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Prisoner Wins Preliminary Injunction Against PADOC Policy Banning Islamic Fezzes

by The Human Rights Coalition

In August 2019, a federal magistrate judge recommended granting a preliminary injunction against the Pennsylvania Department of Corrections (PADOC) to require prison officials to allow prisoners to purchase and wear Nation of Islam (NOI) prayer caps, known as fezzes.

While incarcerated at SCI-Rockview in Bellefonte, Pennsylvania in 2013, Kerry X Marshall filed a pro se civil rights complaint that challenged PADOC policy DC-ADM 819, which states that “religious headgear must fit flush to the head.”

Kerry X claimed the defendants had implemented and enforced a discriminatory religious policy that effectively banned the purchase and wearing of NOI fezzes and banned the observance of NOI holy days throughout the PADOC system.

The defendants filed a motion to dismiss Kerry X’s complaint on September 19, 2014. The court recommended that the defendants’ motion to dismiss be granted in part and denied in part. On June 24, 2016, the defendants filed a motion for summary judgment. Five days later, Kerry X filed a motion for a preliminary injunction. On November 28, 2016, the district court referred the case to its Prison Litigation Settlement Program to facilitate settlement discussions between the parties; however, a settlement could not be reached.

On June 20, 2018, Kerry X filed a motion to “enforce the due process [clause]” and “end the inordinate delay of plaintiff’s motion for preliminary injunction.” The following month, the court denied the defendants’ motion for summary judgment as moot when it granted Kerry X’s motion to amend his complaint and declared that the defendants were not entitled to qualified immunity, as it was clearly established law that prisoners possessed constitutional religious rights.

On July 26, 2018, the court granted Kerry X’s request for counsel, appointing attorney Alexandra T. Morgan-Kurtz with the Pennsylvania Institutional Law Project (PILP) to represent him for the limited purpose of conducting an evidentiary hearing on the motion for a preliminary injunction.

The district court conducted that hearing in October 2018, then issued an order for the parties to file supplemental briefing in light of the fact that Kerry X had filed his preliminary injunction motion pro se, but had since obtained appointed counsel. The court stayed the case on December 11, 2018 to facilitate further settlement discussions and appointed the ADR Coordinator to act as a mediator. On April 17, 2019, the ADR Coordinator informed the court that settlement efforts had been unsuccessful.

In his motion, Kerry X sought preliminary injunctive relief under the Religious Land Use and Institutionalized Persons Act (RLUIPA), to require the defendants to end their ban on Islamic fezzes and allow him to purchase and wear NOI fezzes, observe NOI holidays and have separate NOI services from those already offered at the prison.

The district court found that Kerry X had established a reasonable likelihood of success on the merits of his fez claim, that the PADOC’s religious policy barring him from wearing an NOI fez violated his rights under RLUIPA and that the policy substantially burdened his religious practice. The court further found that the PADOC had not shown its religious policy banning NOI fezzes was in the furtherance of a compelling governmental interest and was the least restrictive means of furthering that interest.

Accordingly, on August 8, 2019, Chief Magistrate Judge Susan E. Schwab recommended that the court issue a preliminary injunction requiring the PADOC to permit Kerry X to purchase and wear an NOI fez prayer cap while incarcerated, but that the motion be denied in all other respects.

The district court adopted the report and recommendation on September 27, 2019, entering a preliminary injunction that allows Kerry X to purchase and wear a fez. The case remains pending a decision on the merits. See: Marshall v. Corbett, U.S.D.C. (M.D. Penn.), Case No. 3:13-cv-02961-JMM-SES. 

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Related legal case

Marshall v. Corbett