by Douglas Ankney

On November 7, 2022, the U.S. Court of Appeals for the Fourth Circuit ruled that a district court erred in finding that Virginia prisoner David A. Richardson failed to present evidence that a policy of the state Department of Corrections (DOC) substantially burdened the exercise of his religious beliefs. Also, the Court said, the federal court for the Eastern District of Virginia erred in granting Defendants summary judgment on an issue they hadn’t raised without giving Plaintiff notice and a reasonable time to respond.

Richardson is a prisoner at Deerfield Correctional Center, where DOC policy required him to remove his religious head covering while in the dining hall, visiting room and administrative buildings. He sued DOC Director Harold W. Clarke and Wardens Eddie L. Pearson and Tammy Williams, alleging, inter alia, that the policy substantially burdened the exercise of his religious beliefs. As an adherent of the Nation of Islam faith, he claimed, he is required to wear a kufi headcovering at all times, and preventing him from doing so violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000(1)(a) et seq.

After Richardson filed suit, DOC changed its policy to allow prisoners to wear religious head coverings anywhere within a DOC facility as well as when participating in outside work assignments – subject to removal only for a search by security personnel.

Richardson then sought prospective relief to prevent Defendants from returning to the prior policy. Defendants moved for summary judgment, arguing the policy change made the complaint moot; alternatively, they said that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, prevented the district court from issuing an injunction.

The district court sua sponte raised the issue of Richardson’s failure to show that the prior policy imposed a substantial burden on the exercise of his religious beliefs and granted summary judgment to the defendants on that ground. Richardson appealed.

The Fourth Circuit observed that “RLUIPA provides, in part, that: ‘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 the person – (1) is in the furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.’” Plaintiff bears the initial burden of proving a challenged policy “implicates his religious exercise,” the Court noted, citing Holt v. Hobbs, 574 U.S. 352 (2015). But if he meets that burden, RLUIPA claims proceed in two stages.

First, “the plaintiff must show that the prison’s policies imposed a substantial burden on his exercise of sincerely held religious beliefs,” the Court said, pointing to Wright v. Lassiter, 921 F.3d 413 (4th Cir. 2019). Furthermore, to make that showing he must establish “that a government entity has substantially pressured him to modify his behavior and violate his beliefs,” the Court added, citing Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006).  If Plaintiff passes the first stage, “the court proceeds to the second stage to determine whether the prison’s policies are justified despite the imposed burden.”

“Under RLUIPA,” the Court continued, “the government has the burden to show that its policy satisfies strict scrutiny; that is, the policies must represent the least restrictive means of furthering a compelling government interest,” as provided in Holt.

The Court then began its analysis of the instant case by questioning the propriety of the district court’s grant of summary judgment on an issue it raised sua sponte. “Rule 56(f) describes how a court may rule on an issue not raised by the moving party,” the Court noted. “Under the rule, a district court, ‘after giving notice and a reasonable time to respond,’ is permitted to ‘grant [summary judgment] on grounds not raised by a party; or consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.’”

But in Jehova v. Clarke, 798 F.3d 169 (4th Cir. 2015), the Court had found “the district court erred in failing to give notice and an opportunity to respond before addressing the substantial burden prong when the parties did not address it in their summary judgment briefing.” The Court saw nothing in the record to indicate Richardson was afforded notice and an opportunity to respond on the issue of substantial burden of his religious exercise before the district court ruled against him.

But regardless of notice, the Court concluded that the record established that the Defendants’ prior policy imposed a substantial burden. Defendants admitted Richardson sincerely held a belief that his religion required him to wear a head covering at all times. “Thus, the prior policy required Richardson to either violate his religious beliefs – by refraining from wearing a head covering at all times – or risk discipline at Deerfield for violating the policy. In other words, Deerfield’s head covering policy placed Richardson between the proverbial rock and a hard place. Doing so substantially burdens his religious beliefs under the RLUIPA.”

Because the district court erred in finding to the contrary, it did not proceed to the second step of determining if the policy was nonetheless the least restrictive means of furthering a compelling government interest and, if not, whether PLRA barred it from issuing an injunction to prevent reversion to the prior policy.

Accordingly, the Court vacated the grant of summary judgment on the RLUIPA claim and remanded the case to the district court for further proceedings. Richardson was represented before the court by attorneys Oren Missim Nimni and Samuel Weiss of Rights Behind Bars in Washington, D.C. See: Richardson v. Clarke, 52 F.4th 614 (4th Cir. 2022).

The case has now returned to the district court, where Richardson is once again proceeding pro se, and PLN will update developments as they are available. See: Richardson v. Clarke, USDC (E.D.Va.), Case No. 3:18-cv-00023.