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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0013%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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

pp ORS ay yy | >. ee Rie ee ere il}
PARTIES TO THE PROCEEDING ..2.........ccccesscecsatessets
STATEMr OF FHS CA oicicccicniclnnemeuen ]
PYOCROUPE PNOEY cis icccssiccccoimoiicmamee }
PI ooiosikkviccccvceturenanaaeeeee 2
Fowler’s Request for a Sweat Lodge.................: 3

Native American Faith Practices
PRBS vvvscseccvckinincsinicicionee eee 3
Description of the Sweat Lodge & Ceremony........... 4

Institutional Concerns about the Construction

and Use of @ Swent LOGO oincsc cscs eccrine 5
SR SAI GE Fre Sik dovtsstsicccennicnecennne 6
POON FF FE ravi essscvescensinstsVavansensbabsonnents 7
UE Re BF icdiidsa ces iectessensaecnceenaniioaeannane: 7

There is No Circuit Split in how the

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

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

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

cas vai viscscessarentecasshoorssesessarteoressorss 13

Ml

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
oh cos can co igavcesvengaensnanacis aocauikdwiceemadennss oo
Oe I Te I soi cies cca tavnsiavieseshprsdcasderdbioncie dena ]
OTHER AUTHORITIES

es pass is dcctcesnvevinssts dnceuareccotemcianunens ]

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0013%3A2. Public record. Not legal advice.