Wilson v. Moore (270 F. Supp. 2d 1328, 2003)

ORDER ADOPTING THE MAGISTRATE JUDGE’S NINTH REPORT AND RECOMMENDATION

STAFFORD, Senior District Judge.

Before the court is the magistrate judge’s ninth report and recommendation (doc. 219) docketed March 11, 2003. The magistrate judge recommends that the defendants’ motion for summary judgment be granted in part and denied in part. The plaintiff has not filed objections to the report and recommendation.

Upon review of the record, the court has determined that the report and recommendation should be adopted.

Accordingly, it is ORDERED:

1. The magistrate judge’s report and recommendation is ADOPTED and incorporated by reference into this order.

2. The plaintiffs claims for injunctive and declaratory relief are DISMISSED as moot.

3. The defendants’ motion for summary judgment (doc. 85) is DENIED to the extent the plaintiff seeks nominal damages for alleged violations of his equal protection rights. The defendants’ motion for summary judgment (doc. 85) is GRANTED in all other respects.

4. The court declines to exercise supplemental jurisdiction over the plaintiffs state law claim because such claim raises unsettled issues of Florida law. The plaintiffs state law claim is accordingly DISMISSED.

4. The case shall be REMANDED to the magistrate judge for further proceedings on the remaining equal protection claim.

NINTH REPORT AND RECOMMENDATION

SHERRILL, United States Magistrate Judge.

This case is before the Court upon an order of remand from the Eleventh Circuit Court of Appeals directing this Court to revisit the summary judgment motion in light of the fact that Plaintiffs evidentiary materials were not considered. Doc. 207. Because of the lengthy period of time that had passed since ruling was issued on the original summary judgment motion, the parties were advised that the record would be reopened “for submission of any additional evidence in support of, or opposition to, summary judgment.” Doc. 208. Only Plaintiff provided additional materials. Docs. 213, 215. In ruling on the summary judgment motion at this time, the following relevant documents will be considered: Defendants’ special report and attached exhibits, doc. 85; Plaintiffs response to summary judgment, doc. 141, with attached exhibits; Plaintiffs supplemental memorandum in opposition to summary judgment with attachments, doc. 213, and Plaintiffs supplement with an additional affidavit, doc. 215.

I. Preliminary matters

There are a number of issues that may be adjudicated at the outset. Between the time judgment was entered, doc. 178, and a ruling on the appeal was entered, co-Plaintiff David Croft voluntarily dismissed his claims. Docs. 191, 195, 198, 199, and 203. Therefore, the appeal was taken only by Plaintiff Jason Wilson and in revisiting summary judgment, only claims pertaining to Plaintiff Wilson will be considered. Accordingly, Michael Silcox’s only involvement in this case was as a Defendant to claims raised solely by Plaintiff Croft. Thus, summary judgment should be granted in Defendant Silcox’s favor.

Additionally, the order of remand upheld the appropriateness of granting summary judgment on the claim concerning prison regulations imposing hair length requirements on all prisoners. Doc. 207, p. 19. Thus, this report and recommendation will not address that claim other than to recommend that Defendants’ motion for summary judgment be granted as to that claim.

Furthermore, Plaintiff abandoned his claim brought under 18 U.S.C. § 241. Doc. 207, p. 24, n. 18. Thus, only Plaintiffs claims under 42 U.S.C. § 1983, § 1985, and § 1986 will be addressed. Depending on the disposition of those claims, the Court may consider extending jurisdiction over the state law claim brought under the Florida Religious Freedom Restoration Act (FRFRA).

Plaintiff has been released from incarceration and is now living in Hickory, North Carolina. Doc. 218. “The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). When there is no present case or controversy, a party lacks standing. “[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985); Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir.1986). Plaintiffs release from prison and his residence in North Carolina render Plaintiffs equitable claims (declaratory and injunctive relief) moot. This ease continues only as to Plaintiffs request for monetary damages.

Plaintiff requested both compensatory and punitive damages as relief. Doc. 27. However, there are no allegations of physical injury or harm to Plaintiff and, without physical injury, Plaintiffs request for monetary damages must necessarily be limited to nominal damages by virtue of 42 U.S.C. § 1997e(e). Harris v. Garner, 216 F.3d 970 (11th Cir.2000), reinstating in part 190 F.3d 1279 (11th Cir.1999); Osterback v. Ingram, 263 F.3d 169 (11th Cir.2001) (Table). Even though Plaintiff did not specifically request nominal damages, if he were successful in this case, nominal damages could still be recovered. Memphis Community School District v. Stachura, 477 U.S. 299, 308-309, 106 S.Ct. 2537, 2543-14, n. 11, 91 L.Ed.2d 249 (1986) (noting that nominal damages are an appropriate means of “vindicating” rights whose deprivation has not caused actual, provable injury). See, e.g., Allah v. AlHafeez, 226 F.3d 247, 251 (3d Cir.2000) (finding “it is not necessary to allege nominal damages.”), quoted in Mitchell v. Horn, 318 F.3d 523, 533, n. 8 (3d Cir.2003); Oliver v. Keller, 289 F.3d 623, 629-630 (9th Cir.2002) (applying § 1997e(e) and permitted appellant to seek nominal damages even though they were not expressly requested); cf. Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998) (declining to construe complaint as seeking nominal damages). In keeping with the principle that pro se complaints be construed liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Plaintiffs amended complaint is read as having requested nominal damages.

II. Allegations of the amended complaint

Plaintiff has alleged that he was denied his First Amendment right to the free exercise of his religion which is Native American. Doc. 27. Plaintiff asserts that he was denied a variety of items and activities which were required tenets of his religious faith. Among those things allegedly denied were: (1) designated holy ground, (2) smudging, (3) use of prayer pipe, (4) a sweat lodge, (5) use of sacred drum and rattles, (6) growing his hair long, (7) wearing of head bands, necklaces, and dream catchers, and (8) the closing of the hobby-craft shop. Plaintiff complained that there have been only two pipe ceremonies and, at the second one, the Native American Spiritual Advisor did not smoke the sacred pipe. He alleges that the Department of Corrections was hindering efforts to bring in Native American volunteers.

Plaintiff also alleged an Equal Protection claim because the Florida Department of Corrections placed certain restrictions on Native American religion followers that were not placed on other religious groups. Doc. 27. One such example was that the Department required proof of ancestry before an inmate could participate. Id. Another example was the fact that Native Americans could wear headbands only during religious services, but Jewish and Muslim inmates were allowed to wear their religious headgear at any time. Id.

Plaintiff brought the above claims pursuant to 42 U.S.C. § 1988. Id. Plaintiff also alleged a conspiracy under § 1985(2) to deprive him of his First and Fourteenth Amendment rights and an additional conspiracy claim under 42 U.S.C. § 1986. Finally, Plaintiff asserts a state law claim concerning violations of the Florida Religious Freedom Restoration Act. Id.

III. Standard of Review

On a motion for summary judgment, a defendant initially has the burden to demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If accomplished, the burden shifts to Plaintiff to come forward with eviden-tiary material demonstrating a genuine issue of fact for trial. Id. Plaintiff must show more than the existence of a “metaphysical doubt” regarding the material facts, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a “scintilla” of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). However, “the evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor.” WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988).

“Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir.1997), cert. denied 522 U.S. 1126, 118 S.Ct. 1074, 140 L.Ed.2d 133 (1998), quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). The non-moving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

Local Rule 56.1(A) provides that a motion for summary judgment “shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion.” The Local Rule also provides that the party opposing a summary judgment motion shall “file and serve a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried .... ” N.D. Fla. Loe. R. 56.1(A). “All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be filed and served by the opposing party.” Id. Here, Defendants filed a statement of material facts as to which they contend there are no genuine issues for trial. Doc. 33, p. 4, et. seq. Plaintiffs response to the summary judgment motion, doc. 141, is in the format of a memorandum of law and does not contain a separate statement of the material facts as to which he contends there is a genuine issue for trial. Nevertheless, it is apparent from his submissions in opposition to the summary judgment motion that Plaintiff contends there are genuine disputes of material fact, and his failure to comply with this technical requirement should be overlooked.

IV. Relevant Evidence

While Plaintiff has raised specific challenges to the denial of certain religious practices, there is also a general claim about the lack of worship opportunities for Native Americans. Doc. 27, p. 7-C. Plaintiff has provided evidence that for Native Americans, “ceremonies [] are the primary vehicles of religious expression.” Doc. 215, attachment (hereinafter, “Kim Foltz affidavit”). Native American spirituality “is a total way of life practiced twenty-four (24) hours of every day.” Id.

The parties have submitted evidence concerning the evolution of the Native American religious program within the Florida Department of Corrections. Docs. 85 and 141, ex. H.

Liberty Correctional Institution was selected as a pilot facility for the Native American Religious Program. There were some inmates who were sent to Liberty Correctional Institution due to the failure of the pilot program at Lake Correctional Institution. However, the program at Liberty was experiencing the same kind of problems as Lake had been experiencing. The chaplains were having problems in trying to find and keep volunteers.

Doc. 141, ex. H, p. 28. Defendants aver that many attempts were made to obtain volunteers to conduct Native American services and ceremonies, and Defendant Mears’s affidavit states that those efforts began in 1995. Doc. 85, ex. A. A Native American Pilot Project actually began “in the Spring of 1996” at Liberty Correctional Institution when three inmates “expressed a desire to practice the native beliefs.” Doc. 85, ex. B. Defendant Boyd was able to obtain a Native American Religion Advisor who was to “come to the Institution every other week to conduct religious ceremonies with those Native American inmates meeting the criteria of ethnicity established by the Department of Corrections with input from the Native American Society.” Doc. 85, ex. B. “However, for whatever reason, this individual only came about six times.” Id.

Thereafter, Assistant Superintendent of Programs, Mr. James K. Peacock, began “getting the Native Americans together once a week, if possible, to share a cultural exchange and interaction” which was referred to as a “Native American Support Group.” Doc. 85, ex. B. They began meeting “not as a religious group, but rather” as a support group. Id. Of the approximately fifteen inmates who participated in this group, five “were certified as Native Americans.” Doc. 141, exhibit H, Watson affidavit.

Another religious advisor was eventually obtained and his first visit was on “June 19th.” Doc. 85, ex. B. Because the “Native American inmates were really turned off by [the] demeanor and approach” of that volunteer, Mr. Peacock concluded that the “individual was neither what they were looking for nor what they needed.” Id.

On July 9, 1997, Mr. Peacock wrote letters to Sheridan Murphy of the American Indian Movement of Florida and Ruby Beaulieu of Keepers of the Circle, Inc., seeking assistance in finding a “Religious Leader” for Native American inmates within Liberty Correctional Institution. Doc. 85, ex. B. Mr. Peacock’s letter explained that the inmates needed “someone to conduct pipe ceremonies, advise them on individual prayer techniques, etc.” and that DOC rules prohibited an inmate from acting in that capacity. Id. Mr. Peacock stated that there was “no one on staff with the expertise to conduct Native American religious services” and that what they needed were “legitimate Native American Religious Leaders” to help the inmates rather than litigation. Id.

Plaintiff has presented a memorandum issued on December 17, 1997, which was written by Mr. Peacock to Defendant (Superintendent) Charles Mask. Doc. 141, ex. C. The memorandum’s subject matter is “Native American Concerns” and states that a committee met on December 11, 1997, to address issues presented by two Native American inmates, Terry Childers and Paul Votta. Id. They proposed the establishment of “an inmate council, which would parallel Native American Councils in the Native American Culture on the outside.” Id. The memorandum states:

The committee saw this as no problem, since we already have AA, which is set up somewhat similar. We also already have in place a Native American Support Group with an administrative sponsor. It would only be a matter of changing the name, allowing them to elect the Council Position members and refining the structure and By-Laws.

Doc. 141, ex. C. It appears from Plaintiffs additional exhibits that the proposal was not implemented. Doc. 141, ex. H.

In early January, 1998, Chief Red Eagle of the Creek Confederation offered to assist Liberty C.I.’s Native American program, but his offer had to be delayed due to health problems. Doc. 85, ex. A. Furthermore, Chief Red Eagle could not “provide Traditional Native American religious services since he” had become “a practicing Baptist.” Id. There is evidence, however, that on January 15, 1998, “Debbie Pierce of the Yellow Hair Clan conducted a Native American ceremony at Liberty Cl.” Id.

On January 29, 1998, Defendant Mears contacted Vernon Linton of the Seminole Tribe in an effort to obtain a spiritual leader. Id. Mr. Linton was to “speak to the area Chief and the Council of the Seminole Tribe.” Doc. 85, ex. A. On February 2, 1998, Defendant Mears contacted Messrs. Dave Marcomey and Bobby Billy of the Native American Movement of Florida. Id. Mr. Billy said he “would consider” coming to Liberty C.I. on a “monthly basis.” Id. On February 22, 1998, Defendant Mears again spoke with Mr. Marcomey about obtaining a spiritual leader. Id. Mr. Marcomey indicated he might “have some available volunteers but the key matter would be the ethnicity of the participants.” Id. Mr. Marcomey wanted “to limit attendance to only those who [could] prove their ethnicity.” Id.

On that same day, February 22, 1998, Defendant Mears and Chaplain David Pipping issued a memorandum to Mr. Peacok advising that Chaplain Pipping had spoken with Mr. Marcomey about the need for a Native American spiritual leader. Doc. 85, ex. C. That memorandum demonstrates that at that point in time, there was “no program for the Native Americans of any sort, religious or cultural.” Id. The document further reveals that Chaplain Pipping agreed to “limit the attendance to those who [could] prove ethnicity if they desired.” Id. Chaplain Pipping stated that they wanted to do so, “said they would help to establish ethnicity if necessary” and noted that “Mr. Marcomey said there [was] a Federal Law which back[ed] up ethnicity demands.” M The memorandum advised that Mr. Marcomey Indicated he could arrange for “some spiritual services” on a “fairly regular basis” to meet the needs of the Native American inmates. Doc. 85, ex. C. Finally, Chaplain Pipping stated that if Mr. Marcomey could secure a volunteer on short notice, the first meeting could possibly be scheduled within a week. Id.

There is no evidence about what transpired after those communications, but the arrangement apparently fell through as another letter was written by Defendant Mears on March 6, 1998, to Mr. Billy Whitefox, “stressing” the Institution’s “need for volunteers.” Doc. 85, ex. A; ex. D. The letter indicates that Defendant Mears had already spoken with Mr. White-fox on the telephone and the letter was a followup to their conversation. Doc. 85, ex. D. The letter expressed the “great need” for volunteers and stated that it was “against the rules for the inmates to lead the services or conduct services without a Citizen Volunteer.” Id.

On the following day, March 7, 1998, Defendant Mears also wrote a followup letter to Mr. Marcomey expressing eagerness “to have a spiritual leader come as a faith representative for [the] Native Americans.” Doc. 85, ex. E; see also ex. A. Defendant Mears, in writing for Chaplain Pipping, again fully agreed that they would “work with those who [could] prove ethnicity” so that Mr. Marcomey could be “assured that the volunteers [would] be dealing with true Native Americans.” Doc. 85, ex. E. The letter states that the proof of ethnicity requirement was “entirely in line with [] instructions from the Central Office.” Id. Finally, the letter reveals that two unsuccessful phone calls were made to Mr. Marcomey’s home in an effort to secure a faith representative, and he again stressed that they wanted to begin services “as soon as possible.” Id.

There is nothing in the record revealing what took place between early March and June, but Defendants presented evidence that on June 10,1998, the American Indian Movement of Florida recommended Two Crow Allard as a volunteer for the Native American program. Doc. 85, ex. A; ex. F. The American Indian Movement of Florida sponsored “programs performed by Red Earth Medicine Society.” Doc. 85, ex. F (emphasis in original). Mr. Allard “conducted a scheduled program” on July 18th, but he “refused to smoke the ceremonial pipe with those he considered non-Native American.” Doc. 85, ex. A. Chaplain Ring testified in his affidavit that Mr. Allard “said that smoking of the pipe was restricted to the Native Americans.” Doc. 85, ex. K. Chaplain Ring reported:

He [Mr. Allard] said that it would not be proper and would degrade the pipe smoking ceremony to smoke the pipe with non-Native Americans. He said that several of the offenders who were present in the meeting were not truly Native Americans. He said that he could not smoke the pipe because of the participation of the non-Native American offenders being present in the meeting.

Doc. 85, ex. K Nevertheless, Mr. Allard agreed to return for another service. Id. A Native American program was scheduled for August 8, 1998, but had to be “cancelled due to a death” in Mr. Allard’s family. Doc. 85, ex. A.

In late August, Plaintiff sent an inmate request form to Defendant Mears asking why Mr. Allard would not be returning to the prison to conduct services. Doc. 141, ex. E. Defendant Mears advised Plaintiff that choosing or rejecting volunteers did not concern Plaintiff. Id. In that same request form, Plaintiff also asked “why Hebrew Isrealites and Muslims can meet once per week without a sponsor present, and Native Americans cannot meet in the chapel just as they do.” Id. The response from Defendant Mears states: “The Hebrew Israelites meet to study in the library. The library is open to all inmates, including Native Americans. Muslim [sic] took their cause to court.” Id.

Additional efforts were made to secure other volunteers and, apparently, Mr. Wayne Johnson agreed to act in that capacity. See doc. 85, ex. A. In Defendant Mears’ response to Plaintiffs inmate request dated September 2, 1998, Defendant Mears stated that Wayne Johnson would be at the institution on September 26 at 1:00 p.m. for a service. Doc. 141, ex. E. Unfortunately, that program had to be cancelled “because the volunteer, Wayne Johnson, suffered a heart attack.” Doc. 85, ex. A.

On October 8, 1998, Defendant Mears wrote a letter to Defendant Boyd and stated that earlier that day he had spoken with Dr. Rick Knight, a Native American Cultural Leader, about finding “a pipe-carrier to participate in” the Institution’s Native American program. Doc. 85, ex. A; see also doc. 85, ex. J. Defendant Mears reported that “Dr. Knight and his associates [had] not found anyone who [was] willing to come.” Doc. 85, ex. J. Defendant Mears spoke with Dr. Knight again on October 15th and he reported that he still had been unable “to secure a volunteer.” Doc. 85, ex. A. The October 8th letter from Defendant Mears reveals that he, Dr. Knight, and Defendant Boyd were still “actively seeking a pipe-carrier.” Doc. 85, ex. J. Defendant Mears had scheduled a “Native American program” for October 10th but the “volunteer, David Nez, decided he needed to spend more time with his family.” Doc. 85, ex. A; see also doc. 85, ex. J.

Plaintiff presented as evidence a photocopy of a letter written to inmate David Croft from Sheridan Murphy, the State Executive Director or the American Indian Movement of Florida. Doc. 141, ex. D. That letter, dated October 23, 1998, includes the following statement:

For your information Florida AIM works with traditional Seminole spiritual man Bobby C. Billie and several others and has made this information of their availability known to the Florida DOC. At this time North Florida Regional AIM Director David Narcomey and Harold Locke have received no response from DOC in regards to their offer to bring Bobby C. Billie to any DOC facility in Florida.

Doc. 141, ex. D. Plaintiff also presented a letter addressed to himself from Dr. Rick Knight. Doc. 141, exhibit I. Dr. Knight states in his letter that he had ...

... endeavored to find a pipe carrier to visit the brothers throughout the State of Florida with no success. Although Florida has a fair size population of Native People very few are traditional. To the best of my understanding many profess Christianity or have become urbanized people.

Doc. 141, ex. I. The letter goes on to state: “With so few traditional people within the state it has been difficult to find someone willing to volunteer.” Id. Finally, the letter indicates that the Department’s new (August 25, 1999) guidelines (which make it possible for any inmate to designate Native American spirituality as his religious preference) would “make it even harder to find a traditional pipe carrier willing to visit Florida institutions.” Id.

There is evidence that a number of books and videotapes concerning the Native American religion are kept in the chapel and are available to inmates. Doc. 85, ex. R; cf. doc. 141, ex. H (marked by Plaintiff as ex. BK). Medicine bags are also permitted and may be worn by Native American inmates at all times. See doc. 85, ex. M. Because a medicine bag is sacred, “[o]nly the inmate may remove and handle the medicine bag’s contents unless an item is determined to be contraband or [a] security risk.” Doc. 85, p. 17.

Additional evidence presented by Plaintiff is a grievance filed by Inmate Croft in June of 1998 requesting many of the items at issue in this case, (prayer pipe and tobacco, prayer circle, holy ground, feathers, materials for smudging, a sweat lodge, growing long hair, and a drum and rattle). Doc. 85, ex. G. Defendant Mears responded to the grievance and said, “All the items you listed are not permitted in the compound, but must be kept in the Chapel.” Id. Defendants assert in the summary judgment motion that this response, while admittedly denying “ ‘possession’ of the requested items,” still “did not preclude the use of the items during religious services.” Doc. 85, p. 6. Inmate Croft’s subsequent formal grievance requesting those items and also a headband, were denied by Mr. Peacock. Doc. 85, ex. H. That response states that the Department’s “Guidelines for Native American Religious Observances,” published “on February 28, 1996, does not allow for the items and practices [] requested.” Id. Mr. Peacock stated that the policy “only allows for the Sacred Pipe Ceremony to be conducted by a Native American spiritual leader.” Id. Mr. Peacock also advised that the policy allows “for the wearing of a medicine bag, which must come from an authorized Native American Volunteer.” Id. Finally, the response on inmate Croft’s appeal concerning the requested items said, in pertinent part:

The Department does allow Native American inmates the use of a pipe during the Sacred Pipe Ceremony conducted by a qualified Native American spiritual advisor. Native American [inmates] may also possess a medicine bag. Other items requested are not permitted by the Department and the Department does not have sweat lodges.

Doc. 85, ex. I.

A second general claim evident from Plaintiffs allegations is the denial of equal protection. Plaintiff has complained of discriminatory treatment in several respects, requiring proof of ancestry, inability to wear headbands at all times, and lack of worship opportunities as other faiths are permitted to meet weekly and without an outside volunteer. Plaintiff has presented an affidavit of Muslim inmate Siddiq Asad who states that he attends a Ju’Mah prayer every Friday in the chapel at Hamilton Correctional Institution. Doc. 141, ex. B. That affidavit also establishes that there is not an outside representative who comes in to lead services “and that Muslim prisoners, such as [himself], lead said services every Friday.” Id. The inmates are permitted to “pick the content of the Khutbah (Friday sermon) every Friday.” Id. Further, the affidavit explains that the “prison chaplain is in the building at the time, but does not supervise [the Muslim] services.” Id. Another affidavit by Jewish inmate Maxwell Gottesman likewise demonstrates that Jewish services are held weekly, “with no supervision,” and that “an inmate leads the service while the chaplain or an officer remains outside the room.” Id.

Plaintiff presented evidence that as of March 10, 1998, both the “Native American Religious Program and Support Group” were terminated. Doc. 141, ex. E. Plaintiff complained to Chaplain Pipping that Native Americans were left with “no meaningful way(s) to exercise [their] Religious traditions.” Id. Plaintiff asked if Chaplin Pipping knew whether the programs would “ever be re-instated, or if there [was] an alternative to [their] needs to Religious expression.” Id. The response on that inmate request states:

First of all we must establish [ethnicity] for determination of Native American status per the Central Office mandate. That is a case by case need. You need to be in compliance with Ethnicity, i.e., be assigned a number from the Bureau of Indian Affairs, or be a member of a recognized U.S. Indian community .... I have made four contacts with Native American leaders via phone & letter so as to begin actual spiritual service for Native Americans. I have been told they will come here soon. No date has been given.

Doc. 141, ex. E.

Plaintiff presented another inmate request form, dated July 26, 1998, from inmate Louis Santiago who expressed his sincere desire to learn and practice Native American spirituality and asked why he could not participate without proof of ancestry. Doc. 141, ex. E. The response, also from Chaplain David Pipping, states that it is a statewide policy of the Department of Corrections and that there was “no option at” the institutional level. Id. Furthermore, the second part of inmate Santiago’s response asked why the Native Americans could not meet together to study or could the Support Group again be formed. Id. The response was: “You were told by the Rep. Chap. Supervisor, Mr. Ring, that there will be no such thing as a support group. That is not part of the N.A. faith. Again, we are under strict guidelines. The Central Office is in absolute control of this matter.” Id.

The guidelines issued by the Department of Corrections on August 10, 1995, included the following statements: “The requirement for inmate participation in Native American religious observances is Native American ethnicity. Even when a different religious preference is stated, ethnic origin is the determining factor.” Doc. 141, ex. G. “It is suggested that an inmate must be a member of a federally recognized Indian tribe to be identified by the Department of Corrections as a Native American or Indian qualified to participate in Native American religious observances.” Id. Additionally, the guidelines provided:

Although F.A.C. 33-3.014(3)(c) prohibits restriction of attendance or participation in religious activities based on race, col- or, nationality or creed, it is suggested that the special legal status of Indians under federal law makes a program based on ethnicity both lawful and appropriate. To establish status as a Native American, the inmate must provide a valid Bureau of Indian Affairs (BIA) or tribe number or have his membership in a recognized tribe confirmed in writing by the tribe.

Doc. 141, ex. G. The 1995 guidelines also state that representatives of the Seminole, Miccosukee, and other Indian tribes were “consulted in the development of’ the guidelines and recommendations. Id. Pursuant to a new policy issued by Department of Corrections Secretary Michael Moore on August 25, 1999, inmates “may designate the Native American religion” as their “religious preference, regardless of race or ethnic background.” Doc. 85, ex. M.

There is also evidence that on January 12, 2000, when Plaintiff requested a list of persons who could send him a medicine bag, Plaintiff was told by Chaplain Heath that he had to identify his tribe. Doc. 141, ex. I. Similarly, Plaintiff presented an inmate request from Christian Brotons, dated January 5, 2000, in which he was told by Chaplain Haskel that [C]haplaincy Services in Tallahassee would be sending a list of Tribal Authorities, but “[i]t would help to know your Tribal affiliation.” Id. That inmate, Christian Brotons, also submitted an affidavit attached to the inmate request form that asserts he is denied the right to practice his Native American religious tradition, that Muslim and Jewish inmates can receive “any kind of religious items,” but Native Americans “must have an authorized practitioner to send” theirs. Id. An additional affidavit attached to the first affidavit also reiterates that while Muslim and Jewish inmates can have religious materials sent from any religious vender or merchant, Native American inmates must have them sent from an authorized source. Id. Moreover, the one authorized source at Hamilton Correctional Institution will no longer provide medicine bags to inmates due to a disagreement with a Department of Corrections regulation. Id. Accordingly, inmate Brotons complains that he is effectively denied a medicine bag which, by regulation, he is permitted to receive. Id. Defendants evidence similarly reflects that medicine bags “must come from an authorized Native American Volunteer.” Doc. 85, ex. H.

Plaintiff has presented as additional evidence a photocopy of a page from the Florida Department of Corrections’ 1997-1998 Annual Report. Doc. 141, ex. 1-6. That document indicates a legislative appropriation of “over $1.6 million for faith-based programs ....’’ Id. In an inmate request dated January 3, 2000, Plaintiff asked for information on the Department’s sponsorship of faith-based programs, and specifically mentioned a “ ‘God Pod’ at To-moka Correctional Institution.” Doc. 141, ex. F. A letter response was sent to Plaintiff explaining that the program at Tomoka C.I. had “a residential component as part of the program” which was designed “to improve the overall effectiveness of the instruction provided through the didactic sessions.” Id. While acknowledging that there was “normal provision for inmate housing, clothing, food, medical, vocational and education programs,” the letter states the program was not funded through the Department of Corrections’ budget but with “separate grant money” from “numerous community citizens that volunteer their time and energies to assist the program effort.” Id. The letter advised that “[n]o faith group [was] excluded from making a similar proposal to provide an in-prison faith-based residential program.” Id. Finally, the letter stated that “the department [did] not supply the program personnel, or the community coordinators, or the curriculum.” Id.

Plaintiff also presented additional evidence concerning the Department’s opening of the “God Pod” at Tomoka Correctional Institution. Doc. 141, ex. A-l. The “God Pod” was described as a pilot program bringing 64 inmates together who would live in a segregated dormitory, but continue to work and eat meals with the general prison population. Id. They must adhere to a stricter code of conduct and their “spare time will be devoted to Bible studies, prayer and introspection.” Id. Another article described Tomoka’s faith-based program, officially named “Horizon,” as a partnership between the Department of Corrections and Kairon Prison Ministry, the Foundation for Partnerships in Correctional Excellence, and the Commission on responsible Fatherhood/Ounce of Prevention Fund of Florida. Doc. 141, ex. AT-1. The one-year program included “Christ-based teachings” and all of the men “live[d] in an open dormitory setting with four people to a pod.” Id.

Defendants have presented as evidence that it is their written policy which is to prohibit “discrimination for or against any inmate based on his religious beliefs or practices, but ... religious beliefs do not justify violation of Department or institutional rules and regulations.” Doc. 85, ex. P. Another policy is “to extend to all inmates the greatest amount of freedom and opportunity for pursuing individual religious beliefs and practices consistent with the security and good order of the institution.” Doc. 85, p. 17, citing Fla. Admin. Code R. 33-8.014(2); doc. 85, ex. P. The Department asserts that it seeks to provide “inmates with an equal opportunity to express their religious beliefs” and “engage in religious practices so long as the practice does not compromise security and order in the institutions.” Doc. 85, p. 18.

In support of his conspiracy claim, Plaintiff has submitted an inmate request in which he asked Mr. Peacock for an affidavit or “General Statement” concerning “the Pilot Program for Native Americans at Liberty C.I.” Doc. 141, ex. I. In his response Mr. Peacock states:

I have personally sufferred [sic] tremendously for my involvement in the Native American Pilot Program at Liberty C.I. Based on this, I will not provide an affidavit for fear of further repercussions. However, if subpoenaed before the court, I would tell the truth as I always have. Incidently, you’re filing against only some of the people that put a stop to the program and were responsible for my being removed. There are two others that played a much greater role than those you’ve mentioned.

Id. Plaintiff also points to statements made by persons interviewed for the internal Department of Corrections investigation (# 98-10488) as additional evidence of the conspiracy. See doc. 213, pp. 5-11; see generally doc. 141, ex. H. Plaintiff contends that statements made during the investigation reveal a conspiracy between Defendants Boyd, Mask, and Mears, all of whom are officials within the Florida Department of Corrections. Doc. 213, p. 9, see doc. 141, ex. H.

The remainder of the Rule 56 evidence will be discussed claim by claim.

Holy Ground

Plaintiff requested the designation of “Holy Ground” and claims that “Holy Ground” is a required tenet of Native American beliefs in that, without it, no ceremonies, prayers, or anything else are possible. Doc. 27. The request was denied on the basis that allowing “a specific group to restrict attendance or participation in a religious service or activity in a specialized area of the compound not accessible by other offenders” would “create discord throughout the excluded inmate population.” Doc. 85, ex. L. The Department also expressed concern that such action would “encourage other groups to demand that a ‘special’ area within the compound be designated for their religious activities only.” Id. Furthermore, creating a restricted area would require monitoring and supervision to prevent unauthorized persons from entering the area.” Id. Such a task cannot be accomplish by inmates as they may not act to prevent other inmates from entering, and chaplains should not be placed in such a position where “verbal confrontations and possible physical altercations [] could occur.” Id. Thus, security staff would “be required to supervise” the area which would take “staff away from their regular assigned duties, which would likely cause a lack of supervision in other areas.” Id. Defendants also assert that creation of “holy ground” would “require the Chaplain to be available to supervise the activity each time the area was used.” Id.

Defendant Mask had, at one time, gave “approval for the construction of a fenced in area behind the Chapel to be designated as ‘holy ground.’ ” Doc. 141, ex. H. However, his approval was “wrong” as he had not obtained “authorization from the Region Office to construct” the fenced area. Id. Plaintiff presented evidence that assistant superintendent Peacock sought permission to have a Holy Man bless the ground, but there is no evidence that such an event ever took place.

Sweat Lodge

Plaintiff asserts that a sweat lodge is required “to remove all negative influences through the heat and sweat,” and allows a person “to re-connect with Earth, Air, Fire, Water, and all other living things, and to emerge from Mother Earth re-born and cleansed completely to continue our Earth walk.” Doc. 27, p. 7-A.

Comparable to the Sacred Pipe the Sweat Lodge is a fundamental cornerstone of the spiritual teachings for many Indian tribes. It is a purification ceremony that allows for communal prayer or personal healing. Everything about the Sweat Lodge is ceremonial and sacred, from the construction of the Lodge and the fire to the disposal of the ashes.

Kim Foltz affidavit.

It is not disputed that Defendants did not allow construction and use of a sweat lodge. The reasons presented by Defendants for this denial are much the same as the reasoning given for denial of setting aside a holy ground: constructing such a place and then disallowing use and access to “the majority of the offender population” would “create problems for institutional staff by creating discord among the excluded offender population.” Doc. 85, ex. L. Construction of a sweat lodge would also require construction of a separate storage area adjacent to the lodge to store “tools, tarps, firewood, and water buckets.” Id. “A fire pit must also be constructed outside the lodge for the heating of the rocks.” Id.

Moreover, because the sweat lodge and its storage area is “considered sacred,” access of security staff would be restricted and unannounced or random “searches for contraband, without the presence of participating Native American offenders and the chaplain” would be eliminated. Doc. 85, ex. L. Security must rely on unannounced searches “to control the introduction and accumulation of contraband within the correctional facility.” Id.

Plaintiff presented an affidavit of inmate Daniel P. Goliano who stated that when he was imprisoned in Colorado and California, they operated sweat lodges every week. Doc. 141, exhibit. In Colorado, they had a sweat lodge once a month, and in California, elders from outside the prison came “to sweat every week.” Id. There is evidence also that a women’s prison in Colorado permits sweat lodges and has “Sweats twice per month.” Doc. 218, attachment. Plaintiff has also presented evidence that state prisons in Missouri permit “the building of sweat lodges” and allow a “Sweat Lodge ceremony.” Doc. 213, attachment. However, that document also reveals that “Sweating can occur only after a Native American spiritual advisor has been secured” and that “there- are few Native American spiritual advisors in” Missouri. Id.

Smudging

“Smudging is the burning of sage, cedar, and sweetgrass in a shell, using a feather, or feather fan, to direct the smoke over the body to purify it.” Doc. 27, p. 7. This act of purification is required to enable a person to enter Holy Ground, touch the Pipe, or other sacred item, and give power to prayer. Id.

The Department of Corrections issued new Guidelines for Native American Religious Observances on August 25, 1999. Doc. 85, ex. M. Those guidelines, identified as Policy #503.001, permit “Native American inmates to participate in smudging during a supervised group meeting.” Doc. 85, p. 10. Smudging is performed “by the Native American practitioner/volunteer smudging each participant into the circle.” Doc. 85, ex. M. Smudging “is limited to the chapel or to an approved location on the compound under the supervision of the Chaplain and Native American volunteer.” Doc. 85, ex. L; see also doc. 85, ex. M.

There is evidence of two security concerns with smudging. Doc. 85, ex. L. The first concern is to the safety of offenders and staff due to obvious problems with “open burning” on the grounds of an institution. Id. The second concern is that the smell of burning “herbs could mask the odor of narcotics or other items being burned.” Id. The spiritual advisor must remove the items used for smudging at the conclusion of the ritual as there is limited storage space available in the chapel and for storing an inmate’s personal property. Id.

Prayer Pipe

Smoking the pipe “connects the person smoking to all of life, and the smoke of the sacred tobacco carries the prayers to the Great Spirit .... ” Doc. 27, p. 7-A. The sacred pipe, which “is the cornerstone of traditional Native American faith” and “is used for both private and group prayers” in the Native American religion, “is accorded a high degree of reverence .... ” Kim Foltz affidavit, doc. 215. The pipe ceremony is allowed “no more than twice a month.” Doc. 85, ex. M. The ceremony must be conducted by a Native American volunteer, only at designated outside locations “under the supervision of the Chaplain or the Native American practitioner/volunteer,” and only “inmates who have designated their religious preference as Native American are authorized to participate in the pipe ceremony.” Id. NonNative American inmates may attend the ceremony, but “will not be permitted to participate in the pipe sharing.” Id. Substances to be used in the pipe are inspected prior to being brought into a correctional facility and, after the ceremony, the volunteer must “place the pipe in its appropriate cover and remove all sacred items from the compound.” Id. Inmates cannot keep a pipe or herbs in their cells as items of personal property because it could interfere with the control of contraband. Doc. 85, ex. L. The designation of an item as sacred means that security staff could not conduct routine searches making the pipe an “ideal place to hide contraband.” Id.

Plaintiff submitted an inmate request form on November 16, 1999, and said that he was “in the process of arranging a Native American volunteer to come to Hamilton C.I. annex to conduct a Pipe Ceremony.” Doc. 141, ex. C. Plaintiff asked where they could smoke the pipe and was told, “If you have a name of a volunteer who would like to assist in the Native American program, please submit their name. They must be a qualified volunteer.” Id. On November 30, 1999, Plaintiff advised that the volunteer was “William Weatherford, known as Chief Red Eagle of the Creek Confederation in Atmore, Alabama.” Id. Plaintiff then sent an inmate request on December 13, 1999, asking if contact had been made with Chief Red Eagle and, “when and if a pipe holder comes to perform a ceremony,” where it would be performed since a new statute, Fla. Stat. § 944.115, prohibited smoking in any Department of Corrections building and Hamilton Correctional Institution had not designated any outside Holy Ground. Id. The response to Plaintiffs grievance states, “I have spoke [sic] with the Service Center Chaplain who is checking to see what volunteer might be available.” Id.

Sacred Drum and Rattles

The drum represents “the heartbeat of Mother Earth and the rattles are used to attract and honor the spirits,” as well as to accompany sacred songs. Doc. 27, p. 7-A. A drum is allowed and may be donated to the institution and for keeping in the chapel, but it cannot be personal property of an inmate. Doc. 85, exhibits L and M. Use of the drum outside of a “Native American group or circle meeting is prohibited.” Doc. 85, ex. M. Policy 503.001 “authorizes the limited storage of a drum or piece of animal skin that may be donated directly to the institution.” Doc. 85, ex. M. Although chapels “have limited storage space,” drums may be stored in the chapel. Doc. 85, ex. L.

Headbands

Plaintiff claims that wearing headbands “must be allowed for spiritual expression” just as inmates of other religions are permitted to have a Koofi [Kufi] (Muslim), Yarmulke and Teffillin (Jewish), Rosary (Catholic), and Cross necklace (Christian). Doc. 27, p. 7-B. The headband is significant because “it completes and symbolizes the Sacred Circle of life.” Kim Foltz affidavit. There is evidence that in 1998, Plaintiffs request to wear a headband was denied. Doc. 141, ex. E; see also doc. 141, ex. C.

After the issuance of Policy 503.001 in August of 1999, the Department allowed Native American inmates to wear headbands only during religious services. Doc. 85, ex. L; doc. 85, ex. M. The headband could be stored as part of the inmate’s personal property and could be made of fabric or animal skin, of any color, no wider than one (1) inch, and “no longer than the circumference of the head, allowing no more than three (3) inches on each end from the knot.” Doc. 85, ex. M. Bandanas cannot serve as a headband. Id. Concern over headbands derived from the growing problems of gangs and the possibility that offenders could use headbands “as a means of displaying their gang affiliation without the interference of staff.” Doc. 85, ex. L.

Plaintiff submitted the affidavits of inmates Maxwell Gottesman and Maynard Eatherton, III, both of whom are of the Jewish faith. Doc. 141, ex. B. These inmates state that they are allowed to possess a yarmulke and wear it on the compound at anytime. Id. Other affidavits from Muslim inmates Siddiq Asad and Lynwood Taylor affirm that they are also permitted to have a kufi and to wear it all the time. Id.

Plaintiff sent an inmate request to Defendant Mears questioning why the same security interest that prevents Native Americans from wearing their hair long does not prevent Muslim or Nation of Islam practitioners from wearing the Kufi caps. Doc. 141, ex. E. Defendant Mears responded that Kufi caps were permitted and could “be searched by security at any time.” Id.

Hobby crafts

Plaintiff desired a hobby craft shop so that he could “express [himself] through carvings, beadwork, leatherwork, pottery and other artwork.” Doc. 27, p. 7-B. Plaintiff asserts that artwork “is a direct expression of spiritualness.” Id. A craft hobby shop for the exclusive use of one group of inmates is no longer permitted due to the appearance of preferential treatment and the resulting discord that could arise. Doc. 85, ex. L. Dissension on the grounds of a correctional institution creates “a hostile environment for staff and other offenders.” Id. Additionally, allowing donated materials increases opportunities for the “introduction of contraband” and the tools to be used in a hobby craft shop could be “used in an escape or to do bodily harm to staff or inmates .... ” Id. Such an area would require constant supervision, “placing an additional responsibility and increased work load on assigned staff.” Id.

Plaintiff has provided evidence regarding the prior operation of a hobby craft program (shop) that operated at Liberty Correctional Institution. Doc. 141, ex. H. The evidence comes from an investigation conducted by the Department of Corrections Office of the Inspector General. Id. That investigation revealed that, initially, one Native American inmate, Terry Childers, was requested to carve sculptures to put in a new display case that was constructed in the Administration Building at Taylor Correctional Institution. Id. Inmate Childers was allowed to carve a piece of cedar wood with a nail as the carving instrument, and began working in a corner of the property office. Id. “When the institution was relocating the property office, [inmate Childers] asked” if he could use part of the vocational electronic shop for crafts. Id. The request was granted and inmate Childers worked there under Mr. Register’s supervision. Id. Eventually other inmates became involved and, sometime around April of May of 1997, assistant superintendent Peacock asked Mr. Register to “supervise the inmates assigned to the Native American Arts and Craft Shop.” Id. Mr. Register admitted during the investigation that he did not supervise the inmates when they were using Class A tools. Id. Noteworthy from this investigation is that no official from the Chaplaincy Department authorized the program and, indeed, Chaplain David Pipping stated during the investigation that “it was a program that did not involve the Chaplaincy Department.” Id. However, assistant superintendent Peacock believed the hobby craft program was “an expression of one’s inner religious experience.” Id.

As evidence concerning the presence of other dangerous tools, Plaintiff presented his own affidavit, doc. 141, ex. B, In which he states that while assigned to work the grounds of the institution, his 15-20 man squad has access to many class A tools such as rakes, hoes, shovels, and edgers. Id. The work squad of both medium and minimum custody inmates is spread over 100 to 150 yards with only one guard assigned to supervise. Id. The guard may be “as far as 100-150 yards away from [Plaintiff] and other inmates possessing class A tools.” Id.

As additional evidence, Plaintiff presented an article indicating that an inmate named Francesco Zambutto learned carving with a chisel while at prison when he took a clay sculpturing class. Doc. 141, ex. 12-A. The article explained that inmate Zambutto, housed at Zephyrhills Correctional Institution, carved a 15-foot totem pole out of a decaying tree. Id. Plaintiff also submitted the affidavit of Jonathan Steele who testified that, while incarcerated at Sumter Correctional Institution, he observed an arts and craft shop that had “saws, chisels, and wood cutting tools.” Doc. 141, ex. B. Inmate Steele said that “at least 30 to 40 inmates had access to the tools and shop that was located next to the gym area.” Id.

Y. Analysis

It is undisputed that Plaintiffs Native American spiritual beliefs are of great importance to Mm. See doc. 141, exhibits. There is also no question that Plaintiff has significant constitutional rights concerning the exercise of his religious beliefs.

Equal Protection

The court must give a generous construction to Plaintiffs complaint. Implicit within the amended complaint is an equal protection claim, though the claim is not made expressly. Doc. 27. Plaintiff asserts in that complaint that other faiths such as “Christian, Muslim, Jewish, Wic-can, Hebrew-Israelite, Catholic, and others [are allowed] to practice their beliefs and have their religious items.” Doc. 27, at p. 7-F. Plaintiff alleged that Defendants do not allow Native American followers to practice their faith, have sacred items (except for a medicine bag), “place racial restrictions upon those who would follow the Native American path, restrictions placed upon no other Faith group.” Id. In the “statement of claim” section of the complaint, Plaintiff stated that Defendants violated their First and Fourteenth Amendment rights “to practice their Native American beliefs, and by placing restrictions on those who would practice the Native American religion not placed on any other religion, by requiring proof of Native American ancestry to be allowed to follow the Native American beliefs.” Id., at 8. Plaintiff also claims, “[n]o other religion is discriminated against on a racial basis in Florida’s prison system; nor denied so completely their religious Freedom.” Id. In presenting his request for relief, Plaintiff sought injunctive relief which would allow Plaintiff practice his religion “as all other religions are allowed,” and to wear “headbands and bone-choker necklaces to be worn at all times in the same manner that Muslim, Jewish, and Christian prisoners are allowed to wear their religious headgear and/or necklaces .... ” Id., at 9-A. Finally, in stating his now abandoned § 241 claim, Plaintiff specifically stated that Defendants denied Plaintiff “the protected First Amendment right to freedom of religion, and the right to Due Process and equal protection of the law under the Fourteenth Amendment by applying unequal restrictions between those who would follow the Native American religion, and those who would follow other beliefs, discriminating against, and denying the Plaintiffs the right to practice their Native American beliefs, while accomodating [sic] all other religions.” Doc. 27, p. 8-A.

Defendants did not address this claim in the motion for summary judgment. Consequently, Plaintiffs equal protection claims should proceed to trial.

First Amendment claims

The First Amendment, made applicable to the States through the Fourteenth Amendment, “safeguards the free exercise of [one’s] chosen form of religion.” Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). While prisoners retain First Amendment rights, including the First Amendment right of free exercise of religion, see Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam), prison regulations or policies “alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987) (holding that the Turner v. Safley standard of review is applicable to claims that an inmate’s free exercise rights have been violated). O’Lone continued the Court’s admonition to give respect and deference to the judgment of prison administrators even in First Amendment challenges raised within the confines of prisons or jails. 482 U.S. at 350, 107 S.Ct. at 2405.

The Turner standard of review requires the Court to uphold prison regulations if they are “reasonably related to legitimate penological interests.” O’Lone, 482 U.S. at 350, 107 S.Ct. 2400, utilizing the standard of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Thus, “[a] prison regulation, even though it infringes the inmate’s constitutional rights, is an actionable constitutional violation only if the regulation is unreasonable.” Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir.2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1382, 149 L.Ed.2d 307 (2001) (holding that the Department of Corrections policy to not permit a “dual-name” on inmate identification card violated inmate’s right to the free exercise of religion by denying him his Muslim identity and was unreasonable under Turner).

Prior to considering Turner’s requirements, the Court must determine whether there has been an infringement in the first place. The relevant question is whether one has been substantially burdened in his religious practice. Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir.1995). While there is hesitancy to apply a standard that considers whether one is absolutely required to take some action or whether something less would suffice, Cheffer, 55 F.3d at 1522, it is noted that when considering a claim by Islamic inmates that their First Amendment rights were violated because they could not attend Jumu'ah, the Supreme Court in O’Lone considered that attendance was “commanded by the Koran” and that their “sincerely held religious beliefs compelled attendance at Jumu‘ah.” 482 U.S. at 345, 107 S.Ct. at 2402.

Using that language as guidance, evaluation of Plaintiffs claims will consider whether Plaintiff has demonstrated that the Department’s policies have significantly interfered with or burdened a practice of his religion or prevented him from engaging in conduct or having a religious experience which his faith compels. “[T]he First Amendment is implicated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious practice.” Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C.Cir.2002)(noting that the substantial burden “requirement accords with the Supreme Court’s discussion in O’Lone, which assumed the importance of the relevant ritual to the prisoners.”), citing O’Lone, 482 U.S. at 351, 107 S.Ct. at 2405-06.

If it is found that Plaintiff has been substantially burdened, the Court must then apply the reasonableness test of Turner v. Safley to determine whether the position of the Department of Corrections can be upheld as reasonably related to a legitimate penological interest. O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404-05. The Turner standard employs four factors which are used to determine the reasonableness of a challenged prison regulation or policy. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89, 107 S.Ct. at 2262, citing Block v. Rutherford, 468 U.S. 576, 586, 104