Lausteveion Johnson v. Renee Baker

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUSTEVEION DELANO JOHNSON, No. 20-17202
Plaintiff-Appellee,
D.C. No.
v. 2:15-cv-00884-
JAD-NJK
RENEE BAKER, Warden,
Defendant-Appellant,
OPINION
and
LUIS LOPEZ, Kitchen Supervisor; J.
TAYLOR; KURNER, Sgt. at ESP;
ANDREW SILVERSTEIN; ISIDRO BACA,
Warden; MICHAEL KOEHN, Doctor;
JULIO CALDERON, Chaplain; DWIGHT
NEVEN, Warden at HDSP; BRANDON
LAWRENCE; JAMES COX, Director of
NDOC; NISSEL YOUNG; BRIAN
WILLIAMS, Warden; J.
YOUNGBLOOD; JO GENTRY, Warden,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
2 JOHNSON V. BAKER
Argued and Submitted October 20, 2021
San Francisco, California
Filed January 26, 2022
Before: Bridget S. Bade and Patrick J. Bumatay, Circuit
Judges, and Richard M. Berman, * District Judge.
Opinion by Judge Bumatay
SUMMARY **
Prisoner Civil Rights
In an action brought pursuant to the Religious Land Use
and Institutionalized Persons Act by a Nevada state prisoner,
the panel affirmed the district court’s injunction, entered
following a bench trial, requiring Nevada prison officials to
allow plaintiff to possess no more than a half ounce of
scented oil in his cell for personal use with his prayers.
Noting that the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) provides expansive protection for
religious liberty, the panel agreed with the district court that
Nevada’s regulation banning personal possession of scented
oil substantially burdened plaintiff’s religious exercise and
*
The Honorable Richard M. Berman, United States District Judge
for the Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JOHNSON V. BAKER 3
that the State failed to show that the regulation was the least
restrictive means of serving its compelling interest.
The panel stated by the plain language of RLUIPA, it
was forbidden from evaluating the centrality of a religious
practice or belief. See 42 U.S.C. § 2000cc-5(7)(A). Instead,
the panel could only scrutinize the sincerity of the prisoner’s
beliefs. Because RLUIPA’s plain text and this court’s
precedent prohibits courts from peering into the centrality of
a religious practice or whether a particular practice was
necessary to the religion, the panel rejected defendants’
assertions that scented oil was not “really that important” to
plaintiff’s worship practice or that plaintiff needed to point
to textual support or oral history proving that the Prophet
Mohammad used scented oil in prayer.
The panel noted that the prison regulation at issue
prohibited plaintiff from using scented oil for prayer—the
way plaintiff believes the Prophet Muhammed prayed—for
34 out of his 35 prayers per week. The panel concluded that
the regulation constituted a “substantial burden” on
plaintiff’s particular religious exercise and that in advancing
a general interest in prison security and minimizing
contraband, Nevada failed to meet the exceptionally
demanding” burden of proving that its ban was the least
restrictive means of furthering its security interest.
4 JOHNSON V. BAKER
COUNSEL
Gregory L. Zunino (argued), Deputy Solicitor General;
Frank A. Toddre II, Senior Deputy Attorney General; D.
Randall Gilmer, Chief Deputy Attorney General; Aaron D.
Ford, Attorney General; Office of the Attorney General, Las
Vegas, Nevada; for Defendants-Appellants.
Edward Williams (argued) and Tiffany R. Wright, Howard
University School of Law, Human and Civil Rights Clinic,
Washington, D.C.; Samuel Weiss, Rights Behind Bars,
Washington, D.C.; for Plaintiff-Appellee.
Gordon D. Todd, Mackenzi J.S. Ehrett, and Cody l. Reaves,
Sidley Austin LLP, Washington, D.C.; Christopher
Pagliarella, Yale Law School Free Exercise Clinic,
Washington, D.C.; for Amicus Curiae Muslim Public
Affairs Council.
OPINION
BUMATAY, Circuit Judge:
As a devout Muslim, Lausteveion Johnson must purify
himself and anoint himself with scented oil before each of
his five daily prayers. But as a prisoner within the Nevada
Department of Corrections, he is prevented from doing so by
a regulation that prohibits him from possessing scented oil
in his cell. While denying Johnson the ability to pray in the
manner of his faith, Nevada insists that its regulation is
acceptable because Johnson may still pray with scented oil
for one prayer each week and use unscented baby oil for the
rest of his prayers. But that’s not what Johnson’s faith or the
law requires.
JOHNSON V. BAKER 5
Johnson sued under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) to have his
religious liberty restored. And the district court did so. It
found that Nevada failed to show that depriving Johnson of
scented oil was the least restrictive means of furthering its
interest in institutional security. Now on appeal, Nevada
invites us to question whether the use of scented oil is really
necessary to Johnson’s faith. But that request is foreclosed
by RLUIPA’s text and extensive caselaw. We thus agree
that Nevada has failed to justify its burden on Johnson’s
religious liberty and affirm.
I.
Since 2008, Lausteveion Johnson has practiced Islam
and followed the dictates of the Prophet Muhammed as well
as the religious principles of the Quran, which he believes
provides the exact words of God. One of those principles is
prayer five times a day. Before prayer, Muslims must first
purify themselves by washing their hands, face, and feet and
clothe themselves in clean garments. Following the practice
of the Prophet Muhammad, Muslims must also anoint
themselves with scented oil before each of the five prayers.
A drop of the scented oil must be dabbed on the wrists and
on the neck or hair. But not just any oil can be used. The oil
must be scented, purified, and blessed by an Imam. Johnson
believes unscented oil has “no Islamic significance.” And
the State does not dispute Johnson’s sincerity.
Johnson has been in the custody of the Nevada
Department of Corrections since 2003. The Nevada
Department of Corrections’ Administrative Regulations
govern the accommodation of the religious practices of the
State’s prisoners. In particular, Administrative Regulation
810.2 governs the use of religious items, including scented
oil. The 2017 version of the regulation allows inmates to
6 JOHNSON V. BAKER
purchase up to six one-ounce bottles of scented oil for
“group use” during religious services, but the oil must be
kept in the chapel. 1 Johnson thus cannot possess the scented
prayer oil in his cell, meaning he cannot use the oil for the
bulk of his prayers. Rather, he can only use scented oil once
a week during group prayer service at the chapel. As a result,
Nevada’s regulation leaves Johnson without access to prayer
oil for 34 of his 35 prayers each week. But it’s undisputed
that Nevada provides its prisoners with ample access to
similar items such as 14-ounce bottles of unscented baby oil,
Irish Spring soap, Tide laundry detergent, Bounce dryer
sheets, cocoa butter lotion, various scents of deodorant, and
cosmetics like nail polish. Unlike scented prayer oil, these
items may be kept in prisoners’ cells.
Johnson sued various Nevada Department of Corrections
officials, alleging, among other claims, violation of
RLUIPA. Johnson argued that Administrative Regulation
810.2 substantially burdened his religious exercise and that
he should be permitted to possess scented oil in his cell for
personal use during his daily prayers. After a bench trial, the
district court agreed. The district court ruled that the
regulation operated as an “outright ban” on Johnson’s
religious practice and that the prohibition against Johnson
keeping a small amount of scented oil in his cell was not the
least restrictive means of achieving the State’s interest in
institutional security. The district court then entered an
injunction requiring Nevada prison officials to allow
Johnson to possess no more than a half ounce of scented oil
in his cell for personal use with his prayers. The district
court ordered Johnson’s supply to be replenished at the
1
A 2013 version of the regulation completely prohibited the use of
any scented oil for religious purposes and only permitted prisoners to use
unscented baby oil for group prayer.
JOHNSON V. BAKER 7
weekly Muslim group prayer service from a bottle kept by
the chaplain.
Nevada appeals. We review findings of fact for clear
error and conclusions of law de novo. Lentini v. Cal. Ctr.
for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004).
II.
RLUIPA guarantees an “expansive protection for
religious liberty.” Holt v. Hobbs, 574 U.S. 352, 358 (2015).
It commands that “[n]o government shall impose a
substantial burden on the religious exercise of a person
residing in or confined to an institution” unless the
government can show that the burden “is in furtherance of a
compelling governmental interest” and “is the least
restrictive means of furthering” that interest. 42 U.S.C.
§ 2000cc-1(a). In interpreting RLUIPA, we must construe
its text “in favor of a broad protection of religious exercise,
to the maximum extent permitted by the terms of this chapter
and the Constitution.” Id. § 2000cc-3(g).
The prisoner has the “initial burden” of showing that a
prison’s “policy implicates his religious exercise” and that
the “policy substantially burden[s] that exercise of religion.”
Holt, 574 U.S. at 360–61. If that’s met, the burden then
shifts to the government to show that the policy was “in
furtherance of a compelling governmental interest” and “the
least restrictive means of furthering that compelling
governmental interest.” Id. at 362 (simplified).
Given that Nevada’s prison regulation prevents Johnson
from praying according to his faith, it has substantially
burdened his religious exercise. Nevada also fails to show
8 JOHNSON V. BAKER
that its regulation is the least restrictive means of furthering
its compelling interest. For these reasons, we affirm. 2
A.
In evaluating Johnson’s RLUIPA claim, we must first
determine whether the Nevada regulation governing the use
of scented oil “implicates his religious exercise.” Holt,
574 U.S. at 360. What constitutes “religious exercise” under
RLUIPA is not subject to exacting review. Congress defines
religious exercise “capaciously” to include “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” Id. at 358 (quoting 42 U.S.C. § 2000cc-
5(7)(A)).
2
To begin, Nevada argues that Johnson’s claim for injunctive relief
is moot since he was transferred to a different Nevada prison during the
litigation. That’s not so. A case is moot only if it is “impossible” for
this court to grant relief. Rocky Mountain Farmers Union v. Corey,
913 F.3d 940, 949 (9th Cir. 2019) (simplified). While the transfer of an
inmate to a new prison will usually moot a challenge to conditions at a
“particular facility,” Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001),
that is not true when the inmate attacks a “system wide” policy. Walker
v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015). Here, Administrative
Regulation 810.2 prohibits the personal possession of scented oil for
prayers at all Nevada prisons. Because this court may still grant relief,
Johnson’s claim for injunctive relief is not moot.
Johnson’s case is also not moot because the Department of
Corrections amended Administrative Regulation 810.2 during the
litigation. The core of Johnson’s RLUIPA complaint has always been
that he needs access to scented oil for each of his five daily prayers, and
the 2017 amendment did not address that concern. Further, any error by
the district court in allowing Johnson to proceed without amending his
complaint is forfeited because Nevada failed to raise that issue before the
district court. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
JOHNSON V. BAKER 9
By the plain language of RLUIPA, we are forbidden
from evaluating the centrality of a religious practice or
belief. See 42 U.S.C. § 2000cc-5(7)(A). Instead, we may
only scrutinize the sincerity of the prisoner’s beliefs. See
Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)
(“Although RLUIPA bars inquiry into whether a particular
belief or practice is ‘central’ to a prisoner’s religion, . . . the
Act does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.”). So it makes no difference
that a prisoner may still practice his “religion as a whole”
under the State’s restrictions, Greene v. Solano Cnty. Jail,
513 F.3d 982, 987 (9th Cir. 2008), or that not every believer
of the same faith practices in the same way, Holt, 574 U.S.
at 362–63.
Rather, what matters is whether a regulation “burden[s]
a particular facet of [the prisoner’s] religious practice.”
Greene, 513 F.3d at 987. For example, in Holt, the Supreme
Court held that RLUIPA protected the religious practice of
growing a half-inch beard, “which [the prisoner] believe[d]
[was] a dictate of his religious faith.” 574 U.S. at 361. And
it was irrelevant that the particular religious belief in
growing a beard was not shared by all practicing Muslims or
that the practice was not compelled by the faith. Id. at 361–
62. Thus, this initial RLUIPA step requires a narrow inquiry
focused on (1) the specific religious practice at issue and
(2) the specific practitioner.
The district court correctly identified that the religious
exercise at issue was Johnson’s worship practice of
anointing himself with scented oil before each prayer and
properly concluded that Nevada’s regulation against the
personal possession of scented oil implicated that practice.
And the State does not challenge the sincerity of Johnson’s
belief that he must pray in this way.
10 JOHNSON V. BAKER
On appeal, Nevada grossly misses the mark in arguing
that its regulation doesn’t implicate Johnson’s “religious
exercise.” Nevada contends that the use of scented oil for
Johnson’s prayers is not really that important to his worship
practice—it’s just a mere preference. What’s more, Nevada
appears to argue that Johnson must point to textual support
or oral history proving that the Prophet Mohammad used
scented oil in prayer. These arguments flout RLUIPA’s
plain text and our precedent, which prohibits courts from
peering into the centrality of a religious practice or whether
a particular practice is necessary to the religion. 42 U.S.C.
§ 2000cc-5(7)(A). As Holt explains, it makes no difference
that a religious belief is “idiosyncratic” or not “shared by all
of the members of a religious sect.” 574 U.S. at 362
(simplified). If the belief is sincerely held, it falls within the
protection of RLUIPA. We thus conclude that Johnson has
met his burden of proving that the Nevada regulation
implicates his religious exercise.
B.
Next, we consider whether Nevada’s regulation
substantially burdens Johnson’s religious exercise. Our
precedent shows that we do not take a narrow view of what
constitutes a “substantial burden.” We’ve held it requires a
“significantly great restriction or onus upon [religious]
exercise.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th
Cir. 2005) (quoting San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). Of
course, when a regulation “outright ban[s]” religious
exercise, it amounts to a substantial burden. Greene,
513 F.3d at 988. But we have also said that lesser
restrictions may suffice. For example, we have recognized
that government action that threatens “punishment[] to
coerce a religious adherent to forgo her or his religious
JOHNSON V. BAKER 11
beliefs,” Warsoldier, 418 F.3d. at 996, or causes “substantial
delay, uncertainty, and expense” to worship, Int’l Church of
Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,
1068 (9th Cir. 2011) (simplified), may amount to a
substantial burden. And importantly, the “availability of
alternative means of practicing religion” has no bearing on
the “substantial burden” inquiry. Holt, 574 U.S. at 361.
Nevada’s regulation prohibits Johnson from personally
possessing scented oil. He may only access such oil during
group religious services—held only on one day a week at
one time. So the regulation prohibits Johnson from using
scented oil for prayer—the way Johnson believes the
Prophet Muhammed prayed—for 34 out of his 35 prayers
per week.
Such a regulation constitutes a “substantial burden” on
Johnson’s particular religious exercise. The regulation
limits his use of scented oil during prayer to a paltry one out
of 35 prayers per week. Compare that burden to other
necessities. No one would deny that depriving Johnson of
34 of out 35 adequate meals would be a substantial burden.
Or that providing Johnson with sufficient clothing only once
every 35 days would be a substantial burden. Nevada’s
regulation thus amounts to a “significantly great restriction
or onus upon [religious] exercise.” Warsoldier, 418 F.3d
at 995 (simplified).
And once again, Nevada is severely misguided in its
claim that Administrative Regulation 810.2 is not a
substantial burden because Johnson may use scented oil once
a week at group prayer and unscented oil for his other
prayers. Precedent forecloses this argument. In Holt, the
Court rejected the argument that the prison grooming policy
did not substantially burden a prisoner’s particular religious
exercise because “he had been provided a prayer rug and a
12 JOHNSON V. BAKER
list of distributors of Islamic material, he was allowed to
correspond with a religious advisor, and was allowed to
maintain the required diet and observe religious holidays.”
574 U.S. at 361 (simplified). The Court explained that in
evaluating a substantial burden under RLUIPA, we must
look at the regulation’s effect on the specific religious
practice at issue—in that case, the growing of a half-inch
beard—“not whether the RLUIPA claimant is able to engage
in other forms of religious exercise.” Id. at 361–62. So
whether Johnson has access to unscented oil is immaterial
when his faith requires scented oil. See Greene, 513 F.3d
at 987.
As Nevada’s regulation prohibits Johnson from
complying with his religious beliefs for 34 out of 35 prayers,
we are satisfied that the regulation is a substantial burden on
his religious exercise.
C.
Since Johnson met his burden of showing that the prison
regulation substantially burdened his religious exercise, the
burden properly shifted to Nevada to show that its regulation
is (1) in furtherance of a compelling governmental interest
and (2) the least restrictive means of serving that interest.
42 U.S.C. § 2000cc-1(a); Holt, 574 U.S. at 362. We address
these two questions together. See, e.g., Holt, 574 U.S.
at 362–67.
Nevada advanced a general interest in prison security to
justify its ban on the personal possession of scented oil. On
appeal, Nevada focused on the ban’s effect on minimizing
JOHNSON V. BAKER 13
contraband. 3 Nevada argues that prison officials depend on
their sense of smell to detect contraband and scented oil
could be used to cover the smell of contraband, such as
drugs. Scented oil also presents a safety issue, according to
prison officials, because it could mask the smell of a fire.
We have no doubt that “prison security is a compelling
state interest.” Cutter, 544 U.S. at 725 n.13; see also Holt,
574 U.S. at 363 (holding that staunching the flow of
contraband is a compelling governmental interest). But we
don’t grant “unquestioning deference” to the government’s
claim of a general security interest. Holt, 574 U.S. at 364.
Indeed, in the RLUIPA context, prison officials cannot
“justify restrictions on religious exercise by simply citing to
the need to maintain order and security in a prison.” Greene,
513 F.3d at 989–90. Instead, “prison officials must set forth
detailed evidence, tailored to the situation before the court,
that identifies the failings in the alternatives advanced by the
prisoner.” Warsoldier, 418 F.3d at 1000 (simplified). To
this end, RLUIPA requires a “more focused” inquiry that
looks at the challenged regulation’s application to the “the
particular claimant whose sincere exercise of religion is
being substantially burdened.” Holt, 574 U.S. at 363
(simplified). Thus, the government may not satisfy the
compelling interest test by pointing to a general interest—it
must show the “marginal interest in enforcing” the ban on
3
Before the district court, Nevada asserted other prison security
interests, such as maintaining good hygiene by preventing inmates from
covering their body odor with the scented oil. It also raised the concern
that oil is slippery, can be used as a weapon, and can be traded. While
Nevada noted these interests in the background section of its opening
brief, it made no arguments in support of the interests, and we consider
them abandoned. See Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1100
(9th Cir. 2007) (“Issues raised in an opening brief but not supported by
argument are considered abandoned.”).
14 JOHNSON V. BAKER
the personal possession of scented oil against Johnson. Id.(simplified). The State’s burden here is “exceptionally
demanding.” Id. at 364 (simplified).
We agree with the district court that Nevada failed to
meet its burden. Nevada has not shown that banning
Johnson from possessing scented oil in his cell, even a small
half-ounce bottle as an accommodation, was the least
restrictive means of serving its interest. As the district court
found, although government witnesses testified that they
believed the scent of the prayer oil was powerful enough to
cover the smell of contraband, those witnesses did not
present “detailed evidence” on the quantity needed to do so.
Warsoldier, 418 F.3d at 1000. Given the lack of such
evidence and Johnson’s testimony regarding his personal
experience using prayer oil, it was also not clearly erroneous
for the district court to credit Johnson’s testimony that
“drench[ing]” a cell with scented oil would be necessary to
cover the smell of any contraband. And the district court’s
finding that any security risk could be minimized by prison
officials familiarizing themselves with the smell of a cell
drenched in scented oil was not implausible or unsupported
by the record.
Further, Nevada’s prison regulations as to other scented
products undermines the State’s argument. It’s undisputed
that Nevada prisoners may keep many scented products in
their cells, such as Irish Spring soap, Tide detergent, Bounce
dryer sheets, cocoa butter lotion, deodorants, and cosmetics
like nail polish. And in the district court’s view,
unchallenged on appeal, these products all have “strong
scents” and are available to purchase in larger quantities than
the half-ounce of scented oil sought by Johnson. Nevada’s
underinclusive policing of scented products is thus a sure
sign that it is not using the least restrictive means of
JOHNSON V. BAKER 15
furthering its security interest. Indeed, when a prison’s
“proffered objectives are not pursued with respect to
analogous nonreligious conduct,” it “suggests that those
interests could be achieved by narrower ordinances that
burdened religion to a far lesser degree.” Holt, 574 U.S.
at 368 (simplified).
Nevada thus failed to meet its “exceptionally
demanding” burden of proving that its ban was the least
restrictive means of furthering its security interest. Id.
at 364. The district court concluded that allowing Johnson
to personally possess a half-ounce of scented oil in his cell
for use in prayer, administered by the institution’s chaplain
during the weekly group prayer, could mitigate many of the
prison’s security concerns. On this record, we agree. 4
III.
RLUIPA provides “expansive protection for religious
liberty” in prisons. Holt, 574 U.S. at 358. Because we agree
that Nevada’s regulation banning personal possession of
scented oil substantially burdened Johnson’s religious
4
Nevada also asserts two procedural grievances, which we reject.
First, it argues that the district court allowed a “trial by ambush” by
permitting Johnson to present less restrictive alternatives to the amended
Administrative Regulation 810.2 for the first time at trial. We disagree.
It was clear from the beginning of this litigation that Johnson sought
personal possession of scented oil for prayer. So Nevada’s burden to
show that its regulation was the least restrictive means remained constant
throughout the case. Second, Nevada argues that the district court erred
in considering evidence of security and operating procedures at
Johnson’s pretrial prison facility when his complaint referenced a
different prison and Johnson was transferred to yet another prison at the
time of trial. We again disagree. Nevada fails to recognize that it had
the burden of showing that its system-wide ban on possession of scented
oil was the least restrictive means of serving its compelling interest.
16 JOHNSON V. BAKER
exercise and the State failed to show that the regulation was
the least restrictive means of serving its compelling interest,
we affirm.
AFFIRMED.