Filed: Nov. 08, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7576 JOHAN EICHEN KRIEGER, Plaintiff - Appellant, v. BETTY A. BROWN; BOYD BENNETT, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:08-ct-03090-FL) Argued: September 21, 2012 Decided: November 8, 2012 Before SHEDD, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote th
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7576 JOHAN EICHEN KRIEGER, Plaintiff - Appellant, v. BETTY A. BROWN; BOYD BENNETT, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:08-ct-03090-FL) Argued: September 21, 2012 Decided: November 8, 2012 Before SHEDD, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished opinion. Judge Keenan wrote the..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7576
JOHAN EICHEN KRIEGER,
Plaintiff - Appellant,
v.
BETTY A. BROWN; BOYD BENNETT,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-ct-03090-FL)
Argued: September 21, 2012 Decided: November 8, 2012
Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Shedd and Judge Thacker joined.
ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant. Kimberly D. Grande, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Lindsey Carpenter, Third Year Law Student,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for
Appellant. Roy Cooper, Attorney General, Peter A. Regulski,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:
Johan Krieger, who is incarcerated in a state correctional
facility in North Carolina, brought this action alleging that
prison officials violated the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to
2000cc-5, by denying his requests for an “outdoor worship
circle” and certain “sacred items” related to his religious
practice of Asatru. The district court awarded summary judgment
in favor of the prison officials, and Krieger appeals. We
conclude that the district court correctly held that Krieger did
not show that his practice of Asatru was substantially burdened
by the denial of an outdoor worship circle and the requested
sacred items, and, thus, that Krieger failed to establish a
prima facie case under RLUIPA. Accordingly, we affirm the
district court’s judgment.
I.
Krieger practices Asatru, a polytheistic religion that
originated in Northern Europe several centuries ago. Asatru is
a decentralized religion, which does not have a spiritual leader
or a governing religious authority. Practitioners of Asatru
adhere to general principles of the religion, but each member or
group of members exercises their faith in a personal manner.
2
The North Carolina Department of Corrections (NCDOC)
recognizes Asatru as an “approved religion.” In developing its
policy concerning the accommodation of inmates who practice
Asatru, the NCDOC consulted outside sources, including Valgard
Murray, the leader of the “Asatru Alliance,” which is the
“oldest and largest Asatru church in North America.”
Based on the information provided by Murray, the NCDOC
established a policy permitting incarcerated individuals access
to certain items used in the most common Asatru ceremony, known
as a “Blot.” These permitted items include an altar, an altar
cloth, altar candles, a small evergreen twig, a sacrificial
bowl, mead made from honey or a fruit juice substitute, a
cardboard staff, a large picture of a “Thor Hammer,” pictures of
other Gods and Goddesses of the Asatru faith, a cardboard sword,
runes, and folk music. The NCDOC also permits Asatru
practitioners to possess several items for use in certain
private worship practices, including the “study of runes.” The
permitted items relating to private worship include a cloth bag,
a maximum of 25 small plastic or bone runes, a religious
medallion, and several sources of reading material.
In 2005, Krieger submitted requests to NCDOC officials
seeking the construction of a large outdoor worship circle made
of stones. Included in his request were diagrams detailing the
desired dimensions for the circle and the materials necessary
3
for its construction, including two tons of gravel, shrubbery,
one-half ton of small stones, and at least 400 pounds of
concrete to construct an altar.
Krieger also submitted requests for numerous sacred items
for personal and group worship that were not included in the
NCDOC’s “approved religious property” list. 1 The sacred items
Krieger requested for group worship included a large piece of
cloth for creating a banner, a large horn cup, an “oath ring,”
“heathen music,” and cardboard replicas of Thor’s hammer, a
spear, a shield, an axe, and a bow and arrow. The sacred items
he sought for private worship included an amber bead, three
feathers, a “shuffling rune set,” a “cloth helm,” a small
ceremonial bowl, a horn cup, incense, honey, and pendants with
images of a shield, an axe, and a bow and arrow.
The NCDOC’s Religious Practices Committee denied Krieger’s
requests. Krieger unsuccessfully filed numerous grievances and
appeals with NCDOC officials. 2
1
Krieger submitted several requests for sacred items,
including four differing lists of items. For purposes of this
appeal, we describe only the narrowed list of requested sacred
items that Krieger has identified in this Court. That list also
includes altar candles, a ceremonial bowl, a cardboard replica
of a sword, a casting rune set, and pendants with images of
Thor’s hammer and a spear, which are permitted items under the
NCDOC’s policy.
2
For purposes of this appeal, we assume without deciding
that Krieger exhausted his remedies as required by the Prison
(Continued)
4
In 2009, Krieger filed an amended complaint in the district
court under 42 U.S.C. § 1983, naming as defendants two NCDOC
employees, Betty A. Brown, Director of Chaplaincy; and Robert
Lewis, Director of Prisons (collectively, Brown). In his
primary claim, Krieger alleged that by denying his requests for
an outdoor worship circle and various sacred items, prison
officials placed a substantial burden on his exercise of Asatru,
in violation of RLUIPA. Additionally, Krieger alleged that
Brown violated his right to free religious exercise under the
First Amendment.
In support of his claims, Krieger alleged that to practice
Asatru, he “must utilize sacred items in the performance of
well-established rituals.” Krieger also submitted various
pleadings and several exhibits, including (1) “The Handbook of
Asatru,” with a forward written by Valgard Murray; (2) a “World
Tree Publication,” written by Murray and another Asatru
practitioner; and (3) a publication entitled, “Our Sacred Land.”
Krieger later amended his request for an outdoor worship circle
in the district court, seeking only outdoor space for a worship
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Jones
v. Bock, 549 U.S. 199 (2007) (holding that failure to exhaust
available administrative remedies under the PLRA is not a
jurisdictional requirement).
5
circle and enough rocks to form a loose circle rather than “an
exact replica of [his previously submitted] design.”
Brown filed a motion for summary judgment, arguing that the
absence of an outdoor worship circle and the requested sacred
items did not place more than an incidental burden on Krieger’s
exercise of his religion. Brown included as exhibits affidavits
submitted by Brown and by Lewis, describing the NCDOC policies
regarding Asatru and discussing the impracticality of Krieger’s
requests.
The district court granted Brown’s motion for summary
judgment, concluding that Krieger failed to establish a prima
facie case under RLUIPA. Based on this conclusion, the district
court held that Krieger’s First Amendment claim also failed.
Krieger timely filed an appeal in this Court. 3
II.
A.
We review de novo a district court’s grant of a motion for
summary judgment. Couch v. Jabe, 679 F.3d 197, 200 (4th Cir.
2012). Summary judgment is appropriate when there is no genuine
3
Krieger does not appeal the district court’s dismissal of
his First Amendment claims.
6
issue of material fact and the moving party is entitled to
judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a).
RLUIPA provides, in relevant part, that
[n]o government shall impose a substantial burden on
the religious exercise of a person residing in or
confined to an institution . . . unless the government
demonstrates that imposition of the burden on that
person--(1) is in furtherance of a compelling
government interest; and (2) is the least restrictive
means of furthering that compelling government
interest.
42 U.S.C. § 2000cc-1(a). A plaintiff alleging a violation of
RLUIPA bears the burden of establishing a prima facie case,
showing (1) that he seeks to engage in an exercise of religion,
and (2) that the challenged conduct substantially burdens that
exercise. See 42 U.S.C. § 2000cc-1(b). If the plaintiff
establishes a prima facie case, the burden shifts to the
government to demonstrate that the limitation on the plaintiff’s
religious exercise is the least restrictive means of furthering
a compelling government interest. Couch, 679 F.3d at 200;
Lovelace v. Lee,
472 F.3d 174, 185-86 (4th Cir. 2006).
B.
Krieger argues that the district court engaged in an
erroneous analysis when determining that his practice of Asatru
was not substantially burdened by the NCDOC’s denials of his
requests for an outdoor worship circle and various sacred items.
In particular, Krieger asserts that the district court erred by
7
evaluating the significance of the requested items to the
practice of Asatru. Krieger maintains that the district court
instead should have concluded that he met his burden by showing
that the deprivation of an outdoor worship circle and the
various sacred items required him to practice Asatru
“differently than he otherwise would have.” We disagree with
Krieger’s arguments.
Initially, we observe that the parties agree that Krieger
satisfied the first prong of his initial burden under RLUIPA,
namely, to show that he sought to engage in an exercise of his
religion, Asatru. Thus, the focus of the parties’ argument on
appeal is whether Krieger satisfied the second prong of his
initial burden, to demonstrate that his religious exercise was
substantially burdened by the NCDOC’s denial of his requests.
The term “substantial burden” is not defined by statute.
However, we have explained that a governmental entity
substantially burdens an individual’s religious exercise within
the meaning of RLUIPA when an entity’s act or omission puts
“substantial pressure” on a person “to modify his behavior and
to violate his beliefs.” Lovelace, 472 F.3d at 187.
In conducting a “substantial burden” analysis, a court
should not judge the significance of a particular belief or
practice to the religion at issue. Cutter v. Wilkinson, 544
U.S. 709, 725 n.13 (2005);
Lovelace, 472 F.3d at 187 n.2. The
8
statutory language of RLUIPA protects “any exercise of religion,
whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis added).
Thus, to demonstrate that his religious practice has been
substantially burdened, a plaintiff must demonstrate that a
governmental entity substantially pressured him to modify his
behavior and to violate his religious beliefs. See Lovelace,
472 F.3d at 187. A plaintiff is not required, as part of this
prima facie showing, to prove that the exercise at issue is
required by or essential to his religion. See
Cutter, 544 U.S.
at 725 n.13.
In the present case, the district court correctly concluded
that Krieger failed to demonstrate that his behavior was
modified and his religious beliefs were violated by the
deprivation of the outdoor worship circle and the listed sacred
items. The district court began its analysis by considering
Krieger’s arguments regarding an outdoor worship circle.
Krieger asserted that deprivation of the outdoor worship circle
would require him to pray indoors, and that the “Blot” ceremony
is “best performed outdoors.” However, Krieger failed to offer
any explanation regarding the reason why indoor worship would
compromise his religious beliefs.
In the absence of any such explanation, the district court
examined the Asatru literature submitted by Krieger to determine
9
whether indoor worship violated any generally-held belief
relating to the practice of Asatru. The district court noted
that although the literature “highlight[ed] the significance of
land to the Asatru religion” and described Asatru as a religion
“based on the laws of nature,” one publication expressed that
“communing with Gods and Goddesses” indoors is possible. In
addition, the district court emphasized that the practice of
Asatru is individualized and lacks any mandatory aspect of
exercise, a fact readily acknowledged by Krieger. Thus, the
district court correctly concluded that Krieger failed to
provide any basis for his claim that the NCDOC’s denial of an
outdoor worship circle substantially burdened his exercise of
Asatru.
We observe that before reaching this conclusion, the
district court found that the use of an outdoor worship circle
was not “essential” to the practice of Asatru. However, as
stated above, a plaintiff is not required to prove that any
particular aspect of his religious exercise is essential to his
faith in order to establish that the exercise has been
substantially burdened. See Cutter, 544 U.S. at 725 n.13.
Although the district court should not have used the term
“essential” in discussing the different characteristics of the
practice of Asatru, this error in terminology did not affect the
court’s application of the “substantial burden” test. Krieger
10
was not required to prove that use of an outdoor worship circle
was essential to the practice of Asatru. Instead, the district
court engaged in the correct “substantial burden” analysis,
focusing on Krieger’s failure to demonstrate that he was
pressured to modify his behavior and to violate his beliefs when
the NCDOC denied his request for an outdoor worship circle.
The district court also did not err in concluding that
Krieger failed to produce enough evidence to support a finding
that the NCDOC’s denial of the requested sacred items inflicted
a substantial burden on his ability to practice Asatru. Krieger
alleged in his amended complaint that the sacred items were
“necessary” to perform “well-established rituals.” Relying on
this blanket assertion, Krieger did not identify those rituals,
or explain why the absence of the sacred items had an impact on
the rituals and violated his beliefs. Without this information,
the district court could not evaluate the degree to which
Krieger’s religious exercise was impaired. Moreover, although
the literature submitted to the district court discusses
numerous items that may be used in the practice of Asatru, the
literature also included a list of “mandatory religious items
for Asatru worship,” which was identical to the list of items
permitted by the NCDOC in its policy regarding the practice of
Asatru.
11
In sum, Krieger failed to demonstrate a substantial burden
on the exercise of his religion by asserting merely that the
NCDOC failed to accommodate certain requests related to his
religious practice, and by relying on literature emphasizing the
individual manner in which practitioners of Asatru may observe
their faith. Because Krieger did not show that the deprivation
of an outdoor worship circle and the requested sacred items
modified his behavior and violated his religious beliefs, the
district court correctly determined that Krieger failed to
establish a prima facie case under RLUIPA. See Lovelace, 472
F.3d at 187.
Accordingly, we affirm the district court’s award of
summary judgment to Brown.
AFFIRMED
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