Pevia v. Hogan

Decision Date03 March 2020
Docket NumberCivil Action No. ELH-19-0327
Citation443 F.Supp.3d 612
Parties Donald R. PEVIA, Plaintiff v. Larry HOGAN, et al., Defendants
CourtU.S. District Court — District of Maryland

Donald R. Pevia, Cumberland, MD, pro se.

Stephanie Judith Lane Weber, State of Maryland Office of the Attorney General, Baltimore, MD, for Defendants.


Ellen L. Hollander, United States District Judge

Self-represented plaintiff Donald R. Pevia, an inmate confined at North Branch Correctional Institution ("NBCI"), filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against multiple defendants" Maryland Governor Larry Hogan; Warden Frank Bishop; Stephen T. Moyer as Secretary of the Maryland Department of Public Safety and Correction Services; Commissioner of Corrections Wayne Hill1 ; Assistant Warden Jeffery Nines; Richard Roderick; Vaughn Whiteman2 ; April Carr; and Amy Conner. He alleges that defendants violated his rights under the Religious Land Use and Institutional Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq. , and the First and Fourteenth Amendments to the Constitution, because he has been unable to attend a Native American Faith Group ("NAFG") sweat lodge while housed at NBCI. ECF 1. He also complains, inter alia , that the limitations on his recreation and programming are unconstitutional. Id.

Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages regarding his claims that he has been denied access to a sweat lodge and educational programming, and that the general conditions of his housing on Housing Unit (HU) 2 at NBCI violate his due process rights. ECF 1 at 10-11.3 Plaintiff also appended multiple exhibits to his suit, docketed collectively as ECF 1-1.

Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 10. The motion is supported by a memorandum (ECF 10-1) (collectively, the "Motion") and multiple exhibits. Plaintiff opposes the motion. ECF 14; ECF 15. He has also submitted 81 pages of exhibits, docketed collectively as ECF 14-1.

No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, I shall construe the Motion as one for summary judgment, and I shall grant it in part and deny it in part.

I. Background
A. Sweat Lodge

Plaintiff is a NAFG member. This is not plaintiff's first civil rights suit concerning his ability to practice his faith. In 2014, Pevia, then an inmate at NBCI, filed suit in this Court, complaining that he was denied the opportunity to participate in Native American Ceremonial Worship. See Pevia v. Shearin , ELH-14-0631, ECF 1. In that case, in a Memorandum (ECF 18) and Order (ECF 19) of February 24, 2015, I denied the defendants' dispositive motion. Joseph Damato was subsequently appointed to represent Pevia. See id. , ECF 28. Thereafter, the case settled. Id. , ECF 42.4

In this case, plaintiff complains because NBCI has no sweat lodge. He asserts that the NAFG sweat lodge ceremony is "mandated" and "required" by his faith. ECF 1 at 5. Pevia explains that the sweat lodge is used for prayer and cleansing and that participation in "a regular pipe ceremony within the hoop is not the same as conducting a sweat lodge ceremony." ECF 14-1 at 37.

At all relevant times, Pevia has been classified as a maximum-security inmate. Id. at 67 (release of information form dated 2/1/19, stating that plaintiff has been designated as maximum security from October 2016 to present). In late 2017, Pevia was housed at Western Correctional Institution ("WCI"), which offers a sweat lodge. ECF 1 at 5; ECF 14-1 at 77 (Facility Security Level Designations from 1/2015). And, on December 21, 2017, while plaintiff was incarcerated at WCI, Pevia participated in a sweat lodge ceremony. ECF 1 at 5.

Pevia was transferred to NBCI on January 21, 2018. ECF 1 at 5. As noted, there is no Native American sweat lodge at NBCI. ECF 10-3 (Amy Conner Decl.) at 1, ¶ 4; ECF 10-5 (Kevin Lamp Decl.), ¶ 2; ECF 10-7 (Richard White Decl.), ¶ 3.

According to plaintiff, in 2015 the Maryland Department of Public Safety and Correctional Services ("DPSCS") approved the use of sweat lodges for NAFG prayer. ECF 1 at 5. DPSCS defines a "sweat lodge" as "a Native American ritual that utilize[es] hot coals within an inipi (a dome-shaped, wood constructed enclosure)." ECF 10-2 at 19 (Religious Services Manual), ¶ 34. Additionally, the Religious Services Manual provides: "Sweat Lodge ceremony shall be available to the general population whose Religious Preference is Native American, providing resources and adequate circumstances permit, and only as a form of congregate worship." Id. at 20, ¶ G(2).

Notably, "Sweat Lodge ceremonies are generally open to offenders in general housing, [but] they are not open to offenders on special confinement housing units. Security staff may restrict the access of offenders in general housing or treatment units if there is a compelling security reason to do so." ECF 10-2 at 20, ¶ G(7). The Faith Group Accommodations Overview, which appears to be an appendix to the Religious Services Manual, provides that the sweat lodge is "[a]vailable to general population, with exception of maximum security , disciplinary & administrative segregation, special housing units and protective custody inmates." Id. at 24 (emphasis added); ECF 10-7 (Richard Roderick Decl.) at 1, ¶ 2. The frequency of participation may vary or be limited by the capacity of the facility. ECF 10-2 at 20, ¶ G(11). Institutions, conditions permitting, are to make available a minimum of three sweat lodge ceremonies a year. ECF 10-2 at 23 (Faith Group Accommodations Overview.)

Proposals for additional sweat lodge ceremonies are to be submitted to the prison Chaplain, but such a request is to be accommodated only "if resources and adequate circumstances permit and the offender [is] not a threat to safety or security." ECF 10-2 at 20, ¶ G(6). The sweat lodge ceremonies and other religious services may be "[s]uspended, cancelled, postponed or limit[ed] [due to] concerns for facility safety and security [and] inappropriate conduct." Id. at 22.

According to plaintiff, NBCI was in the process of building a sweat lodge. ECF 1 at 5. After several months, however, when no sweat lodge was made available, Pevia filed a grievance. Id. He did not request to go to WCI or to be transferred to WCI in order to attend the sweat lodge at that facility. ECF 14-1 at 36. And, Chaplain Kevin Lamp, who is assigned to NBCI, avers that inmates housed at NBCI are not permitted to attend the Native American sweat lodge services held at WCI. ECF 10-5, ¶ 2.

Chaplain Lamp also states that he has not received any correspondence from plaintiff regarding a sweat lodge. ECF 10-5, ¶ 3. But, plaintiff claims that he, along with several other inmates, signed a petition regarding construction of a sweat lodge at NBCI, which presented to Chaplain Lamp. ECF 14-1 at 43, 81. Chaplain Lamp also avers that NBCI does not have the space required for a sweat lodge. ECF 10-5, ¶ 2.

Plaintiff counters that there is sufficient space at NBCI to construct a sweat lodge around the existing Native American fire pit. He has submitted a drawing of the area where he believes the sweat lodge could be constructed. ECF 14-1 at 41, 79. Additionally, Pevia has provided evidence that members of the Iron House Counsel, a volunteer organization that facilitates NAFG services at NBCI, as well as NBCI Hoop members, offered to fund the construction of the sweat lodge. ECF 14-1 at 41, 81; ECF 15.

Defendants also claim that plaintiff's security level, Max I, makes him ineligible to participate in a sweat lodge. ECF 10-4 (April Carr Decl.) at 1, ¶ 3. Further, they assert: "Plaintiff's inability to participate in the Native American Sweat lodge ceremony is because he is housed at NBCI, a maximum security institution." ECF 10-7 (John White Decl.) at 1, ¶ 3. Nevertheless, defendants maintain that, under DPSCS regulations, NAFG inmates at NBCI may practice NAFG through individual prayer, group worship services, possession of faith items, including reading and recorded material, a medicine bag, arm and leg bands, a ribbon shirt, a dream catcher, feathers, and a variety of jewelry. ECF 10-2 at 23-24. Further, inmates housed at Housing Unit 2 may attend religious services using space available as dictated by the administration. Id. at 26.

Pevia agrees that maximum security inmates at NBCI are not permitted access to any sweat lodge. But, he argues that there is no additional security threat and the ban on maximum-security inmates' participation serves no penological interest. ECF 1 at 5.

Plaintiff submitted a print-out regarding religious practices, which appears to be from the Federal Bureau of Prisons. It states that sweat lodge ceremonies are required weekly observances (ECF 14-1 at 45) for NAFG and "[e]qual to the Sacred Pipe as a cornerstone of Native American traditions...." Id. at 56.

On August 22, 2018, plaintiff filed Administrative Remedy Procedure ("ARP") NBCI-0986-18, alleging that he was denied the opportunity to participate in a sweat lodge ceremony. ECF 1-1 at 2. The ARP was dismissed with a notation that the "sweat lodge ceremony is ‘available to general population with the exception of maximum security, disciplinary and administrative segregation, special housing units, and protective custody inmates.’ You are not permitted access to a sweat lodge ceremony." Id. Plaintiff unsuccessfully pursued his remedies to the Inmate Grievance Office ("IGO"). Id. at 3-7.

Correctional Officer Amy Conner and Sergeant April Carr each aver that they have not communicated with plaintiff about a sweat lodge. ECF 10-3 at 1, ¶ 5; ECF 10-4 at 1, ¶ 2. Conner never observed or heard any other defendant communicate with plaintiff about the sweat lodge. ECF 10-3 at 1, ¶ 5. Carr never communicated with plaintiff about his desire to participate in a sweat lodge or his inability to do so due to his security status. ECF...

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