Not Reported in F.Supp.2d, 2008 WL 4369246 (M.D.Ala.)
(Cite as: 2008 WL 4369246 (M.D.Ala.))
Only the Westlaw citation is currently available.

United States District Court,

M.D. Alabama,

Northern Division.

Thomas Otter Adams, Plaintiff,


Gwendolyn Mosley, et al., Defendants.

Civil Action No. 2:05cv352-MHT.

Sept. 25, 2008.

Thomas Otter Adams, Elmore, AL, pro se.

Kim Tobias Thomas, Alabama Department of Corrections, Montgomery, AL, for Defendants.


MYRON H. THOMPSON, District Judge.

*1 Pursuant to 42 U.S.C. s 1983, plaintiff, a state inmate, filed this lawsuit charging that defendants violated his constitutional rights by disciplining him and interfering with his ability to practice his religion. This lawsuit is now before the court on the recommendation of the United States Magistrate Judge that defendants' motions for summary judgment should be granted. There are no objections to the recommendation. After an independent and de novo review of the record, the court concludes that the magistrate judge's recommendation should be adopted.

An appropriate judgment will be entered.


CHARLES S. COODY, United States Magistrate Judge.

Thomas Adams (Adams), is an inmate in the custody of the Alabama Department of Corrections and is currently incarcerated at the Easterling Correctional Facility (Easterling). He is an adherent of the Native American religion. He filed this 42 U.S.C. s 1983 action on April 15, 2005 claiming that prison officials interfered with his ability to practice his religion in violation of his First and Fourteenth Amendment rights. Adams also brings his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. s 2000cc1 (a)(1)-(2). Further, Adams challenges the constitutionality of disciplinary procedures at Easterling. He complains that disciplinary charges filed against him in January 2005 as well as his "arrest" in June 2005 for suspected infringement of institutional rules violated his constitutional rights. The named defendants are Warden Gwendolyn Mosley, Deputy Warden Kenneth Jones, Reverend Anthony Askew, Captain Kenneth Sconyers, Sergeant Woods, Commissioner Donal Campbell,FN1 and Correctional Officers Angela Brown, Sharmon Bland, Wayne Rodgers, and Daron Fayson. Adams requests trial by jury and seeks damages, and declaratory and injunctive relief.

FN1. Since the filing of this suit, Defendant Campbell has been succeeded in office by Commissioner Richard Allen.

The Defendants filed answers, written reports, and supporting evidentiary materials addressing Adams' claims for relief. In accordance with the instructions contained in the court's orders entered on July 27, 2005 and September 9, 2005 (Doc. Nos.19, 32), the court deems it appropriate to treat these responsive pleadings as a motion for summary judgment. Upon consideration of such motion, the evidentiary materials filed in support thereof, and Adams' opposition to the motion,FN2 the court concludes that Defendants' motion for summary judgment is due to be granted.

FN2. On October 27, 2005 Adams filed a document captioned Sworn Afidavit of Plaintiff. (Doc. No. 39.) To the extent the document contains claims unrelated to the claims presented in the original complaint, as amended, and/or seeks leave to present new claims and, therefore, is an attempt to amend the complaint, the amendment is untimely. (See Doc. No. 8.)


Adams practices Native American religion. He alleges violations of his First and Fourteenth Amendment rights as well as rights secured under RLUIPA resulting from the Defendants' interference with his practice of religion. He further claims that this interference is not justified by any legitimate security concerns. Adams also challenges the constitutionality of Easterling's disciplinary procedures and contends that a rule infraction he received in January 2005 as well as his assignment to administrative segregation in June 2005 pending an investigation for a possible violation of institutional rules violated his constitutional rights. Specifically, based on the complaint, as amended, the court understands Adams to present the following claims:

*2 * Defendants subjected him to unconstitutional disciplinary proceedings for possessing tobacco-a substance which he was allowed to possess at the Kilby Correctional Facility for religious purposes;

* Easterling's disciplinary procedures do not include any appellate procedures and have not been approved by the State legislature or any over-sight committee causing a violation of Adams' due process rights;

* Easterling's no smoking policy violates due process inasmuch as inmates transferred to Easterling from other institutions where smoking is allowed are subject to confiscation of their tobacco products without compensation and with no opportunity to donate the confiscated items to charity or other institutions;

* Adams' "arrest" on June 21, 2005 on the ceremonial grounds at Easterling for his possible violation of Rule Number 62 (creating or causing a security, safety or health hazard) constituted a retaliatory act by Defendants Askew and Mosley;

* Pending an investigation into Adam's possible violation of Rule Number 62, Defendant Fayson confiscated Adams' medicine bag in violation of his right to equal protection;

* Defendants denied Adams access to tobacco which interfered with the practice of his religion and thereby violated his First and Fourteenth Amendment rights;

* Defendants denied Adams' request for a "lateral" transfer for purposes of participating in a sweat lodge ceremony;

* Easterling's no smoking policy discriminates against Adams and other adherents of Native American religion who are required to immediately stop any type of tobacco use upon arrival at Easterling which constitutes unconstitutional punishment and serves no legitimate penological purpose;

(Doc. Nos.1, 4, 18.)


To survive Defendants' properly supported motion for summary judgment, Adams is required to produce some evidence supporting his constitutional claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). He must "go beyond the pleadings and ... designate 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp., 477 U.S. at 324. A plaintiff's conclusory allegations do not provide sufficient evidence to oppose a motion for summary judgment. Harris v. Ostrout, 65 F.3d 912 (11th Cir.1995); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984). Consequently, when a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 322; Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607 (11th Cir.1987). Where all the materials before the court indicate that there is no genuine issue of material fact and that the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex Corp., 477 U.S. at 322; Everett v.. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). Although factual inferences must be viewed in a light most favorable to the non-moving party, and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing a genuine issue of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.1990).


A. Defendant Mosley

*3 To the extent that Adams maintains that Warden Mosley is liable for the actions of other correctional officers, his claim fail. Officials cannot be held liable under s 1983 for the unconstitutional actions of their subordinates based on respondeat superior liability. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1308 (11th Cir.2006). However, supervisors can be held liable for subordinates' constitutional violations "when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003). A causal connection may be established when: (1) a "history of widespread abuse" puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so; (2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so. Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir.2007); Cottone, 326 F.3d at 1360. Deprivations that constitute wide spread abuse sufficient to constitute notice to the supervising official must be "obvious, flagrant, rampant and of continued duration rather than isolated occurrences." Brown, 906 F.2d at 671. Adams has neither alleged nor come forward with any facts showing that Mosley personally participated in or directed the acts of her subordinates. Adams has produced no evidence of widespread abuse. The remainder of this Recommendation will consider and conclude that the plaintiff's claims which touch on customs or policies lack merit. Consequently, Defendants' motion for summary judgment with respect to Adams' claim that Warden Mosley is liable because of her supervisory position as the Warden of Easterling should be granted.

B. Due Process Claims

Adams received a disciplinary on January 6, 2005 for violating Rule Number 64, possession of contraband. Adams arrived at Easterling on this date and prison personnel searched him. Prior to the search, correctional officers gave Adams an opportunity to turn in any tobacco products because of Easterling's status as a smoke-free institution. Adams did not declare any items of contraband. During Defendants Bland and Rogers' search of Adams' person and property, they located approximately 22 cigarettes in the heels of Adams' tennis shoes. Following a disciplinary hearing on January 10, 2005 during which Adams admitted to putting tobacco in his tennis shoes, the hearing officer found Adams guilty of possessing contraband and sanctioned him to 90 days assignment to the "hot dorm" and loss of all privileges. (Doc. No. 17, Exh. 1.) Later, on June 21, 2005, Adams was placed in administrative segregation pending an investigation into a violation of Rule # 62, creating or causing a security, safety, or health hazard. (Doc. No. 18.)

*4 Adams maintains that Defendants denied him due process with regard to his violation of Rule Number 64 inasmuch as the Alabama Department of Corrections has recognized him as a Native American prisoner, and DOC regulations (Administrative Regulation 333) permit him to possess tobacco for religious ceremonies. Adams further contends that his assignment to administrative segregation on June 21, 2005 pending an investigation into a violation of Rule Number 62 also violated his due process rights.

The Supreme Court has held that prison regulations on confinement of inmates do not create a liberty interest enforceable in a s 1983 action. Sandin v. Conner, 515 U.S. 472 (1995). In Sandin, the Court determined that the added restraint of prison discipline "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 486. Thus, "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight." Sandin, 515 U.S. at 480 quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976).

The Supreme Court has identified two circumstances in which a prisoner, an individual already deprived of his liberty in the ordinary sense, can be further deprived of his liberty such that due process is required.

The first is when a change in a prisoner's conditions of confinement is so severe that it essentially exceeds the sentence imposed by the court. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); see, e.g., Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (holding that a prisoner is entitled to due process prior to being transferred to a mental hospital). The second is when the state has consistently given a certain benefit to prisoners (for instance, via statute or administrative policy), and the deprivation of that benefit 'imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.' Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; see, e.g., Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974) (prisoners may not be deprived of statutory 'good-time credits' without due process); cf. Dudley v. Stewart, 724 F.2d 1493, 1497-98 (11th Cir.1984) (explaining how the state creates liberty interests). In the first situation, the liberty interest exists apart from the state; in the second situation, the liberty interest is created by the state.

Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir.1999).

The Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. See Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due Process Clause itself in transfer from low-to maximum-security prison because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose"); Olim v.. Wakinekona, 461 U.S. 238, 245-246 (1983) (a prisoner has no constitutional right to be confined in a particular institution and may be subjected to an interstate transfer without implicating the Constitution). Moreover, an inmate in the Alabama prison system has no constitutionally protected interest in the procedure affecting his classification level, the privileges bestowed upon him, or confinement in the least restrictive prison environment because the resulting restraints are not so severe that they exceed the sentence imposed upon him. Sandin, 515 U.S. at 485 ("Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.").

*5 In short, the deprivations about which Adams complains, without more, do not "exceed the sentence (imposed by the trial court) in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Id. at 484. This court must therefore determine whether the actions about which Adams complains involve the deprivation of a state-created liberty interest as defined by the standard set forth in Sandin.

As the Supreme Court recently noted,

Sandin involved prisoners' claims to procedural due process protection before placement in segregated confinement for 30 days, imposed as discipline for disruptive behavior. Sandin observed that some of our earlier cases, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), in particular, had employed a methodology for identifying state-created liberty interests that emphasized "the language of a particular [prison] regulation" instead of "the nature of the deprivation." Sandin, 515 U.S., at 481, 115 S.Ct. 2293. In Sandin, we criticized this methodology as creating a disincentive for States to promulgate procedures for prison management, and as involving the federal courts in the day-to-day management of prisons. Id., at 482-483, 115 S.Ct. 2293. For these reasons, we abrogated the methodology of parsing the language of particular regulations.

"[T]he search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established in and applied in Wolff and Meachum . Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at 483-484, 115 S.Ct. 2293 (citations and footnote omitted).

After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves "in relation to the ordinary incidents of prison life." Id., at 484, 115 S.Ct. 2293.

Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).

Applying the Sandin inquiry, the court concludes that Adams' assignment to the hot dorm for 90 days and loss of privileges during this time "though concededly punitive, d[id] not represent a dramatic departure from the basic conditions" of the sentence imposed upon him. Sandin, 515 U.S. at 485. Adams does not allege, much less indicate, that his confinement to the hot dorm subjected him to "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Id. at 484.

*6 Similarly, Adams' complaint that he is improperly housed in administrative segregation does not represent a "dramatic departure" from the ordinary conditions of confinement. Id. There is no indication that Adams' placement in administrative segregation pending an investigation into a rule violation is materially different from those conditions imposed on inmates in other forms of purely discretionary segregation nor has Adams alleged that the conditions in administrative segregation, compared with conditions in the general population, creates "a major disruption" in his environment or that the length of his sentence has been affected.FN3 See Id. at 486-87 (in determining that plaintiff possessed no liberty interest in avoiding disciplinary segregation the Court in Sandin relied on three factors: (1) disciplinary segregation was essentially the same as discretionary forms of segregation; (2) a comparison between the plaintiff's confinement and conditions in the general population showed that the plaintiff suffered no "major disruption in his environment"; and (3) the length of plaintiff's sentence was not affected.). Because Adams' placement and retention in administrative segregation are "within the range of confinement to be normally expected" by prison inmates "in relation to the ordinary incidents of prison life," he has no protected liberty interest in being free from confinement thereon.

FN3. Evidence before the court reflects that in September 2005 prison officials concluded that they could not guarantee Adams' safety or the safety of other inmates if he remained in Easterling's population. Prison officials, therefore, determined that Adams should remain in medium custody in administrative segregation. (See Doc. No. 39.)

Adams contends that Easterling's disciplinary procedures are atypical and create for him atypical hardship in relation to the ordinary incidents of prison life because (1) he had to immediately cease any type of tobacco use-even for religious purposesdue to the absence of advance notice of Easterling's no-smoking policy; (2) there is no appellate process for grievance procedures and (3) the disciplinary procedures to which he was subjected for possessing tobacco have not been approved by the State Legislature's Oversight Committee. These arguments, which are no more than an attempt to excuse his misconduct related to tobacco, do not demonstrate the "atypical and significant hardship ... in relation to the ordinary incidents of prison life" as contemplated in Sandin. 515 U.S. at 484. Because Adams has not alleged deprivation of a protected liberty interest, his due process claims fail. See id. at 487; Griffin v. Vaughn, 112 F.3d 703, 706 (3rd Cir.1997).

C. The Retaliation Claim

Adams argues that his "arrest" on June 21, 2005 on the Native American ceremonial grounds at Easterling for intentionally creating or causing a security, or safety hazard FN4 and his subsequent assignment to administrative segregation pending an investigation into that violation was a "direct and intentional act of retaliation" by Chaplain Askew and Warden Mosley. (Doc. No. 18.) To present a retaliation claim cognizable under s 1983, a prisoner must demonstrate that (1) he engaged in a constitutionally protected activity, (2) he suffered adverse treatment simultaneously with or subsequent to such activity and (3) a causal connection existed between the protected activity and the adverse action. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir.2003); Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-601 (11th Cir.1986). See also Gill v. Pidlypchak, 389 F.3d 379, 380 (2nd Cir.2004). Thaddeus-X v. Blatter, 175 F.3d 378, 394-95 (6th Cir.1999) ("[I]f a prisoner violates a legitimate prison regulation, he is not engaged in 'protected conduct,' and cannot proceed beyond step one.").

FN4. A violation of Rule Number 62.

*7 The method of establishing a retaliation claim is essentially the same as for a claim of race or sex discrimination. Donnellon, 794 F.2d at 600-01. An inmate has the initial burden of establishing a prima facie case of unlawful retaliation by a preponderance of the evidence, which once established raises a presumption that the prison official retaliated against the inmate. Texas Dep't. of Cmty Affairs v. Burdine, 450 U.S. 248 (1981). To establish a prima facie case, an inmate must show that he was engaged in a protected activity, such as the filing of a lawsuit; that he suffered an adverse treatment simultaneously with or subsequent to such activity; and that there was a causal link between the protected activity and the adverse treatment. Donnellon, 794 F.2d at 600-01. If an inmate establishes a prima facie case, the burden then shifts to prison officials to rebut the presumption by producing sufficient evidence to raise a genuine issue of fact as to whether the prison official retaliated against the inmate. This may be done by the prison official articulating a legitimate, non-retaliatory reason for the adverse decision or action, which is clear, reasonably specific and worthy of credence.

The prison official has a burden of production, not of persuasion, and thus does not have to persuade a court that he or she actually was motivated by the reason advanced. Burdine, supra . Once the prison official satisfies this burden of production, the inmate then has the burden of persuading the court that the proffered reason for the adverse decision is a pretext for retaliation. An inmate may satisfy this burden by persuading the court either directly that a retaliatory reason more than likely motivated the prison official or indirectly that the proffered reason for the adverse decision is not worthy of belief. By so persuading the court, the inmate satisfies his ultimate burden of demonstrating by a preponderance of the evidence that he has been the victim of unlawful retaliation. Burdine, supra.

To the extent Adams claims that Defendants retaliated against him for filing a lawsuit against them, he has met his burden of establishing that he was engaged in a protected activity. See Donnellon, 794 F.2d at 600-01. Defendants respond that Adams' arrest and placement in administrative segregation was related to the investigation into his violation of Rule Number 62. The evidence proffered by the Defendants indicates that Adams continued housing in segregation was for his and other inmates' safety. The Defendants, therefore, have met their burden of articulating a legitimate, non-retaliatory reason for their actions. Adams' contention that prison officials' actions were retaliatory is merely conclusory, and he has come forward with no evidence which shows that the Defendants' reason for their actions against him were pretextual. Consequently, Defendants' motion for summary judgment on Adams' retaliation claim is due to be granted.

D. The Conspiracy Claim

*8 Adams alleges that Defendants conspired to retaliate against him as a "direct result of orders issued by [Defendant] Mosley" because Adams named her as a party in a lawsuit he previously filed. To state a claim of conspiracy to violate civil rights, "a plaintiff 'must show that the parties "reached an understanding" to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy.' Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991).... [T]he linchpin for conspiracy is agreement ..." Bailey v. Board of County Comm'rs of Alachua County, Fla., 956 F.2d 1112, 1122 (11th Cir.1992). In order for a plaintiff "to establish the 'understanding' or 'willful participation' required to show a conspiracy, ... [he] must [produce] some evidence of agreement between the defendants.... For a conspiracy claim to survive a motion for summary judgment '[a] mere "scintilla" of evidence ... will not suffice; there must be enough of a showing that the jury could reasonably find for that party.' Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990)." Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-1284 (11th Cir.2002). Merely "stringing together" adverse acts of individuals is insufficient to demonstrate the existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir.1992).

The court has carefully reviewed the documents and evidence filed by Adams. There is a total lack of evidence to support his theory that Defendants conspired to deprive him of his constitutional rights. Adams fails to present any evidence which demonstrates that Defendants "reached an understanding" to violate his rights or committed an "actionable wrong to support the conspiracy." Bailey, 956 F.2d at 1122; Bendiburg, 909 F.2d at 468. At best, Adams' assertions are self serving, purely conclusory allegations that fail to assert those material facts necessary to establish a conspiracy between Defendants. See Fullman v. Graddick, 739 F.2d 553 (11th Cir.1984). Adams, therefore, fails to produce requisite evidence of a conspiracy and summary judgment is due to be granted in favor of Defendants on this claim. Bailey, 956 F.2d at 1122.

E. The Equal Protection Claim

When Adams was processed into segregation on June 21, 2005, Defendant Fayson ordered Adams to remove his medicine bag and necklace. Adams offered to empty the medicine bag for Fayson's inspection but complains that the officer required him to surrender the bag and necklace which eliminated his connection to the Creator. Adams alleges that Fayson's conduct discriminated against him because Christian and Muslim inmates housed in segregation are allowed to retain prayer rugs, the Quoran, Bibles, and other Christian literature.

Equal protection principles require generally that government officials behave in a way such "that all persons similarly situated should be treated alike." City of Cleburne, Tx. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Thus, in order to establish a claim cognizable under the Equal Protection Clause, a plaintiff must, at the very least, allege that he is similarly situated with other persons who were treated differently and that the reason for the differential treatment was based on a constitutionally protected interest. Jones v. Ray, 279 F.3d 944, 947 (11th Cir.2001); Damiano v. Fla. Parole & Probation Com'n, 785 F.2d 929, 932-33 (11th Cir.1986). Inconsistency in the operation of a prison may not, in itself, constitute a denial of equal protection. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); Jones v. White, 992 F.2d 1548, 1573 (11th Cir.1993); E & T Realty v. Strickland, 830 F.2d 1107 (11th Cir.1987).

*9 [O]fficial action will not be held unconstitutional solely because it results in a ... disproportionate impact.... Proof of ... discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Discriminatory purpose ... implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker ... selected ... a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.

Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation omitted); see also Hernandez v. New York, 500 U.S. 352, 359 (1991). Evidence which merely indicates disparity of treatment or erroneous or even arbitrary administration of state powers rather than instances of purposeful or invidious discrimination, is insufficient to show discriminatory intent. McCleskey v. Kemp, 481 U.S. 279, 292 (1987).

Here, Adams contends that emblems of his faith, a medicine bag and a necklace, were taken from him upon his placement in administrative segregation but that inmates of other faiths are allowed to keep various religious articles. However, the unrefuted evidentiary material before the court reflects that religious emblems, i.e., an object or the representation of an object, which serves as a recognized symbol,FN5 regardless of faith, are placed with an inmate's personal property until the inmate is released from segregation. (See Doc. No. 31, Exh. 1.) Adams does not explain the basis of his asserted knowledge about other inmates possessing emblem and does not allege that Defendant Fayson's conduct otherwise denied him the ability or opportunity to practice his religion. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972) (various religious groups are not required to be treated identically. Instead, prison officials must only ensure that each religious group has a reasonable opportunity to exercise its religious beliefs). Because Adams failed to demonstrate that he was subjected to any tangible unequal treatment by Fayson's conduct, Fayson is entitled to summary judgment on this claim. Furthermore, Adams admits that his medicine bag was returned to him during the pendency of this litigation. (Doc. No. 60.) As a result, his request for injunctive relief requiring the return of his medicine bag is now moot. See County of Los Angeles v. Davis, 440 U.S. 625 (1979); Cotterall v. Paul, 755 F.2d 777 (11th Cir.1985) FN6


FN6. In this same response, Adams contents that the return of his medicine bag demonstrates that there was no legitimate penological purpose for Defendant Fayson to take his medicine bag and that it was done for the purpose of retaliation and revenge. He also claims that while in administrative segregation he was not allowed to attend pipe ceremonies, refused the spiritual benefit and cleansing of smudging ceremonies, was not allowed to interact with other inmates of the Native American faith, and had no access to a Native American spiritual advisor. (Doc. No. 60.) To the extent such assertions represent a request to amend the complaint to add new claims for relief, they are untimely. (See Doc. No. 8 at 4.)

F. The Tobacco Ban Claim

To the extent Adams complains that the tobacco ban at Easterling violates his Fourteenth and Eighth Amendment rights, he is entitled to no relief. Adams has no liberty interest in smoking tobacco products and no property interest in purchasing tobacco products or retaining or being compensated for such products where they are considered by an institution to be contraband. See Sandin, 515 U.S. 472. While inmates with a nicotine habit may initially experience some discomfort from discontinuing their use of tobacco, conditions which are merely restrictive or even harsh, "are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

*10 To establish a claim under the Eighth Amendment, Adams must demonstrate both an objective and subjective component. Objectively, he must show that he has been deprived of a basic human need which is sufficiently serious. Subjectively, Adams must demonstrate that officials acted with a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825 (1994) Smoking is not a basic human need. Tobacco is a known carcinogen and provides no known health benefits to the user. Adams' complaint that the ban on the sale and possession of tobacco has created a black market for this commodity with a single pack of tobacco bringing $100.00 creates no legitimate human need for the product. (See Doc. No. 18.) Defendants, therefore, are entitled to summary judgment on Adams' general challenge to the tobacco ban at Easterling.

G. The Religion Claims

As noted, Adams brings his religion claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. ss 2000cc et seq. ("RLUIPA"). Under the provisions of 42 U.S.C. s 2000cc-1

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

To succeed on his primary RLUIPA claim, Adams first must present a prima facie case.

To establish a prima facie case under section 3 of RLUIPA, a plaintiff must demonstrate 1) that he engaged in a religious exercise; and 2) that the religious exercise was substantially burdened ... The plaintiff "bear[s] the burden of persuasion on whether the ... government practice that is challenged by the claim substantially burdens the exercise of religion." ... If the plaintiff succeeds in demonstrating a prima facie case, the government must then demonstrate that the challenged government action is "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." ... In contrast, if the plaintiff fails to present evidence to support a prima facie case under RLUIPA, the court need not inquire into whether the governmental interest at stake was compelling.

Smith v. Allen, 502 F.3d 1255, 1276 (11th Cir.2007), reh'g denied and reh'g en banc denied, 277 Fed. Appx. 979 (11th Cir. Mar. 3, 2008) (Table No. 05-16010-cc).

Adams contends that the challenged actions of the defendants burdened his right to freely practice the Native American religion by denying him access to tobacco for use in traditional ceremonies and denying him a lateral transfer to another institution where he can participate in a traditional sweat lodge ceremony in which tobacco is allowed. The evidence shows that Easterling has a sweat lodge, but inmates are not allowed to use tobacco during the sweat lodge ceremony. Prison officials do allow inmates to use the herb "kinnick-kinnick" during the ceremony which officials claim is an acceptable substitute for tobacco.FN7 Thus, Adams' two claims essentially devolve into one: whether denial of tobacco use by a person practicing the Native American religion is a violation of RLUIPA.

FN7. Kinnick Kinnick is the original name for a herb called Bearberry. Native Americans used this herb alone or mixed with tobacco and other herbs. It is also used as a smudge or smoked in a sacred pipe, carrying the smoker's prayers to the Great Spirit. See Kinnick Kinnick <ht tp://> (Accessed September 4, 2008).

*11 The first question for the court is whether Adams has demonstrated he was engaged in a "religious exercise." In Smith, the court defined the plaintiff's "religious exercise" as the practice of Odinism. "[W]e conclude that Smith's practice of Odinism constitutes a 'religious exercise' for purposes of a RLUIPA claim." Smith, 502 F.3d at 1277. One of the primary disputes in Smith arose from prison officials' prohibiting Smith's possession of a quartz crystal which he claimed was necessary for him to practice Odinism. The Smith court did not cabin the definition of "religious exercise" in a way which focused on a particular act of worship; rather, the court defined "religious exercise" as constituting the broader practice of a religion. It follows from Smith in which the "religious exercise" was Odinism that in this case the "religious exercise" is the practice of Native American religion. Adams has met the first prong of his prima facie case; he was engaged in that practice.

Adams' claim falters, however, on the "substantial burden" aspect of his prima facie case. The Smith court said this about "substantial burden."

We have previously defined a "substantial burden" as being "significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." More pertinent to the present action, we have made clear that, in order to constitute a "substantial burden" on religious practice, the government's action must be "more than ... incidental" and "must place more than an inconvenience on religious exercise." That is, to constitute a substantial burden under RLUIPA, the governmental action must significantly hamper one's religious practice.

Smith, 502 F.3d at 1277 (citations omitted).

As Smith shows, the question of whether a challenged action constitutes a substantial burden must be determined from the record as a whole and not merely by reference to the specific official action Adams complains about. Id. Adams asserts that "tobacco is a mandatory ingredient in the mixture of traditional kinnick-kinnick and cannot be substituted ... [and] is the subject of many traditional teachings." (Doc. No. 18 at 10.) Adams further states that consecration of the holy grounds or traditional sweat lodge ceremonies requires using significant amounts of tobacco. (Id. at 11.) Adams further appears to argue that it is not necessary that he prove that the Native American religion practitioners' use of tobacco is an absolute tenet of this faith, but that it is enough that the use of tobacco in Native American ceremonies is deeply rooted in their religious beliefs. (See Doc. No. 33 at 4-5.) However, beyond these conclusory claims Adams fails to offer any proof of the religious significance of tobacco nor does he demonstrate how use of the tobacco-free herb kinnickkinnick rather than tobacco itself imposes a substantial burden on his religious exercise or causes him to depart significantly from his religious traditions. His contention that "all ceremonies, rituals, and observances practiced by traditional Native American prisoners requires (sic) tobacco [and] there is no reasonable or legitimate substitute" is no more than a scant and conclusory allegation which fails to demonstrate how he has been unduly burdened in the practice of his religion. While the court can understand that Adams would prefer the use of tobacco during various Native American ceremonies and rituals, he fails to show why the alternative herb, which is available to him, is not sufficient for his religious needs. For these reasons, the court cannot conclude that the restriction on the use of tobacco about which Adams complains significantly burdens his religious exercise. Smith, 502 F.3d at 1278 (Denial of crystal neither "fundamental to" nor "significantly hamper[s]" religious observance).

*12 Adams has presented no evidence showing that the prohibition against tobacco use during worship activities is anything more than an inconvenience or incidental burden.FN8 This conclusion is entirely consistent with the Supreme Court's view of RLUIPA. "We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests." FN9 Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). In short, Adams has failed to show that the prohibition on the use of tobacco is a "substantial burden" within the meaning of RLUIPA.FN10

FN8. The evidence shows that a sweat lodge is available at Easterling. Some Native American inmates objected to its construction because of the tobacco prohibition but their objections premised on that prohibition do not show that their religious practices are impermissibly burdened within the meaning of RLUIPA.

FN9. In support of their position, the defendants argue that the no-smoking policy is supported by the legitimate need to promote the health and safety of both inmates and staff alike and to maintain security by preventing a limited group of inmates from taking advantage of a highly-prized and coveted product in the prison system.

FN10. Other districts courts fully considering the issue have reached the same conclusion. See Skenandore v. Endicott, 2006 WL 2587545 (E.D.Wis.2006) (relying on unpublished opinion in Orr v.. Morgan, Case No. 01-C-1103 (E.D.Wis. Mar. 27, 2003)); Smith v. Beauclair, 2006 WL 2348073 (D.Idaho 2006).

It follows that Adams' claim about transfer to another prison likewise fails on RLUIPA grounds. The transfer claim is based solely on Adams' contention that he must be transferred to a prison where tobacco use during the sweat lodge ceremony is allowed so that his religious practice will not be substantially burdened. This claim is not viable because denial of tobacco is not a substantial burden on the practice of the Native American religion.

For the same reasons, Adams' constitutional claims fail. In Smith, the court said that

[i]f a prison's regulation passes muster under RLUIPA, however, it will perforce satisfy the requirements of the First Amendment, since RLUIPA offers greater protection to religious exercise than the First Amendment offers. See Charles v. Frank, 101 Fed.Appx. 634, 635 (7th Cir.2004) (per curiam).

Smith, 502 F.3d at 1264 n. 5.

The defendants are entitled to summary judgment on Adams' religion claims.

H. Denial of Tobacco to Native Americans Inmates

Adams alleges that the no smoking policy at Easterling as applied to inmates who practice the Native American religion is unconstitutional because it discriminates against their faith by requiring that they cease any type of tobacco use upon their arrival at Easterling. Under the Equal Protection Clause, a prison policy must bear a rational relationship to a legitimate penological objective. See Williams v. Lane, 851 F.2d 867, 881 (7th Cir.1988).

Courts which have addressed claims that prison anti-smoking policies violate the Equal Protection Clause have repeatedly rejected such claims. See e.g., Webber v. Crabtree, 158 F.3d 460 (9th Cir.1998); Beauchamp v. Sullivan, 21 F.3d 789 (7th Cir.1994). The reason for rejecting the notion of an equal protection violation in the face of prison no-smoking policies is based on a determination that the act of smoking is entitled to only a minimal level of protection under the Equal Protection Clause. This is because smoking is obviously not a fundamental right nor is the classification between smokers and non-smokers a suspect one. See, e.g., McGinnis v. Royster, 410 U.S. 263 (1973); Plyler v.. Doe, 457 U.S. 202, 216 (1982). Because neither smoking nor possession of tobacco in a prison implicates any fundamental right, and does not involve any suspect classification, only a "rational basis" standard of scrutiny applies. McGinnis, supra. See also Washington v. Harper, 494 U.S. 210 (1990). The question is simply whether the regulation serves a legitimate state interest and whether the challenged regulation is rationally related to it. City of Cleburne, Tx., 473 U.S. at 440. See also McGinnis, 410 U.S. at 270.

*13 Adams has not shown that he has, in fact, suffered unequal treatment. As a result of the potential s 1983 liability facing state actors if they do not protect non-smokers from smokers' second-hand smoke, the State of Alabama has a rationally based, legitimate interest in protecting the health of inmates who don't smoke. See Helling v. McKinney, 509 U.S. 25 (1993). In light of the Court's decision in Helling, the State of Alabama has a legitimate interest in eliminating non-smokers' exposure to second-hand smoke in its prisons. A rational way of accomplishing the State's goal in this regard is to prohibit the sale or possession of tobacco products in its prisons. The prison policy prohibiting tobacco use, sale, and/or consumption at Easterling is reasonably related to the legitimate objective of preventing the use of tobacco in violation of the ban. There is no evidence that the State's policy in restricting tobacco use and sales is directed specifically at inmates of the Native American faith. Thus, Adams fails to state a viable equal protection claim. See Webber, supra; Johnson v. Saffle, 166 F.3d 1221 (10th Cir.1998) (table); Harvey v. Foote, 92 F.3d 1192 (9th Cir.1996) (table) (affirming dismissal for legal frivolity).

I. The Failure to Comply Claim

To the extent Adams asserts that Defendants violated his constitutional rights by failing to comply with the requirements of the Stipulation filed by the parties on March 5, 1998 in the case of Limbaugh, et al v. Thompson, et al., Civil Action No. 2:93-CV-1404-ID (M.D.Ala.), and Native American Prisoners of Alabama-Turtle Wind Clan v. State of Alabama Department of Corrections, Civil Action No. 2:96-CV-554-WHA (M.D.Ala.) as set forth in the court's orders in those cases, he is entitled to no relief. The court understands Adams to rely on the Recommendation of the Magistrate Judge entered on September 10, 1999, which recommended that injunctive relief to the inmates be granted "[b]ased on the stipulation which embodies the agreement of the parties on all issues ... the evidence heard by the court and the record as a whole ..." Limbaugh, Civil Action No. 2:93-CV-1404-ID, Doc. # 193-September 10, 1999 Recommendation of the Magistrate Judge (adopted as Judgment of the court by final order of June 12, 2000, Doc. # 214).

Adams' reliance on the stipulation/consent decree is misplaced because he has failed to state a claim upon which relief can be granted. A claim asserting a violation of an agreement between the parties in Limbaugh does not raise a federal constitutional or statutory claim and, therefore, Adams is due no relief. Moreover, Adams has failed to seek proper enforcement of either the stipulation or the court's prior orders. Injunctions, including consent decrees, are enforced through the trial court's civil contempt power. See Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir.2000). Consequently, Adams has no independent claim of right under the terms of the Limbaugh, and Native American Prisoners of Alabama-Turtle Wind Clan agreements.


*14 Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Defendants' motion for summary judgment (Docs. # 17 & 31) be GRANTED;

2. Judgment be ENTERED in favor of Defendants and against Plaintiff;

3. This case be DISMISSED with prejudice.

4. The costs of this proceeding be taxed against Plaintiff.

It is ORDERED that, to the extent Plaintiff's pleadings filed on October 27, 2005 and May 3, 2006 may be construed as motions to amend, the motions (Docs. # 39 & 60) are DENIED as untimely.

Additionally, it is ORDERED that:

The parties shall file any objections to this Recommendation on or before September 18, 2008. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc).


Adams v. Mosley

Not Reported in F.Supp.2d, 2008 WL 4369246 (M.D.Ala.)