Pevia v. Moyer

Decision Date01 April 2022
Docket NumberCivil Action DLB-19-327
PartiesDONALD R. PEVIA, Plaintiff, v. STEPHEN T. MOYER, et al., Defendants.
CourtU.S. District Court — District of Maryland

DONALD R. PEVIA, Plaintiff,

STEPHEN T. MOYER, et al., Defendants.

Civil Action No. DLB-19-327

United States District Court, D. Maryland

April 1, 2022


Deborah L. Boardman United States District Judge.

Prison officials at maximum-security state prison North Branch Correctional Institution (“NBCI”) denied the request of maximum-security state prisoner Donald R. Pevia, a member of the Native American Faith Group (“NAFG”), to participate in an NAFG sweat lodge ceremony, which Pevia claims his religious beliefs require him to attend. Pevia, proceeding pro se, filed suit against numerous state and NBCI prison officials under 42 U.S.C. § 1983 and the Religious Land Use and Institutional Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. He alleges that the state and prison officials are violating his free exercise right under the First Amendment by denying him access to a sweat lodge and that he is entitled to damages for the violation under § 1983. He also alleges the Maryland Department of Public Safety and Correctional Services (“DPSCS”) policy categorically prohibiting maximum-security inmates like him from participating in sweat lodge ceremonies violates RLUIPA, under which he seeks declaratory and injunctive relief.

Since Pevia filed his complaint on February 1, 2019, this case has taken several turns. The Court previously granted summary judgment to four defendants, leaving a § 1983 claim against former DPSCS Secretary Stephen T. Moyer, former Commissioner of Correction Wayne Hill, NBCI Warden Bishop, and NBCI Assistant Warden Nines in their individual capacities, and an


RLUIPA claim against them in their official capacities. Pevia v. Hogan, 443 F.Supp.3d 612, 630 (D. Md. 2020). The Court appointed Pevia counsel, and the parties engaged in discovery. After the close of discovery, defendants filed a motion to dismiss or, in the alternative, motion for summary judgment on Pevia's claims. ECF 56 & 56-1 (supporting memorandum). Plaintiff filed an opposition. ECF 61. Defendants filed a reply, and plaintiff filed two surreplies. ECF 64, 65-1, 67.[1]

In January 2022, while the motion was pending, it came to the Court's attention that DPSCS recently had transferred Pevia from NBCI to Jessup Correctional Institution (“JCI”). In light of this transfer and the parties' focus on the facts specific to Pevia's access to a sweat lodge at NBCI, the Court ordered the parties to state their positions as to whether plaintiff's transfer mooted his claim for injunctive and declaratory relief under RLUIPA. ECF 72. After reviewing the parties' positions, ECF 73, the Court held a conference call with counsel on February 10, 2022. During the call, the Court held that the prison transfer did not moot the RLUIPA claim because, even though Pevia had been transferred from one prison to another, he still was classified as a maximum-security inmate and still was subjected to the same statewide policy he challenged that categorically prohibited maximum-security inmates from participating in sweat lodge ceremonies.

On February 21, 2022, DPSCS rescinded the challenged policy. ECF 83-3; ECF 85-1, at 1. The categorical ban on maximum-security inmate participation in sweat lodge ceremonies has been replaced with a policy that states prison officials “may prohibit on a case by case basis, an offender's participation in a congregate service if the offender demonstrates or is known to


demonstrate dangerous, violent, or other characteristics that pose a serious threat to life, property, self, staff, other offenders, or facility security.” ECF 83-3, at 3. DPSCS Director of Policy and Regulations Elizabeth Bartholomew explained the policy change and the new policy in a declaration submitted to the Court:

Effective February 21, 2022, DPSCS no longer prohibits access to Native American religious sweat lodge ceremonies solely on the grounds of an inmate's security classification. The policy to exclude maximum-security inmates from sweat lodge ceremonies that appears in the March 20, 2017, edition of OPS.140.0002-DPSCS Religious Services Manual, has been rescinded and replaced with a policy change notice OPS.140.0002- Religious Services Manual Change Notice # 2022-01
Under Change Notice # 2022-01, correctional administrators are permitted to restrict the access of offenders to participate in congregate worship services only if there is a safety or security reason to do so. Specifically, inmates placed in special confinement housing (e.g., administrative or disciplinary segregation, protective custody, quarantine, or other documented reasons) are not permitted to participate in congregate activities with inmates in general population. OPS.140.0002 §.07(8)(a). See attached. Furthermore, an inmate's assessed security classification as maximum security does not preclude the inmate's being assigned to general population housing within a maximum-security facility and, therefore, able to participate in a congregate service with other general population inmates.

ECF 83-3, ¶¶ 3-4. In light of the policy rescission, the parties were asked to advise the Court whether the RLUIPA claim was now moot or whether it remained a live claim under the voluntary cessation exception to the mootness doctrine. ECF 82.

Defendants argue the RLUIPA claim is mooted by the policy recission and that the voluntary cessation exception does not apply. In support of this position, they submitted a second declaration from Director Bartholomew in which she stated:

A Change Notice is considered a permanent change to a Directive or Manual and must be incorporated into any new published version, unless there is a lawful reason not to incorporate the changes. DPSCS directives and manuals do not change until there is a specific programmatic or lawful reason to change them.

ECF 85-1, ¶ 4.


On February 25, 2022, the Court held a conference call with the parties to discuss whether the RLUIPA claim was now moot because the challenged policy has been rescinded. Referencing Director Bartholomew's second declaration, id., the defendants argued that the policy recission was permanent and therefore satisfied defendants' burden to prove mootness. The Court expressed skepticism that the declaration sufficiently satisfied the defendants' heavy burden. Defendants asked for additional time to consider their next steps, which the Court granted. ECF 87. In their subsequent filing, defendants reiterated their prior position that the rescission is a “permanent change[]” and that “Plaintiff's request for injunctive relief on the now-rescinded policy should be denied as moot.” ECF 89, at 1-2. In response, plaintiff argued that defendants continued to fail to satisfy their burden to prove mootness. ECF 90, at 3. During a March 16, 2022 call with counsel, the defendants again insisted the policy change was permanent but refused to state that the rescinded policy was unlawful or that it could not, at some point, be reinstated.

Defendants' motion to dismiss or for summary judgment is ripe for resolution. No. additional hearings are necessary.

I. Background

Pevia is a frequent litigator in this Court. He has been incarcerated since 2011 and has filed more than 30 lawsuits regarding alleged violations of his civil rights during his incarceration, including his right to practice his faith. E.g., ELH-18-3902; ELH-18-3900; ELH-18-2395; ELH-18-2176; ELH-17-2796; ELH-17-273; ELH-17-10; ELH-16-3810; ELH-16-1223; ELH-14-2928; see also Fed. R. Evid. 201(b)(2) (court may take judicial notice of filings in other cases as matters of public record).

One such lawsuit, marginally relevant to the pending lawsuit, involved a claim that the former warden of NBCI violated Pevia's First Amendment right to exercise his religion by denying


his request to attend NAFG religious services. See ECF 1 in Pevia v. Shearin, ELH-14-631. That lawsuit was settled. “[A]s a result of the settlement, NBCI officials began permitting [Pevia] to attend NAFG congregate worship services.” ECF 66-1, ¶ 3 (Pevia Decl.). In exchange for access to services, Pevia “release[d] and discharge[d] the Defendant and the DPSCS and its officers . . . employees . . . from any and all claims and demands of whatever nature, actions and causes of action, damages, costs, expenses and compensation . . . in connection with any acts or omissions set forth in th[at] Lawsuit.” ECF 61-19, ¶ 2 (Sett. Agr.). He did not “waive any claim or cause of action . . . against Defendant, DPSCS and/or the State . . . that d[id] not arise out of the facts giving rise to the causes of action in th[at] Lawsuit.” Id.

The present lawsuit-filed two and a half years after Pevia obtained permission to attend NAFG religious services-concerns the prison's denial of his subsequent request to attend a specific NAFG service: a sweat lodge ceremony. A “sweat lodge” is “a Native American ritual that utilize[s] hot coals within an inipi (a dome-shaped, wood constructed enclosure).” OPS.140.0002.03(34), ECF 56-5, at 9 (DPSCS Religious Services Manual (“Religious Services Manual” or “Manual”)); ECF 61, at 2 (quoting Religious Services Manual). These “religious ceremonies [are] held for the purpose of prayer and physical, mental, and spiritual purification of the participant.” OPS.140.0002.05(G)(1), ECF 56-3, at 20. Pevia, an NAFG member, states his faith “mandate[s]” and “require[s]” his participation in a sweat lodge ceremony. ECF 1, at 5.

Maryland prisons allow certain prisoners to participate in sweat lodge ceremonies under certain circumstances. The DPSCS Religious Services Manual states that a “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.” Manual, OPS.140.0002.09(G)(2), ECF 56-5, at 44. When...

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