United States District Court, D. Colorado
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger, Chief United States District Judge.
MATTER comes before the Court on the Defendant's
Motion for Summary Judgment (# 186), the
Plaintiff's Response (# 193), and the
Defendant's Reply (# 199); the
Plaintiff's Motion to Strike and Response to So-Called
“Fact Exhibit” (# 202), the
Defendant's response (# 203), and the
Plaintiff's reply (# 205); the
Plaintiff's Motion to Allow Declarations by Nonparties
(# 206) and the Defendant's response
(# 207); and the Defendant's Motion to
Strike Exhibits (# 210) and the
Plaintiff's response (# 211). For the
following reasons, the motion for summary judgment is granted
and the remaining motions are denied as moot.
Court exercises jurisdiction under 28 U.S.C. § 1331.
Court summarizes the pertinent facts here and elaborates as
necessary in its analysis.
Mr. Hale and his beliefs
Matt Hale, proceeding pro se,  is an inmate in
the custody of Defendant Federal Bureau of Prisons (BOP) and
housed at the Administrative Maximum facility in Florence,
Colorado (ADX). He is a member, practitioner, and former
leader of the Church of the Creator (also referred to as
“Creativity”). Members of the Church of the
Creator consider Creativity to be a religion. It is
undisputed that a central tenet of Creativity is the premise
of the superiority of the white race and the need for racial
purity and segregation.
sake of convenience, the Court will not reproduce the
parties' recitation of Creativity's religious texts.
Suffice it to say that a survey of the roughly 41 principles
of Creativity set forth by the parties - 5 fundamental
beliefs, 16 commandments, and 20 points of creed - reveals
that nearly all of those principles comprise exhortations or
instructions to adherents to accomplish the singular goal of
promoting the purity of the white race and advocating for the
geographic, political, and social segregation (if not the
outright destruction) of other races. The most prominent
secondary points found in those principles are instructions
to preserve the environment of the Earth, to restore soil
fertility and improve farming yields, and to promote a
natural lifestyle so as to advance the physical and mental
health of adherents.
BOP actions giving rise to this suit
July 2010 to January 2011 and again from January to August
2013, the BOP imposed a mail restriction on Mr. Hale's
incoming and outgoing correspondence. The restriction was
imposed in response to Mr. Hale's efforts to direct
affairs within the Church of the Creator. For the same
reasons, the BOP denied Mr. Hale a copy of a book entitled
Nature's Eternal Religion (a Creativity
religious text), the diet outlined in Salubrious
Living (another Creativity religious text), and the
ability to conduct an on-camera interview with a Chicago
Mr. Hale's claims
Hale brought this suit alleging that the mail restriction and
various other prison restrictions violated his constitutional
rights. Currently pending are six claims, which the Court
groups by subject matter. The first three claims focus on the
mail restrictions, alleging that the restrictions (1)
violated Mr. Hale's constitutional right to free exercise
of religion under the First Amendment, (2) violated his
rights under the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. § 2000bb et
seq.; and (3) were imposed as retaliation against him
because of his exercise of his First Amendment rights. The
second set of claims relate to Mr. Hale's claims that he
was denied access to a diet consistent with the principles of
Creativity, and that the denial (4) deprived him of his
free-exercise rights under the First Amendment, and (5)
violated RFRA. Finally, the final claim is that (6) Mr. Hale
was denied the opportunity to possess a copy of
Nature's Eternal Religion, in violation of his
right to free speech under the First Amendment.
The BOP's Motion
moves for summary judgment on all claims (#
186). In the course of briefing, the BOP attached an
exhibit to its reply that organized its evidence and Mr.
Hale's response thereto. Mr. Hale moves to strike this
“fact exhibit” (# 202). Mr. Hale
has also asked to submit declarations from nonparties in
support of his summary-judgment response (#
206). The BOP moves to strike a notice filed by Mr.
Hale (# 210).
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas
Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is
precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin
Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
Mail Restriction Claims
Hale alleges that the mail restrictions violated his
free-exercise rights, RFRA, and were retaliatory to his
exercise of First Amendment rights. The BOP contends that
CREATIVITY is not a religion for purposes of the Free
Exercise Clause or the Religious Freedom Restoration Act,
which would proscribe Claims 1, 3, 5, and 6. Second, it
contends that even if it was, and Mr. Hale's religious
practices were burdened by the mail and other restrictions,
such restrictions were nevertheless permissible because they
were supported by a compelling justification.
first challenges Mr. Hale's standing to attack the mail
restrictions, arguing that Mr. Hale is only capable of
seeking injunctive relief against the BOP, and that the 2010
and 2013 mail restrictions are no longer in effect. The Court
addressed a similar argument in its September 30, 2015,
Opinion and Order (# 66), finding that
although Mr. Hale was not the subject of a current
mail restriction, the restrictions that he challenged were
“capable of repetition, yet evading review.”
Id. at n.1.
instant motion, the BOP argues that although Mr. Hale is once
again under restrictions on his correspondence with others,
those restrictions are qualitatively different from the
restrictions he was under in 2010 and 2013. As the Court
understands it, the 2010 and 2013 restrictions prohibited Mr.
Hale from corresponding with persons beyond his immediate
family on any topic whatsoever. Now, he is permitted to
correspond with persons outside his immediate family, but is
still prohibited from having any such communications that
touch on matters relating to Creativity. Thus, the BOP
contends the “Court does not have subject-matter
jurisdiction to award prospective injunctive relief because
the current manner in which Mr. Hale's communications are
monitored bears no relation to those past
restrictions.” The Court finds that its observations in
the September 30, 2015, Opinion and Order on the question of
standing remain valid. It is undisputed that, presently, Mr.
Hale remains restricted in his ability to correspond with
anyone about Creativity. Although other aspects of
the 2010 and 2013 mail restrictions are not present in the
current restrictions on Mr. Hale, the aspects of the 2010 and
2013 restrictions that animate his Free Exercise and RFRA
claims - the inability to correspond with others about
his purported religious beliefs - remain. More
importantly, assuming Mr. Hale could otherwise establish his
free-exercise or RFRA claims, he could conceivably be
entitled to injunctive relief that would effectively modify
the continuing restrictions on his ability to correspond
about Creativity. In such circumstances, the Court is
satisfied that Mr. Hale has standing to bring the current
constitutional and RFRA claims.
The Free Exercise Clause and RFRA
Free Exercise Clause prevents the government from making any
law prohibiting the free exercise of religion, which can
manifest itself in either the freedom to believe or the
freedom to act. See U.S. Const. amend I; United
States v. Meyers, 95 F.3d 1475, 1480 (10th Cir. 1996)
(citing Cantwell v. Connecticut, 310 U.S. 296,
303-04 (1940)). Where the freedom to believe is absolute, the
freedom to act may be regulated for the protection of
society. Cantwell, 310 U.S. at 303-04. If a law is
neutral and generally applicable, it does not violate the
Free Exercise Clause “even if the law has the
incidental effect of burdening a particular religious
practice.” Church of the Lukumi Babalu Aye Inc. v.
City of Hialeah, 508 U.S. 520, 531 (1993). Going
further, RFRA generally prohibits the government from
burdening a person's exercise of religion, even by
operation of a law of general applicability. 42 U.S.C. §
they vary slightly, both the constitutional and RFRA
standards protect only belief systems that may properly be
considered religious. See Thomas v. Review Bd. of Ind.
Emp't Sec. Div., 450 U.S. 707, 713-14 (1981);
Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir.
1996). To establish his free-exercise claim, Mr. Hale must
show that (1) he has a sincerely-held belief that is
religious in nature; (2) that the mail restrictions
substantially burdened that belief; and (3) that the BOP
lacked a legitimate penological interest that justified the
restrictions, considering the factors set forth in Turner
v. Safley, 482 U.S. 78 (1987). Kay v. Bemis,
500 F.3d 1214, 1218-19 (10th Cir. 2007). And to establish his
RFRA claim, Mr. Hale must demonstrate he wishes to engage in
(1) a religious exercise (2) motivated by a sincerely held
belief, which (3) is subject to a substantial burden imposed
by the government. See Kikumura v. Hurley, 242 F.3d
950, 960 (10th Cir. 2001). Thus, the question of whether
CREATIVITY may be considered a “religion” affects
the analysis of both Mr. Hale's free-exercise and RFRA
claims (Claims 1, 3, 5, and 6).
they appear similar, Mr. Hale's free-exercise and RFRA
claims differ slightly, particularly as they relate to the
nature of the governmental interest in question. Under the
Free Exercise Clause, the government's interest need only
be “reasonably related to legitimate penological
interests, ” and the Court applies the deferential
Turner standard in assessing that penological
interest, generally. Under RFRA, however, the Court must
consider the particular application of the governmental
action on the inmate in question and determine whether there
is a compelling justification for applying that
policy to that inmate. Id. Moreover, under
RFRA, the government bears the burden of proof that its
interests are compelling and narrowly-tailored. Ghalani
v. Sessions, 859 F.3d 1295, 1305 (10th Cir. 2017). Thus,
the RFRA claim places a more substantial burden on the
government than does the free-exercise claim.
the BOP moves for summary judgment on both claims, arguing
that: (1) the principles of Creativity are not
“religious” in nature; and (2) to the extent they
are, the BOP is nevertheless entitled to summary judgment on
the RFRA claim because it has a compelling interest in
preventing Mr. Hale from corresponding about Creativity and
the restrictions on Mr. Hale are narrowly-drawn to effectuate
Whether Creativity is a Religion
Circuit, to determine if a belief system is truly
“religious”, the Court considers whether it: (1)
addresses ultimate ideas, (2) contains metaphysical beliefs,
(3) prescribes a particular moral or ethical system, (4)
involves comprehensive beliefs, and (5) is accompanied by
accoutrements of religion. Meyers, 95 F.3d at 1483.
No. one factor is dispositive, but “purely personal,
political, ideological, or secular beliefs” will not
likely suffice. Id. at 1484 (citing Yoder,
406 U.S. at 216). Religious beliefs need not be acceptable,
logical, consistent, or comprehensible to others in order to
merit First Amendment protection. United States v.
Seeger, 380 U.S. 163, 184-85 (1965). Indeed, the concept
of white supremacy, though secular in the sense that it is a
racist idea, could be religious in context. Wiggins v.
Sargent, 753 F.2d 663, 667 (8th Cir. 1985).
of how the Meyers criteria are applied to particular
factual scenarios are instructive with regard to application
to the facts of this case. As noted below, when the
Meyers factors are applied, unusual belief systems
are not found to be religions for one of two reasons -either
belief system is so vague and indeterminate that it fails to
prescribe any moral or ethical system (Africa,
Jacques) or the beliefs are so narrowly focused that
they do not address metaphysical or ultimate issues or
otherwise comprise a comprehensive set of beliefs.
(Meyers, Quaintance, Versatile).
In both circumstances, the belief system is found to be a
secular rather than religious one.
Meyers, the defendant was charged with cannabis
possession. As a defense, he testified that he was the
founder and reverend of the “Church of
Marijuana”, wherein he was religiously commanded to
use, possess, grow, and distribute cannabis “for the
good of mankind and the planet earth.” 95 F.3d at 1479.
Although the court noted that whether a belief structure is
established or recognized cannot be the sole determinant of
whether it qualifies as a religion, the secular nature of
Meyers' beliefs more accurately espoused a philosophy or
way of life rather than a religion. Id. at 1484.
Africa v. Pennsylvania, upon which Meyers
was partially based, the defendant was a prisoner who
requested a special, raw-food diet as adherent to MOVE, an
organization “opposed to all that is wrong.” 662
F.2d 1025, 1026 (3d Cir. 1981). MOVE's goals were to
bring about peace, stop violence, and end corruption.
Id. MOVE adherents believed in using things but not
misusing them. Id. Avoiding ceremonies and rituals,
every act of life was invested with religious significance to
MOVE adherents. For MOVE adherents, “every day of the
year can be considered a religious ‘holiday'”
because no single day is more special than another.
Id. Noting that MOVE did not address any
fundamental, ultimate, or overarching principles, the court
held that MOVE was concerned with secular matters and lacked
a comprehensive, multi-faceted theology. Id. at
Jacques v. Hilton, the plaintiffs were founders of
the United Church of Saint Dennis, ULC Inc., which was
loosely affiliated with the Universal Life Church. 569
F.Supp. 730, 731 (D.N.J. 1983). Saint Dennis was not a
reference to any particular individual. The church recognized
the “Spirit of Life” as a supernatural force,
which each individual possessed. A central tenet of the
church was each individual's right to honor any supreme
being in any manner he chose, and to act consistently with
his own beliefs. Church adherents celebrated June 21 as the
day life began. There we no rituals at meetings, rather they
were opportunities for participants to assist each other in
reconciling any conflict that they were experiencing.
Applying Africa, the court determined the church was
not a religion because its exhortation ...