Faver v. Clarke

• Decision Date: 01 February 2022
• Docket Number: No. 19-7634,19-7634
• Citation: 24 F.4th 954
• Parties: Brad FAVER, Plaintiff - Appellant, v. Harold CLARKE, Director of VDOC, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

24 F.4th 954

Brad FAVER, Plaintiff - Appellant,

v.Harold CLARKE, Director of VDOC, Defendant - Appellee.

No. 19-7634

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2021

Decided: February 1, 2022

ARGUED: Dallas S. LePierre, HDR LLC, Atlanta, Georgia, for Appellant. Laura Haeberle Cahill, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mario B. Williams, HDR LLC, Atlanta, Georgia, for Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Toby J. Heytens, Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Jessica Merry Samuels, Assistant Solicitor General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson joined. Judge Motz wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

Brad Faver, an inmate in the custody of the Virginia Department of Corrections and a practicing Muslim, commenced this action against the Department's Director (hereafter, "the VDOC"), alleging that the VDOC had denied him the ability to practice tenets of his Muslim religion, in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. Specifically, he alleged that, because of the VDOC's single-vendor policy for its commissaries, he was required to purchase "his perfumed oils [for prayer] from Keefe Commissary [Network, LLC]," which also happens to sell "swine and idols" to other inmates. While he did not allege that the prayer oil sold by Keefe was itself unsuitable, he did allege that "Islam prohibits the acquisition of religious accoutrements from a company that sells swine and idols." (Emphasis added). He sought, among other relief, an injunction requiring the VDOC "to allow [him] at least one unobjectionable Muslim oil vendor [from which] to get his oils for prayer."

While the VDOC agreed that, under its single-vendor policy, Faver could purchase prayer oil only from Keefe, it explained that it had adopted the policy for operating its commissaries in 2013 to address substantial issues of security, safety, efficiency, and prison order and that to afford Faver the relief he requests would undermine the policy, thereby diminishing the benefits it provides to the VDOC. The VDOC explained that prior to 2013, when the VDOC had a multiple-vendor policy, it experienced "negative and harmful results" to the security, safety, and efficiency of its facilities. Accordingly, while the VDOC was agreeable to allowing Faver to purchase religious articles, including prayer oil, it would allow him to do so only through Keefe, the single vendor that it had selected to supply and run its commissaries.

Following a bench trial, the district court concluded that the VDOC did not violate Faver's rights under RLUIPA. While it found that Faver had a sincerely held religious belief and that his religious exercise was substantially burdened by the single-vendor policy, it nonetheless concluded that the policy furthered the VDOC's compelling interest of "preventing contraband, which promotes prison safety and security, and reducing the time prison personnel must devote to checking commissary shipments, which controls costs." The court found further that the policy was "the least restrictive means to further its compelling interests."

Because we conclude that the district court did not err in reaching those conclusions, we affirm.

I

Brad Faver, who was, when he filed his complaint, an inmate at Augusta Correctional Center in Craigsville, Virginia, and now is an inmate at the Lawrenceville Correctional Center in Lawrenceville, Virginia, identifies as an observant Muslim, practicing the religion of "Sunni Muslim Orthodox Islam." He asserted that his religion requires, among other things, that he have "prayer oils so [he] can smell good and not distract anybody around [him] in [his] state of prayer." He also maintained that he is not permitted by his religion "to buy any [religious] items[ ] from any store or vendor that sells idols, swine, or alcohol."

He explained that items "that come from a place that sells swine or idols or alcohol" are "tainted in the sight of Allah, [his] higher power." "Idols" include items relating to "Christianity, Judaism, Pagan beliefs, or any other belief besides Islam," and "swine" includes "anything from the pig."

As an inmate of the VDOC, Faver was permitted to purchase items, including religious items and prayer oil in particular, only from Keefe Commissary Network, LLC, except for publications and eyeglasses. The VDOC adopted this single-vendor policy in 2013 in light of experience and for reasons of security, safety, and efficiency. But because, as Faver asserted, Keefe sold idols and swine, Faver could not, consistent with his religion, purchase prayer oil from Keefe. As a consequence, he did not have the benefit of prayer oil as necessary for the practice of his religion. He contended that but for the VDOC's single-vendor policy, he could purchase prayer oil directly from "Halalco," an Islamic vendor that does not sell swine, idols, or alcohol.

The VDOC accepted the sincerity of Faver's religious beliefs but nonetheless required him to purchase prayer oil from Keefe because of its single-vendor policy. It explained that before 2013, when it adopted the single-vendor policy, it allowed multiple vendors to sell items to inmates, which resulted in numerous and substantial issues of prison security, inmate and employee safety, and administrative inefficiency in having to check and test the items purchased from various unknown vendors. Indeed, under the multiple-vendor policy, the VDOC had tested some prayer oil and found it to be "extremely flammable." It also highlighted its past serious problems arising from the smuggling of contraband, which could cause overdoses, and "a potential for assault, potential for fights." For example, it noted that when, in the past, items arrived from multiple vendors, "different items [had been] inserted into other property, like TVs," including drugs, cell phones, and weapons. Similarly, the VDOC also described how packages had been disguised to look as though they had been sent by a seemingly reputable third-party vendor but yet contained contraband. And items in liquid form, such as prayer oil, presented particular difficulties because they had to be tested, as the liquids "could be caustic or poisonous or could be drugs."

The VDOC explained that the multiple-vendor policy had also created a lack of uniformity in inmate property, which contributed to gang affiliation as well as fights over items that were different and more coveted. For example, "when [inmates] could purchase shoes from outside vendors ... some offenders could purchase some very expensive shoes ... that everyone wanted to have," resulting in "violence ... when other inmates wanted to get to those shoes." Nonuniform items were also used as codes to denote gang affiliation.

The VDOC explained further that the multiple-vendor policy raised concerns about health and safety, especially about the "possibility [that] ... something could enter the facility that could make people ill," particularly if it came "from an unclean environment."

Finally, the multiple-vendor policy required the VDOC, at substantial cost, to commit staff to test all items that entered the prison from multiple sources and to investigate both the vendors themselves and any potential relationships between the vendors and inmates.

As the VDOC "consider[ed] how [it] had been doing things and that wasn't working out" and how it could address the range of problems being experienced with the multiple-vendor policy, it adopted a single-vendor policy in 2013, as stated in its Operating Procedure 802.1. That procedure requires that all items purchased by inmates, with the exception of publications and eyeglasses, must be acquired through the facility commissary, i.e., Keefe. Under the procedure, this includes "[r]eligious personal property items," such as prayer oil. Op. Proc. 802.1(IV)(B)(10); see also Operating Procedure 841.3 (authorizing inmates specifically to purchase prayer oil "through the facility commissary").

To implement the single-vendor policy, the VDOC entered into a comprehensive contract with Keefe that required Keefe to control the provision of items to inmates to make sure "everything [was] in compliance with security, sanitation, and safety [and] that there's consistency of services statewide." The arrangement with Keefe rendered the ordering process "completely blind" so as to preclude Keefe from knowing the identity of the inmate who placed the order. This mechanism, as the VDOC explained, alleviated many concerns from the past when "small vendors[,] maybe connected with a specific inmate[,] [had] things put in boxes and sent in."

The VDOC claims that since it adopted the single-vendor policy, it has not had, as far as it knows, a single incident of contraband entering the prison through the commissary, and it "has reduced the amount of time having to [be] spen[t] going through property coming from virtually anywhere."

Faver commenced this action under RLUIPA in June 2016, seeking, among other things, a declaratory judgment that the single-vendor policy violates RLUIPA and a permanent injunction requiring the VDOC "to allow Faver at least one unobjectionable Muslim oil vendor to get his oils for prayer from."

Following a bench trial, the district court held that the VDOC was not violating Faver's rights under RLUIPA. It found as facts that Faver's religious beliefs required that he use prayer oils and that he not purchase them from vendors that sell idols, swine, or alcohol; that the VDOC's single-vendor policy required that inmates purchase such oils...