497 F.3d 272 (3rd Cir. 2007), 05-2351, Washington v. Klem

Docket Nº:05-2351.
Citation:497 F.3d 272
Party Name:Henry WASHINGTON v. Superintendent Edward KLEM; Deputy Supt. Joseph Piazza; John Mack, Programs Coordinator; Sgt. Dougherty, Property Room Supervisor Henry Unseld Washington, Appellant.
Case Date:August 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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497 F.3d 272 (3rd Cir. 2007)



Superintendent Edward KLEM; Deputy Supt. Joseph Piazza; John Mack, Programs Coordinator; Sgt. Dougherty, Property Room Supervisor

Henry Unseld Washington, Appellant.

No. 05-2351.

United States Court of Appeals, Third Circuit.

August 2, 2007

Argued April 10, 2007

On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 01-CV-02432 District Judge: The Honorable John E. Jones, III

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[Copyrighted Material Omitted]

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Nancy Winkelman, Edward D. Manchester (argued), Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, for Appellant.

Thomas W. Corbett, Jr., Attorney General, Howard G. Hopkirk, Senior Deputy Attorney General (argued), John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellee.

Before: SMITH, NYGAARD, and HANSEN, Circuit Judges. [*]


SMITH, Circuit Judge.

This case requires us to define "substantial burden" under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq, to determine whether the Pennsylvania Department of Corrections' (DOC's) restriction on inmates that they possess in their cells only ten books at a time substantially burdens inmate Henry Unseld Washington's religious exercise. We hold that it does. Because the DOC is unable to show that its ten-book policy is the least restrictive means to further its compelling governmental interest in the safety and health of prisoners and prison employees, we will reverse the District Court's order dismissing Washington's RLUIPA claim and remand with instructions to consider whether any factual issues remain when that claim is evaluated under the proper legal standard.

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Henry Unseld Washington is an inmate in the custody of the Pennsylvania DOC who has attempted to practice his religion while incarcerated. Washington founded and has been a practitioner of the Children of the Sun Church for over two decades. According to Washington, the Children of the Sun Church supports the development of "Pan-Afrikanism" whereby adherents to the religion stress that "only through Pan-Afrikanism can Afrikan people worldwide, be able to change the conditions of Afrikan people in the diaspora and the motherland." To this end, Washington's Church states that " [f]or every Afrikan's eyes you open with his teachings you will gain rewards in the life everafter." One of the rituals requires a practitioner to read four different Afro-centric books per day.1 This ritual is aimed at educating the adherent to doctrine, so that he is able to teach others more effectively. Washington views this ritual as necessary to his Church's proselytization requirement, so that the books "are in essence the religion itself"

The Pennsylvania DOC limits the amount of property any inmate may store in his cell. The DOC's policy states that "limitations on the amount and variety of inmate property may be imposed for security, hygiene and/or safety reasons." With respect to publications, each inmate is permitted to retain three newspapers, ten magazines, and ten books, "unless additional books are approved bye the facility's education department." This provision applies to every prison in the Pennsylvania DOC.2 The DOC also permits "storage space equal to four records center boxes. This space may be made up of the four records center boxes or one footlocker and two records center boxes. In cells that have either a built-in or a free standing storage cabinet, the inmate is permitted to use that space and either two records center boxes or one footlocker."

The conflict in this case arises from the clash between Washington's interest in practicing what he claims is his religion and the prison's interest in limiting, for security, hygiene, and safety reasons, the amount of inmate property that may be held in a cell. In July 2000, Washington was transferred from the State Correctional Institution (SCI) at Mahanoy to SCI-Retreat. In February 2001, Washington's books, religious literature, and legal materials arrived at SCI-Retreat in thirteen boxes. In December 2001, authorities at SCI-Retreat informed Washington that he was in possession of property in his cell that exceeded the amount of property permitted. The excess property was removed from Washington's cell, although authorities permitted Washington to choose which ten books to keep in his cell. SCI-Retreat authorities gave Washington the option of mailing the books out of the prison or having the books destroyed by the DOC because of a lack of adequate storage space for excess inmate property. The Superintendent of SCI-Retreat wrote to Washington personally, stating that Washington could also donate the books to the prison library so he could still access them on an as-needed basis. The prison,

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though, had a policy limiting the number of trips an inmate could take to the library to one per week. Library policy allowed inmates to check out four books per visit.3 SCI-Retreat did not destroy the property, and shipped it to SCI-Albion when Washington was transferred there in December 2002.

Washington, proceeding pro se, sued several employees of Pennsylvania's DOC pursuant to 42 U.S.C. § 1983 and 42 U.S.C. §§ 2000cc--2000cc-5 (the Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA) in December 2001. His suit alleged that the ten-book policy violated his First Amendment rights and the terms of RLUIPA. The District Court denied preliminary injunctive relief and found that, because Washington's books had been mailed to his mother, they were not in danger of being destroyed. The District Court subsequently granted the defendants' motion to dismiss on all counts in May 2003. The District Court dismissed Washington's RLUIPA claim because he had not shown that SCI-Retreat is an institution receiving federal funds (a prerequisite for a RLUIPA claim). In April 2004, however, this Court reversed and remanded the case with respect to the RLUIPA claim because Washington could easily show that SCI-Retreat receives federal funds. See Washington v. Klem, No. 03-2584 (unreported-not precedential). In the same opinion, we affirmed the District Court's dismissal of all non-RLUIPA claims, and expressed no opinion as to the merits of the RLUIPA claim. On remand, in December 2004 the District Court granted the defendants' motion for summary judgment and denied Washington's motion for summary judgment. The District Court based its dismissal of Washington's RLUIPA claim on several factors. The District Court found that the Pennsylvania DOC receives federal funds. It also found that Washington's beliefs are sincerely held, and noted that this point was not contested by the Pennsylvania DOC. However, the District Court concluded that the DOC policy did not impose a substantial burden on Washington's religious practice, the policy furthered a compelling governmental interest, and the policy used the least restrictive means to further this interest. This timely appeal followed.4


A. A General Note About RLUIPA

Congress passed RLUIPA to grant heightened protection to prisoners from burdens imposed by the government. RLUIPA also contains a land-use provision

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not applicable in this case. The history of this law traces back to the Supreme Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Supreme Court in Smith held that the Free Exercise Clause of the First Amendment does not impede the enforcement of neutral and otherwise valid laws of general applicability that incidentally burden religious conduct. Id. at 878-82, 885, 110 S.Ct. 1595. The Court did state that the political branches could grant a higher degree of protection for religious exercise through legislative accommodation. Id. at 890, 110 S.Ct. 1595. Taking the cue from Smith, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. RFRA prohibited the Government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, unless the Government could demonstrate that the application of the burden was in furtherance of a compelling governmental interest and was the least restrictive means of furthering that compelling governmental interest. As applied to the states, RFRA was struck down by the Supreme Court because it exceeded Congress' remedial powers under the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 532-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The dialogue between Congress and the Supreme Court continued when Congress enacted RLUIPA. The key difference between RFRA and RLUIPA is that RLUIPA invokes its power to regulate under the Spending and Commerce Clauses, and protects only land-use regulation and prisoners. See Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

RLUIPA also does not confer any "privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment." Id. at 724, 125 S.Ct. 2113. In addition to not differentiating between bona fide faiths, RLUIPA does not permit a court to determine whether the belief or practice in question is "compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(a); Cutter, 544 U.S. at 725 n. 13, 125 S.Ct. 2113; Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1032 (9th Cir.2007). RLUIPA does permit inquiry into the sincerity of a prisoner's religious beliefs. Cutter, 544 U.S. at 725 n. 13, 125 S.Ct. 2113.

B. Strict Scrutiny Under RLUIPA

Section 3 of RLUIPA states that "[n]o government shall impose a substantial...

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