Help for RLUIPA
Sufferers
2008 STRIMA Conference
Jeffrey Bratkiewicz
-Woods, Fuller, Shultz & Smith,
PC.
-Specialize in governmental
liability and civil
rights defense,
with a focus on inmate litigation.
-Reactive:
1.
Investigation; and
2.
Litigation.
-Proactive:
1.
Training; and
2.
Consultation and policy
evaluation/revision.
Overview
1.
2.
3.
4.
5.
What is RLUIPA?
Why should I care?
“RLUIPA in actionSisney v. Reisch, et
al., (D.S.D.)
How to avoid getting
sued.
Pointers for defending
RLUIPA claims and/or
avoiding liability.
WHAT IS RLUIPA?
RLUIPA is an acronym for the
“Religious Land Use and
Institutionalized Persons Act.”
RLUIPA is a federal statute, and was
enacted in 2000. The purpose of
the Act was to ostensibly protect
religious exercise.
There are two parts to RLUIPA,
which are separate and distinct:
Part 1- Land Use
Part 2- Institutionalized
Persons, a/k/a the Inmate
Provisions
Focus on Inmate
Provisions
SO……WHAT IS RLUIPA?
1.
2.
3.
4.
5.
6.
7.
Federal Statute.
Applies to all governmental entities that
receive “federal funding.”- THIS
INCLUDES ALL STATES AND MOST
LOCAL GOVERNMENTS.
Applies to inmate religious exercise
(and others who are institutionalized).
Provides more protection than the First
Amendment.
Defines religious exercise very broadly,
and prohibits reference to mainstream
standards.
Shifts burden of proof from inmate to
correctional staff.
Money damages and
declaratory/injunctive relief available,
private cause of action and enforceable
by USDOJ.
First Amendment versus
RLUIPA
First Amendment Standard
Prison policies are upheld if “reasonably
related to legitimate penological interests.”
O’Lone v. Estate of Shabazz, 482 U.S. 342,
349 (1987). Factors to consider are:
1.
Underlying interest (safety,
order, security);
2.
Alternatives available to
inmate;
3.
Impact of accommodating the
request; and
4.
Whether there are “easy
alternatives” to policy or decision.
Also…an inmate must show that the restriction
substantially burdens a religious practice that
is “fundamental” to his or her religion.
Legitimacy of religious practices and beliefs are
typically not questioned, nor should they be,
but whether a requested accommodation is
“genuine” is fair game.
RLUIPA is remarkably
different
RLUIPA Standard
Inmate must still show a “substantial
burden.” If he or she makes that
showing, however, it becomes the
GOVERNMENT’S burden to show the
policy or decision:
1. Is in furtherance of a compelling
governmental interest; and
2. Is the least restrictive means of
furthering that compelling
governmental interest.
Also, under RLUIPA, “religious exercise” is
defined to
include “any exercise of religion,
whether or not compelled by, or
central to, a system of religious
belief.”
RLUIPA’S IMPACT
(“Why you should care about
RLUIPA”)
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Prison officials must justify policies and actions.
Review is less deferential under RLUIPA.
Religious exercise defined to include activities
that are not religious.
Qualified immunity may be lost.
The unique context of inmate litigation can mean
that settlement is not a viable option for fear of
opening the floodgates or encouraging the
“successful” inmate to file more lawsuits.
Although RLUIPA has been around for 8 years,
there are relatively few published decisions, and
lots of unresolved constitutional issues. Hard to
predict result in the face of a lawsuit because
every inmate and prison are different.
RLUIPA held valid under the Establishment
Clause. Majority of Circuit Court have upheld
RLUIPA under Commerce and Spending Clause.
No clear standards for States and prisons to
follow. Costly cases to defend an emotional
stakes can run high.
Inmate religious claims become
more difficult, time consuming,
and costly to defend, exhausting
valuable State resources.
Charles Sisney
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Murderer serving life at the SDSP.
Became Jewish after entering
prison. He also studies Kabalah.
Has made repeated, ever changing,
and often conflicting demands for
special property, food, and
privileges related to his religion(s),
including, but not limited to:
 Kosher candy (for Christmas);
 A bowl of “living water;”
 A ram’s horn;
 Jelly donuts;
 Civet gland oil;
 Challah.
Filed civil lawsuit in federal court in
2003 asserting claims under the
First Amendment and RLUIPA.
SISNEY- It started with
a Sukkah….
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The dispute started
when Sisney was
denied a “Sukkah”- a
three-sided booth that
Orthodox Jews eat
meals in during the
Jewish Holiday of
Sukkoth.
Officials denied the
request initially for
reasons of safety,
order, and security.
The booth consisted of
3-foot long metal
poles, could conceal
inmate activity from
guards, and was not
suitable for outdoor
use, which is what the
inmate requested.
Also, the booth was
too small to fit more
than one person at a
time and was
contraband under
prison policy.
District Court…
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Three summary judgment
challenges.
Granted summary
judgment, except for
retaliation claims and First
Amendment/RLUIPA claims
for:
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Sukkah;
Tape player to listen to
Hebrew language tapes;
Extra weekly meeting times.
Appealed to Eighth Circuit
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Appealed to Eighth Circuit Court
of Appeals because of the
importance of the legal and
constitutional issues and the
impact of the lawsuit on prison
policies and regulations.
Substantial commitment to
defending the case.
Approximately 2,581 attorney
hours defending the lawsuit.
Staff and defendant time likely
exceeds 1,000 hours.
On appeal, we challenge
RLUIPA as unconstitutional and
also argued Sisney’s claims fail
on merits.*
Awaiting scheduling of oral
argument.
Decision likely to be handed
How to Avoid Getting
Sued
You
can’t!
Other inmate demands…
-Inmate demands for religious property can
range from the ordinary…to the
extraordinary, and the treatment of the
claims by federal courts are sometimes
inconsistent:
Examples:
 Wine and Steak (denied by the Court as a
sham request);
 Native American sweat lodge and supplies
(some prisons deny, others permit, courts
have decided this both ways);
 Plastic sword, rocks for a ritual alter (Court
upheld denial of request);
 Grooming policy (Court upheld
enforcement of policy);
 Kosher diet (One Court have affirmed
damages against officials for denying
kosher diet; another Court affirmed the
denial of a kosher diet for budgetary
reasons);
 Religious name (Court upheld prison’s
denial of inmate request to be referred to
by his religious name only)
Pointers for Defending
RLUIPA Claims and
Mitigating Liability
1. The State can refuse federal
prison funding. RLUIPA only
applies to recipients of federal
prison funding.
2. Change the policy or
practice.* RLUIPA has a safeharbor provision that allows a
State to avoid liability.
3. Know and rely upon the PLRA.
4. Other considerations…
A.
Proactive; and
B.
Reactive.
Good News
THE PLRA APPLIES TO RLUIPA!
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Congress enacted the Prison
Litigation Reform Act in 1996 in an
effort to curb the growing amount
of abusive and frivolous inmate
lawsuits.
The PLRA accomplished this
through:
1. Mandatory screening of inmate
pro se
lawsuits;
2. Limiting the scope of available
relief;
3. Requiring payment of filing
fees; and
4. “Three strikes” provision.
Safe Harbor
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According to 42 U.S.C. §
2000cc-3(e) of RLUIPA, a
“government may avoid the
preemptive force of any
provision of this chapter by
changing the policy or practice
that results in a substantial
burden on religious exercise, by
retaining the policy or practice
and exempting the substantially
burdened religious exercise, by
providing exemptions from the
policy or practice for
applications that substantially
burden religious exercise or by
any other means that
eliminates the substantial
burden.” 42 U.S.C. § 2000cc3(e).
Safe Harbor-First
Amendment
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Congress, federal courts, and
legal commentators have all
treated 42 U.S.C. § 2000cc3(e) as creating a safe harbor
provision whereby governments
can take remedial action to
avoid liability under RLUIPA.
BUT…this does not eliminate
liability under the First
Amendment, though it would
render claims for prospective or
declaratory relief moot.
Other Considerations…
(in no particular order)
Proactive steps:
1. Prison policies.
-Religion;
-Property;
-Discipline;
-Diet;
-Administrative remedy
procedure.
2.
Training and
education for staff in all of
the above.
Other Considerations…
(in no particular order)
Reactive steps and additional considerations:
1
According to Supreme Court, States need
not supply inmates with devotional
accessories, even under RLUIPA.
2.
Internal prison records should show
safety, security and/or administrative
reasons supporting denial of a request.
3.
Be sure to raise all constitutional
defenses.
4.
Be sure to raise all defenses under PLRA.
5.
Settlement/Safe Harbor Provision might
be an option, but tread carefully.
6.
RLUIPA does not require States to do the
impossible, nor must correctional officials
abandon common sense.
THANK YOU FOR
YOUR TIME,
SERVICE, AND
YOUR DEDICATION.
JEFFREY L. BRATKIEWICZ
WOODS, FULLER, SHULTZ & SMITH
P.C.
Questions and/or Feedback:
jeff.bratkiewicz@woodsfuller.c
om
Inmate Litigation:
A Discouraging Word
Kathy Gastreich
Washington State
Department of Corrections
Inmate Litigation:
A Discouraging Word
Home on the Range
A rancher riding along the range (you know,
where the deer and the antelope play)
jumps off his horse and runs up to a
buffalo.
He tells the buffalo, “You are the most
miserable excuse for a buffalo I have ever
seen. Just look at you, you have
bloodshot eyes, your hair is all matted,
and you stink!”
The rancher mounts up and rides off leaving
the buffalo in wonderment.
The buffalo looks around at the others in his
herd and says, ”I do believe I just heard a
discouraging word.”
Inmate Litigation:
A Discouraging Word
Types of Inmate Litigation
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Property – Lost or Damaged
Public Disclosure
Medical Malpractice
Conditions of Confinement
Injury: Sports, Work, Slip & Fall
Failure to Protect: Sexual Predator,
Aggression
Prison Rape Elimination Act
(PREA)/Custodial Sexual
Misconduct
Held Beyond Release Date
Inmate Litigation:
A Discouraging Word
Public Disclosure/Freedom of
Information
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In Washington the Public Disclosure
Act allows for “free and open,
examination of public records in the
public interest, even though such
examinations may cause
inconvenience or embarrassment.”

“Public Records” is any writing
containing information prepared or
retained by an agency regardless of
physical form.
Inmate Litigation:
A Discouraging Word
Public Disclosure/Freedom of
Information
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Abuse/Manipulation
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Financial Impact
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Number of Request
Type and Amount of Information Requested
Employee Vulnerability
Staff hours in collection and redaction
Penalties for Errors/Misinterpretations
Cases
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$500,000 – WA Supreme Court Case
 All records related to medical staff sanctioned
for misconduct, performance evaluations, and
draft disciplinary letters.
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$100,000 - in several cases brought by one inmate
 Due to errors in redactions and failures to
provide documents
Inmate Litigation:
A Discouraging Word
Public Disclosure Stats
January-December 2007
Number of Requests
6,736
Staff Hours
17,115
Pages Made Available
474,056
Pages Paid For
132,509
Inmate Litigation:
A Discouraging Word
Mitigating Risks
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Read requests carefully and
thoroughly
Respond within timeframes
Provide appropriate, lawful
responses
Communicate with requestor
Address errors immediately – don’t
ignore them!
Inmate Litigation:
A Discouraging Word
The Impact of Class Action Lawsuits
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Inmate Personal Property:
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Discrimination based on
Disability:
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Shipping Costs and Destruction of
Property
Eligibility for Programs
Sexual Abuse:
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Custodial Sexual Misconduct
Sexual Abuse/Assault
Inmate Litigation:
A Discouraging Word
Negligent Supervision
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Washington State has paid millions
of dollars to plaintiffs who were
victimized by offenders on
community supervision
(Parole/probation)
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Under Washington law the State is
liable just as though it were a private
corporation.
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Washington courts have established
that “parole officers have a duty to
protect others from reasonably
foreseeable dangers engendered by
parolees dangerous propensities.”
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Thank you for your time and
attention.
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Contact Information:
Kathy Gastreich
Risk Management Director
Washington State Department of
Corrections
360-725-8587