Sherrie Lemcool v. Florida Department of COrrections , 543 F. App'x 909 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14547
Non-Argument Calendar
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D.C. Docket No. 4:09-cv-00376-RH-CAS
SHERRIE LEMCOOL,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS, et al.,
Defendants,
D. POOL,
Assistant Warden,
W. S. SMITH,
Correctional Chaplain Service Specialist, et al.,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(October 23, 2013)
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Before HULL, JORDAN, and EDMONDSON, Circuit Judges.
PER CURIAM:
Sherrie Lemcool, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of her 42 U.S.C. § 1983 complaint against various
officials at the Florida Department of Corrections Central Office and at Lowell
Correctional Institution (“LCI”) (“Defendants”). Reversible error has been shown;
we affirm in part and vacate in part and remand for further proceedings.
In her complaint, Lemcool -- a follower of the Wiccan faith -- alleged that
Defendants violated her First and Fourteenth Amendment rights (1) by requiring
inmates to keep tarot decks in the chapel library instead of in the inmate’s cell; (2)
by denying Lemcool’s request for a three-ring binder to hold loose handwritten
pages of Lemcool’s Book of Shadows; and (3) by denying Lemcool’s requests to
schedule Wiccan Holy Days, including Sabats and Esbats. Construed liberally, 1
Lemcool’s complaint asserts two distinct claims about scheduling Holy Days:
(a) that Defendants denied Lemcool’s requests to schedule times for Lemcool to
visit the chapel library to use her tarot deck and to conduct private worship rituals
1
We construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
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on Wiccan Holy Days, and (b) that Defendants failed to schedule Wiccan services
in which outside volunteers could participate.
The district court granted in part and denied in part Defendants’ motion for
summary judgment. The court dismissed Lemcool’s tarot deck and three-ring
binder claims on the merits, concluding that no constitutional violation occurred.
And the court denied Defendants’ motion to the extent Defendants argued that
Lemcool failed to exhaust administratively her Holy Days claim. The court
rejected Defendants’ characterization of Lemcool’s Holy Days claim as a claim for
“group worship services and activities,” noting that Lemcool had “complained that
she should be able to participate in [Holy Day] activities with a Tarot deck in
‘solitary’ remembrance worship, even without a qualified volunteer for the eight
Holy Sabbats, and she requested time and space for such worship.”
Defendants later filed a motion to dismiss, arguing that Lemcool’s Holy
Days claim should be dismissed as moot because (1) Lemcool was no longer
incarcerated at LCI and (2) a change in Chaplaincy Services Procedure provided
that religious “services, activities, and meetings” not supervised by the chaplain
could now be supervised by “appropriate staff.” 2
2
Before the policy change, Chaplaincy Services Procedure 503.002(8)(d)(3) provided that “upon
the chaplain’s approval, any services, activities, and meetings s/he does not personally conduct
will be established and scheduled with volunteers.” Section 503.002(8)(d)(3) now reads “upon
the chaplain’s approval, any services, activities, and meetings s/he does not supervise will be
supervised by appropriate staff or with volunteers.”
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Although the district court explained that Lemcool’s transfer to a different
prison did not necessarily moot her entire claim, the court dismissed as moot
Lemcool’s claims against both LCI staff members. The district court then
concluded that, furthermore, Lemcool’s Holy Days claim was rendered altogether
moot by the statewide change in Chaplaincy Services Procedure. The court
reasoned that, the “official policy change means that [Lemcool’s] ability to
practice her Wiccan faith is not dependent upon the availability of an outside
volunteer and Plaintiff should be able to exercise her First Amendment right to
religious freedom.” The district court dismissed the case without prejudice.
Tarot Deck & Three-Ring Binder
On appeal, Lemcool argues that Defendants violated her First Amendment
rights and discriminated against her in violation of her Fourteenth Amendment
rights by not allowing her to keep a tarot deck in her cell and by not allowing her
to use a three-ring binder to hold her Book of Shadows.
We review the district court’s grant of summary judgment de novo, and we
view the evidence and all reasonable factual inferences in the light most favorable
to the nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.
2007). “Summary judgment is appropriate if the evidence establishes ‘no genuine
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issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.’” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).
We apply a “deferential standard for determining whether a prison
regulation violates an inmate’s constitutional rights.” Hakim v. Hicks, 223 F.3d
1244, 1247 (11th Cir. 2000). “A prison regulation, even though it infringes the
inmate’s constitutional rights, is an actionable constitutional violation only if the
regulation is unreasonable.” Id. In assessing a regulation’s reasonableness, we
consider, among other things, (1) whether the regulation is rationally related to a
legitimate governmental interest; (2) whether “alternative means of exercising the
asserted constitutional right . . . remain open to the inmates;” (3) the impact
accommodation of the asserted right would have on prison staff, inmates, and the
allocation of prison resources; and (4) “whether the regulation represents an
‘exaggerated response’ to prison concerns.” Id. at 1247-48.
Defendants’ policy prohibiting inmates from possessing tarot cards in their
cells is rationally related to a legitimate government interest: prison security. See
Singson v. Norris, 553 F.3d 660, 662-63 (8th Cir. 2009) (upholding a similar
prison policy in part because unrestricted tarot cards could be used for “gambling,
trafficking, psychological control, and gang symbols”); Mayfield v. Tex. Dep’t of
Crim. Justice, 529 F.3d 599, 610-11 (5th Cir. 2008) (no First Amendment violation
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occurred when prison policy prohibited personal possession of runestones because
-- like tarot cards -- such “items can be used for gambling, trafficking and
trading.”). Lemcool has available alternative means of practicing her Wiccan faith,
including using a tarot deck in the chapel library. Given the potential safety
concerns associated with unrestricted use of tarot cards, accommodating
Lemcool’s request to keep a tarot deck in her cell would burden prison staff, other
inmates, and prison resources. Because Defendants’ tarot deck policy is not
unreasonable, Lemcool has not established an actionable constitutional violation.
See Hakim, 223 F.3d at 1247.
About Lemcool’s three-ring binder claim, nothing evidences that
Defendants’ denial of a three-ring binder infringed on Lemcool’s First Amendment
rights. Lemcool was allowed to possess and use the loose pages of her Book of
Shadows and would be permitted to store them in a folder or envelope without
sharp metal components.
Lemcool has also not shown that being deprived of a three-ring binder
constituted an equal protection violation. Although other inmates received three-
ring binders through a Christian-based program, the binders were confiscated
immediately after prison staff discovered that inmates were forbidden from
possessing such binders. Thus, Lemcool has not shown that other prisoners were
treated more favorably. See Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001)
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(to establish an equal protection violation, an inmate must show, among other
things, that “‘he is similarly situated with other prisoners who received’ more
favorable treatment.”).
Holy Days
We review de novo the district court’s determination of mootness. See
Troiano v. Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir. 2004). A
defendant who contends that he has ceased allegedly illegal conduct “bears a heavy
burden of demonstrating that his cessation of the challenged conduct renders the
controversy moot.” Rich v. Fla. Dep’t of Corr., 716 F.3d 525, 531 (11th Cir.
2013).
The district court concluded that Lemcool’s Holy Day claim was mooted by
a change in prison policy which now permits “appropriate staff” -- in addition to
the chaplain or volunteers -- to supervise religious activities. But Defendants have
not alleged that “appropriate staff” would in fact be available to supervise Wiccan
services on Lemcool’s requested Holy Days. And nothing evidences that the
policy change, in and of itself, terminates unambiguously the alleged
unconstitutional conduct. See id. For instance, while the old policy language
governed who may “conduct,” “establish[],” or “schedule[]” religious services, the
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revised policy language governs only who may supervise such religious services.
We cannot say that this change means that Lemcool is no longer dependent on the
availability of outside volunteers. Defendants have not satisfied the “heavy
burden” of showing that the policy change mooted Lemcool’s claim.
In addition, because the policy change pertains only to organized religious
“services, activities, and meetings,” it is not pertinent to Lemcool’s claim that
Defendants denied her requests to use tarot cards for private worship rituals on
Holy Days. The district court erred in concluding that Lemcool’s Holy Days claim
was moot.
The district court also erred in concluding that Lemcool’s transfer out of LCI
mooted her claims against LCI staff members. Because Lemcool was subject to
return -- and has, in fact, been transferred back to LCI -- her claims against LCI
staff members are not moot. See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.
1975) (concluding that inmate’s transfer did not moot case when “defendants were
unable to advise that [the inmate] would not be returned to the [complained-of
prison].”). We vacate and remand for further proceedings.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
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