison and jail administrators

in establishing the necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources."86

10. Complying with the Constitution is a

Compelling Governmental Interest. The Court

finds that the government's interest in ensuring it

does not violate the Constitution's establishment

clause by institutionally supporting religious activities of the Asatru faith group is compelling. The

Court need not assess the exact probability of success of a constitutional claim, but is satisfied that

"the State has shown more than merely a good faith

belief" that Mr. Watkinson's request may run afoul

of the establishment clause of the Constitution and

there is an objective legal basis for believing that is

the case.87

84 See Warsoldier, 418 F.3d at 998.

85 See

Walker v. Beard, 789 F.3d 1125, 1136 (9th Cir. 2015)

("Compliance with the Constitution can be a compelling state

interest.").

86 Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 161

L. Ed. 2d 1020 (2005) (quoting S. Rep. No. 103-111, at 10

(1993)).

87 Walker

v. Beard, 789 F.3d 1125, 1137 (9th Cir. 2015). Mr.

Watkinson cites to Everson v. Bd. Of Educ., 330 U.S. 1, 17, 67

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11. Maintaining Security is a Compelling

Governmental Interest. The Court further recognizes the Defendants' interest in preventing the illegal criminal activity (fraud, strong-arming, debt

payoff) described by Mr. Hough. Alaska DOC's interest is compelling because it poses a threat to institutional security, as does preventing interreligious strife that may be stoked by showing favoritism to certain groups over others.

S. Ct. 504, 91 L. Ed. 711 (1947) and Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019, 198 L. Ed. 2d

551 (2017), for the proposition that providing funding to religious institutions on the same terms as secular institutions

does not violate the establishment clause. See Docket 92 at 8-9.

In Everson, the Supreme Court upheld the right of a New Jersey school board to fund the transportation of pupils to both

public and parochial schools. The Supreme Court found that

the resolution provided a "general program to help parents get

their children, regardless of their religion, safely and expeditiously to and from accredited schools." Everson, 330 U.S. at 18.

In Trinity Lutheran Church, the Supreme Court held that a

church had the right to compete with other secular organizations for a playground resurfacing grant. Trinity Lutheran

Church of Columbia, Inc., 137 S. Ct. at 2025. Both cases are

inapplicable here because Mr. Watkinson is seeking to use the

PWF funds to support his religious exercise. The Ninth Circuit

has found that "a government act is consistent with the establishment clause if it: (1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of

religion; and (3) does not foster excessive governmental entanglement with religion." Vasquez v. Los Angeles ("LA") County,

487 F.3d 1246, 1255 (9th Cir. 2007) (citing Lemon v. Kurtzman,

403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (9th Cir.

1971)). Although the Court makes no assessment of the validity of such a constitutional claim, it does recognize that Alaska

DOC's hesitancy to utilize its funds to directly advance Mr.

Watkinson's religious exercise is not without merit.

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12. Least Restrictive Means. The Court also

would be able to find that prohibiting the Asatru

faith group from maintaining a virtual balance within the PWF is the least-restrictive means of achieving Defendants' compelling governmental interests.

"The least-restrictive-means standard is exceptionally demanding,"88 but the government "is under no

obligation to dream up alternatives that the plaintiff

himself has not proposed."89 Here, Mr. Watkinson

proposed no alternatives to utilizing the PWF to

purchase religious items. Mr. Hough testified it was

effectively impossible, due to the rules of the banks

and the State of Alaska's Department of Administration, for the Asatru faith group to continue to

maintain a virtual balance. When doing so could expose the institution to constitutional liability and security concerns, maintaining such a policy is the

least-restrictive option available to continuing to operate the PWF. The Court thus concludes Alaska

DOC's actions were the least restrictive means of

furthering their compelling governmental interests.

13. First Amendment Free Exercise Clause.

"Inmates retain the protections afforded by the First

Amendment, 'including its directive that no law

shall prohibit the free exercise of religion,'" and an

inmate who adheres to a minority religion must be

given a "reasonable opportunity of pursuing his faith

comparable to the opportunity afforded fellow prisoners who adhere to conventional religious pre88 Holt v. Hobbs, 574 U.S. 352, 364, 135 S. Ct. 853, 190 L. Ed.

2d 747 (2015).

89 Walker, 789 F.3d at 1137.

A27

cepts."90 However, "reasonable opportunities" does

not mean identical treatment.91 "In order to establish a free exercise violation, [Plaintiff] must show

the defendants burdened the practice of his religion,

by preventing him from engaging in conduct mandated by his faith, without any justification reasonably related to legitimate penological interests."92

Only those beliefs which are rooted in religion and

sincerely held are entitled to constitutional protection.

14. Mr. Watkinson Has Not Proven His Religious Practice Was or Is Burdened. As discussed

supra, the Court cannot find that Defendants substantially burdened Mr. Watkinson's practice of the

Asatru faith. The Court finds that while Defendants'

failure to administer the PWF in a way that subsidizes firewood, juice, and honey may be inconvenient

to Mr. Watkinson, it does not amount to a prohibition on his ability to practice his religion or a punishment for doing so.93

90 See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008)

(quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.

Ct. 2400, 96 L. Ed. 2d 282 (1987)); Cruz v. Beto, 405 U.S. 319,

322, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (per curiam).

91 Cruz, 405 U.S. at 322 n.2.

92 Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (abro-

gated on other grounds by Shakur, 514 F.3d 878) (internal citations omitted); see also Jones v. Williams, 791 F.3d 1023, 1031

(9th Cir. 2015) ("A person asserting a free exercise claim must

show that the government action in question substantially

burdens the person's practice of her religion.").

93 See Lewis v. Ollison, 571 F. Supp. 2d 1162, 1171 (C.D. Cal.

2008) ("The First Amendment does not prohibit a prisoner from

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15. Defendants Bear the Burden of Showing

Their Policies Are Reasonably Related to Legitimate Penological Interests. Assuming, arguendo, Mr. Watkinson was able to show that the

additional expense and logistical challenge of obtaining firewood, juice, and honey constituted a substantial burden on his religious exercise, the Court still

finds that Alaska DOC's policy with respect to the

PWF is reasonably related to a legitimate penological interest. The Ninth Circuit follows the four-part

test formulated by the Supreme Court in Turner v.

Safley 94 in determining the reasonableness of a

prison regulation affecting constitutional rights.95

16. Turner Factors. First, there must be "a valid, rational connection between the prison regulation

and the legitimate governmental interest put forward to justify it."96 The "legitimate governmental

interest" at stake here is the fair and equitable administration of the PWF. Prohibiting religious organizations from utilizing the PWF for purely religious activities is rationally related to this interest.

Mr. Hough testified that if the Alaska DOC allowed

the PWF to fund religious activities it would effectively end the use of the fund for its intended purpose: funding activities for all inmates to enjoy rebeing inconvenienced in practicing his faith so long as the penological practices do not prevent or prohibit the inmate from

participating in the practice or mandates of his religion.").

94 See generally Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254,

96 L. Ed. 2d 64 (1987).

95 Resnick v. Adams, 348 F.3d 763, 768-770 (9th Cir. 2003).

96 Id. at 769.

A29

gardless of religious affiliation.97 The first Turner

factor is thus satisfied.

The second factor the Court turns to in determining the reasonableness of a prison regulation under

Turner is "whether there are alternative means of

exercising the right that remain open to prison inmates."98 As discussed supra, Mr. Watkinson still

may obtain juice, honey, and firewood without accessing the PWF. Although the Court need not find

there are alternative means to practicing the exact

religious right Mr. Watkinson claims has been burdened,99 in this case, it can find exactly that. Mr.

Watkinson testified that even after the Asatru group

was prohibited from using PWF funds to obtain

firewood, they continued to conduct blot ceremonies

when members' families assisted in securing firewood and juice.100 This factor thus weighs in favor of

Defendants.

Third, under Turner, the Court considers "the impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on

the allocation of prison resources generally."101 The

Court also may consider whether "special arrange97 Docket 93 at 42-43.

98 Resnick, 348 F.3d at 769.

99 See O'Lone, 482 U.S. at 352 ("In Turner, we did not look to

see whether prisoners had other means of communicating with

fellow inmates, but instead examined whether the inmates

were deprived of 'all means of expression.'").

100 Docket 93 at 23-24, 27.

101 Turner, 482 U.S. at 90.

A30

ments for one group could create an appearance of

favoritism that could generate resentment and unrest," although this consideration alone may not be

dispositive, because such appearance will be present

in every case where accommodations are made.102

The accommodation Mr. Watkinson seeks is an exemption from Alaska DOC's policy that it is not responsible for the procurement of faith group property. Exempting the Asatru faith group from this general rule would be unfair to other religious groups

that are unable to take advantage of the PWF to

fund their activities, as well as to the general inmate

population that benefits from the secular activities

the fund is intended to sponsor. Defendants point

out that allowing one group (or several) to maintain

a virtual balance could result in such resentment

and unrest contemplated by courts, or in the elimination of the PWF altogether. Mr. Hough also identified the possibility of fraud and other criminal activity that can go on when individual groups are allowed to maintain separate virtual balances. It is of

no consequence that Defendants produced no evidence of actual fraud that has occurred.103 Taken together, these considerations cut in favor of prison

officials.

102 Standing

Deer v. Carlson, 831 F.2d 1525, 1529 (9th Cir.

1987); see Henderson v. Terhune, 379 F.3d 709, 714 (9th Cir.

2004).

103 See Friedman v. State of Ariz., 912 F.2d 328, 332-33 (9th Cir.

1990) ("Turner requires that courts allow prison officials 'to

anticipate security problems and to adopt innovative solutions

to the intractable problems of prison administration.'") (citing

Turner, 482 U.S. at 89) (emphasis in original).

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The fourth and final Turner factor is the availability of "obvious, easy alternatives."104 An obvious alternative to prohibiting Asatru practitioners from

maintaining a virtual PWF balance that allows

Alaska DOC to administer the fund in an equitable

manner, is allowing each recognized religious group

to maintain its own virtual PWF balance. However,

the evidence shows that this alternative is not

"easy." Mr. Hough testified that it would be "extremely hard" to allocate funds in a way that would

give each religious organization its "fair share."105

Indeed, the Sixth Circuit has found that

[r]equiring prisons to maintain comprehensive

records as to the religious composition of their

populations and to allocate resources for religious activities accordingly would undoubtedly

spark countless claims by various groups that

they were not receiving their fair share. Moreover, predicating resource allocation on such an

elusive standard as the numbers of regularly

practicing inmates would compel prison officials

and courts to scrutinize the consistency of individual inmates' religious practices and to decide

controversies regarding the precise contours of

the various competing religious groups. Furthermore, the constant turnover of prison populations would render wholly impracticable any

attempt to require that the religious resources

allocation scheme conform exactly to the denominational distribution present in a prison at any

given time. Adoption of plaintiffs' position would,

104 Turner, 482 U.S. at 90.

105 Docket 93 at 42.

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therefore, embroil the prisons and courts in dangerous and inappropriate areas of inquiry and

would prove exceedingly difficult to implement in

an orderly and even handed fashion.106

The Court finds this reasoning persuasive. It is

not reasonable to suggest that prison officials take

responsibility for the bookkeeping of every religious

organization within its walls so that it may administer a fund—it has no obligation to administer at

all—in a fair and even-handed manner. Further, Mr.

Hough testified that, from a purely administerial

standpoint, the banking institutions utilized by the

prison system no longer allow the PWF to contain

line items for specific organizations, or the pooling of

OTA funds, as Mr. Watkinson requests.107 It is administratively burdensome, and in some ways impossible, to fashion an alternative to Alaska DOC's

religious property procurement policy that still

achieves its interests with regard to administering

the PWF. Each of the Turner factors weighs in favor

of Defendants. Alaska DOC's policies reasonably are

related to a legitimate penological interest and cannot be said to abridge Mr. Watkinson's First

Amendment rights.

17. Fourteenth Amendment Equal Protection

Clause.

"The

Constitution's

equal

protection guarantee ensures that prison officials cannot

106 See Thompson v. Com. of Ky., 712 F.2d 1078, 1081 (6th Cir.

1983).

107 Docket 93 at 40.

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discriminate against particular religions."108 "To

state a claim under 42 U.S.C. § 1983 for a violation

of the Equal Protection Clause of the Fourteenth

Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate

against the plaintiff based upon membership in a

protected class."109 Again, Mr. Watkinson cannot

succeed "if the difference between the defendants'

treatment of him and their treatment of [] inmates

[of a different religion] is reasonably related to legitimate penological interests."110

18. Intentional Discrimination. The sweat

lodge at GCCC, run by a Native American cultural

group, is permitted to use firewood obtained through

the PWF, while the Asatru faith group is prohibited

from maintaining a virtual balance within the PWF

to purchase firewood for blot ceremonies.111 Mr.

Watkinson argues that the Asatru faith group is

treated differently from the Native American cultural group and the Hiland Mountain cultural group

at another prison, which is able to maintain a virtual balance in the PWF.112

108 Freeman, 125 F.3d at 737.

109 Furnace

v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013)

(quotation marks and citation omitted) (rejected equal protection claim where inmate failed to show that he was treated differently than any other inmates in the relevant class).

110 Shakur,

514 F.3d at 891(internal citations and quotation

marks omitted).

111 Docket 92 at 12.

112 Id. at 13.

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Mr. Watkinson has not put forth any evidence of

intentional discrimination. Although discriminatory

intent may be inferred from disparate treatment,

Mr. Watkinson has not alleged that he has been

treated differently from any other religious group.

The Court recognizes that the differences in classification between what constitutes a "religious" group

as opposed to a "cultural" one, according to Alaska

DOC policy, are susceptible to a certain degree of

subjectivity. However, absent evidence of ill-intent

or abject arbitrariness, it is improper—and indeed

inappropriate—for the Court to interfere with Alaska DOC's classifications. In this case, it must defer

to prison officials' assessment of the sweat lodge as a

cultural activity and the Native American group

that administers the sweat lodge as cultural.113

However, even if the Court were to find that the

Native American cultural group principally was religious in nature, it notes that "[p]risons need not

provide identical facilities . . . to different faiths, but

must make good faith accommodation of the [prisoners'] rights in light of practical considerations."114

Again, it appears from the record that prison officials made reasonable accommodations to ensure

that Asatru practitioners could continue conducting

blot ceremonies. As discussed supra, Asatru could

obtain firewood via family members, and was en-

113 Turner, 482 U.S. at 85 ("Where a state penal system is in-

volved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.").

114 Freeman, 125 F.3d at 737 (alterations in original) (citing to

Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987)).

A35

couraged to seek assistance through other means. In

summary, Mr. Watkinson has not shown that he intentionally was discriminated against in violation of

the Fourteenth Amendment.

19. Reasonably Related to Legitimate Penological Interests. Further, as explained supra,

even if Mr. Watkinson could show intentional discrimination by Defendants, they have carried their

burden of showing that Alaska DOC's policies are

reasonably related to the legitimate penological interest of orderly and securely administering a fund

for the general welfare of all inmates.

20. The Missing Witness Rule. Mr. Watkinson

argues the so-called "missing witness rule" should

apply in this case because the individual Defendants

did not testify at trial.115 He asks this Court to infer

from their absence: (1) "[d]uring the period in which

virtual balances within the PWF were allowed, no

actual security or fraud problems occurred"; (2) "the

'administrative burden' of maintaining a virtual balance in the PWF is negligible"; and (3) "Mr. Hauser

[sic] would never approve any PWF funding proposal

from a religious group"; but only "to the extent that

the evidence already is not undisputed on these

points."116 It is entirely within the discretion of the

Court to give such instruction.117

Mr. Watkinson does not cite to any Ninth Circuit

authority governing the applicability of the uncalled115 Docket 92 at 13-14.

116 Id.

117 United States v. Bautista, 509 F.2d 675, 678 (9th Cir. 1975).

A36

witness rule in civil trials, and other courts have

remarked on the Ninth Circuit's lack of jurisprudence governing the precise contours of the rule in

such situations.118 In the criminal context, the Supreme Court has stated, "[i]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that

he does not do it creates the presumption that the

testimony, if produced, would be unfavorable."119

But, "[i]n order to justify the inference drawn from

the failure to call a witness, the testimony of the uncalled witness must not be cumulative or inferior to

the evidence already presented."120

21. Cumulative Testimony. Mr. Hough already

testified to the administrative burden that maintaining a virtual balance in the PWF would cause.

Mr. Hough also already testified that religious

groups are not able to obtain funding through the

PWF.121 Thus, drawing the second and third inferences requested by Plaintiff would be duplicative to

the evidence already produced, and would

not change the Court's ultimate ruling. The Court

declines to do so.

118 Apple

Inc. v. Samsung Electronics Co., Ltd., No. 11-CV01846-LHK, 2012 U.S. Dist. LEXIS 114714, 2012 WL 3536797,

*2 (N.D. Cal. August 13, 2012) ("The parties have not cited,

and the Court has not found, any Ninth Circuit authority governing the applicability of the uncalled-witness rule in civil trials.").

119 See Graves v. U.S., 150 U.S. 118, 121, 14 S. Ct. 40, 37 L. Ed.

1021 (1893).

120 Kean v. C.I.R., 469 F.2d 1183, 1187 (9th Cir. 1972).

121 Docket 93 at 51.

A37

22. Reasonable Inference. Further, "a missing

witness instruction is proper only if from all the circumstances an inference of unfavorable testimony

from an absent witness is a natural and reasonable

one."122 The Court finds it unreasonable to infer

that, during the period in which virtual balances

within the PWF were allowed, no actual security or

fraud problems occurred. Plaintiff could have sought

clarification on this fact from Mr. Hough during trial, but chose not to. Plaintiff cannot now assert that

the lack of testimony on this precise point provides

reasonable grounds for assumption; especially when

a witness with specialized knowledge of the PWF

administration testified at trial. Further, as discussed supra, even if the Court were to draw this inference as requested by Plaintiff, it would not alter

the outcome of the Court's findings.

IV. CONCLUSION

For the foregoing reasons, the Court finds and

concludes that Plaintiff Watkinson has not established a violation of RLUIPA, and has not established violations of his First and Fourteenth

amendment rights.

IT IS SO ORDERED this 31st day of December,

2020, at Anchorage, Alaska.

/s/ Joshua M. Kindred

JOSHUA M. KINDRED

United States District Judge

122 United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982).