Opposition Brief — Fowler v. Crawford (No. 08-855)

Supreme Cc...i, U.S.

FILED

Ky) FEB 6 - 2089

No. 08-855 OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

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

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

CHRIS KOSTER

Attorney General of Missouri

James R. Layton

Solicitor General

Counsel of Record

Kathleen Robertson ©

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321 phone

(573) 751-8796 facsimile

Counsel! for Respondents

TABLE OF CONTENTS

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Fowler’s Request for a Sweat Lodge.................: 3

Native American Faith Practices

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Description of the Sweat Lodge & Ceremony........... 4

Institutional Concerns about the Construction

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There is No Circuit Split in how the

Courts of Appeals Interpret RLUIPA............... 8

Less-Restrictive Alternatives.................. 8

Burden Shifting and Deference............ 1]

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TABLE OF AUTHORITIES

Cases

Cutter v. Wilkinson, 544 U.S. 709 (20085)..... passim

Greene v. Solano Co. Jail,

613 F.3d 982 (Sth Cir. 2008).................+. 8. 10

Hamilton v. Schriro,

74 F.3d 1546 (Sth Cir. FO96)..............00ces00- 9

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006)............. 9, 10, 12

Martin v. Sergeant,

780 F.2d 1334 (th Cir. 1965) ..............206.... 7

Murphy v. Mo. Dept. of Corrections,

372 F.3d 979 (8th Cir. 2O04)..........cc00seoees-s>- 9

Owens v. Isaac, 487 F.3d 561 (8th Cir. 2007)...... 7

Preiser v. Newkirk, 422 U.S. 395 (1975) ............... 7

1V

Ruiz vc. Estelle.

003 F.Supp. 1265 (S.D. Tex. 1980)............ 10

Spratt v. Rhode Island Dept. of Corrections,

482 F.3d 33 (ist Cir. 2007)............ 8,9, 10, 12

Washington. v. Klem.

497 F.3d 272 (3d Cir. 2007)................. 8,9, 10

STATUTES

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OTHER AUTHORITIES

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PARTIES TO THE PROCEEDING

Petitioner is Clifford C. Fowler. an inmate in

the Algoa Correctional Center in Jefferson City.

Missourl.

Respondents are the Missouri Department of

Corrections and various officials at the Department

of Corrections: George Lombardi (as successor to

Larry Crawford), Tom Clements (as successor of

Terry Moore), Mike Kemna (as successor of Steve

Long),! David Dormire, Arthur Wood, and Robert Joe

Gibson (collectively, the Department).

STATEMENT OF THE CASE

Procedural History

Fowler, at the time an inmate incarcerated in

Jefferson City Correctional Center (JCCC), brought

this action pursuant to 42 U.S.C. § 1983 for alleged

violations of his First Amendment rights and

pursuant to the Religious Land Use _ and

Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc. In his original complaint, Fowler sought to

have correctional officiais provide him with an

outdoor area and to construct a sweat lodge at JCCC

for his use. In Fowler’s First Amended Complaint,

he dropped his request for an outdoor area,

maintained his claims regarding the sweat lodge,

and added claims regarding the alleged confiscation

1 Fowler sued the individual defendants in their official

capacities. Larry Crawford has recently left his position as

Director cf the Department and was replaced by George .

Lombardi. Tom Clements has succeeded Terry Moore, and

Mike Kemna succeeded Steve Long. Thus, pursuant to Fed. R.

App. P. 43(c)(2). Lombardi. Clements, and Kemna are now

defendants in this lawsuit.

i)

of some religious items. Fowler also added claims for

punitive damages against the Department and its

officials.

The district court dismissed Fowlers claims

regarding the confiscation of his religious items and

his claims seeking punitive damages pursuant to 42

U.S.C. § 1983. (ECF Doc. No. 82). Both Fowler and

the Department moved for summary judgment. In

responding to the Department’s motion for summary

judgment, Fowler did not oppose judgment against

him on his First Amendment claims, nor on any

claims he had for punitive damages that were not

already dismissed. (SJA 406 n.1). Accordingly, the

only issue left for the district court to decide on

summary judgment was Fowler's claim pursuant to

RLUIPA seeking the construction and use of a sweat

lodge at JCCC. The Honorable Nanette Laughrey

determined that there was no dispute of material

fact that would require a trial, denied Fowler's

motion for summary judgment, and_ granted

summary judgment for the Department. On appeal,

the Court of Appeals for the Eighth Circuit affirmed.

Background

JCCC is a maximum security institution that

houses approximately 1,973 adult offenders. (SJA

332, 373). Offenders at JCCC are incarcerated there

because they have committed serious felonies; have

committed a viclent act while incarcerated; or are

considered a security risk based on past records.

(SJA 332-333, 373). Fowler is incarcerated in the

Department for murder in the second degree and is

serving a life sentence. (SJA 333, 401, ECF Doc. No.

1 at 1).

to

Fowler’s Request for a Sweat Lodge

and Outdoor Area

Fowler practices a Native American faith at

JCCC, and according to his testimony. is of Cherokee

descent. (SJA 380. 383). In addition to the practices

already available to those who practice a Native

American faith, Fowler requested further spiritual

accommodations at JCCC, including an outdoor area

to enable him and others who practice with him to

have direct contact with the earth during prayer and

to have the opportunity to burn sacred plants. Id.

He also requested the construction and use of a

sweat lodge. (SJA 92).

Native American Faith Practices Available

to Offenders at JCCC

Offenders at JCCC who choose to may practice

their Native American faith through both group and

individual practices. (SJA 333, 350, 370). As a

group, those offenders in general population who

practice a Native American faith can meet twice a

week, for two hours at each meeting. (SJA 333, 370).

At these meetings, the group has access to drums

and other religious items, including a buffalo skull.

(SJA 333, 370, 395). The offenders use these

meetings to relay oral traditions and sing ceremonial

songs. (SJA 334, 381). Though in the past these

meetings were confined to the nondenominational

chapel area, subsequent to Fowler’s request, officials

at JCCC have worked to create an outdoor area that

the group may use during their twice-weekly

meetings, weather permitting. (SJA 334, 371, 375,

403).

The Native American faith group consisted of

approximately six members. (SJA 334. 388). There

is no volunteer-in-corrections (VIC) to supervise or

lead this faith group's meetings at JCCC. (SJA 371).

Offenders mav also practice their faith

individually. (SJA 333, 350). They may possess

numerous Native American items in their personal

property, including: an individual pipe, an approved

tobacco blend for personal use, a medicine bag,

herbs, feathers, and a dream catcher. (SJA 333,

371). They may also wear their hair long, in

accordance with their spiritual beliefs. (SJA 334,

383).

Description of the Sweat Lodge & Ceremony

The sweat lodge Fowler requests is a domed

structure, approximately four feet tall and eight to

ten feet across. (SJA 335, 387). It is formed by

bending willow poles, which are approximately

fourteen to sixteen feet long and an inch and a half

in diameter. (SJA 335, 386-387). During ceremonia!

use, the poles are covered with a blanket and a tarp.

(SJA 335, 389). It can accommodate between 12 to

15 inmates. (SJA 388).

The sweat lodge is a semi-permanent

structure that would need to be replaced every four

years. (SJA 335, 387). Fowler demands that the

e~veat lodge be used a minimum of seventeen times a

year, depending on the lunar cycle. (SJA 335, 384-

385). Each ceremony, called a sweat, would take

from six to seven hours, from beginning to end. (SJA

335, 385-386).

During the ceremony, approximately thirty to

forty rocks, each the size of a cantaloupe. are used.

(SJA 335, 391-392). Offenders use firewood to build

a fire. on which the rocks are heated. (SJA 335. 394).

As a spiritual part of the ceremony. offenders tend

the fire. (SJA 335, 392-393). Once the cantaloupe-

sized rocks are heated, offenders pick them up with a

shovel and take them to the door of the sweat lodge,

where they are picked up with deer antlers and set

inside the sweat lodge. (SJA 336, 390-391). Once

the offenders are inside the sweat lodge, there are

four rounds, which last from thirty minutes to an

hour each. (SJA 336, 397). The door of the sweat

lodge is closed for fifteen to twenty minutes of each

round. (SJA 336, 396-397). During the ceremony,

offenders use a bucket to pour water on the heated

rocks to create steam. (SJA 336, 388, 396).

Participants in the ceremony are clothed in shorts or

a towel wrapped around the lower half of the body

(SJA 336, 398-399).

Institutional Concerns about the Construction

and Use of a Sweat Lodge

Incidents of violence have occurred at :eligious

call-out times, with a heightened risk in religious

groups not led by a Volunteer in Corrections. (SJA

374). For instance, offenders have used religious

programming time to engage in sexual misconduct

and to organize violence. (SJA 374, 595-598). The

nature of the sweat lodge ceremony, particularly the

fact that it is not openly visible to security personnel,

heightens these security concerns. (Roper dep.

42:10-19, 55:3-4 at SJA 556, 558; Moore dep. at SJA

600-601; Long dep. 51:17-52:16 at SJA 564). The

smoke from the sweat lodge also presents the risk

that the scent will be used to mask the odor of illicit

substances. (SJA 374). And the items used in the

sweat ceremony. including hot. cantaloupe-sized

rocks. a shovel. and deer antlers. can be used as

weapons. (SJA 558).

The six to seven hour sweat lodge ceremony,

requested by Fowler is longer than the typical two-

hour religious meetings held in JCCC, and would

affect the way the institution keeps count of those

offenders who participate in the ceremony. (SJA

375). In addition, extending additional programming

to one group of offenders, and not to all offenders,

presents a risk of creating resentment among the

offender population, leading to heightened tension

and the potential for unrest and disturbance among

offenders. (SJA 375).

Building and maintaining a sweat lodge and

facilitating sweat lodge ceremonies would consume

considerable institutional financial and personnel

resources. The extended program time required for

the sweat lodge ceremony would expend many

institutional personnel hours. (SJA 375). The labor-

intensive nature of the sweat lodge activities

diminishes the ability of staff to respond to security

concerns and supervise inmates in other areas of the

prison. (Roper dep. 45:17-47:21 at JA 556-557).

Sweat Lodge at PCC

Potosi Correctional Center (PCC) is a

maximum security prison about half the size of

JCCC. (Pet. App. 10). For over ten years, PCC

operated a sweat lodge in fall and spring, with

numerous restrictions, including that the sweats

were supervised by a Native-American specialist,

and then later, a Volunteer in Corrections;

supervision included taking care of the wood and

rocks. (JA 68; SJA 448). PCC was selective in the

inmates who were allowed to participate in the sweat

lodge. screening out inmates who had _ poor

institutional adjustment and a certain number of

conduct violations. (SJA 448). The sweat lodge at

PCC was discontinued due to security concerns,

especially after a correctional official was stabbed in

ar incident unrelated to the sweat lodge, as well as

because of staffing cuts, budget issues, and inmate

screening. (JA 68-72; SJA 378; Pet. App. 10).

RESPONSE TO REASONS

TO GRANT PETITION

This Case is Moot

In his First Amended Complaint, Fowler

sought only injunctive relief: to be transferred from

JCCC to PCC, which, at the time was operating a

sweat lodge; or to be allowed to have a sweat lodge at

JCCC. But Fowler is no longer incarcerated at

JCCC; as of December 30, 2008, Fowler is

incarcerated at Algoa Correctional Center.

A request for injunctive relief from any

conditions of confinement is moot after a transfer to

another prison. Preiser v. Newkirk, 422 U.S. 395,

401-02 (1975); see also Owens v. Isaac, 487 F.3d 561,

564 (8th Cir. 2007) (citing Martin v. Sergeant, 780

F.2d 1334, 1337 (8th Cir. 1985)).

As Fowler is no longer at JCCC, his case is

moot and his petition for certiorari to this Court

should be denied.

There is No Circuit Split in how the Courts of

Appeals Interpret RLUIPA

All circuits cited by Fowler — including the

Eighth Circuit — follow this Court by applying the

same standard in RLUIPA cases: strict scrutiny, but

with due deference given to prison officials. See

Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005);

Spratt v. Rhode Island Dept. of Corrections, 482 F.3d

33, 38-39 (1st Cir. 2007); Washington v. Klem, 497

F.3d 272, 277, 283-84 (3d Cir. 2007); Greene v.

Solano Co. Jail, 513 F.3d 982 (9th Cir. 2008); Pet.

App. at 12-14.

Fowler claims that the First, Third, and Ninth

Circuits require prison officials to demonstrate that

they considered and _ rejected _less-restrictive

alternatives, but that the Eighth Circuit does not.

(Petition at 12-13). This is simply not true. While

the different circuits may not use the exact same

language, they all require prison officials to show

that they considered and rejected alternatives to the

chalienged policy. See Spratt, 482 F.3d at 41;

Washington, 497 F.3d at 284; Greene, 513 F.3d at

989: Pet. App. at 19-20. Applying that standard, the

Eighth Circuit in this case explicitly found that the

Department considered alternatives — most of which

were rejected by Fowler. (Pet. App. at 19-20). And

the evidence presented by the Department supports

that finding.

The Department suggested and implemented

alternatives, such as an outdoor area and medicine

wheel, but Fowler rejected al] these alternatives; he

will accept nothing less than a sweat lodge at JCCC

to be used a minimum of seventeen times a vear. (JA

44). Additionally, the Department had operated a

sweat lodge at a different prison — and operated less

frequently and under more restrictive conditions

than Fowler wants — for several years before

discontinuing it due to security concerns after a

corrections official was _ stabbed. Thus. the

Department not only considered alternatives, it also

tried one before finding it unworkable. (SJA 378).

Moreover, nothing in cases from other circuits

show that they would have decided this case any

differently than the Eighth Circuit did. Indeed,

several of the other circuits have cited Eighth Circuit

RLUIPA and RFRA? cases with approval, including

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

the case relied on by the Eighth Circuit here. See

Spratt, 482 F.3d at 41; see also: Washington, 497 F.3d

at 238; Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir.

2006) (citing Murphy v. Mo. Dept. of Corrections, 372

F.3d 979, 186, 190 (8th Cir. 2004)).

The cases from other circuits cited by Fowler

contained vastly different scenarios, both

procedurally and factually. In those cases, prison

officials had presented no evidence to support the

compelling government interest or the least

restrictive alternative. Instead, the allegations as to

why the policy was necessary were merely

conclusory. See Spratt, 482 F.3d at 39-41:

Washington, 497 F.3d at 284; Lovelace, 472 F.3d at

190-91. Here, the Department produced significant

“ RLUIPA is the successor to RFRA, the Religious

Freedom Restoration Act. and courts have used the same

standard in analvzing cases brought under both statutes. See

Cutter. 544 U.S. at 715-17.

10

evidence — including testimony from numerous

prison officials listing specific examples of violence

and sexual misconduct at religious callouts — that

supported its assertion that there was a compelling

government interest at stake and that their policy

banning sweat lodges was the least restrictive

alternative.

Further, the religious practices in the other

cases were far less dangerous than the one at issue

here. The other religious practices included group

religious worship services, including Bible studies

(Greene); inmate preaching (Spratt); keeping more

than ten books in inmate property (Washington); and

Ramadan meal accommodations (Lovelace). In fact,

the First Circuit in Spratt distinguished its case from

another in which it was “quite easy to see how armed

prisoners’ would cause a security problem. Spratt,

482 F.3d at 39 (citing Ruiz v. Estelle, 503 F.Supp.

1265, 1294-98 (S.D. Tex. 1980)).

But here, the sweat lodge would involve

maximum security inmates having access to: fire;

hot, cantaloupe-sized rocks: shovels; and deer

antlers. The inmates would also be totally secluded

in a small space that does not allow for any

surveillance for six to seven hours at a time, a

minimum of seventeen times a year. Common sense

dictates that such practices would be a significant

security risk. Indeed, as the Eighth Circuit noted,

“no reasonable jurist, affording due deference to

prison officials can dispute that serious safety and

security concerns arise” from allowing maximum

security inmates items that can be used as weapons

while they are in “an enclosed area inaccessible to

outside view.” (Pet. App. at 17).

1

Fowlers main objection to the Department's

policy is that he does not believe the alternatives

suggested by the Department are true alternatives.

(Petition at 19-20). Fowler's opinion

notwithstanding. the Eighth Circuit found that the

Department did consider and reject alternatives.

Udd.). Simply because Fowler does not like the

alternatives presented to him does not mean they are

not viable alternatives. In Fowler’s view, nothing

less than a sweat lodge operated according to his

requirements is acceptable; thus, an option that does

not give him what he wants is not a true alternative.

That would put the Department in the position of

capitulating to Fowler’s demands — regardless of the

Department's legitimate security concerns. That is

not what RLUIPA requires, nor are prison officials

and the courts required to defer completely to the

inmate’s point of view.

There is nothing in the cases cited by Fowler

to support his assertion that there is a circuit split.

The First, Third, Fourth, Eighth, and Ninth Circuits

apply RLUIPA using the same standard and all

would have undoubtedly come to the same conclusion

in this case.

Burden Shifting and Deference

Fowler claims that this Courts “due

deference” language in Cutter v. Wilkinson led to a

split among the Circuits as to the amount of

deference given to the government. (Petition at 14-

19). Fowler also claims that this deference has led to

a split as to which party bears the burden under

RLUIPA. (/d. at 15).

}2

According to Fowler. in the First, Third. and

Nitith Circuits. due deference does not impact prison

officials’ burden under the strict scrutiny standard.

(Petition at 15). But. Fowler asserts. the Eighth

Circuit focuses on deference to prison officials such

that the Eighth Circuit applies a lesser standard

than strict scrutiny. (/d. at 16). It appears that

Fowler is conflating burden shifting with due

deference, but this argument mischaracterizes what

happened below.

As to the amount of deference given to prison

officials, this Court in Cutter found that the courts

must balance the religious practices of inmates with

the government’s compelling interests, such as

security. Cutter, 544 U.S. at 722-23. And the courts

have been doing exactly that: balancing the

competing interests based on the unique

circumstances of each case. The courts have given

deference to prison. officials’ expertise and

experience, but have not rubber-stamped prison

officials’ decisions. See Spratt, 482 F.3d at 40:

Lovelace, 472 F.3d at 190.

And there is nothing in the Eighth Circuit's

opinion in Fowler to show that the district court

improperly shifted the burden of proof. This case

was decided on summary judgment. (Pet. App. at 2).

Accordingly, under Federal Rule of Civil Procedure

56(e), once defendants produced evidence in their

motion for summary judgment, the burden of

produciion shifted to Fowler for his summary

judgment response. The burden of persuasion

always remained with the Department. (Pet. App. at

20-21). Fowler did not counter the Department’s

evidence sufficiently to create a genuine issue of

material fact thai would preclude summary

judgment. (Pet. App. 42-43). There was no improper

shifting of the burden of proof.

There is no circuit split in the amount of

deference given to the government, nor with respect

to the allocation of the burden of proof. The Eighth

Circuit correctly applied this Court’s standard from

Cutter. There are no grounds to support granting

certiorari in this case.

CONCLUSION

For the foregoing reasons, the Court should

deny the petition.

CHRIS KOSTER

Attorney General of Missouri

JAMES R. LAYTON

Solicitor General

Counsel of Record

KATHLEEN R. ROBERTSON

Assistant Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

573-751-3321

573-751-3825 (fax)

Attorneys for Defendants