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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Marc Richard Adams
v.
Phil Stanley, et al.
December 18, 2002, Decided
The
plaintiff, Marc Richard Adams, is an inmate at the New Hampshire
Department [*138] of Corrections ("NHDOC"),
Northern New Hampshire Correctional Facility ("NCF"). He alleges in
his complaint that the defendants have denied him his right to the free
exercise of his religion guaranteed by the First and Fourteenth Amendments to
the United States Constitution. n1
Before the
Court for consideration is Adams' motion for interim injunctive relief
enjoining NCF from depriving him of the ability to hold Taoist religious
celebrations, initiatory rites, and festivals. Additionally, Adams seeks an order requiring NCF to permit him to obtain
certain religious articles, a religious diet, and an exemption from the prison
shaving requirement. Adams also seeks an order requiring NCF to allow him to
practice Tai Chi Chuan ("Tai Chi").
After considering the testimony and other evidence presented at
the hearing, and the relevant authorities, I find that the evidence does not
support Adams' contention that NCF is currently violating his constitutional
rights. Accordingly, I recommend that Adams' motion for interim injunctive
relief be denied.
STANDARD OF REVIEW
"The purpose of a preliminary injunction is to preserve the
status quo, freezing an existing situation so as to permit the trial court,
upon full adjudication of the case's merits, more effectively to remedy
discerned wrongs." CMM Cable Rep., Inc. v. Ocean Coast Prop., Inc., 48
F.3d 618, 620 (1st Cir. 1995) (citing Chalk v. U.S. Dist. Ct. Cent. Dist. of
Cal., 840 F.2d 701, 704 (9th Cir. 1988);
Am. Hosp. Ass'n v. Harris, 625 F.2d 1328, 1330 (7th Cir. 1980)). Thus,
if the court ultimately finds for the movant, a preliminary injunction provides
the court with a method for preventing or minimizing any current or future
wrongs caused by the defendant. CMM
Cable Rep., 48 F.3d at 620.
A district court may grant a plaintiff's request for a
preliminary injunction if the plaintiff satisfies a four-part test: (1) the
plaintiff is likely to succeed on the merits; (2) the plaintiff will suffer
irreparable harm if the injunction is not granted; (3) the injury to the
plaintiff outweighs any harm which granting the injunction would inflict on the
defendant; and (4) the public interest will not be adversely affected by the
granting of the injunction. See Langlois
v. Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000); Public Serv. Co. of
N.H. v. Patch, 167 F.3d 15, 25 (1st Cir. 1998). A party seeking injunctive
relief must independently satisfy each of the four factors. Auburn News Co. v. Providence Journal Co.,
659 F.2d 273, 277 (1st Cir. 1981); Mass. Coalition of Citizens with Disabilities v. Civil Def. Agency &
Off. of Emergency Preparedness of Com. of Mass., 649 F.2d 71, 74 (1st Cir.
1981). In the First Circuit, the key
issue in determining whether injunctive relief should be granted is whether the
plaintiff can demonstrate a likelihood of success on the merits. See Philip Morris, Inc. v. Harshbarger, 159
F.3d 670, 674 (1st Cir. 1998); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.
1993). With this standard in mind, the relevant facts are discussed below.
BACKGROUND
A thumbnail
sketch of Taoism is helpful to understand Adams' claims. The word Tao [*139]
may be translated into English as path, roadway or the way and
"refers to a power which envelopes, surrounds and flows through all
things, living and non-living." n2 Since early times the word Tao has
taken on a spiritual and transcendent meaning for the same reasons that people
refer to the Way of Christ or the Way of Buddha. See Introduction to The Illustrated
Tao Te Ching at 15-16 (Man-Ho Kwok et al., trans., Element Books Limited 1993).
"It is the natural use of the image of a path or roadway which leads us to
something beyond ourselves." Id. Although commonly thought of as merely a philosophy, Taoism has been practiced as a
religion for at least several centuries.
The study of Tao originated in China: its history spans thousands of
years. Its methods, doctrines, and practices have evolved into a sprawling and
complicated system that cannot be grasped even with a lifetime of study. Some
individuals try. Initiates into religious Taoism, having both the calling and
opportunity, follow an arduous and devout life.
Deng Ming-Dao, Everyday Tao:
Living with Balance and Harmony at viii (HarperSanFrancisco 1996).
Adams claims that NCF is depriving him of a meaningful ability
to engage in Taoist religious practices. He seeks an order requiring NCF to allow him to
obtain certain religious articles for his personal use n3 and for temple
practice. n4
In addition, Adams seeks an
order permitting him to practice Tai Chi, which he refers to as "moving
meditation." Similar to Taoism, Tai Chi is practiced for religious and
secular reasons. According to the International Taoist Tai Chi Society,
"the health-enhancing qualities of Tai Chi Chuan are founded in the lore
of religious Taoism. Over a period spanning almost two millennia, various sects
of Taoism have developed and perfected health exercises as part of their
religious cultivation." n5 Eventually, Tai Chi began to be practiced by
people outside of the monastic community and became widespread as a
martial [*140] art. n6 It has, however, "maintained a
tenuous link to the more spiritual or religious facets found in Taoist
training." n7
The defendants deny that they
are depriving Adams of his constitutional rights. Defendants make the following
contentions in response to Adams' claims: Adams has refused to comply with the
prison's legitimate efforts to substantiate his claims that the certain religious items are essential to the
practice of his religion; Adams has not completed inmate request forms
specifying the religious ceremonies, festivals, and initiatory rites that he
seeks to perform; NCF places reasonable limits on the practice of Tai Chi in
that inmates are prohibited from practicing martial arts moves for security
reasons; and NCF is providing Adams a religious diet.
DISCUSSION
I. Likelihood of Success on
the Merits
A. Section 1983 Claims
Section 1983 creates a cause of action against those who, acting
under color of state law, deprive individuals of "any rights, privileges
or immunities secured by the Constitution and laws" of the United States.
See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420,
101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct.
662 (1986); Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In
order to be held liable for a violation under § 1983, a defendant's conduct
must have been a cause in fact of the alleged deprivation. See Monell v. Dep't of Soc. Serv., 436 U.S.
658, 692, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997).
The premise of Adams' § 1983 claim is that the defendants,
acting under color of state law, have wrongfully hindered the free exercise of
his religion and denied him equal
protection of the laws in violation of his rights under the First and
Fourteenth Amendments to the United States Constitution. It is undisputed that
the defendants' actions were taken under the color of state law, so I do not
address that element further.
B. Free Exercise of Religion in Prison
"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). However, a prisoner "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974); see also, Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) ("prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison."). The retained rights include the right to the free exercise of religion. Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). Prisons must provide all inmates reasonable opportunities to exercise their religious freedom. Id. at 322, n.2. When a prisoner raises Free Exercise Clause claims, the prisoner must "establish that a challenged policy restricts [*141] the inmate's free exercise of a sincerely held religious brief." See, e.g., Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Barnett v. Comm'r, N.H. Dept. of Corr., 2000 U.S. Dist. Lexis 6190, No. Civ. 98-305- JD, 2000 WL 1499490 (D.N.H. Apr. 26, 2000).
The Supreme Court has held that a prisoner's sincerely held
religious beliefs must yield if contrary to prison regulations that are
"reasonably related to legitimate penological interests." Turner v. Safely,
482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); see also, O'Lone v. Shabazz, 482 U.S. 342, 351-352,
96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) (finding that the Constitution does not require the prison to sacrifice legitimate
penological objectives to satisfy an inmate's desire to exercise his religion
so long as an inmate is not deprived of all forms of religious exercise). n8 A
prison regulation must have a logical connection to the legitimate governmental
interests invoked to justify it. Turner,
482 U.S. at 89-90. That connection may not be "so remote as to render the
policy arbitrary or irrational." Id.
C. NCF's Recognition of Religious Taoism
Adams
alleges that the defendants have refused to recognize religious Taoism, and
have denied him a meaningful opportunity to freely practice the religion. At
the preliminary injunction hearing, Chaplain Smith testified that NHDOC
recognizes Taoism as a religion, and recognizes that Adams has a sincerely held
belief in that religion. Thus, for the purposes of Adams' motion for injunctive
relief, the relevant issue is whether NCF is providing Adams reasonable
opportunities to practice his religion.
Adams makes two primary
arguments in support of his claims. First, he argues that NCF is discriminating
against the Taoists by requesting that a representative of their group complete
an eleven-point religious questionnaire, which is not required of other groups.
See Def. Ex. 11. Second, he argues that he is being denied the same forms of
religious items that inmates of other faiths are allowed to obtain. See Pl. Ex.
DD. Adams contends NCF's actions evince a specific intent to discriminate
against the members of the Taoist group. As discussed below, I find that the
evidence adduced at the preliminary injunction hearing shows that NCF is making reasonable efforts to afford Adams
adequate opportunities to practice his religion.
1. Religious Practices
Chaplain
Smith testified that NHDOC places limits on inmates' exercise of religion in
prison. One of those limits is that an inmate must be able to substantiate a
claim that a particular religious practice or article is essential to his
religion through a verifiable outside source. See NHDOC Policy and Procedure
Directives ("PPD") 7.17, V(J)(1) ("The Chaplain shall schedule
celebration of the sacramental rituals necessary to meet minimal requirements
of a given religious faith.").
The evidence adduced at the
hearing showed that on July 5, 2001, Chaplain Smith requested that NCF Inmate
Travis [*142] Richardson answer the following questions
on behalf of the Taoist group:
1. What is the official name of the faith group?
2. Who is the head of the faith group in the United States?
3. What is the address and telephone number of the faith group?
Headquarters in the United States?
4. What are the basic teachings of the faith group? Please provide
titles or attach particular reference material which would be useful for
researching this group.
5. Does the faith group have ministers or teachers?
6. Are ministers available to visit incarcerated members of the faith
group?
7. Are there religious holidays to be observed by members? If so, when
are the holidays and what religious practices are necessary for the observance?
8. Are there any necessary religious items and what is the religious
significance of each?
9. Are there
time and place requirements for the group?
10. Are you aware of related faith groups or other groups with similar
practices?
11. Is the religion open to all inmates?
Def. Ex. 11. Chaplain Smith testified that he
derived the eleven questions from a Federal Bureau of Prisons questionnaire
regarding new or unfamiliar religious groups.
Adams makes several complaints specific to Chaplain Smith's
11-point questionnaire. He argues that his equal protection rights are being
violated because he is not aware of any other group that has been asked to
complete the questionnaire, and the questionnaire is not referenced in the
NHDOC PPDs. Adams contends that completion of the questionnaire would violate
the very nature of Taoism since the practice of Tao is specific to the
individual. Adams also contends that he is opposed to Chaplain Smith's attempts
to define his religious practices because those definitions would be used by
NHDOC as a basis for placing limits on other Taoists.
It is not
appropriate for the court to attempt to identify the essential practices of an
unfamiliar religion where the plaintiff has not done so himself. See Africa v. Com. of Pa., 662 F.2d 1025, 1030
(3d Cir. 1981) ("Judges are not oracles of theological verity, and the
Founders did not intend for them to be declarants of religious
orthodoxy."); see also, Natal v.
Christian and Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989) (finding
that civil courts cannot adjudicate disputes turning on religious doctrine and
practice). Unlike Christianity, Judaism, or Islam, religious Taoism has
relatively few adherents in the United States. n9 While the Court might
recognize that Easter, Passover, or Ramadan, are observances that are
considered "essential" to their respective religions, the Court is
unfamiliar with any such practices for religious Taoism. The evidence presented
at the injunction hearing shows that Adams has not complied with the prison's reasonable attempts to substantiate his
claim that the practices he seeks to engage in are essential to the practice of
his religion.
A fundamental
aspect of Adams' claim is that he desires to be free from any limitations
imposed by the prison with respect to the number of religious articles he
requires, [*143] or with respect to the definitions of
Taoist religious ceremonies or festivals. "Religious observances need not
be uniform to merit the protection of the first amendment." Thomas v.
Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 715, 67 L. Ed. 2d 624,
101 S. Ct. 1425 (1981). But the law does not require NCF to permit Adams to
have any religious article, ceremony or festival as he, and he alone, sees fit.
See Africa, 662 F.2d at 1031 (finding
that the concept of ordered liberty precludes
allowing any single person a blanket privilege "to make his own
standards of conduct in which society as a whole has important
interests:") quoting Wisconsin v. Yoder, 406 U.S. 205, 215-16, 32 L. Ed.
2d 15, 92 S. Ct. 1526 (1972). Rather, the law requires NCF to allow Adams a
reasonable opportunity to exercise his religion comparable to the opportunity
afforded to other inmates. Cruz v. Beto, 405 U.S. at 322. Adams has not
demonstrated that he is being deprived of any specific practices that he has
demonstrated are essential to the practice of religious Taoism.
While
certain questions in the Chaplain's religious questionnaire may be inapplicable
to the Taoist group, n10 prison officials unfamiliar with the practices of a
particular religion must be given some latitude to determine its legitimacy.
See O'Lone, 482 U.S. at 352 (finding
that the courts should not substitute its judgment for that of prison
administrators even on claims involving difficult and sensitive matters of
institutional administration); see also,
Frazee v. Ill. Dept. of Employment Sec., 489 U.S. 829, 833 (1989)
("States are clearly entitled to assure themselves that there is ample
predicate for invoking the Free Exercise Clause."). Following the
injunction hearing, Adams submitted as exhibits several pages from Internet
websites discussing various Taoist religious practices. See Pl. Ex. O-S. There
is no evidence that Adams provided this information to NCF prior to the
hearing. n11
There is
plenty of evidence that NCF is providing Adams opportunities to practice his
religion. Taoist inmates at NCF have been scheduled for two to four hours of
meeting time per week since the group was first recognized. Def. Ex. 1. The
group meetings were briefly suspended over concern that the group was
practicing martial arts, but subject to a restriction on physical contact the
group was permitted to keep meeting. The amount of group time permitted to
Taoists is comparable to other religious groups. Adams argued at the injunction
hearing that the Christians are permitted many more hours of meeting time per week. Based upon my review of the Chapel
Schedule, however, it is clear [*144]
that Adams fails to differentiate between the various sects within the
Christian faith. It is readily apparent that the time allocated for the Jehovah
Witnesses group, the Catholic group, and the Spanish Bible group, for example,
should not all be counted together because the inmates within those various
groups have different religious needs.
Susan Young, the NCF Administrator programs, testified that NCF
plays no role in how the Taoists use their meeting time. The inmates themselves
chose the name "Taoist Study
Group" for the Chapel Schedule. Inmates are permitted to bow, kneel on
mats, perform moving meditation, and read religious literature as they see fit
during their time.
The
evidence showed that Chaplain Smith inquired of nine Taoist organizations
regarding items necessary to practice religious Taoism. Def. Ex. 9. In his
letters, Chaplain Smith wrote, "Property [at NHDOC] is strictly
controlled. I was wondering if you could give me an idea of what items may be
necessary to conduct group religious meetings, and what religious items would a
Taoist need to keep in their cell?" Id. Only three organizations
responded. Each provided a different answer. Def. Ex. 10. One individual stated
that some basic items included candles, incense, a gong or bowl with a wooden
clapper, a text of the Tao Te Ching or other text of Taoist sages. Another
stated that the inmates would need an altar with three statutes representing
air, earth and water. A third individual stated that no implements were
necessary.
Chaplain Smith testified that he proposed approving for temple
practice for the Taoists an altar with three statues, as recommended by one of
the outside individuals who responded to his inquiry. The group found this unacceptable. Rather than
accepting items that have been substantiated and working to substantiate the
need for others, the members of the Taoist group have taken an all or nothing
approach that has left them completely unsatisfied.
NHDOC policy requires that religious services be conducted by
the Chaplain or an approved religious volunteer. See NHDOC PPD 7.17, V(C).
Chaplain Smith testified that he attempted to locate a volunteer for the Taoist
group, but one individual identified by the inmates, Dennis Furry, declined.
Chaplain Smith also testified that the prison refused to allow Tay Boon Hoe, a
Taoist master in the United States on a temporary visa from Singapore, to be an
NCF volunteer because he violated the NHDOC Rules for Volunteers. Def. Ex. 7.
n12 I find, based on my review of the evidence, that NCF has provided Adams
reasonable opportunities to practice his religion.
2. Tai Chi
A specific
religious practice that Adams seeks to engage in is Tai Chi. Adams complains
that his practice of moving meditation has been stunted by the NCF correctional
officers. I take judicial notice that Tai Chi is practiced in virtually every
park in every Chinatown in the United States, and is practiced in particular by
older people for health reasons. But it is also clear from the evidence,
including that submitted by Adams, that Tai Chi has martial arts applications.
See Pl. Ex. K.
The evidence at the hearing
established that, for security reasons, the prison prohibits [*145]
any form of activity that would require face-to-face confrontation
between inmates, which the prison refers to as "facing off." This
would include delivering blows, kicks, physical contact, or any offensive or
defensive maneuver to an opponent. In October 2001, NCF halted the meetings of
the Taoist group because the correctional officers were concerned that the
inmates were practicing martial arts moves. The group meetings were allowed to
resume when the restrictions were clarified to the group and to the staff.
The
undisputed evidence shows that NCF now allows breathing exercises and
meditation involving physical movement
so long as the participants comply with the restrictions. See Pl. Ex. CC. Adams
contends that the NCF clarification on Tai Chi needs further clarification in
order to avoid further disputes between Taoists and correctional officers.
I find that
the prison has articulated a reasonable penological interest for its
restrictions on Tai Chi. Adams is free to work within the prison's
administrative process to propose reasonable clarifications to the Tai Chi
policy. n13
3. Religious Articles
Property is
strictly controlled at NCF. See NHDOC PPD 9.2. The prison puts limits on the types and amounts of property that
prisoners may have to control contraband, minimize conflicts between inmates
over particular items, promote cleanliness and eliminate fire hazards.
Prisoners are provided Religious Property Cards that indicate approval for
prisoner's possession of property deemed essential to the religious practice.
See Def. Ex. 13. Adams argues that NCF discriminates against the Taoists
because he is not permitted to have certain religious items that are similar to
items permitted to members of other religious groups.
The
evidence at the injunction hearing showed that as of May 7, 2001, the following
five items have been approved for personal use for Taoists at NCF: one religious medallion; one set of Malas
(prayer beads); one set of Boading Balls; one meditation journal; and one
meditation bag. Def. Ex. 5, 13. Taoists may order and possess religious
literature and cassette tapes pursuant to the NHDOC PPD 9.2, subject to
limitations on the property.
Chaplain Smith testified that
he looks for generally accepted practices in determining what religious items
are approved for each religious group. The evidence showed that the number of religious articles permitted to Taoists
is similar to most other religious groups, with the exception of the Neo-Pagan
group. That group is permitted to possess thirteen different religious
articles. Chaplain Smith explained this discrepancy by stating that the pagan
group has been in existence for eight or nine years and has had a particularly
active leader who has been able to substantiate the need for the religious
items. It is undisputed that the Taoist group at NCF was not established until
April 2001 at the earliest. See Def. Ex. 8.
Chaplain Smith testified that
a prisoner is not permitted to retain religious articles from faiths other than
their own. I find the prison's policy with respect to possession of religious
items reasonable. If it were otherwise, a prisoner could place an [*146]
undue burden of prison resources. While I agree with Adams' contention
that the law does not permit NCF to arbitrarily limit him to five religious
items, he has not shown that he was denied permission to obtain religious items
that he has substantiated are essential to religious Taoism.
4. Religious Diet
Adams
complains that he is being denied a religious diet consistent with his
Taoist beliefs. See generally NHDOC 7.1
(establishing the policy and procedure for medical and religious diets). Adams
testified at the injunction hearing that his religion prohibits him from eating
beef, pork, fish, poultry, or eggs. He claims that he should be provided
wheats, oats, barley, millet, rice, seeds, and vegetables. Adams submitted a
page from the book Eating in the Light in support of his claim. See Pl. Ex. B.
The evidence at the hearing showed that NCF has provided Adams a vegetarian-no
egg diet since June 29, 2001. Def. Ex. 6, 12. This diet does not require Adams
to eat anything that is contrary to his beliefs. To the extent that Adams
complains about the specific portions of grains or vegetables that he receives,
I find that his complaint is without merit. The evidence at the injunction
hearing further showed that, contrary to Adams' contention, he has neither been
required to eat holiday meals that are prepared for members of other religious
faiths, nor has he identified and substantiated any Taoist special meal days. I
find that no injunction is warranted based on Adams' complaint about the food
he receives at NCF.
5. Shaving Pass
The prison
limits inmates' growth of facial hair
based on contraband control and concern pertaining to alteration of physical
appearance in the event of escape. However, the prison issues shaving passes,
which are exemptions from the regular facial requirements, for religious
participants if their religion requires it. Adams complains that NCF has denied
his request for a shaving pass, but has permitted passes to Muslim inmates. He
seeks an exemption because he argues that shaving is not natural to his
essential being. Chaplain Smith testified that NCF denied Adams' request
because Adams did not show that facial
hair is required or central to religious Taoism. Adams has not presented any
evidence to the contrary. I find, therefore, that no injunction is warranted
based on this allegation.
II. Irreparable Harm
In order to be entitled to a preliminary injunction, Adams must
demonstrate that he is likely to suffer irreparable harm absent relief.
Irreparable harm is a substantial injury that is not accurately measurable or
adequately compensable by money damages.
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18-19 (1st
Cir. 1996); Auburn News Co., supra, 659 F.2d at 277; Sierra Club v. Larson, 769 F. Supp. 420, 422 (D. Mass. 1991).
"To establish irreparable harm there must be an actual, viable, presently
existing threat of serious harm." Sierra Club, 769 F. Supp. at 422 (citing
Massachusetts Coalition, supra, 649 F.2d at 74).
With respect to the irreparable harm requirement, Adams argues
that he has been unable to conduct any religious services, celebrations,
initiations, or festival days and that these deprivations are continuing. The
evidence showed that Taoists are being scheduled Chapel time in the same
amounts as other religious groups. The defendants take no role in the determination
of how Taoists use their scheduled time. To the extent that Adams claims that
he cannot properly practice his religion without certain articles, he has
not [*147] demonstrated that he provided outside verification to Chaplain
Smith that shows that the items are essential to his religion. Chaplain Smith
indicated at the injunction hearing that he is willing to consider any
materials or reference sources that Adams may to provide. Accordingly, I find
that Adams has not demonstrated that he will suffer irreparable harm
absent injunctive relief.
Since I have found that Adams neither demonstrated that he is
likely to succeed on the merits, nor that he is likely to suffer irreparable
harm absent relief, I do not consider the remaining preliminary injunction
factors.
III. Motion for a Protective
Order
I recommend that Adams' request for a protective order be denied
as the evidence he provided at the injunction hearing does not establish that a
protective order is warranted. Adams submitted documentary evidence after the
injunction hearing to support his allegation that NCF has retaliated against
him for filing this lawsuit by firing him from his position as a law clerk.
Adams states in an affidavit he submitted in support of his motion that
"Angela Rouleau did terminate my employment as the NCF Law Clerk for
B-Shift by placing me on Reduced pay status ("RPS") for alleged
disrespect to staff and for allegedly socializing." No evidence has been
presented by the defendants to rebut Adams' allegation. While Adams may have a
cognizable retaliation claim, I find that he has not presented sufficient
evidence that he is likely to suffer future harm absent relief.
CONCLUSION
For the reasons set forth
above, I recommend that Adams' request for interim injunctive relief and
for a protective order be denied.
Any objections to this Report and Recommendation must be filed
within ten (10) days of receipt of this notice. Failure to file objections
within the specified time waives the right to appeal the district court's
order. See Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14
(1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.
1986).
James R. Muirhead
United States Magistrate Judge
Date: December 18, 2002
FOOTNOTES:
n1 Named as defendants in this action are
the following officers and employees NHDOC and NCF: Phillip Stanley,
Commissioner of the NHDOC; John Vinson, Esq., Counsel to the Commissioner;
Bruce Cattell, NCF Warden, Susan Young, NCF Administrator of Programs, Ross
Cunningham, NCF Captain; Daniel Smith, NHDOC Director of Chaplaincy
("Chaplain Smith"); and Jane and John Doe, Correctional Officers.
n2 See "History of Taoism,"
posted by ReligiousTolerance.org and available at
http://www.religioustolerance.org/taoism.htm.
n3 Adams seeks to obtain the following
items for personal use: a meditation/prayer mat; a meditation/prayer cushion; a
gourd; a bamboo flute; amulets; talismans made of natural materials; a robe; a
wand; miniature statuettes for a shrine/alter; a singing bowl; herbs and herbal
supplements; herbs to make teas; natural prayer oils for purification; an alter
cloth; bowls constructed of natural materials; a box for the shrine; a drinking
chalice; a scrying mirror; divination tools; uncensored religious literature;
sacred journals; pens and markers for use with the sacred journals; stones and
crystals; feathers; a headpiece; bags and wrapping for crystals and stones; Tai
Ji balls; sandals; malas; non-animal product hygiene items; cords and sashes;
Tai Ji literature and materials necessary for its practice; and Mandala posters
for meditation. Plaintiff's Proposed Order at 1-3.
n4 Adams seeks to obtain the following
items for temple practice: inks; feathers; stones/crystals; paper and natural
parchment; pens and markers; divination tools; a scrying mirror; staffs; flags
and banners; a drinking chalice; bowls; wooden boxes; cloth; altar/temple
cloth; candles; candle holders; incense; incense holders; purification/prayer
oils; herbs; singing bowls; gongs; Mandala posters; statutettes; prayer mats
and cushions; an alter/shrine; a wand; ceremonial garb; amulets; talismans;
gourds; flutes; chimes; clappers; fur; drums; buffalo horn; cauldron; lamps;
sandals; videos and digital video disks; audio tapes and compact disks; office supplies;
computer access; journals, tomes; head piece; cords and sashes; literature; and
a storage space. Plaintiff's Proposed Order at pp. 4-6.
n5 See "A Taoist Lineage,"
available on the Internet at
http://www.taoist.org/About_Us/Taoist_Lineage/taoist_lineage.htm.
n6 Id.
n7 Id. Master Alfred Huang provides a
similar historical account of the evolution of Tai Chi in the book Complete
Tai-Chi at 45 (Charles E. Tuttle Publishing Co., Inc.) (1993).
n8 In City of Boerne v. Flores, 521 U.S.
507, 536, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997), the Supreme Court held that
the Religious Freedom Restoration Act of 1993 ("RFRA"), codified at 42
U.S.C. § 2000bb et seq., is unconstitutional as applied to the states.
Therefore, the standards enumerated in the RFRA are inapplicable to Adams'
claims against NHDOC and NCF. See Kikumura v. Hurley, 242 F.3d 950, 958 (10th
Cir. 2001) (recognizing that the RFRA is invalid as applied to the states, but
holding that the plaintiff, a federal prisoner, could pursue his RFRA claim against
the federal defendants).
n9 ReligiousTolerance.org estimates that
Taoism has about 20 million followers worldwide only 30,000 of which live in North
America. See http://www.religioustolerance.org/taoism.htm.
n10 For example, the questions pertaining
to the "head" of the faith group in the United States and to the U.S.
headquarters may assume the existence of entities that do not exist. The
absence of such entities, however, would not necessarily mean that Taoism is
not a religion. See generally Torcaso
v. Watkins, 367 U.S. 488, 495, 6 L. Ed. 2d 982, 81 S. Ct. 1680 (1961)
(recognizing Taoism as a religion); Kalka v. Hawk, 342 U.S. App. D.C. 90, 215
F.3d 90, 99 (D.C. Cir. 2000) (same); Eduardo Penalver, The Concept of Religion,
107 Yale L. J. 791, 795 (1997) (discussing the lack of a constitutional
definition of the term "religion," and highlighting the problem of
western bias).
n11 I note that Adams contends that he
relied on materials submitted to the Chaplain and NCF by inmate Travis Richardson,
whom Adams contends was appointed the representative of the Taoist group
because NCF did not want to respond to inquiries from multiple inmates. This is
Adams' lawsuit, however, and he has not submitted to this Court the evidence of
any specific religious practices or articles that Richardson demonstrated to
NCF are essential to the practice of religious Taoism.
n12 In particular, NCF found that Tay Boon
Hoe provided false information on his application, lives in Adams' mother's
household, had prohibited phone contact with inmates after being warned against
it, and accepted money from inmate Travis Richardson.
n13 Adams also identified "sexual
alchemy" as a specific religious practice he sought to engage in. Adams
did not define the specifics of the practice, but he did testify that it
requires a partner of opposite sex. See Pl. Ex. D, G. Susan Young testified
that to the extent that "sexual alchemy" involves physical sexual contact,
the practice would violate the prison's regulations restricting physical
contact during inmate visits.