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Case 1:12-cv-00468-TSE-TRJ Document 44 Filed 07/30/13 Page 1 of 5 PageID# 200




L E R]

Alexandria Division

Travis Jackson Marron,



John Jabe,




JUL 3 0 2013

cun ; us bisv* I



TravisJackson Marron, a Virginia inmateproceeding pro se, has filed a civil rights action

pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated when two (2)

religious non-music tapes were confiscated during his former incarceration atLawrenceville

Correctional Center ("LCC")- The matteris nowbefore the Courton defendant's Motion for

Summary Judgment. Defendant simultaneously filed a supporting memorandum of law with

exhibits, and provided plaintiffwith the notice required by Local Civil Rule 7(K) and Roseboro

v. Garrison. 528 F.2d 309 (4th Cir. 1975). On February 2, 2013, plaintiffresponded by filing his

own Motion for Summary Judgment. Dkt. 35. After careful consideration of defendant's

exhibits andplaintiffs reply, both Motions for Summary Judgment must be denied, without

prejudice to renewal in accordance with thisMemorandum Opinion.

I. Background

In the amended complaintwhich is the operative complaint in this case, plaintiffMarron

identifies himself as a Sunni Muslim and alleges that his rights under the First Amendment, the

Equal Protection Clause, and the Religious Land Use and Institutionalized Persons Act

Case 1:12-cv-00468-TSE-TRJ Document 44 Filed 07/30/13 Page 2 of 5 PageID# 201

("RLUIPA"), 42U.S.C. §2000cc, were violated bya Virginia Department ofCorrections

("VDOC") policy requiring non-music religious CD's to bepurchased exclusively from a single

vendor, Jones Express Music ("JEM"). That policy was implemented in a memorandum issued

onApril 30,2010 byJohn Jabe, a former VDOC director and thedefendant in this lawsuit.

Robinson Aff. 14; Ex. A. It was modified on August 18, 2011, when Jabeissued another

memorandum stating that an inmate could order religious non-music CD's through the chaplain

or other designated staff at his institution if JEM was unable to provide that particular CD.

Robinson Aff. H5; Ex. B..

On October 4, 2011, plaintiff submitted a Periodical/Property Request Form requesting

items from another company, Dar-us-Salam Publications. Robinson Aff. at 6. Plaintiffalleges

that among the requested items was a cassette tapeon how to pray and to purify himself, which

plaintiffdescribes as "central tenets" of his faith without which he "will end up in a humiliating

torment in the Hellfirewhen [he] die[s]." Am. Compl. at 1-2. Defendant contendsthat plaintiff

requested only a book or packof lesson pamphlets, a book of Tawheed, a prayer rug andtwenty

(20) bookmarks, but when the order arrived it also contained two (2) religious non-music CD's.

Robinson Aff. 17.

When plaintiffwent to pick up his orderat LCC, the property guard informed him that he

could not have the cassette on prayer and purification due to defendant Jabe's directive. Am.

Compl. at H3. Defendant agrees: "These tapes were rejected for intake because at thetime of

their arrival, the April 30,2010 memo from Director Jabe, only allowed for the purchase of

religious non-music CD's to come from JEM. The August 18, 2011 memo only allowed for

religious non-music CD's to come from Chaplin's [sic] or designated staffat the institution."

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Robinson Aff. H7. Defendant adds that the tapes also were subjectto rejection because

Operating Procedure 802.1 allows an offender to possess CD's or cassette tapes ifhe has the

appropriate player to utilize the item, and when plaintiffs order arrived hedid not have a cassette

tape player. Robinson Aff. U9.

II. Standard of Review

Summary judgment "shallbe rendered forthwith if thepleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there isno

genuine issue as toany material fact and that the moving party is entitled tojudgment as a matter

of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that judgment on

thepleadings is appropriate. SeeCelotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (moving

party bears the burden ofpersuasion on all relevant issues). To meet that burden, the moving

party must demonstrate that no genuine issues of material fact are present for resolution. Id at

322. Once a moving partyhas met its burden to show that it is entitled to judgment as a matter of

law, the burden then shifts to the non-moving party to point out the specific facts whichcreate

disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986); Matsushita

Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In evaluating a motion

for summary judgment, a district court should consider the evidence in the light most favorable

to the non-moving partyand draw all reasonable inferences from those facts in favor of that

party. United States v. Diebold. Inc.. 369U.S. 654, 655 (1962). Those facts for which the

moving party bears theburden of proving are facts which are material. "[T]he substantive law

will identify which facts are material. Onlydisputes over facts which might affect the outcome

of the suit underthe governing law will properly preclude the entry of summary judgment."

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Anderson. 477 U.S. at 248. An issue of material fact is genuine when, "the evidence ... create[s]

[a] fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite

Corp.. 759 F.2d 355, 364 (4th Cir. 1985). Thus, summary judgment is appropriate only where no

material facts are genuinely disputed and the evidence as a whole could not lead a rational fact

finder to rule for the non-moving party. Matsushita. 475 U.S. at 587.

HI. Analysis

It requires little analysis to conclude that neither party is entitled to summary judgment at

this juncture. That is sobecause defendant Jabe argues only that plaintiffs constitutional claims

should be dismissed because the CD at issue was confiscated in part as the result of plaintiffs

failure to have a cassette tape player, a violation of VDOC s operating procedures. Defendant

concludes, "This is not a religious issue; this is a simplya personal property issue. Thus, it is

unnecessary to address whetherVDOC's CD policyviolates the First Amendment, Fourteenth

Amendment, and RLUIPA." Def. Mem. at 4.

Defendant's attempt to elide the issues presented in this complaint by suggesting that the

Court should ignorethe impact of his policies on plaintiffs religious libertymust be rejected. To

be sure, it is fair to say that most, if not all, prison policies that impact an inmate's religious

practices have theirgeneses in some peneologically-driven consideration. Nonetheless, where

one product of a policy or regulation affects a prisoner's religious liberty, it is appropriately and

even necessarily analyzed in the framework plaintiffhas suggested here - that is, as a potential

affront to the prisoner's rights under First Amendment, the Equal ProtectionClause, and

RLUIPA - regardless of whether prison officials can point to other reasons to explain their

actions. See, e^, Lovelace v. Lee. 472 F.3d 174,200 (4th Cir.2006). Therefore, defendant's

Case 1:12-cv-00468-TSE-TRJ Document 44 Filed 07/30/13 Page 5 of 5 PageID# 204

Motion for Summary Judgment will be denied, without prejudice to his abilityto file a renewed

motion addressing the claims asserted by plaintiff within thirty (30) days.

In plaintiffs counter-Motion for Summary Judgment, he addresses the salient issues in

the action by arguing only that because defendant did not address those issues in his existing

summary judgment motion, plaintiffshould prevail on those issues by default. Plf. Mem. at 5.

As defendant is being directed to address the merits ofthe important issues plaintiffhas raised,

plaintiffs Motion for Summary Judgment likewise will be denied, without prejudice to his

ability to renew his requestafterdefendant submits his position on plaintiffs claims.

IV. Conclusion

For the foregoing reasons, the Motions for Summary Judgment ofboth parties will be

denied, without prejudice to renewal as directed herein. An appropriate Order shall issue.

Entered this 3tft

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T. S. Ellis, HI
United States District Judge