Petition for Writ of Certiorari — Fowler v. Crawford (No. 08-855)

fr) ng-855 ‘DEC 29 2008

OFFICE OF THE CLEMn

No. _

In The

Supreme Court of the Anited States

o

CLIFFORD CHARLES FOWLER,

Petitioner,

Vv.

LARRY CRAWFORD, et al.,

Respondents.

-

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For the Eighth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

a

CHARLES C. EBLEN

Counsel of Record

ANNE C. WARREN

SHOOK, HARDY & BACON L.L.P.

2555 Grand Boulevard

Kansas City, MO 64108

Telephone: (816) 474-6550

Facsimile: (816) 421-5547

Counsel for Clifford C. Fowler

QUESTIONS PRESENTED

1. Whether the _ strict-scrutiny standard

embodied in the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), § 3 (42

U.S.C. § 2000cc-1) requires the government to

demonstrate that it seriously considered less-

restrictive alternatives to the challenged policy.

=. Whether, particularly at summary

judgment, RLUIPA’s text—requiring that it “be

construed in favor of a broad protection of religious

exercise, to the maximum extent permitted by the

terms of [the] Act and the Constitution’—can be

reconciled with this Court’s instruction that “due

deference” be given to prison officials.

ll

PARTIES TO THE PROCEEDING

Petitioner is Clifford C. Fowler, an inmate at

the Jefferson City Correctional Center.

Respondents are the Missouri Department of

Corrections and various officials at the Missouri

Department of Corrections: Larry Crawford, Tom

Clements (as successor of Terry Moore), Mike Kemna

(as successor of Steve Long), David Dormire, Arthur

Wood, and Robert Joe Gibson.

TABLE OF CONTENTS

Page

QUESTIONS PRO UNTED q...ccsiscccsesevsoscoscsssosasezsonseses i

PARTIES TO THE PROCEEDING ............cceceesssreeeeee li

PABLBOP AUTHORETIOS ......ccccsesescsssesssssnsnssseesemeers Vv

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STATUTORY PROVISION INVOLVED .................... 1

SF iliac cteinndenrtinsd nd neuieaeds 2

A. Factual Background: Fowler uv.

RANE ci wl acebasgucerixsaeusterekeeevaeue, 5

i MDOC’s Arguments ............000cce00s 7

. Fowler’s Competing

BG sti ccinnstdcnecwmunn 8

3. The District Court’s Order........... 9

B. The Court of Appeals’ Decision............ 10

REASONS FOR GRANTING THE PETITION........ 1]

I. RLUIPA’s LEASE-RESTRICTIVE MEANS

ANALYSIS IS SUBJECT TO DIVERGENT

INTERPRETATIONS AMONG THE CIRCUIT

So, ee ee et een aT a oe ee Oa re Pee Ben 11

lv

II. THE CIRCUIT SPLIT IS DUE, IN PART, TO

THIS CouRT’S DICTA IN CUTTER V.

WILKINSON, AND CLARIFICATION IS

ESSENTIAL TO RESOLUTION OF THE

ARTES ces Eee eb Be PAP no Se eed Leeper ee 14

III. THE DECISION BELOW IS INCORRECT................ 19

A. The Court Below Erred In Shifting

The Burden of Proof to the Plaintiff

Once the Government Offered

Evidence of “Other Means”. ................. 20

B, The Court Below Erred By Not

Requiring The Government to

Seriously Consider And _ Reject

Less-Restrictive Alternatives to the

SWORt- LOGO BAR... sccccccscsccssisecccstecssnce 21

CFO Fra cnisinskheni liane stints ives allie esats 25

APPENDICES

Opinion of U.S. Court of Appeals for the Eighth

Circuit Gluly 25, ZOO) wicccsccvscccssscscsscsessase App. 1

Order of U.S. District Court for the Western

District of Missouri (July 23, 2007)....... App. 28

Eighth Circuit Denial of Motion to Consolidate

for En Banc Review (Sept. 23, 2008)..... App. 45

Eighth Circuit Denial of Rehearing En Banc

NS UR Tg cssendeisesecscacoatssvdaoeionceatin App. 46

TABLE OF AUTHORITIES

CASES

Alvarez v. Hill,

518 F.8d 1152 (Oth Cir. ZO08).............c00c.cce0e 22

City of Boerne v. Flores,

521 U.S. 507, 117 S.Ct. 2157 (4997)............5.. 3

City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 109 S.Ct. 706 (1989)............... 13

Cutter v. Wilkinson,

544 U.S. 709, 125 S.Ct. 2113

DE iste Latsdatscwuitsaemwencscpaacni 3, 4, 14, 17, 18, 19

Fegans v. Norris,

537 F.3d 897

PE NID bas scunnccnectsviwcocacstannie 11, 12, 16, 21

Greene v. Solano County Jail,

613 F.3a O68 (Oth Cir. 2O0G) s......ccccscrvccsss 23, 24

Hamilton v. Schriro,

74 F.3d 1545

(2 e a. er 9 10, 11, 12, 17, 18

Koger v. Bryan,

523 F.3d 789 (7th Cir. 20D8)................ccccseees 21

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006).............. 16, 17, 21

vl

Murphy v. Mo. Dep't of Corr.,

372 F.3d 979 (8th Cir. 2004), aff'd, 506

F.3d 1111 (8th Cir. 2007), cert. denied,

LO Ge, FAS CG) on ccsscsscesecssncescossccssces 18, 24

Shakur v. Schriro,

514 F.3d 878 (9th Cir. 2008)................00.. 19, 21

Spratt v R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) .......... 13, 15, 21, ;22

Turner v. Safley,

G88. ir: 2k. ys 4,5, 12, 14, 24

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005).............. 13, 21, 24

Washington v. Klem,

497 F.3d 272

(Bd Cir. 2007).......0....s00..000000:. 13, 14, 21, 22, 23

STATUTES

coi cacorisssinsabinsineciesitoniosaisinainw 1

BB EBC, © SOOO. 1... casecscssscsescsccssecessses 3, 9,10, 18

Es WD vs isssiasensessccesaveveserncossssisvns: 1, 2,3

42 U.S.C. $BO000C-2(D) .........-.sccccsecesesececesss 2, 3, 20, 21

CE 2 ot ee 2,3, 4, 18

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Be WE At UNE dda stenvacsucisidicin sical dtascndsaehanciens 1

OPINION BELOW

The opinion of the court of appeals (App.,

infra, at 1-27) is reported at 534 F.3d 931. The

opinion of the district court (App., infra, at 28-44) is

unreported.

JURISDICTION

The Eighth Circuit filed its decision on July

25, 2008. A timely petition for rehearing was denied

on September 29, 2008 (App., infra, at 46). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1). The jurisdiction of the district court was

invoked under the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C. §

2000cc-1, et seq., 42 U.S.C. § 1983, and 28 U.S.C, §

1331 (general federal question jurisdiction).

STATUTORY PROVISION INVOLVED

The Religious Land Use and Institutionalized

Persons Act of 2000 (“RLUIPA”) provides in relevant

part:

No government’ shall impose a

substantial burden on the _ religious

exercise of a person residing in or

confined to an institution...unless the

government demonstrates that

imposition of the burden on _ that

person—(1) is in furtherance of a

eompelling governmental interest; and

(2) is the least restrictive means of

furthering that compelling

governmental interest.

If a plaintiff produces prima facie

evidence to support a claim alleging a

violation of the Free Exercise Clause or

a violation of section 2, the government

shall bear the burden of persuasion on

any element of the claim, except that

the plaintiff shall bear the burden of

persuasion on whether the _ law

(including a regulation) or government

practice that is challenged by the claim

substantially burdens the plaintiff's

exercise of religion.

This chapter shall be construed in favor

of a broad protection of religious

exercise, to the maximum extent

permitted by the terms of this chapter

and the Constitution.

42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b); 2000cc-3(g).

STATEMENT

This case raises important, recurring

questions relating to the interpretation of § 3 of the

Religious Land Use and Industrialized Persons Act of

2000 (“RLUIPA”), including the level of judicial

scrutiny required, the burden of proof imposed on the

government, and the amount of “due deference”

accorded to prison officials.

Congress enacted RLUIPA in 2000, in

response to this Court’s invalidation of the Religious

Freedom Restoration Act of 1998 (“RFRA”), 42 U.S.C.

§ 2000bb-1, et seq., in City of Boerne v. Flores, 521

U.S. 507, 532-536, 117 S.Ct. 2157 (1997). See, e.g.,

Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct.

2113, 2118 (2005). In addition to land-use

regulation, RLUIPA establishes religious protection

for institutionalized persons. See 42 U.S.C. § 2000cc-

1. At issue in this case is § 3 of RLUIPA, which

states, in relevant part:

No government’ shall impose a

substantial burden on the _ religious

exercise of a person residing in or

confined to an institution...unless the

government demonstrates that the

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). The text of RLUTPA provides

that the prisoner bears the initial burden to

demonstrate that the governmental restriction

“substantially burdens” his “religious exercise.” /d.

at §§ 2000cc-2(b) and 2000cc-3. After the prisoner

meets this burden, “the government shall bear the

burden of persuasion on any element of the claim.”

Id. at § 2000cc-2(b). And RLUIPA applies broadly to

favor free religious worship; to this effect, § 2000cc-

3(g) provides, “this chapter shall be construed in

favor of a broad protection of religious exercise, to the

maximum extent permitted by the terms of this

chapter and the Constitution.” Jd. at § 2000cc-3(g).

_ In Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct.

2113 (2005), this Court, in dicta, advised that

RLUIPA must “be appled in an appropriately

balanced way, with particular sensitivity to security

concerns[,]” and that “‘due deference’” should be

given to the “experience and expertise of prison and

jail administrators” when evaluating a challenged

policy. 544 U.S. at 722-23, 125 S.Ct. at 2123 (quoting

Joint Statement $7775). The seemingly

irreconcilable positions taken by RLUIPA’s text! and

this Court’s (and Congress’s) instructions have

engendered conflict and confusion in the lower

courts, as reflected in the decision below.

The conflict, in a broad sense, concerns the

level of scrutiny to be applied under RLUIPA. In

contrast to the text of RLUIPA and the opinions of

the First, Third, and Ninth Circuits, the Eighth

Circuit interprets RLUIPA’s strict-scrutiny standard

as the functional equivalent of the Turner test,? a

| Requiring strict scrutiny and insisting that the Act be

construed “in favor of broad protection of religious exercise[.]”

2 Turner v. Safley, 482 U.S. 78 (1987). In the absence of

a Congressional act such as RLUIPA, Turner provides the

applicable standard to determine whether a prison regulation

violates an inmate’s constitutional rights, including the right of

free exercise under the First Amendment. Turner sets forth

four factors to be balanced in determining whether a prison

regulation is reasonably related to legitimate penological

interests or instead unconstitutionally burdens an inmate's

rights:

form of rational-basis review that applied to free-

exercise claims before RLUIPA imposed strict

scrutiny. Under this lesser standard of review, the

allocation of burden of proof differs from that

contemplated by the text of RLUIPA and the

application of strict-scrutiny in other contexts. Thus,

different results are reached depending on which

precedent is applied to interpret this important act of

Congress. This Court should, therefore, clarify which

interpretation is proper.

A. Factual Background: Fowler ov.

Crawford

Petitioner Clifford C. Fowler (“Fowler”) is a

Native American inmate at the Jefferson City

Correctional Center (“JCCC”) in Jefferson City,

Missouri. Fowler seeks to practice an essential

element of his Cherokee faith through the use of a

sweat lodge. That Fowler’s religious belief ts

(1) Whether there is a “‘valid, rational connection’

hetween the prison regulation and the legitimate

governmental interest put forward to justify it”;

(2) Whether there are “alternative means of

exercising the rights that remain open to prison

inmates”;

(3) Whether “accommodation of the asserted

constitutional right” will “impact ... guards and other

inmates, and on the allocation of prison resources

generally”; and

(4) Whether there is an “absence of ready

alternatives” versus the “existence of obvious, easy

alternatives.””

Turner, 482 U.S. at 89-90.

3 A sweat lodge is a permanent, domed structure made

of willow poles that is covered with blankets or a tarp during

use. In an area outside the lodge, participants create a fire for

use in the ceremony. One participant acts as a firekeeper and

sincere, and that the sweat-lodge purification

ceremony is central to his faith—indeed, prerequisite

to all other forms of worship—is uncontested in this

case.‘

Fowler commenced litigation against the

Missouri Department of Corrections (“MDOC”), pro

se, on July 11, 2005, seeking transfer to another

maximum-security prison in Potosi, Missouri

(“Potosi”), where MDOC had operated a sweat lodge

without incident for 14 years or, alternatively,

seeking construction of a sweat lodge at JCCC. Just

months after Fowler commenced this suit, MDOC

prohibited sweat lodges at all MDOC facilities and

tends the fire. A sacred altar is also set up outside of the ledge

to hold various items used during the ceremony, such as a

buffalo skull, a prayer pipe, and deer antlers. Inside the lodge,

the participants pour water from a dipper, such as a gourd, onto

the rocks, creating steam. This initiates a round, with the

entire ceremony typically lasting four rounds. During each

round, prayers and songs are shared between the participants,

with different prayers and songs at each round, and each round

lasting fifteen to twenty minutes. Usually, the water pourer

starts with a prayer, and this continues around the circle. After

each round, the doorway is opened, and a pipe might be brought

in and passed around to smoke. Alternatively, smoking may

occur outside of the lodge. To begin the next round, additional

rocks are brought to the duor opening by the firekeeper and the

process starts again.

4 The sweat-lodge ceremony is a form of purification

and penance, and, as MDOC’s documents acknowledged, a

central tenet of the Native American religion. Fowler needs

access to a sweat lodge to purify himself before he may pray to

the Great Spirit. Purification in the sweat lodge is a

prerequisite to the practice of other aspects of Fowler’s religion

and, absent purification, he cannot meaningfully engage in the

practice of his faith.

~]

shut down the Potosi sweat lodge. This policy change

was prompted by security concerns unrelated to the

operation of the sweat lodge.

It is uncontested that the sweat-lodge ban

“Substantially burdened” Fowler’s “religious exercise”

under RLUIPA. Yet MDOC moved for summary

judgment on Fowler's RLUIPA claim, contending

that the prohibition of the sweat lodge furthered its

interest in institutional security, and_ that

prohibiting sweat lodges was the least-restrictive

means of furthering this interest. Thus, the only

issue before the district court was whether, as a

matter of law at summary judgment, MDOC’s

complete prohibition of sweat lodges satisfied strict

scrutiny under RLUIPA.

ys MDOC’'s Arguments

MDOC admitted it made little to no effort to

consider any alternatives to a total prohibition of a

sweat lodge. (Crawford Dep. pp. 22-24; Worsham

Dep. pp. 15-16; Wood Dep. p. 56) (JA-30, 34, 40).

However, relying on affidavits of its officials, it

described other Native American practices available

10 the inmates, including “individual” worship, twice-

weekly meetings, and use of various spiritual items

such as a pipe, medicine bag, and a dream catcher.

MDOC also argued that operation of a sweat lodge

raised concerns of sexual misconduct, strong-arming,

inmate conspiracy, and inmate possession of tools

such as shovels and rocks during the sweat-lodge

ceremony, but MDOC acknowledged that these

zeneral security concerns exist without a sweat lodge

and must be dealt with on a daily basis. MDOC

further asserted that a sweat lodge implicates other

concerns, such as the use of fire by inmates, the

inability of staff to view the inmates during the

sweat, and the personnel time required to oversee

such activity.

z. Fowler’s Competing Evidence

Fowler opposed MDOC’s motion, arguing the

ban was the most restrictive means of furthering

MDOC’s alleged security interest. Specifically,

Fowler emphasized that MDOC admits that it

successfully operated a sweat lodge for 14 years ina

maximum-security prison, as do prisons throughout

the nation. And the superintendent of the Potosi

facility admitted MDOC could continue successfully

operating a sweat lodge. (Roper Dep. pp. 47-48)(JA-

70). The record also established that many of

MDOC’s alleged concerns exist in a_ prison

irrespective of whether MDOC operates a sweat

lodge; for example, inmates use more dangerous tools

in the kitchen (knives) than would be allowed in the

sweat-lodge ceremony (antlers and a shovel). (Long

Dep. p. 50) (JA-27). The same is true of tools allowed

for yard work.

Fowler also presented testimony from Dolores

Santha, a “Volunteer in Corrections” for MDOC who

served on MDOC’s Religious Programming Advisory

Council as the Native American representative and

has been present at a number of sweat-lodge

ceremonies at Potosi. Santha, a Native American

“elder,” has formal training as an expert in Native

American religion, was a police officer for four years,

and worked in private security for four years.

(Santha Dep. at pp. 9, 13) (JA-54-55). She testified

from her experience in MODOC facilities and

elsewhere that the operation of a sweat lodge at

Potosi did not pose a security risk because the

participants took the ceremony very seriously.

‘Santha Dep. p. 29) (JA-58).

Fowler also submitted evidence suggesting

MDOC failed to consider any alternative to an

outright prohibition of sweat Icdges. MDOC itself

even admits it made little to no effort to consider any

alternatives to a total prohibition of a sweat lodge.

(Crawford Dep. pp. 22-24; Worsham Dep. pp. 15-16;

Wood Dep. p. 56) (JA-30, 34, 40).

3. The District Court’s Order

The district court granted MDOC’s motion for

summary judgment. App. at 43. In relevant part,

the district court concluded that Fowler’s evidence

was identical to that plaintiff had offered in

Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996), a

case decided under the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. 2000bb-1, et

seq., where a divided panel of the Eighth Circuit

reversed an injunction reetring MDOC to provide a

sweat lodge at Potosi. App. at 37-38. The district

court also held Fowler, not MDOC, failed to carry his

burden of proof at summary judgment under

RLUIPA by not “com[ing] forward with . . . evidence

to support his claim that there are less restrictive

means of achieving prison safety and security, other

than completely prohibiting the sweat lodge

ceremony.” /d.

10

B. The Court of Appeals’ Decision

Fowler appealed to the Eighth Circuit Court of

Appeals, arguing in relevant part that the district

court improperly construed RLUIPA to place the

burden of persuasion on Fowler, improperly applied

Hamilton—a case decided under RFRA—to Fowler’s

RLUIPA claim, and erred in holding at summary

judgment that MDOC’s policy was the least

restrictive means of furthering its asserted security

interests.

The Eighth Circuit, however, affirmed the

district court’s holding, likewise finding the

Hamilton opinion controlling. The court concluded

that the standard under RLUIPA was identical to

that under RFRA. App. at 16-17. And applying this

standard to the “least-restrictive means” component

of RLUIPA, the court found that JCCC officials had

offered Fowler “alternatives” to the sweat lodge,

including an outdoor area to smoke the ceremonial

pipe, a medicine wheel, and an outside volunteer to

oversee the Native American group. App. at 19.5 On

these facts, the court held “the burden of production

shifted to [Fowler] once JCCC officials had come

forth with evidence that other means by which

Fowler might practice his Native American faith

were unacceptable to him.” App. at 20 (continuing,

“[t]hat Fowler bore the burden of production at this

point hardly constitutes an improper shifting of

RLUIPA’s burden of proof.”). The court went on to

5 Fowler acknowledged that JCCC made such offers,

but argues these activities/programs are not a substitute to the

sweat lodge, which is a prerequisite for meaningful religious

exercise.

11

state that while there may be “disputed matters of

professional judgment[,]” disputed facts were

“altogether absent[.]” App. at 27. Thus, summary

judgment was proper.

REASONS FOR GRANTING THE PETITION

The decision below is inconsistent with the

text of RLUIPA and the holdings of other courts, and

creates a circuit split on an important and recurring

issue of federal law: the interpretation and

application of RLUIPA’s strict-scrutiny standard.

As the decision below illustrates, two analytically

distinct paths have emerged regarding the

interpretation of RLUIPA’s strict-scrutiny

standard—one consistent with the text of RLUIPA

and the strict-scrutiny standard as applied in other

contexts, and the other altogether distinct. These

different standards require clarification from this

Court.

I. RLUIPA’S LEASE-RESTRICTIVE MEANS

ANALYSIS IS SUBJECT TO DIVERGENT

INTERPRETATIONS AMONG THE CIRCUIT

CoOuRTS.

The decision below creates a conflict in the

circuits over whether RLUIPA imposes a true strict-

scrutiny standard, or whether a lesser standard of

review is appropriate. As the deccision below

illustrates, the Eighth Circuit is of the latter

persuasion.®

6 The Eighth Circuit continued this position in Fegans

v. Norris, 537 F.3d 897 (8th Cir. 2008), where it also applied

the holding in Hamilton, 74 F.3d 1545, and—according to the

12

In the decision below, the Eighth Circuit relied

on Hamilton, a RFRA case in which the court applied

a “no greater than necessary” standard, and shifted

the burden of proof to the prisoner on the least-

restrictive means component. App. at 21-24. By

doing so, the Eighth Circuit does not require the

government to demonstrate that it considered and

rejected less-restrictive alternatives to the challenged

policy in order to satisfy RLUIPA’s least-restrictive

means component. Instead, it holds that the burden

of production shifts to the prisoner once the

government demonstrates it offered other means for

religious exercise. Stated differently, the

government need not consider and rule out less-

restrictive alternatives to the actual religious exercise

being affected (in this case, a sweat-lodge ban), so

long as a federal court is satisfied the inmate has

some “other means” to practice his or her faith—

irrespective of whether the “other means” is a

spiritual substitute to the actual religious exercise

affected by the policy at issue, and irrespective of

whether accepting the “other means” would force the

inmate to violate tenants of his faith. The Eighth

Circuit’s holding that the governmental policy under

review satisfies RLUIPA at summary judgment so

long as “other means” exist for the adherent to

practice his religion dilutes RLUIPA’s text and

interpretive provisions to YJurner’s rational-basis

formulation. Turner, 482 U.S. at 89-90 (balancing

whether “alternative means of exercising the

[religious] right .. . remain open to prison inmates’).

In practical effect, this incorrect reading of RLUIPA

dissent—failed to apply strict scrutiny as required by RLUIPA.

537 F.3d at 908 (Melloy, J., dissenting).

13

also transforms the federal appellate courts into

divinity counsels of last resort charged with

determining what is spiritually sufficient for each

diverse faith of inmates throughout the United

States.

In contrast to the Eighth Circuit, the First,

Third, and Ninth Circuits require the government

clemonstrate it considered less-restrictive

alternatives to the challenged policy. See, e.g., Spratt

u RI. Dep't of Corr., 482 F.8d 33, 41-42 (1st Cir.

21007) (“a prison ‘cannot meet its burden of proof of

least restrictive means unless it demonstrates that it

has actually considered and rejected the efficacy of

less restrictive measures before adopting the

challenged practice’”); Warsoldier v. Woodford, 418

F.3d 989, 999 (9th Cir. 2005) (same); Washington uv.

Klem, 497 F.3d 272, 283 (8d Cir. 2007)(same, with

Hansen, J., of the Eighth Circuit, sitting by

designation and joining the Third Circuit’s

interpretation on this statute). These courts note

that “fiJn other strict scrutiny contexts, the Supreme

Court has suggested that the Government must

consider and reject other means before it can

conclude that the policy chosen is the least restrictive

means.” Washington, 497 F.3d at 284 (citing

Warsoldier, 418 F.3d at 999; City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706 (1989)).

’ And, given the statutory text and legislative history,

these circuits hold “this requirement applies with

equal force to RLUIPA.” Washington, 497 F.2d at

284 (continuing, “the phrase ‘least restrictive means’

is, by definition a relative term. It necessarily

inplics a comparison with other means.”); see also

Warsoldier, 418 F.3d at 999. These courts, therefore,

iunpose upon the government the burden of making

14

these comparisons. See, e.g., Washington, 497 F.2d

at 284. Thus, unlike the Eighth Circuit, the First,

Third, and Ninth Circuits require the government to

demonstrate it seriously considered alternatives to

the policy under review.

These are inconsistent applications of the

same statute—the first makes RLUIPA less

protective of the right of free exercise than the

Turner test, a form of rational-basis review, while the

second hews close to RLUIPA’s text and the

precedents of other strict-scrutiny cases. This

circuit split will create fractured lines of statutory

interpretation until corrected. This Court should,

therefore, clarify the proper interpretation of

RLUIPA.

II. THE CIRCUIT SPLIT IS DUE, IN PART, To THIS

CourtT’s DICTA IN CUTTER V. WILKINSON,

AND CLARIFICATION IS ESSENTIAL TO

RESOLUTION OF THE CONFLICT.

This Court has not decided a free exercise

claim under RLUIPA. Rather, in Cutter, the issue

before the Court was: “whether RLUIPA’s

institutionalized-persons provision, § 3 of the Act, is

consistent with the Establishment Clause of the

First Amendment.” 544 U.S. at 718. In upholding

the Act, this Court noted that RLUIPA’s strict-

scrutiny standard should “be applied in an

appropriately balanced way,” id. at 722, “with ‘due

deference to the experience and expertise of prison

and jail administrators in establishing necessary

regulations and procedures to maintain good order,

security and discipline, consistent with consideration

15

of costs and limited resources.” Jd. at 723 (quoting

Joint Statement S7775).

The lower courts are uniformly unclear as to

the amount of deference to accord prison officials.

‘See, e.g., Spratt, 482 F.3d at 42, n. 14 (“The level of

deference to be accorded to prison administrators

under RLUIPA remains an open question.”).? The

first, Third, and Ninth Circuits believe “due

deference” does not impact the government’s burden

under a strict-sscrutiny analysis. Hence, in Spratt,

the First Circuit held that the Rhode Island

Department of Corrections must still demonstrate it

considered and rejected less-restrictive alternatives

to the preaching ban in question:

Simply put, RIDOC must ‘demonstrate,

and not just assert, that the rule at

issue is the least restrictive means of

achieving a compelling governmental

interest.’ This does not conflict with our

policy of deferring to the judgment of

prison administrators. Rather, before

we can evaluate whether deference is

due, we must require that prison

administrators explain in some detail

what their judgment 1s.

7 The First Circuit also noted, “RLUIPA’s statutory

requirement that we apply strict scrutiny to prison policies that

substantially burden religious exercise may be in tension with

the legislative history which suggests that courts should

continue to defer to the expertise of prison administrators.

Obviously, courts will need to find some balance between

scrutiny of and deference to prison regulations.” Spratt, 482

I.3d at 42, n. 14.

16

Id. at 42 (internal citations omitted). Thus, these

courts focus on satisfying the elements of strict-

scrutiny as set forth in RLUIPA, and view “due

deference” as but one element of their analysis.

In contrast, other jurists focus more on

granting “deference” to the government than on

requiring it to satisfy the strict-scrutiny standard

imposed under RLUIPA. By focusing on “deference,”

however, these courts and judges, in effect, employ a

lesser standard of review than RLUIPA requires.

This phenomenon was noted by Judge Melloy of the

Eighth Circuit, in his dissenting opinion in Fegans v.

Norris, 537 F.3d 897 (8th Cir. 2008), a RLUIPA case

decided subsequent to Fowler. Believing his

colleagues extended too much deference to prison

officials, Judge Melloy countered:

RLUIPA requires strict scrutiny. While

I agree with the majority that ‘context

matters’ in the application of RLUIPA’s

strict-scrutiny standard and that we

must accord ‘due deference to the

experience and expertise of prison and

jail administrators, in applying

RLUIPA, I believe the majority accords

Ithe government’s|] conclusory

justifications a level of deference that is

contrary to RLUIPA.

537 F.3d at 908 (Melloy, J., dissenting). ‘Thus,

according to Judge Melloy, the Fegans majority

granted so much deference to the government as to

contravene strict scrutiny.

17

A similar dispute regarding the proper amount

of deference exists in the Fourth Circuit. In Lovelace

v. Lee, 472 F.8d 174 (4th Cir. 2006), the dissent

chastised the majority for giving too little deference

to prison officials, and thereby undermining this

Court’s instructions in Culler and _ potentially

offending the intent of RLUIPA:

If Cutter conveyed no other message, it

signaled to federal courts that RLUIPA

must “be applied in an appropriately

balanced way.” But where the Supreme

Court has said, “proceed with caution,”

the majority has pressed’ the

accelerator. Heedless of the deference

due the expertise of prison

administrators, heedless of basic

principles of statutory interpretations,

heedless even of the constitutional

dangers of its approach, the majority

has placed federal courts at the center of

daily prison policymaking. In so doing,

the majority may be undermining the

very ideal of religious freedom that

RLUIPA is meant to protect.

472 F.3d at 217 (Wilkinson, J., dissenting)(internal

citations omitted).° Thus, judges within the fedcral

circuit courts dispute the amount of deference due—

and each side accuses the other of violating the

statutory spirit of RLUIPA.

’ Further stating: “If the majority’s intensifying

scrutiny of state prisons affords ‘due deference’ to prison

officials, then those words have lost their meaning.” 472 F.3d

at 217.

18

The Eighth Circuit in the decision below

likewise used Cutter to justify its reliance on

Hamilton, the RFRA case employing a “no greater

than necessary” burden and shifting the “least-

restrictive means” burden to the prisoner. App. at

12-13.9 In Hamilton, the Eighth Circuit “reasoned

that despite RFRA’s ‘strict scrutiny’ standard, the

Act’s legislative history plainly revealed that ‘context

matters|,]’” and, therefore, applied a lesser standard

of review. See App. at 15 (discussing Hamilton).

However, although RLUIPA and RFRA are similar,

there are significant textual differences. Namely,

RFRA lacked any statutory text reinforcing an intent

to protect free worship in the prison context. Cf. 42

U.S.C. § 2000cc-3(g) with 42 U.S.C. §§ 2000bb-1, et

seq. (no statutory provision requiring’ broad

construction). See also, Murphy v. Mo. Dep't of Corr.,

372 F.3d 979, 987 (8th Cir. 2004), affd, 506 F.3d

1111 (8th Cir. 2007), cert. denied, 128 S.Ct. 1493

(2008) (“Because RLUIPA’s scope is narrower, with

language that applies solely to the prison context, the

question remains whether the statute requires us to

accord the same deference to the expertise of prison

officials as that which we accorded in cases arising

under RFRA.”). But RLUIPA specifically provides it

“shall be construed in favor of a broad protection of

religious exercise, to the maximum extent permitted

by [the] Act and the Constitution.” 42 U.S.C. §

2000ce-3(g). Thus, under a RLUIPA analysis, the

® Specifically, the Eighth Circuit stated: “[Wle

concluded in Murphy [} that the RLUIPA standard we would

henceforth apply in the prison context was identical to the

RFRA standard we had previously applied under RFRAJ.]...The

following year, the Supreme Court agreed with our view while

rejecting an Establishment Clause challenge to RLUIPA.” App.

at 12-13 (citing Cutter, 544 U.S. 709).

19

focus should be on protecting religious exercise, and

the concerns of the institution—although

umportant—should be secondary. Because this

Court’s statements in Cutter have been interpreted

in inconsistent ways, and because most circuit courts

deciding RLUIPA claims have expressed uncertainty

regarding the proper balance of statutory text with

legislative and judicial instructions, clarification is

necessary. And only this Court can fully resolve this

issue,

{1l. THE DECISION BELOW IS INCORRECT.

The Eighth Circuit’s decision below is contrary

to the text of RLUIPA and holdings of other federal

courts. The only issue before the Eighth Circuit on

appeal was whether, as a matter of law at summary

judgment, MDOC’s complete prohibition of sweat

lodges satisfied strict scrutiny—an extraordinary

burden since MDOC carried the burden of persuasion

at trial. Shakur v. Schriro, 514 F.3d 878, 890 (9th

Cir. 2008)(reminding under RLUIPA, “When the

moving party also bears the burden of persuasion at

trial, to prevail on summary judgment it must show

that the ‘evidence is so powerful that no reasonable

jury would be free to disbelieve it.’”)(citing 11-56

Moore’s Federal Practice-Civil § 56.13). Although the

government admitted it did not consider any less-

restrictive alternatives to the policy at issue—an

absolute ban on sweat lodges at all Missouri state

prisons——and although RLUIPA’s text clarifies that

the burden of persuasion remains with the

government to satisfy strict scrutiny, the Eighth

Circuit concluded the government satisfied strict

scrutiny at summary judgment once “officials had

come forth with evidence that other means by which

20

Fowler might practice his Native American faith were

unacceptable to him.” App. at 20 (emphasis added).

This result is incorrect.

A. The Court Below Erred In Shifting

The Burden of Proof to the Plaintiff

Once the Government Offered

Evidence of “Other Means”.

In the decision below, the Eighth Circuit held

that “the burden of production shifted to [Fowler]

once JCCC officials had come forth with evidence

that other means by which Fowler might practice his

Native American faith were unacceptable to him.”

App. at 20. Specifically, the court found that,

because JCCC offered Fowler alternatives such as an

outdoor area to smoke the ceremonial pipe and

practice other aspects of his faith, a medicine wheel,

or finding an outside volunteer to oversee the Native

American group, the burden shifted to Fowler. And

“lilf he was willing to accept something less than a

sweat lodge 17 times a year, he should have said so

in no uncertain terms.” /d. Because Fowler failed to

use “uncertain terms,” summary judgment was

proper. Jd. Such a holding is contrary to the text of

RLUIPA and the opinions of other federal] courts.

RLUIPA expressly instructs that a plaintiff

bears only the burden of showing the challenged

practice “substantially burdens” his _ religious

exercise, and “the government shall bear the burden

of persuasion on any [other] element of the claim{.]”

42 U.S.C. § 2000cc-2(b) (emphasis added). Other

federal courts’ interpreting RLUIPA have

consistently placed upon the government the entire

burden of proof on the least-restrictive means

21

orong.!9 Thus, the Eighth Circuit erred in holding

that Fowler had the burden of demonstrating less-

restrictive alternatives. Rather, it was incumbent on

the government to demonstrate that it had

considered even one alternative to a complete ban on

sweat lodges.

B. The Court Below Erred By Not

Requiring The Government. to

Seriously Consider And _ Reject

Less-Restrictive Alternatives to the

Sweat-Lodge Ban.

As the Third Circuit noted in Washington, “f{i]n

other strict scrutiny contexts, the Supreme Court has

10 See, e.g., Washington, 497 F.3d at 284 (“Becarse this

burden is placed on the Government, it must be the party to

make this comparison.”); Spratt, 482 F.3d at 40-41 (““RIDOC

still has not shown that the blanket ban...is the ‘least

restrictive means’ available to achieve its interest.”);

Warsoldier, 418 F.3d at 997 (“[UJnder RLUIPA, [the

government] is required to demonstrate...that it has employed

the least restrictive means[.}”); Lovelace, 472 F.3d at 189

(“Because Lovelace has demonstrated that he suffered a

substantial burden..., the burden shifts to the defendants to

show that the [policy] is the least restrictive means[.]”); Shakur,

514 F.3d at 889 (“[T]he government bears the burden of

establishing that the regulation...is the least restrictive means

of achieving that interest.”). Accord Fegans, 537 F.3d at 911

(Melloy, J., dissenting)(“I do not believe it is necessary for

Fegans to provide ‘data to refute Norris's’ expert

testimony...because under RLUIPA, Fegans does not have the

burden of proof.”); Koger v. Bryan, 523 F.3d 789, 801 (7th Cir.

3008) (“One less restrictive means, {] is sufficient for us to

conclude that the prison officials failed to meet their burden

that they were employing the least restrictive means of

turthering compelling governmental interests.”).

22

suggested that the Government must consider and

reject other means before it can conclude that the

policy chosen is the least restrictive means.”

Washington, 497 F.3d at 284. Thus, under the view

held by the First, Third, and Ninth Circuits, to meet

the “heavy burden” of satisfying the least-restrictive

means component of RLUIPA’s | strict-scrutiny

analysis, the government must seriously consider

alternatives to the religious restriction under judicial

review, and explore these alternatives before the

district court. See, e.g., Alvarez v. Hill, 518 F.3d

1152, 1156 (9th Cir. 2008)(The government “must

demonstrate that they actually considered and

rejected the efficacy of less restrictive measures

before adopting the challenged practice.”)(citations

and quotations omitted); Spratt, 482 F.3d at 40-41

(“A prison ‘cannot meet its burden to prove least

restrictive means unless it demonstrates that it has

actually considered and rejected the efficacy of less

restrictive measures before adopting the challenged

practice.’”).

Here, MDOC outlined what forms of worship it

did—or potentially would—allow Native Americans

at JCCC, but made no record regarding what less-

restrictive alternatives it considered and ruled out

beyond an immediate and absolute sweat-lodge ban.

And the Eighth Circuit, holding evidence of these

“other means” sufficient to satisfy its burden,

affirmed summary judgment. However, the “other

means” MDOC presented are not alternatives to the

challenged policy. An outdoor area, medicine wheel,

or prayer circle are not substitutes for a sweat lodge.

They do not serve the same spiritual purpose. On

the contrary, Fowler, under the tenants of his faith,

cannot utilize an outdoor area or prayer circle for

23

religious purposes without first purifying himself in

a sweat lodge. Thus, not only were MDOC’s offerings

false choices, but using them without first purifying

in the sweat lodge obligates Fowler to compromise

his religion’s core principles. As the opinions of other

circuits i.ustrate, such false choices’ are

unacceptable under RLUIPA.

For instance, in Washington, the Third Circuit

held that the existence of “a palatable alternative”

for the inmate to practice his religion had no bearing

on whether the government met strict scrutiny as to

the policy at issue, instead implying that (if relevant

at all) such alternatives related to whether the policy

under review “substantially burdened” the particular

religious exercise. Washington, 497 F.3d at 282.

Because, as here, the government in Washington did

not contest whether the subject policy “substantially

burdened” the inmate’s religious exercise, the

availability of a “palatable alternative” (i.e., other

means to practice religion) was irrelevant to the

court’s strict-scrutiny analysis. Id.

Another case, Greene v. Solano County Jail,

conflicts with the Eighth Circuit’s reasoning below as

a matter of statutory interpretation. 513 F.3d 982,

989 (9th Cir. 2008). Greene addressed whether a

prohibition against group worship in a maximum-

security prison was permissible under RLUIPA. The.

government contended that the “religious exercise”

subject to strict scrutiny under RLUIPA was, more

broadly, Greene’s ability to practice Christianity, not

just participating in group worship (i.e., Fowler’s

Native American faith, not the sweat lodge

specifically). Jd. at 987-99. The Ninth Circuit

disagreed and held the relevant religious exercise

24

was group worship, and reversed summary judgment

in favor of the defendants. Jd. That, “alternative

means for exercising [plaintiffs] religion remained

available to [him]” apart from group worship did not

address whether the government satisfied its strict-

scrutiny burden to the policy under review. Id. at

987. Hence, Greene’s holding cannot be reconciled

with Fowler, which shifted the burden of persuasion

to Fowler once “officials had come forth with evidence

that other means by which Fowler might practice his

Native American faith were unacceptable to him.”

App. at 20.

The Eighth Circuit erred in not requiring

MDOC to present evidence of alternatives to the

sweat-lodge ban. This is especially true given that

MDOC had a 14-year history of operating a

successful sweat lodge in a maximum-security

prison.'!' The Eighth Circuit's RLUIPA analysis,

turning on what “other means” were offered to

Fowler to practice his faith in general, dilutes

RLUIPA to the lesser standard of review under

Turner, 482 U.S. 78. See Murphy, 372 F.3d at 983

(affirming summary judgment under Turner but

reversing under RLUIPA on the exact same issues

because, applying Turner, there were “sufficient

alternative means” for the inmate to practice his

11 See, e.g., Warsoldier, 418 F.3d at 1000 (“[W]e have

found comparisons between institutions analytically useful

when considering whether the government is employing the

least restrictive means. Indeed, the failure of a defendant to

explain why another institution with the same compelling

interests was able to accommodate the same religious practices

may constitute a failure to establish that the defendant was

using the least restrictive means.”).

25

faith). Fowler now holds, even at summary

judgment, that the government satisfies strict

scrutiny when “officials ... come forth with evidence

that other means by which Fe:uier might practice his

Native American faith were unacceptable to him.”

App. at 20. The Eighth Circuit’s interpretation of

this issue is inconsistent with RLUIPA’s text and the

interpretation of RLUIPA in other federal circuits.

This Court shoul¢ therefore reverse the decision

below and clarify the proper interpretation of

RLUIPA’s strict-scrutiny standard.

CONCLUSION

The Court should grant the petition for a writ

of certiorari and reverse the decision of the Eighth

Circuit Court of Appeals.

Respectfully submitted,

CHARLES C. EBLEN

Counsel of Record

ANNE C. WARREN

SHOOK, HARDY & BACON L.L.P.

2555 Grand Boulevard

Kansas City, MO 64108

Telephone: (816) 474-6550

Facsimile: (816) 421-5547

Counsel for Clifford C. Fowler

App. 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 07-2946

(CLIFFORD CHARLES °

ISOWLER, "

*

Appellant, ”

*

V. si

*

Larry Crawford; Steve Long; *

Dave Dormire; Arthur Wood; *

Robert Joe Gibson; Missouri *

Department of Corrections, *

+

Appellees. ‘a

Appeal from the

United States

District Court for

the Western District

of Missouri.

Submitted: April 14, 2008

Filed: July 25, 2008

Before GRUENDER, BALDOCK,! and BENTON,

‘ircuit Judges.

BALDOCK, Circuit Judge.

1 The Honorable Bobby R. Baldock, United States Court of

Appeals for the Tenth Circuit, sitting by designation.

App. 2

This appeal requires us to consider Missouri

state prison officials’ decision to deny inmate Clifford

Fowler a sweat lodge in which to practice his Native

American faith. Fowler claims prison officials’ refusal

to grant him such access violates § 3(a) of The

Religious Land Use and Institutionalized Persons

Act (RLUIPA). See Pub. L. No. 106-274, § 3(a), 114

Stat. 804 (2000) (codified at 42 U.S.C. §§ 2000cc-1).

Subsection 3(a) of RLUIPA provides in relevant part:

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution...

even if the burden results from a rule of

general applicability, unless the

government demonstrates that imposition

of the burden on that person—

(1) is in furtherance of a

compelling governmental interest;

and

(2) is the least restrictive means of

furthering that compelling

governmental interest.

In a thorough opinion, the district court

granted summary judgment to prison officials. See

Fowler v. Crawford, No. 05-4212-CV-C-NKL, 2007

WL 2137803 (W.D. Mo. July 23, 20U7)

(unpublished).2 The court concluded it was bound by

our decision in Hamilton v. Schiro, 74 F.3d 1545 (8th

Cir. 1996), and held prison officials’ “denial of a

2 The Honorable Nanette K. Laughery, United States District

Court for the Western District of Missouri.

App. 3

sweat lodge to [Fowler] is in furtherzince of a

compelling governmental interest in safety and

security in maximum security prisons and is

currently the least restrictive means to ensure such

safety and security.” Fowler, 2007 WL 2137803, at

*8. Our jurisdiction arises under 28 U.S.C. § 1291.

On appeal we apply the same summary judgment

standard as the district court, viewing the evidence

in a light most favorable to Fowler and giving him

the benefit of all reasonable inferences to be drawn

therefrom. See Buboltz v. Residential Advantages,

Inc., 523 F.3d 864, 867-68 (8th Cir. 2008). Applying

this standard, we affirm.

Fowler, of Cherokee descent, is an inmate at

the Jefferson City Correctional Center (JCCC).

Fowler is serving a life sentence without the

possibility of parole for second-degree murder. See

Fowler, 2007 WL 2137803, at *2. JCCC is a

maximum security prison operated by the Missouri

Department of Corrections (MDOC). JCCC houses

nearly 2000 adult male inmates. The inmates have

been convicted of committing serious felonies, or acts

of violence while incarcerated. Over 200 of JCCC’s

inmates are serving life without parole. The average

sentence at JCCC is twenty to thirty years

imprisonment. See Joint Appendix at 76 (hereinafter

JA).

Presently, JCCC permits Fowler and other

irmates who practice the Native American faith to

hold a two hour meeting twice weekly in the prison

chapel. As part of their meetings, JCCC permits the

group, comprised of roughly six inmates, to possess a

“sacred bundle.” The sacred bundle consists of a

App. 4

prayer pipe, sage, cedar, sweetgrass, tobacco, a

medicine bag, and prayer feathers. See JA at 43.

Because of Native Americans’ affinity with the

Earth, Fowler has requested access to an outdoor

area in which to facilitate his group’s bi-weekly

meetings. See JA at 44. Prison officials are willing to

accommodate Fowlers request. Both JCCC’s

Superintendent and Associate Superintendent,

Defendants Dave Dormire and Arthur Wood

respectively, are “currently” and “actively” working

with JCCC’s Chaplain, Defendant Robert Gibson, to

secure an outdoor meeting area for JCCC’s Native

American group. See JA at 74, 78, 84. Fowler claims,

however, that an outdoor meeting area is not enough.

Specifically, Fowler demands within such area access

to a sweat lodge a minimum of 17 times a year: “I

want the sweat lodge a minimum -basically a

minimum of 17 times a year, that’s once a month.

And then once for each solstice and equinox, and

once for a yearly celebration.” JA at 44.

When asked about the use of an outdoor area

in which to practice his Native American faith,

Fowler insisted a sweat lodge was essential to

practicing his faith:

Q. You mentioned in your complaint that

you also wanted an outdoor area, at

least, to practice your Native

American beliefs in. If you didn’t get a

sweat lodge as part of that outdoor

area, would you still be able to

practice your religion in the outdoor

area?

App. 5

A. I wouldn’t be able to — to pray to the

Great Spirit.

Q. Okay. Would that be better than your

current chapel area to practice your

beliefs, an outdoor area?

A. Are you asking if I had an outdoor

area, would that be better than

nothing at all? Is that basically —

Q. Better than what you currently have?

A. I’m sure that it would be somewhat

better, but it still wouldn’t enable me

to pray for the Great Spirit.

Q. You need the sweat lodge in order to

do that?

A. Yes. I need to be able to purify in the

sweat lodge in order to properly use

the sacred pipes to pray for the Great

Spirit.

JA at 48-49. Fowler acknowledges that JCCC prison

officials “are working to create an outdoor area for

Native American group religious practice during

regularly scheduled meetings,” but “[sluch an area is

not a substitute for the sweat lodge, which [Fowler's]

beliefs require.” Supplemental Joint Appendix at 253

(hereinafter SJA).° To fully appreciate the nature of

8 Absent a sweat lodge, Fowler also rejects the idea of a

medicine wheel (also referred to in the record as a “prayer

circle”) in the outdoor area:

App. 6

Fowler’s request, a detailed description of a sweat

lodge and the security concerns it engenders in an

institutional setting is necessary.

Willow poles form the structure of a sweat

lodge. Participants place several poles, 1% inches in

diameter and 14-16 feet long into the ground and

bend them to create a domed structure held together

by a smali cord.4 The size of the completed lodge is

approximately 4 feet high and 8-10 feet wide,

accommodating 12-15 individuals. Blankets or tarps

cover the entire structure to contain heat and dark.

In the center of the lodge, a _ depression

approximately 3 feet wide and 2 feet deep is designed

to hold several cantaloupe-sized rocks. The dirt from

the depression is placed outside the entrance of the

lodge to form an altar mound. See JA at 44-48; SJA

at 128-29.

Directly beyond the altar mound is a fire pit.

The pit rests 12-15 feet outside the lodge’s entrance

and measures approximately 5-6 feet by 4 feet.

A medicine wheel is a sacred thing, constructed upon

ground considered/designated as being sacred. It is a

large altar, and anyone who enters into or near it must be

ritually purified through the sweat lodge ceremony. To

construct a medicine wheel in an area designated for

Native American religious practice, while denying use of a

sweat lodge, would be to desecrate one ceremony for lack

of the other. Something which I will not do.

SJA at 531.

4 A sweat lodge takes 4-5 hours to construct. According to

Fowler, JCCC’s Native American group would construct the

sweat lodge using two shovels, two post hole diggers, one pick,

and one handsaw. The structure is designed to last four years.

See JA at 45; SJA at 133. A detailed description of the

construction process appears at pages 132-33 of the SJA.

App. 7

irewood is stacked in the pit. The rocks are placed

on the firewood and the wood is lit. Once the rocks

are hot, a participant carries 7-10 rocks, depending

on their size, to the lodge entrance with a shovel or

pitchfork. The ceremony’s facilitator receives the hot

rocks using a pair of deer antlers and places them in

the depression at the center of the lodge. See JA at

45-48; SJA at 128-29, 133.

A sweat lodge typically consists of four rounds.

)?articipants enter the lodge wearing only shorts, or a

1owel wrapped around their waist. A round begins

when the hot rocks are placed in the depression and

{he doorway flap is closed. The facilitator

intermittently pours water containing sage, cedar,

and/or sweetgrass over the rocks to produce steam,

heat and humidity. During each round, the

participants engage in a prescribed set of songs and

prayers. Participants may smoke the ceremonial pipe

during the round. See JA at 45-48; SJA at 128-29.

A round takes from 30 minutes to an hour to

complete. Upon completion of a round, the doorway

flap is raised and additional hot rocks and water are

brought into the lodge. A new round then begins. The

typical number of rocks used during the ceremony is

30-40. The entire ceremony typically takes 6-7 hours

to complete. To conclude the ceremony, participants

exit the lodge and remove the blankets or tarps from

the willow pole structure. The fire is burned down

and sacred objects are stored for safekeeping. The

lodge’s skeletal structure remains standing. See JA

at 44-48: SJA at 128-29.

JCCC prison officials do not question the

sincerity of Fowler’s request for a sweat lodge. Nor do

App. 8

they challenge the proposition that their decision to

deny Fowler a sweat lodge substantially burdens the

exercise of his religious faith. See Fowler, 2007 WL

2137803, at *3. Numerous officials, however, have

offered a myriad of reasons why they believe Fowler’s

request for a sweat lodge compromises security at

JCCC to an unacceptable degree.

Defendant Wood, JCCC’s Associate

Superintendent, submitted an affidavit attesting

that incidents of violence have occurred at JCCC

“during call-out times for religious services.” JA at

77. Wood stated that religious groups, like the Native

American group at JCCC, “who do not have regular

volunteers” from outside the prison to oversee their

ceremonies, pose a particular risk because meeting

times may be used for inappropriate purposes:

“Offenders, for instance, have used _ religious

programming time to engage in sexual misconduct

and organize violence.” JA at 77; see also SJA at 595-

98 (discussing specific instances of violence and

5 The 2003 version of MDOC’s Institutional Services Policy and

Procedural Manual defines a Volunteer as “[a] person who

performs assigned duties in the department without monetary

or material compensation from the department, following the

prescribed application, interview, training and site orientation

process.” SJA at 153. JCCC’s Chaplain, Defendant Gibson, has

been unable to locate a volunteer familiar with the Native

American faith to oversee the Native American group meetings

at JCCC. Defendant Gibson has contacted both Gayl Edmunds

of the Heart of America Indian Center in Kansas City, and

Dolores Santha, a former volunteer for the Native American

group at MDOC’s Potosi Correctional Center. Neither Edmunds

nor Santha was able to provide Defendant Gibson with any

information regarding possible Native American volunteers in

the Jefferson City area. See SJA at 371.

App. 9

sexual misconduct during religious services at

JCCC’s predecessor institution).

In addressing Fowler’s request for a sweat

lodge, Defendant Wood explained: “The sweat lodge

ceremony, in which offenders gather in an enclosed

area screened from the view of those outside the

lodge, and during which offenders tend a fire, handle

firewood and large hot rocks, create hot steam, and

use tools, including shovels, poses a_ significant

security risk.” JA at 77. Wood cited the risk of sexual

misconduct, physical assault, and drug use, as well

as fire and heat-related safety concerns. Wood also

explained that the sweat lodge would “consume

considerable institutional financial and personnel

resources” and “expend many institutional personnel

hours.” JA at 78. Finally, Wood indicated that

extending unique privileges such as a sweat lodge to

one group of inmates to the exclusion of others

creates a risk of resentment among the inmate

population leading to the potential for unrest and

disturbance. See JA at 77-78.

Fellow MDOC officials reiterated Defendant

Wood’s concerns about operating a sweat lodge at

JCCC. Defendant Steve Long, Director of

Rehabilitative Services, described his concern over

the objects used during a sweat lodge, namely rocks,

willow poles, shovels, deer antlers, and split wood, all

of which could be used as weapons: “We just try not

6 {ndeed, in their proposal to JCCC for a sweat lodge, the Native

American group indicated that “[djue to extreme heat and

humidity associated with the sweat lodge ceremony,

participating . .. inmate offenders will sign a statement

releasing [MDOC] from any and all] liability prior to

purticipation.” SJA at 129.

App. 10

to issue things like that to the [inmate] population if

we don’t have to.” JA at 27. Defendant Long

described a sweat lodge as fraught with risk. See

SJA at 461-63.

Notably, MDOC’s Potosi Correctional Center

(PCC) at one time authorized a by-yearly sweat lodge

ceremony only to discontinue it later. PCC is a

maximum security prison half the size of JCCC.

Donald Roper, PCC’s Superintendent, stated that

PCC discontinued operating the sweat lodge in 2006

due to increasing security concerns amidst a guard

stabbing at the prison. See JA at 51. At his

deposition, Roper expressed ongoing concerns over

staffing issues, budget cuts, inmate screening, and

the security challenges posed by the sweat lodges’

dark confines. See JA at 68-72. Terry Moore, MDOC

Director of the Division of Adult Institutions,

likewise expressed his discomfort with a sweat lodge.

When asked about the possibility of installing a

security camera inside the lodge to monitor the

participants’ conduct, Moore explained the interior of

the lodge was dark and, in any event, the steam from

the rocks would fog a security camera’s lens. See SJA

at 458. When asked about the feasibility of once

again accommodating a sweat lodge at PCC, Roper

responded that if court-ordered, he would do so:

I’m sure that we could make adjustments

and probably accommodate a sweat lodge.

Is it a good situation? Absolutely not. Is

there security concerns? Absolutely. Would

my chief of custody, my major, would he

have a runaway [i.e., be upset]? Yes, he

would. He would write me memos and

point out to me all the safety and security

App. 11

concerns that he continuously had when

the sweat lodge existed. And... now that it

doesn’t exist, he would say the same thing,

that there is a tremendous amount of

security concerns that evolved around the

sweat lodge.

JA at 70. Roper emphasized: “I’m telling you, I’m

here, I’ve been here, I’ve done this, and it has the

potential to be a problem.” JA at 71

Even Defendant Gibson, JCCC’s Chaplain,

expressed serious concerns about accommodating a

sweat lodge. Gibson worried about what might occur

inside the lodge and outside the view of prison

security. He cited the physical well-being of the

participants, as well as the possibility of sexual

improprieties and drug use: “{T]Jhere’s no way to

know what goes on in there.” SJA at 479. Gibson

supported the idea of an outdoor area where

members of JCCC’s Native American group would be

permitted “to smudge, to smoke pipe and [do] those

kinds of things . . . central to all tribes.”? “That’s

what I support, because it’s viewable, you can

monitor it from any number of locations and I’m not

as concerned with any kind of inappropriate activity

... SJA at 480.

IT.

7? Smudging involves the burning of plants considered sacred,

such as sage, cedar, sweet grass, and tobacco or a tobacco blend

called kinni-kinnick. Prior to a Native American religious

ceremony, the smoke from these burning plants is waved, using

t. feather, over the participants, the sacred items to be used,

and the area in which the ceremony will be performed. See SJA

at 122.

App. 12

As we noted at the outset, Fowler asserts

JCCC officials’ refusal to accommodate his request

for a sweat lodge 17 times a year violates § 3(a) of

RLUIPA. See 42 U.S.C. § 2000cc-1(a). RLUIPA is a

direct congressional response to the Supreme Court’s

decision in City of Boerne v. Flores, 521 U.S. 507

(1997). The Court in that case held RLUIPA’s

predecessor, The Religious Freedom Restoration Act

(RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (1993)

(codified at 42 USC. § 2000bb - 2000bb-4),

unconstitutional as applied to the States because it

exceeded Congress’ Fourteenth Amendment remedial

powers. See City of Boerne, 521 U.S. at 529-36.

Section 3 of RFRA broadly provided the Government

could substantially burden a person’s exercise of

religion only upon demonstrating that application of

the burden furthered a compelling governmental

interest and was the least restrictive means of

furthering that interest. See 42 U.S.C. § 2000bb-1

(invalidated by City of Boerne).

Because RLUIPA essentially resurrected

RFRA’s language (while invoking congressional

authority under the Spending and Commerce

Clauses), we concluded in Murphy v. Missouri Dep’t

Corr., 372 F.3d 979, 987 (8th Cir. 2004) that the

RLUIPA standard we would henceforth apply in the

prison context was identical to the RFRA standard

we had previously applied under RFRA:

Although the legislative history is brief,

several factors cause us to conclude that

Congress intended that the language of

[RLUIPA] is to be applied just as it was

under RFRA. Congress did not intend to

App. 13

overly burden prison operations, but rather

intended to provide as much protection as

possible to prisoners’ religious rights

without undermining the _ security,

discipline, and order of those institutions.

The following year, the Supreme Court agreed

with our view while rejecting an Establishment

Clause challenge to RLUIPA. In Cutter v. Wilkinson,

544 U.S. 709 (2005), the Court recognized that “[t]o

secure redress for inmates who encountered undue

barriers to their religious observations, Congress [in

RLUIPA] carried over from RFRA the ‘compelling

governmental interest’/‘least restrictive means’

standard.” Id. at 717. The Court repeatedly pointed

out, however, that lower courts in applying that

standard must remain mindful of context:

“Lawmakers anticipated. . . that courts entertaining

complaints under § 3 would accord ‘due deference to

the experience and expertise of prison and jail

administrators.’ ” Id. The Court cautioned against

construing RLUIPA to elevate accommodation of

religious practice over an institution’s need to

maintain order and safety:

We have no cause to believe that

RLUIPA would not be applied in an

appropriately balanced way, with

particular sensitivity to security concerns.

While the Act adopts a “compelling

governmental interest” standard,

“(clontext matters” in the application of

that standard. See Grutter v Bollinger, 539

U.S. 306, 327 #£«°(2003). Lawmakers

supporting RLUIPA were mindful of the

urgency of discipline, order, safety, and

App. 14

security in penal institutions. See, e.g., 139

Cong. Rec. 26190 (1993) (remarks of Sen.

Hatch). They anticipated that courts would

apply the Act’s standard with “due

deference to the experience and expertise of

prison and _ jail administrators in

establishing necessary regulations and

procedures to maintain good order, security

and discipline, consistent with

consideration of costs and_ limited

resources.” Joint Statement 16699 (quoting

S. Rep. No. 103-111, at 10) [Joint

Statement of Sen. Hatch and Sen. Kennedy

on RLUIPA appearing at 146 Cong. Rec.

16698, 16699 (2000)].

Cutter, 544 U.S. at 722-23 (internal footnotes

omitted). Lest doubt remain, the Court repeated its

message a final time: “It bears repetition . . . that

prison security is a compelling state interest, and

that deference is due to institutional officials’

expertise in this area.” Id. at 725 n.13.

That brings us to our decision in Hamilton v.

Schriro, 74 F.3d 1545 (8th Cir. 1996), which,

although decided under RFRA, is markedly similar

to the case now before us. Indeed, the district court

opined that “no reasonable judge could distinguish

this case from Hamilton.” Fowler, 2007 WL 2137803,

at *8. In Hamilton, prison officials appealed from a

grant of injunctive relief to an inmate. We held that

RFRA did not mandate inmate access to a sweat

lodge at PCC, and reversed the district court:

[T]he lower court got off on the wrong foot

by not giving appropriate deference to the

App. 15

aecisions of prison administrators and

appropriate recognition to the peculiar and

restrictive circumstances of penal

confinement. . . . [J]udgments regarding

prison security are peculiarly within the

province and professional expertise of

corrections officials, and in absence of

substantial evidence in the record to

indicate that the officials have exaggerated

their response to these considerations,

courts should ordinarily defer to their

expert judgment in such matters.

Hamilton, 74 F.3d at 1553 (internal quotations

omitted). We reasoned that despite RFRA’s “strict

scrutiny” standard, the Act’s legislative history

plainly revealed that “context matters:” “[A] court

applying RFRA must give due deference to the

expertise of prison. officials in _ establishing

regulations to maintain prison safety and security,

even when the court applies a heightened standard

of review.” Id. at 1554.

The concerns surrounding a sweat lodge that

prison officials expressed in Hamilton are identical to

those JCCC officials expressed in this case. See id. at

1548-49. Like here, prison officials in Hamilton

appeared amenable to tiamates of the Native

American faith meeting outdoors in plain view of

security to pray and conduct ceremonies. See id. at

3 Although the panel split 2-1 in Hamilton, the dissent did not

challenge the underlying analysis of Hamilton’s sweat lodge

claim. Rather, the dissent took issue with the constitutionality

of RFRA. See Hamilton, 74 F.3d at 1557 (McMillian, J.,

dissenting) (arguing Congress lacked the power under § 5 of the

Fourteenth Amendment to enact RFRA).

App. 16

1556. Much like Fowler asserts in this case, however,

Hamilton asserted that “if he could not have access

to a sweat lodge ceremony, he would not and could

not practice any aspect of his religion.” Id, at 1548.

Given Hamilton’s position, we concluded that his

case presented us with —

the unusual _ situation where the

government has_ satisfied the least

restrictive means prong by demonstrating

that other less restrictive alternatives are

not acceptable to plaintiff. .. . Hamilton’s

own all-or-nothing position supports the

prison officials’ contention that an out-right

prohibition against a sweat lodge ceremony

is the least restrictive means of achieving

the compelling interests of prison safety

and security in this case.

Id. at 1556.

Iil.

Like the district court, we are hard pressed to

distinguish Hamilton from this case. By ll

appearances, Ham.iton dictates the outcome here.

See South Dakota v. United States Dep’t Interior,

487 F.3d 548, 551 (8th Cir. 2007) (recognizing the

established rule that a subsequent panel may not

overrule a prior panel’s decision). As we have seen,

that we decided Hamilton under RFRA and Fowler’s

case arises under ™’.UIPA is inconsequential. Left

with little alternative, F wler suggests time has been

Hamilton’s undoing wecause subsequent to our

decision, PCC officials operated a sweat lodge for

over a decade without major incident. Seeking to

App. 17

capitalize on PCC officials’ exercise of discretion,

Fowler first insists that the concerns prison officials

raised about operating a sweat lodge at JCCC are not

compelling, but rather exaggerated. Fowler then

argues that, given PCC’s past history, JCCC officials

cannot possibly prove an outright ban on a sweat

lodge is the least restrictive means of furthering the

prison’s interest fn security.

A.

A prison’s interest in order and security is

always compelling. See, e.g., Cutter, 544 U.S. 725

n.13; see also Murphy, 372 F.3d at 988

(acknowledging that “MDOC has a compelling

interest in institutional security”). Certainly, to

ensure prison policies are in furtherance of that

compelling interest, officials’ security concerns must

be “grounded on more than mere speculation,

exaggerated fears, or post-hoc rationalizations.” S.

Rep. iNo. 103-111, at 10 (1993), reprinted in 1993

1J.8S.C.C.A.N. 1892, 1900 (Senate Report on RFRA).

3ut no reasonable juris., affording due deference to

prison officials, can dispute that serious safety and

security concerns arise when inmates at a maximum

security prison are provided ready access to (1)

burning embers and hot coals, (2) blunt instruments

such as split wood and large scalding rocks, (3)

sharper objects such as shovels and deer antlers, and

(4) an enclosed area inaccessible to outside view. As

PCC S»perintendent Roper aptly explained: “I’m

telling you, I’m here, I’ve been here, I’ve done this,

and [a sweat lodge] has the potential to be a

problem.” JA at 71. See Lovelace v. Lee, 472 F.3d

174, 190 (4th Cir. 2006) (providing due deference to

prison policy restrictions “that take[] into account

App. 18

any institutional need to maintain good order,

security, and discipline or to control costs”); see also

Coronel v. Paul, 225 F. App’x 575, 577 (9th Cir. 2007)

(unpublished) (citing Hawaii prison officials’ decision

to discontinue sweat lodge ceremonies “because an

investigation revealed that Hawaiian prison gangs

were using these services as a forum to organize

disruption” at the prison).

And this is to say nothing of a sweat lodge’s

drain on prison securitys manpower over the 6-7

hour duration of the ceremony. Such a drain becomes

all too real if unrest arises in one part of the prison

while a sweat lodge ceremony is ongoing elsewhere.

See Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th

Cir. 1991) (“Prison administrators . . . have limited

resources to provide the services they are called upon

to administer.”). Prison officials need not endure

assaults, drug indulgence, or sexual improprieties

before implementing policies designed to prevent

such activities in an uneasy atmosphere. Nor do

prison officials charged with managing such a

volatile envirosrment need present evidence of actual

problems to justify security concerns. See Murphy,

372 F.3d at 989. The record before us well documents

JCCC officials’ legitimate fears surrounding a sweat

lodge. On this record, we have no _ difficulty

concluding JCCC officials met their burden under §

3(a)(1) of RLUIPA and established, as a matter of

law, that prohibiting a sweat lodge at JCCC is in

furtherance of a compelling governmental interest.

See 42 U.S.C. § 2000cc-1(a)(1).

B.

App. 19

Fowler takes more forceful aim at § 3(a)(2) of

RLUIPA, the least restrictive means component. See

42 U.S.C. § 2000cc-1(a)(2). He initially asserts the

district court improperly placed the burden on him to

establish a sweat lodge ban was not the least

restrictive means by which to alleviate officials’

security concerns. See id. § 2000cc-2(b) (placing the

burden on the Government to establish a compelling

governmental interest served by the least restrictive

means). Fowler’s argument is unavailing. The record

before us plainly reveals that JCCC officials

suggested alternatives to and sought a compromise

with Fowler, to no avail. They offered Fowler an

outdoor area where he may smoke the ceremonial

pipe and practice other aspects of his Native

American faith in open view. See JA at 74, 78, 84.

Officials suggested a medicine wheel. See SJA at

531. They sought to locate an outside volunteer to

oversee JCCC’s Native American group. See SJA at

371.9 See Spratt v. Rhode Island Dep’t Corr., 482

F.3d 33, 41 n.11 (1st Cir. 2007) (suggesting that “to

meet the least restrictive means test, prison

administrators generally ought to explore at least

3ome alternatives”). Nonetheless, Fowler has rejected

anything short of a sweat lodge a minimum of 17

times a year, insisting JCCC utilize whatever

*’ At the time PCC permitted a sweat lodge, MDOC guidelines

on Native American Spirituality provided that “[s]weat lodges

may be constructed at correctional centers.” JA at 173

‘emphasis added). Sweat lodge ceremonies, however, “are to be

allowed only when there is approved external spiritual

eadership to lead practices and only when all operational

wonsiderations are addressed to the satisfaction of the

Superintendent.” SJA at 173 (emphasis added). Current MDOC

olicies do not provide for the operation or construction of a

sweat lodge at any MDOC institution. See SJA at 378.

App. 20

resources and screening procedures are necessary to

meet his demand. See JA at 44; see also Aplt’s Reply

Br. at 2 n.1 (stating Fowler would accept additional

guard supervision, including a guard inside the

lodge).

Fowler also belatedly asserts that his request

for a transfer to PCC, at a time when that prison was

accommodating a sweat lodge twice yearly with

numerous staff-imposed restrictions, illustrates his

willingness to accept something less than what he

ostensibly demands. But apart from Fowler’s

transfer request, we can find nothing in the record to

suggest that Fowier had any actual knowledge of the

restrictions PCC placed on the sweat lodge ceremony,

including its frequency. Besides, Fowler surely

knows more about the practice of his Native

American faith than JCCC officials. If he was willing

to accept something less than a sweat lodge 17 times

a year, he should have said so in no uncertain terms.

Instead, he said exactly the opposite: “I want the

sweat lodge a minimum -— basically a minimum of 17

times a year... .” JA at 44.

Unfortunately for Fowler, the burden of

production shifted to him once JCCC officials had

come forth with evidence that other means by which

Fowler might practice his Native American faith

were unacceptable to him. Where a motion for

summary judgment is properly made and supported,

as JCCC officials did here consistent with their

burden of proof, an opposing party must set forth

specific facts showing a genuine issue for trial. See

Fed. R. Civ. P. 56(e)(2). That Fowler bore the burden

of production at this point hardly constitutes an

improper shifting of RLUIPA’s burden of proof. “It

App. 21

would be a herculean burden to require prison

administrators to refute every conceivable option in

order to satisfy the least restrictive means prong of

RFRA.” Hamilton, 74 F.3d at 1556; accord Spratt,

482 F.3d at 41 n.11 (applying RLUIPA).

Fowler’s reliance on our decision in Murphy to

suggest the district court improperly shifted

RLUIPA’s burden of proof to him is misplaced. In

Murphy, we held prison officials could not meet their

burden of establishing that the denial of group

worship privileges to Murphy, a white supremacist,

was the least restrictive means of furthering their

interest in security, where the only evidence officials

presented was that Murphy was a racist and his

religion limited participation to Anglo-Saxons.

Unlike this case, we explained that “[i]t is not clear

[whether] MDOC seriously censidered any other

alternatives, nor were any explored before the

district court.” Murphy, 372 F.3d at 989.

Of course, our own Justice Blackmun

recognized that “[a] judge would be unimaginative

indeed if he could not come up with something a

little less ‘drastic’ or a little less ‘restrictive’ in almost

any situation, and thereby enable himself te vote to

strike (regulation] down.” Illinois State Bd. Elec. v.

Socialist Workers Party, 440 U.S. 173, 188-89 (1979)

(Blackmun, J., concurring) (criticizing the least

restrictive means test as a “slippery slope” of

uncertainty’. But such a draconian construction of

RLUIPA’s least restrictive means test would render

federal judges “the primary arbiters of what

constitutes the best solution to every religious

accommodation problem” in state penal institutions.

Lovelace, 472 F.3d at 215 (Wilkinson, J.,

App. 22

dissenting).!° And, as we have seen, this would be

inconsistent with congressional intent. See Cutier,

544 US. at 722-23.

We must remain mindful that Cutter counsels

restraint in this realm. There, the Supreme Court

repeatedly instructed us to provide “due deference to

the experience and expertise of prison and jail

administrators” in construing RLUIPA. Id. at 723.

Otherwise, “religious accommodation in_ the

penological context threatens to become the tail that

wags the dog. Absent due restraint, ‘inmate requests

for religious accommodations [may] become

excessive, impose unjustified burdens on other

institutionalized persons, or jeopardize the effective

functioning of an institution.’ ” Lovelace, 472 F.3d at

217 (Wilkinson, J., dissenting) (quoting Cutter, 544

U.S. at 726).

Undeterred, Fowler insists that JCCC officials

have not established that an outright sweat lodge

ban is the least restrictive means of ensuring prison

safety and security. Again, Fowler cites PCC’s

previous operation of a sweat lodge essentially to

conchide “they did it at PCC, they can do it at JCCC.”

Given the obvious security concerns surrounding the

sweat lodge itself, we are loathe to suggest that had

'© Nor is this a view of federalism we wish to endorse. We

cannot “imagine an activity in which a State has a stronger

interest, or one that is more intricately bound up with states

laws, regulations, and procedures, than the administration of

its prisons.” Woodford v. Ngo, 548 U.S. 81, 94 (2006); see also

Hamilton, 73 F.3d at 1553 (“[W)here state penal institutions are

involved, federal courts have a further reason for deference to

the appropriate prison authorities.” (internal quotations

omitted)).

App. 23

Fowler shown some willingness to soften his demand

the outcome of this case might differ. Courts have

repeatedly recognized that “evidence of policies at

one prison is not conclusive proof that the same

policies would work at another institution.” Spratt,

482 F.3d at 42. In Hamilton, we acknowledged

deposition testimony from prison administrators in

other states that their respective institutions

conducted sweat lodge ceremonies without major

problems. Hamilton, 74 F.3d at 1548. Yet that was

not enough for us to strip PCC officials of their

discretion in deciding whether to accommodate

inmates of the Native American faith with a sweat

lodge.}!

Of course, this is not to say that evidence of

what other prisons have done to accommodate

inmates’ religious practices is irrelevant to our

inquiry. See Washington v. Klem, 497 F.3d 272, 285

11 Similarly, the Sixth Circuit in Hoevenaar v. Lazaroff, 422

F.3d 366 (6th Cir. 2005) rejected an inmate’s demand to wear a

kouplock as part of his religious faith despite evidence that

earlier prison regulations had permitted individualized

exceptions to hair style without incident:

Although the district court noted that the prison did not

produce data demonstrating that the pre-1991 use of

discretionary exceptions to prison regulations resulted in

more dangerous prisons, the testimony of [Major] Guyton

and Warden Lazaroff was sufficient to demonstrate that

individualized exceptions did not sufficiently protect the

state’s interest in security and safety, particularly in light

of the deference accorded to the judgment of prison

officials regarding prison operations. Hoevanaar did not

rebut the state’s expert testimony regarding the problems

with his suggested alternatives “by substantial evidence”

that the officials exaggerated their response to security

considerations.

Id. at 371-72.

App. 24

(3d Cir. 2007). But as prisons differ, so may the

means by which prison officials ensure order and

stability:

Although prison policies from other

jurisdictions provide some evidence as to

the feasibility of implementing a less

restrictive means of achieving prison safety

and security, it does not outweigh the

deference owed to the expert judgment of

prison officials who are infinitely more

familiar with their own institutions than

outside observers.

Hamilton, 74 F.3d at 1557 n.15 (emphasis added).

The point is that prison officials may, quite

reasonably, exercise their discretion differently based

upon different institutional circumstances. !2

RLUIPA “mandates a uniform test, not a uniform

result.” Hamilton, 74 F.3d at 1554 (internal

quotations omitted).

A holding that RLUIPA requires JCCC to

provide Fowler a sweat lodge simply because PCC

12 For instance, JCCC’s inmate population is over twice the size

of PCC’s inmate population. Compare JA at 76 (estimating

JCCC’s inmate population at 1,973) with SJA at 560

(estimating PCC’s inmate population at 980). This alone

suggests that officials at JCCC may well be unable to

accommodate religious practices that PCC may accommodate.

Another material difference is that PCC, while operating the

sweat lodge, apparently had outside volunteers to oversee its

Native American group and maintain the group’s focus. JCCC

in contrast has been unable to locate such volunteers. Compare

JA at 56-57 (deposition of former PCC Volunteer Dolores

Santha) with SJA at 371 (affidavit of JCCC Chaplain Robert

Gibson).

App. 25

operated a sweat lodge for a number of years without

incident would adversely impact MDOC inmates. In

affect, such a result would require every penal

institution within MDOC’s jurisdiction to

accommodate inmates of the Native American faith

with a sweat lodge because ‘those institutions’

security interests are surely no greater than those of

JCCC, the highest level maximum security prison

within MDOC. This would discourage prison officials

within MDOC from accommodating inmates’

religious practices, knowing that if one institution

accommodated a particular religious practice, then

all institutions would likely have to accommodate the

same practice, regardless of the facts and

circumstances. For all the foregoing reasons, we

conclude JCCC officials met their burden under §

3(aX(2) of RLUIPA and established, as a matter of

law, that prohibiting a sweat lodge at JCCC is the

least restrictive means by which to further the

institution’s compelling interest in safety and

security. See 42 U.S.C. § 2000cc-1(a)(2).

IV.

In enacting § 3 of RLUIPA, Congress sought to

2liminate “frivolous or arbitrary” barriers impeding

orisoners exercise of religion. See Cutter, 544 U.S. at

716. One need not be analytically inclined to discern

the difference between the arbitrary restrictions

Congress sought to proscribe with RLUIPA, and

JCCC’s sweat lodge ban.!* Providing inmates at a

‘8 For example, congressional hearings revealed some Muslim

drisoners complained about the lack of Hallal food that was a

aecessary part of their religious observance, other Jewish

‘grisoners complained about a lack of sack lunches that would

2nable them to break their religious fasts after nightfall, still

App. 26

maximum security prison access to burning fires, red

hot rocks, split wood, shovels, and deer antlers alone

generate a unique and obvious set of security

concerns. Add to this an enclosed area engulfed in

steam and void ef light, outside the view of prison

guards, and prison officials’ fears are further

legitimized. And we must not forget that the sweat

lodge ceremony would expend significant prison

resources, undoubtedly diverting limited resources

from other areas of the prison. Considering all these

factors, we find nothing “frivolous or arbitrary” about

JCCC’s refusal to accommodate Fowler’s request for

a sweat lodge.

Recall that in Hamilton, we did “not

foreclose the possibility of a successful sweat lodge

claim under different circumstances.” Hamilton, 74

F.3d at 1557 (emphasis added). Indeed, where

possible, “we encouragel[d] prisons to accommodate

the religious needs of inmates, including American

Indian inmates.” Id. And that is precisely what

others complained about a ban on lighting Chanukah candles

although the prison permitted smoking and votive candles. A

clergyman described a year long battle over the use of

Sacramental Wine. The same witness explained that some

prison officials treated with contempt inmate possessions such

as the Bible, the Koran, the Talmud, and Native American

sacred objects. Officials reportedly on occasion confiscated,

damaged, or discarded these possessions. See Cutter, 544 U.S.

at 717 n.5. Case law reveals other seemingly unnecessary

restrictions on inmates’ religious practices. For instance one

inmate, an ordained minister, was not permitted to preach at

weekly religious services. See Spratt, 482 F.3d at 35. Another

inmate complained that prison officials unduly limited the

number of religious books he could possess in his cell, although

prison policies allowed him personal property in the amount of

four storage boxes. See Washington, 497 F.3d at 285.

App. 27

officials at PCC subsequently did, operating a bi-

yearly sweat lodge for Native American inmates

until, due to prison unrest, they determined in their

discretion that the balance between religious

accommodation and prison security tipped in favor of

the latter. Similarly, JCCC officials have exercised

their discretion and determined that a sweat lodge at

JCCC jeopardizes prison safety and security to an

unacceptable degree. This is precisely the exercise of

discretion to which RLUIPA requires us to defer.

Stripped of rhetoric, the question before us is

not whether JCCC officials may, but whether they

must, provide Fowler with a sweat lodge. In other

words, the pertinent query is whether a federal

appeals court, far removed from the realities of

institutional life at JCCC, or state prison officials —

well familiar with (1) the size and nature of JCCC’s

population, (2) the staffing problems and budgetary

restrictions under which they labor, and (3) the

various religious practices they are asked to

ecccommodate — is khest suited to make such a

decision. The answer . clear when we distinguish

between disputed facts (which are altogether absent

here) and disputed matters of professional judgment.

When we are presented only with disputes regarding

professional judgment, “our inferences must accord

deference to the views of prison authorities” where

those views rest on more than mere speculation and

conjecture. Beard v. Banks, 126 S. Ct. 2572, 2578

(2006) (plurality).

The judgment of the district court is

AFFIRMED.

App. 28

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

CLIFFORD CHARLES

FOWLER,

Register No. 166478,

Plaintiff,

LARRY CRAWFORD,

)

)

)

)

)

)

Vv. ) No. 05-4212-CV-C-NKL

)

)

et al., )

)

)

Defendants.

ORDER

Before this Court are the motions of plaintiff

Clifford Fowler and defendants Larry Crawford,

Steve Long, Dave Dormire, Arthur Wood, Joe Gibson,

and the Missouri Department of Corrections seeking

summary judgment. Responses and reply

suggestions to the motions have been filed by both

plaintiff and defendants.

Motion to Strike

In response to plaintiff's reply suggestions and

exhibits in support of summary judgment,

defendants have filed a motion to strike plaintiffs

Exhibits 1 through 4. Defendants argue that such

exhibits were not properly disclosed to defendants

prior to their filing and that the exhibits do not

satisfy the requirements of Rule 56, Federal Rules of

App. 29

Civil Procedure. Plaintiff has filed suggestions in

pposition, stating Exhibits 1 through 4, which

reflect the policies of the Federal Bureau of Prisons

and other state prison systems on sweat lodges, are

freely available to the public on the Federal Prison

Bureau website and various state equivalents.

Plaintiff argues that such exhibits were not under

his possession, custody or control; rather, they were

equally available to all parties had defendants opted

to conduct basic investigative work in this case.

Plaintiff further argues that the exhibits are of the

nature that the court can take judicial notice under

Rule 201, Federal Rules of Evidence.

The court may take judicial notice at any stage

in the proceedings regarding facts that are not

reasonably subject to dispute or are generally known

or capable of accurate and ready determination. Fed.

R. Evid. 201. The exhibits submitted by plaintiff in

his reply suggestions in support of summary

judgment are of such a nature that they are

susceptible to judicial notice. The information

provided by the exhibits is from federal and state

prisons; therefore, it is capable of accurate and ready

determination, if necessary, and is not reasonably

subject to dispute. Further, although not disclosed

prior to the summary judgment stage in the

proceedings, this court finds no prejudice to

defendants. Plaintiff has complied with discovery

and disclosure in this case. Defendants have been on

notice that the claims under the Religious Land Use

and Institutionalized Persons Act (RLUIPA) involve

the least restrictive means test which involves a

determination as to whether there are alternatives

available to accommodate plaintiffs request for use

of a sweat lodge, to which, arguably, accommodations

App. 30

made by other prisons could be relevant. In plaintiffs

motion for summary judgment, he specifically argues

that federal prisons and other state prisons allow

sweat lodges; thus, although supporting exhibits

were not attached, defendants were clearly put on

notice and, in fact, responded in opposition to such

argument, stating that accommodation at other

institutions is not relevant to accommodation at

Jefferson City Correctional Center (JCCC).

Additionally, the exhibits submitted by plaintiff were

obtained from state or federal entities, which have

made the information available to the public on the

Internet; thus, defendants had ready access to obtain

the information. Based on the foregoing, defendants’

motion to strike plaintiffs Exhibits 1 through 4 is

denied.

Summary Judgment

In support of his claims seeking summary

judgment and injunctive and declaratory relief under

42 U.S.C. § 1983, plaintiff states defendants have

denied him the use and construction of a sweat lodge,

in violation of RLUIPA. Plaintiff states use ofa

sweat lodge is a central tenet of his Native American

religion, and that defendants’ denial is based upon

exaggerated security concerns.

In support of their motion for summary

judgment, defendants state that accommodating a

sweat lodge at JCCC, a maximum security

institution, is a threat to safety and security within

the prison and would adversely impact prison staff,

other inmates and prison resources. Defendants state

that institutional security is the most compelling

governmental interest in a prison setting and that

App. 31

based on the legitimate safety and security concerns

associated with a sweat lodge, denial of use of a

sweat lodge is the least restrictive means of ensuring

prison safety and security. Defendants argue that

denial of use of a sweat lodge does not violate

plaintiffs First Amendment rights or RLUIPA.

Fed. R. Civ. P. 56(c) requires “the entry of

summary judgment... against a party who fails to

make a showing sufficient to establish the existence

of an element essential to that party’s case, and on

which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The burden on the party moving for summary

judgment “is only to demonstrate... that the record

does not disclose a genuine dispute on a material

fact.” City of Mt. Pleasant, Iowa v. Associated Elec.

Co-Op., 838 F.2d 268, 273 (8th Cir. 1988).

Once the moving party has done so, the

burden shifts to the nonmoving party to go beyond

his pleadings and show, by affidavit or by

“depositions, answers to interrogatories, and

admissions on file,” that there is a genuine issue of

fact to be resolved at trial. Celotex, 477 U.S. at 323.

Evidence of a disputed factual issue which is merely

colorable or not significantly probative, however, will

not prevent entry of summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment, however, “is an extreme

remedy, to be granted only if no genuine issue exists

as to any material fact.” Hass v. Weiner, 765 F.2d

123, 124 (8th Cir. 1985). In ruling on a motion for

summary judgment, this court must view all facts in

a light most favorable to the nonmoving party, and

App. 32

that party must receive the benefit of all reasonable

inferences drawn from the facts. Robinson v.

Monaghan, 864 F.2d 622, 624 (8th Cir. 1989).

If “there is no genuine issue as to any material

fact and... the moving party is entitled to a

judgment as a matter of law,” the court must grant

summary judgment. Fed. R. Civ. P. 56(c).

Facts

Plaintiff Clifford Fowler is an inmate at JCCC.

JCCC is a level 5 maximum security institution that

currently houses 1,973 adult offenders. Offenders at

Missouri level 5 maximum security institutions such

as JCCC are incarcerated there because they have

committed serious felonies; have committed a violent

act while incarcerated; or are considered a security

risk based on past records. Plaintiff is incarcerated

for murder in the second degree and is serving a life

sentence without the possibility of parole.

Plaintiff is of Cherokee descent and practices

the Native American faith. Defendants do not

challenge the sincerity of his religious beliefs.

Plaintiff is part of the Native American religious

group at JCCC, consisting of approximately six

members. The Native American group is allowed

access to the chapel for meetings twice weekly for

two hours, at which they relay oral traditions and

sing ceremonial songs, and have access to drums and

other religious items, including a buffalo skull.

Individual members of the Native American religious

group are also afforded Native American spiritual

items for individual personal religious use, such as a

pipe, approved tobacco blend, a medicine bag, herbs,

App. 33

head band, feathers and a dream catcher. Plaintiff,

as a part of the Native American religious group, is

also allowed to wear his hair long, as part of his

spiritual beliefs. There is currently no Native

American volunteer-in-corrections (VIC) to supervise

or lead Native American groups at JCCC.

Plaintiff has sought additional spiritual

accommodations at JCCC, including a request for an

outdoor area for Native American religious use, to

enable Native Americans to have direct contact with

the earth during prayer and the opportunity to burn

sacred plants, see Offender Grievance No. 04-651,

dated Dec. 27, 2004, and Offender Grievance Appeal,

dated Jan. 18, 2005, and use of and construction of a

sweat lodge. See Offender Grievance No. 04-649, filed

Dec. 27, 2004.

The use of a sweat !odge is a central tenant of

the Native American religion. This is not disputed by

defendants. A sweat lodge is a dome structure,

constructed with 14 to 16 feet willow poles,

measuring one and one-half inches in diameter, set

in the ground and then bent over so that the poles

attach to the poles on the opposing side of the dome.

When constructed, the dome measures four feet tall,

and eight to ten feet across, and can accommodate

between 12 to 15 inmates. The willow structure is a

permanent structure that needs to be replaced

approximately every four years.

To set up for a sweat lodge ceremony, the

willow dome is covered with blankets and/or

tarpaulins. Firewood is used to start a fire. Thirty to

forty rocks, the size of cantaloupes, are heated in the

fire by participating inmates, outside the lodge, and

ESS TO

App. 34

then are picked up with a shovel and taken to the

doorway of the sweat lodge where they are picked up

with deer antlers and set in the sweat lodge. A large

bucket is used inside the sweat lodge to pour water

over the rocks, producing steam. Once inmates are

inside the lodge, there are four rounds which last

from thirty minutes to an hour. During these rounds,

the sweat lodge door is closed fifteen to twenty

minutes of each round. An inmate participating in

the sweat ceremony would be required to wear shorts

or a towel wrapped around the lower half of his body.

The typical sweat lodge ceremony would last six to

seven hours from beginning to end.

Plaintiff's request for a sweat lodge has been

denied by JCCC authorities. However, JCCC

authorities state they are currently in the process of

creating a separate, fenced, outdoor area to be used

exclusively by the Native American religious group

for their twice-weekly meeting times.

First Amendment Claim

Plaintiffs response to defendants’ motion for

summary judgment provides, in footnote 1, that he

does not oppose defendants’ motion as it pertains to

any First Amendment claims. Under the First

Amendment, reasonable restrictions may be placed

on an incarcerated individual’s religious practices.

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

Therefore, summary judgment is granted in favor of

defendants on plaintiffs First Amendment claims.

Religious Land Use and Institutionalized Persons Act

(RLUIPA) Claim

App. 35

Title 42 U.S.C. § 2000cc-a(a)(1)-(2) provides, in

part: “No government shall impose a substantial

burden on the religious exercise of a person residing

in or confined to an institution,” unless the burden

furthers “a compelling governmental interest” and

does by the “least restrictive means.” Cutter v.

Wilkinson, 544 U.S. 709, 712 (2005). This section

applies to any program receiving Federal financial

assistance. Id. at 715-16. Every state, including

Missouri, accepts federal funding for its prisons. Id.,

n.4. Thus, section 2000cc-a(a)(1)-(2) is applicable to

plaintiffs claims in the instant case.

Before enacting the standards set forth in

RLUIPA, Congress enacted the Religious Freedom

and Restoration Act (RFRA) to secure redress for

inmates who encountered undue barriers to their

religious observances. Id. at 716-17. RFRA was

invalidated as applied to the states in City of Boerne

vy. Flores, 521 U.S. 507, 515-16 (1997), because it

lacked a Commerce Clause underpinning or

Spending Clause limitation to recipients of federal

funds. Cutter v. Wilkinson, 544 U.S. at 715. In

response to City of Boerne v. Flores, Congress

enacted RLUIPA and specifically invoked federal

euthority under the Spending and Commerce

Wlauses, thus ensuring applicability to the states.

Cutter v. Wilkinson, 544 U.S. at 715. RLUIPA

carried forward the “compelling governmental

interest”’/“least restrictive means” standard

originally set forth in RFRA. Id. at 714-15, 722-23.

Also carried forward with the standard was the

application of “due deference to the experience and

expertise of prison and jail administrators,” by the

courts in reviewing religious accommodation for

prisoners. id. at 723.

App. 36

In Cutter v. Wilkinson, the Supreme Court

upheld RLUIPA as constitutional, finding that it did

not violate the Establishment Clause of the First

Amendment as asserted by some courts. 544 U.S. at

709. The court held that RLUIPA alleviates

exceptional government-created burdens on private

religious exercise, but does not establish unyielding

interests of religious accommodation over other

interests, such that it would violate the

Establishment Clause. Id. The Court held that the

same due deference to prison and jail administrators

in establishing necessary regulations and procedures

to maintain order and security, as was provided

under RFRA, was also applicable under RLUIPA. Id.

at 723. The Court stated “[w]Je do not read RLUIPA

to elevate accommodation of religious observances

over an institution’s need to maintain order and

safety.” Id. at 722. “[A]lecommodation must be

measured so that it does not override other

significant interests.” Id. RLUIPA is to be applied in

an appropriately balanced way, with particular

sensitivity to security concerns. Id. While RLUIPA

adopts a “compelling governmental interest”

standard, “context matters” in the application of that

standard. Id. at 722-23. The Act anticipates the

courts will apply the standard with “due deference to

the experience and expertise of prison and jail

administrators in establishing necessary regulations

and procedures to maintain good order, security and

discipline, consistent with consideration of costs and

limited resources.” Id. at 723.

In Pounders v. Kempker, 79 Fed. Appx. 941

(2003), the Eighth Circuit held that the upplication of

RFRA in Hamilton v. Schriro, 74 F.3d 1545 (8th Cir.

App. 37

1996), to prisoner’s sweat lodge claim was instructive

on prisoner’s sweat lodge claims under RLUIPA. Ina

subsequent opinion, the Eighth Circuit specifically

stated that the standard applied in RFRA is the

same standard to be applied in RLUIPA cases.

Murphy v. Missouri Dept. of Corr., 372 F.3d 979 (8th

Cir. 2004). These Eighth Circuit holdings are

consistent with Cutter v. Wilkinson, 544 U.S. at 709.

The case of Hamilton v. Schriro, 74 F.3d 1545

(8th Cir. 1996), applied the RFRA in support of

clenial of a sweat lodge to a prisoner at the Missouri

Department of Corrections maximum security prison

in Potosi. The court held that while the denial of a

sweat lodge to a prisoner practicing the Native

American religion at the maximum security

institution in Potosi did substantially burden the

exercise of the prisoner’s Native American religion,

such denial was the least restrictive means of

achieving the prison’s compelling interest in safety

and security. Id. at 1554. The court stated that the

tast of the least restrictive means/compelling state

interest, when applied in the prison setting, must

give due deference to expert judgment of prison

officials in making appropriate limitations to

maintain institutional security. Id. at 1553. The

cesurt cited Pell v. Procunier, 417 U.S. 817, 822

(1974), for the proposition that in the absence of

siibstantial evidence in the record to indicate

exaggeration by officials, courts should ordinarily

defer to prison officials’ expert judgment on matters

involving the peculiar restrictive circumstances of

p2nal confinement. Hamilton v. Schriro, 74 F.3d at

1353. The court, while recognizing that restrictions

on religious accommodation should be no greater

than necessary (least restrictive), noted that even

App. 38

with “heightened” standard of review under RFRA,

due deference to prison expertise of prison officials is

necessary. Hamilton v. Schriro, 74 F.3d at 1554. The

court cited institutional security and safety as

central to all other corrections goals and the highest

penological concerns. Id.

The facts in the instant case are virtually

identical to those in Hamilton v. Schriro, and as set

forth above, the analysis is also the same.

Defendants do not challenge the central

importance of a sweat lodge to the Native American

religion; rather, defendants cite unique security

concerns that arise with a sweat lodge as the basis

for denial of such accommodation to Native American

religious group members. Under RLUIPA,

defendants must show that the prison policies and

regulations restricting use or construction of a sweat

lodge are the least restrictive means of achieving a

compelling state interest. There is no dispute that

prison safety and security are compelling state

interests.

MDOC’s Compelling State Interests

MDOC defendants Steve Long, Assistant

Division Director for the Division of Adult

Institutions, and Arthur Wood, JCCC Associate

Superintendent, have provided evidence in the form

of affidavits setting forth the unique safety concerns

associated with a sweat lodge. Specifically, the

affidavits provide that in maximum security

institutions, such as JCCC, where prisoners of

heightened security risk based on their crimes

committed, violent acts while incarcerated, or

App. 39 by

security concerns based on past record, are housed,

the construction and use of a sweat lodge creates

unique security and safety concerns within the

institution. MDOC officials state incidents of violence

are known to occur at religious call-out times, with

‘eightened risk in religious groups, such as the

Native American group, which do not have regular

VIC’s leading the groups. MDOC officials set forth

evidence that the sweat lodge ceremony involves

offenders gathering in an enclosed area screened

from view of those outside the lodge, and during

which offenders tend a fire, handle firewood and

large rocks, create hot steam and use tools, including

shovels, and that these characteristics pose security

risks. MDOC officials state that a sweat lodge’s

unique characteristics substantially heighten

concerns regarding risk of assault against staff and

among offenders, risk of sexual misconduct among

offenders, risk of offenders planning organized

disobedience against staff, risk that smoke from the

sweat lodge being used to mask the odor of illicit

substances, and risk regarding fire and heat-related

safety concerns.

Plaintiffs argument that the safety concerns

cited by MDOC officials are exaggerated and do not

support the restriction on sweat lodges has been

determined by the Eighth Circuit to be unfounded.

The Eighth Circuit, in Hamilton v. Schriro, 74 F.3d

at 1551, held that prohibiting inmates from meeting

in a completely enclosed area is rationally connected

to preventing the type of harm prison officers fear

would occur in a sweat lodge. Almost identical

evidence of safety and security concerns as that

provided in Hamilton has been provided in this case.

App. 40

Plaintiff has come forward with evidence that

MDOC has previously accommodated a sweat lodge

at the Potosi Correctional Center, and that federal

prisons and some state prisons accommodate sweat

lodges. This evidence, other than that concerning

Potosi, was also presented in Hamilton and was held

by the Eighth Circuit as insufficient to counter the

evidence about security concerns submitted by

MDOC prison officials. The evidence provided by

plaintiff as to accommodation by MDOC at Potosi

and by other federal and state prison institutions,

while persuasive on the issue of accommodation, fails

to provide evidence sufficient to counter the required

deference given to the expert judgment of prison

officials. See id. See also Pounders v. Kempker, No.

2:02CV49-DJS (E.D. Mo. 2004) (on remand from the

Kighth Circuit, citing Hamilton in support of

judgment finding legitimate security concerns justify

denial of sweat lodge, no violation of RLUIPA).

Based on the precedent of this Circuit, and

defendants’ evidence, there is no dispute of material

fact that MDOC’s restriction on a sweat lodge is

supported by the state’s compelling state interest in

safety and security.

Least Restrictive Means

Because there is a compelling state interest,

the next issue under RLUIPA is a determination as

to whether the denial of a sweat lodge in its entirety

is the least restrictive means of achieving the state’s

compelling interest in safety and security within the

prison. Plaintiff argues that defendants’ safety and

security concerns associated with the construction

and use of a sweat lodge could be alleviated if MDOC

App. 41

carefully screened maximum security inmates prior

to allowing them access to the sweat lodge; if

participants in a sweat ceremony exit the sweat

lodge every thirty minutes; and if a volunteer could

participate in the sweat ceremony. Despite such

assertions, however, the evidence does not support

that these restrictions would significantly and/or

adequately reduce or remove the safety and security

concerns defendants have with the unique nature of

the sweat lodge ceremony. Defendants state that

based on their experience and expertise, the unique

safety and security concerns of a sweat lodge

ceremony which arise from the completely dark

enclosure in which prisoners are unsupervised for

periods of up to thirty minutes at a time, and have

e.ccess to items such as shovels, fire, hot rocks, deer

antlers, etc., are not alleviated by plaintiffs

suggestions. Further, plaintiffs assertion that

security and safety concerns associated with a sweat

lodge could be minimized by means of a Native

American prison volunteer who could assist with

supervision of the fire and within the sweat lodge

during the sweat ceremony, is not supported by the

evidence. Plaintiff has provided no evidence that

such volunteer is available. Rather, the evidence is to

the contrary; currently the Native American

religious group at JCCC does not even have a Native

American VIC to supervise or lead the Native

American religious group’s biweekly services at

JCCC.

Plaintiffs request for a sweat lodge has been

an all-or-nothing accommodation request. Plaintiff

soecifically requests full use of a sweat lodge at least

17 times a year. Defendants have set forth evidence

that they have tried to accommodate other

App. 42

alternative religious requests of plaintiff, but that

they are unable to accommodate his all-or-nothing

request for a sweat lodge. Defendants state they are

in the process of constructing an exclusive fenced

area for the Native American religious group for

purposes of allowing the group to conduct outdoor

religious services, as was requested by plaintiff in an

Internal Resolution Request (IRR) form submitted to

MDOC officials. Defendants state, however, that

despite such accommodation, plaintiff asserts that he

cannot utilize the outdoor area without being given

access to a sweat lodge. In Pounders v. Kempker, No.

2:02CV49-DJS (E.D. Mo. 2004), on remand from the

Eighth Circuit, the Eastern District of Missouri held

that prisoner’s all-or-nothing request for a sweat

lodge was not subject to change, and thus, prisoner

failed to come forward with any evidence that there

were any less restrictive alternatives to a total ban

on sweat lodges.

Based on plaintiff's assertion of an all-or-

nothing religious accommodation for full access to a

sweat lodge, and refusal to accept alternative

accommodation by MDOC officials, there is no

dispute of material fact as to whether a less

restrictive means is available. Plaintiff has come

forward with no evidence to support his claim that

there are less restrictive means of achieving prison

safety and security, other than completely

prohibiting the sweat lodge ceremony.

Conclusion

Based on the precedent of this Circuit, there is

no dispute of material fact which would require a

trial in this matter. Although the denial of a sweat

App. 43

lodge is a substantial burden on plaintiffs exercise of

ais Native American religion, Eighth Circuit

precedent demonstrates that defendants’ denial of a

sweat lodge to plaintiff is in furtherance of a

compelling governmental interest in safety and

security in maximum security prisons and is

currentlv the least restrictive means to ensure such

safety and security. Taking the facts most favorable

to plaintiff, no reasonable judge could distinguish

this case from Hamilton v. Schriro, which held that

denial of a sweat lodge at the maximum security

prison in Potosi was permissible. Further, the

Hamilton decision has been affirmed in Missouri by

the Eastern District of Missouri in Pounders v.

Kempker, No. 2:02CV49-DJS (E.D. Mo. 2004), which

applied the precedent of Hamilton to its decision that

denial of a sweat lodge to a Missouri prisoner did not

violate the First Amendment of the Constitution or

RLUIPA. Defendants are «untitled to judgment on

plaintiffs claims as a maiter of law.

IT IS, THEREFORE, ORDERED that

clefendants’ motion to strike is denied. [101] It is

further

ORDERED that plaintiffs motion for

summary judgment is denied. [91] It is further

ORDERED that defendants’ motion for

summary judgment is granted and plaintiffs claims

are dismissed. [88]

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District

Judge

App. 44

Dated: July 23, 2007

Jefferson City, Missouri

App. 45

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No: 07-2946

Clifford Charles Fowler,

Appellant

Vv.

Larry Crawford; et al.,

Appellees

Appeal from U.S. District Court for the Western

District of Missouri - Jefferson City

(2:05-cv-04212-NKL)

ee ee ee ee

Appellant Clifford Fowler’s motion to

consolidate this case with case No. 06-3473, Fegans

v. Norris, for the purpose of en banc review has been

considered by the court and is denied.

September 23, 2008

Cirder Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

App. 46

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No: 07-2946

Clifford Charles Fowler,

Appellant

Vv.

Larry Crawford; et al.,

Appellees

Appeal from U.S. District Court for the Western

District of Missouri - Jefferson City

(2:05-cv-04212-NKL)

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also

denied.

September 29, 2008

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s / Michael E. Gans