             Case: 13-11173   Date Filed: 04/02/2014   Page: 1 of 23


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11173
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 2:10-cv-02583-RDP-RRA



TONY LEE SMITH,

                                                        Plaintiff-Appellant,

                                  versus

GOVERNOR FOR THE STATE OF ALABAMA,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
TERRANCE MCDONNELL,
Associate Commissioner for the Alabama Department of Corrections,
GRANTT CULLIVER,
Associate Commissioner for the Alabama Department of Corrections,
JAMES DELOACH,
Associate Commissioner for the Alabama Department of Corrections, et al.,

                                                        Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                (April 2, 2014)
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Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

       Tony Lee Smith is an Alabama prison inmate currently incarcerated in the

St. Clair Correctional Facility in Springville, Alabama. He is a practitioner of

Odinism, an ancient pre-Christian faith grounded in ancient Icelandic sagas and

runic mysticism. 1 In February 2001, while he was incarcerated in the Limestone

Correctional Facility in Capshaw, Alabama, he requested the Religious Activities

Review Committee (RARC) of the Alabama Department of Corrections (ADOC)

to recognize Odinism as a religion and, among other things, to designate a place

in the prison compound for the worship of Odinism and the performance of its

rites and to provide an outdoor fire pit for that purpose. The RARC granted

Smith’s request for the recognition of Odinism as a religion, but denied his

“request for a ‘designated place of worship’ to perform the Odinist rites. [T]he

Committee expressed concern that Odinism's alleged connections with Neo–

Nazism and white supremacist beliefs would pose security problems in the

prison, were Odinism to be granted a designated area of worship in the open,

common area of the prison. . . . [T]he Committee [also] declined Smith's request

for a fire pit, limiting him instead to a small candle.” Smith v. Allen, 502 F.3d


       1
        For a discussion of Odinism, see Borzych v. Frank, 340 F. Supp.2d 955, 960 (W.D.
Wis. 2004), and Rust v. Clarke, 883 F. Supp. 1293, 1297-98 (D. Neb. 1995).
                                             2
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 1255, 1261 (11th Circuit 2007) (abrogated on other grounds by Sossamon v.

 Texas, 563 U.S. __, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011).2

       On August 15, 2007, during his current incarceration in the St. Clair

Correctional Facility, Smith presented the RARC with a request that, in addition to

recognizing Odinism as a religion, the Alabama prison regulations be amended to

include a list of items needed to practice the religion, including a designated

outdoor place of worship with a fire pit.3

       On May 13, 2010, the RARC issued a response. Although the prison

regulations were not amended as Smith requested, the RARC approved his

possession of several of the items he purportedly needed to practice Odinism. The

RARC denied Smith’s request for a designated outdoor place of worship with a fire

pit. 4 The next day, May 14, Smith, proceeding pro se, filed the instant lawsuit


       2
          In December 2001, Smith brought Smith v. Allen against the members of the RARC,
alleging that they had violated his rights under the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc-5, and the U. S. Constitution by refusing to grant him
permission to engage in certain practices of Odinism and to provide a designated area in the
prison compound and a fire pit so he could have worship services. The RARC recognized
Odinism as a religion during the litigation of that lawsuit.
       3
           Other items Smith requested to be included in the prison regulations were: a cigar box
size ritual/sacred items box, a ceremonial mead horn, a “bowli” or ritual bowl, a Thor’s Hammer
necklace, a set of handcrafted rune stones and a small rune bag, a candle for indoor use during
inclement weather, a leather study folder, a quartz crystal, five holy day feasts, and the sacred
texts of Odinism, the Poetic Edda and Prose Edda.
       4
         The RARC also denied Smith’s request that the Poetic Edda and Prose Edda be
recognized as the sacred texts of the Odinist, saying that “Religious literature and assigning
‘sacredness’ to those writings or items of any religion is the practice of that specific religion.
The RARC only affirms beliefs as those beliefs are authoritatively documented/published by that
                                                3
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against the Governor of Alabama, the Commissioners of ADOC, other state

officials, and employees of the St. Clair Correctional Facility. Smith’s complaint

sought legal and equitable relief pursuant to 42 U.S.C. § 1983 for the defendants’

alleged violation of his rights under the First and Fourteenth Amendments and the

Religious Land Use and Institutional Persons Act, 42 U.S.C. § 2000cc (RLUPIA),

in imposing substantial burdens on his practice of Odinism by, among other things,

requiring him to produce documents to support his requests for recognition of

Odinism as an established religion, denying him religious items that other religious

groups are permitted to have, confiscating religious books and art, operating faith-

based dorms, retaliating against him for his religious beliefs and for filing lawsuits,

and for discriminating against him because of his adherence to a non-Christian

religion.

       The defendants moved the District Court to dismiss Smith’s complaint,

contending, in the main, that a responsive pleading could not reasonably be framed

because the complaint’s allegations were so ambiguous that it was impossible to

determine which allegations applied to which defendants. The court granted their

motions and gave Smith leave to amend. 5 Smith filed an amended complaint, and



religion.”
       5
             In granting Smith leave to amend, the court instructed him as follows:

                 In the amended complaint, plaintiff should name as defendants only those
           persons who violated his constitutional rights.... Plaintiff should also state
                                                   4
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the court, after receiving it, entered an Order for Special Report directing the

defendants to file a special report—under oath or accompanied by affidavits—in

response to the amended complaint’s allegations for consideration as a motion for

summary judgment. The same order informed Smith that he should file counter

affidavits if he wished to rebut the representations of fact made in the defendants’

special reports and oppose the entry of summary judgment. The defendants filed

their special reports by December 15, 2011; Smith filed a response to their reports

on January 24, 2012.

      The District Court referred the matter to the Magistrate Judge, and, on

February 13, 2013, he issued a report recommending that the District Court grant

the defendants summary judgment. On March 14, 2013, the District Court, after



       clearly how each named defendant violated his constitutional rights, the dates on
       which the incidents occurred, and where the incidents occurred. PLAINTIFF
       MUST CLEARLY SET FORTH THE FACTS CONCERNING ANY
       INCIDENT ABOUT WHICH HE COMPLAINS. To the extent the plaintiff
       is complaining about administrative regulations he should include copies of
       the regulation about which he complains. Plaintiff must also include a copy of
       any ruling of the Department of Corrections about which he complains. The
       plaintiff is ADVISED that conclusory and general assertions are not sufficient to
       state a claim upon which relief under § 1983 can be granted. See Fullman v.
       Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). The amended complaint
       must include all of plaintiff's claims in this action; IT SHOULD NOT
       REFER BACK TO THE ORIGINAL COMPLAINT. Plaintiff is ADVISED
       that the Court will consider only the claims set forth in the amended complaint
       and only those defendants against whom the plaintiff makes a specific
       allegation.




                                              5
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considering and rejecting Smith’s objections to the report, granted the defendants

summary judgment.

      Smith now appeals the judgment, arguing that the District Court abused its

discretion in refusing to grant his discovery requests, and in rejecting some of the

claims he presented in his amended complaint. We find no abuse of discretion in

the District Court’s discovery ruling and no error in its summary rejection of the

claims at issue in this appeal; we therefore affirm the court’s judgment.

                                    I. Discovery

      Smith argues that the District Court erred in denying his requests for

discovery. After the court ordered the defendants to submit a special report in lieu

of a response to Smith’s amended complaint, it ordered that all discovery cease

unless a party sought leave of court to conduct discovery. As applied to Smith, the

order required him to specify in his discovery motion the nature of the discovery

sought and the reason why the disclosures in the defendant’s special reports and his

response were inadequate. Smith sought leave on several occasions. Each time the

court denied relief because his motion failed to explain why the disclosures in the

special reports were inadequate. The same was true regarding Smith’s motions to

compel production. Smith argues that the court’s rulings prejudiced his case. For

example, he sought copies of his religion-based requests to the RARC, which

included the items such as a quartz crystal and a sacred box that he needed to


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practice Odinism, to bolster his claim that the defendants violated his RLUIPA

rights by imposing a substantial burden on his practice of Odinism.

      A district court has broad discretion under Rule 26 of the Federal Rules of

Civil Procedure to compel or deny discovery; we therefore review such rulings for

abuse of discretion. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1306 (11th Cir. 2011). “Discretion means the district court has a range of

choice, and that its decision will not be disturbed as long as it stays within that

range and is not influenced by any mistake of law.” Id. (quotation omitted).

Accordingly, we will not set aside a district court’s discovery ruling unless the

court has made a clear error of judgment or has applied the wrong legal standard.

Id. at 1307. Even then, we will not grant relief unless the appealing party has

shown that the denial of discovery resulted in substantial harm to his case. Id.

      Judicial intervention in discovery should limit the scope to the reasonable

needs of the action. Id. Where a significant amount of discovery has been

obtained, and it appears that further discovery would not be helpful in resolving the

issues, a request for further discovery is properly denied. Iraola & CIA, S.A. v.

Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003).

      We conclude that the District Court acted within its discretion in denying

Smith’s discovery requests. Josendis, 662 F.3d at 1306; see also Iraola, 325 F.3d

at 1286. None of Smith’s motions for leave to conduct discovery or to compel


                                           7
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production met the requirements the court set—specifically, the motions either did

not explain why the disclosures in the defendants’ special reports were inadequate

or specify the exact nature of the information being sought. In sum, we find no

merit in Smith’s discovery challenge.

                                   II. Summary Judgment

       We review a district court’s grant of summary judgment de novo. Skop v.

City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). 6 Summary judgment is

appropriate when “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Id. (quotation omitted).

In making this determination, we view “the evidence and all factual inferences

therefrom in the light most favorable to the non-moving party,” and resolve “all

reasonable doubts about the facts in favor of the non-movant.” Id.

       Section 1983 of Title 42 of the U.S. Code provides:

       Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State . . . subjects, or causes to be subjected,
       any citizen of the United States . . . to the deprivation of any rights,
       privileges, or immunities secured by the Constitution and laws, shall


       6
          Smith does not challenge the District Court’s summary dismissal of five of the
defendants from the case because they had been sued in their supervisory capacity and
respondeat superior does not apply to claims under 42 U.S.C. § 1983. Consequently, Smith
waives on appeal any challenge to the dismissal from the case of Alabama Governor Bob Riley;
ADOC Commissioner Richard Allen; and ADOC Associate Commissioners Terrance
McDonnell, James DeLoach, and Grantt Culliver. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (holding that, though pro se pleadings are construed liberally, a pro se appellant
abandons an issue if he fails to raise it in his initial brief).

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       be liable to the party injured in an action at law, suit in equity, or other
       proper proceeding for redress . . . .

42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must establish that he

was “deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed under color of state law.” Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 985, 143

L.Ed.2d 130 (1999).

       A. Religious Freedom

       Smith argues that the District Court erred in granting summary judgment on

his RLUIPA claim, as the record discloses that the defendants imposed a

substantial burden on his practice of Odinism. 7 Specifically, he challenges the

decision by the RARC to deny his requests for four items for religious use: a

sacred container for runes, a leather folder for study materials, a quartz crystal, and

an outdoor fire pit.8 The RARC denied his requests solely because he failed to



       7
         RLUIPA, 42 U.S.C.A. § 2000cc-1, Protection of religious exercise of institutionalized
persons, states, in pertinent part:

     (a) General rule
     No government shall impose a substantial burden on the religious exercise of a
     person residing in or confined to an institution, . . . even if the burden results from a
     rule of general applicability, unless the government demonstrates that imposition of
     the burden on that person--
     (1) is in furtherance of a compelling governmental interest; and
     (2) is the least restrictive means of furthering that compelling governmental interest.
       8
        Smith’s initial suit addressed RARC’s denial of a number of religious items, but Smith
only mentions four of the items in his appeal brief.
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provide the committee with an authoritative source showing that the items were

necessary for his religious worship. He also argues that the court wrongly

concluded that he failed to prove his RLUIPA claim because he did not point to

any authoritative sources in support of his requests for the religious items. Smith

contends that requiring him to cite to religious sources placed a heightened burden

on him, as RLUIPA does not require plaintiffs to prove the truth of their beliefs.

      The First Amendment provides, “Congress shall make no law . . .

prohibiting the free exercise [of religion].” U.S. Const. amend. I. The Free

Exercise Clause of the First Amendment is applicable to the states through the Due

Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S.

296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In addition, Section 3(a) of

RLUIPA “protects institutionalized persons who are unable freely to attend to their

religious needs and are therefore dependent on the government’s permission and

accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709,

721, 125 S.Ct. 2113, 2122, 161 L.Ed.2d 1020 (2005). More expansive than

prisoners’ rights under the First Amendment, RLUIPA “affords to prison inmates a

heightened protection from government-imposed burdens, by requiring that the

government demonstrate that the substantial burden on the prisoner’s religious

exercise is justified by a compelling, rather than merely a legitimate, governmental

interest.” Allen, 502 F.3d at 1266. To establish a prima facie case under section 3


                                         10
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of RLUIPA, a plaintiff must demonstrate “1) that he engaged in a religious

exercise, and 2) that the religious exercise was substantially burdened.” Id. at

1276; see also 42 U.S.C. § 2000cc-1(a). Once a plaintiff has made this prima facie

showing, the defendant bears the burden to prove that the challenged regulation is

the least restrictive means of furthering a compelling governmental interest. Allen,

502 F.3d at 1276.

      “[A]n individual’s exercise of religion is ‘substantially burdened’ if a

regulation completely prevents the individual from engaging in religiously

mandated activity, or if the regulation requires participation in an activity

prohibited by religion.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d

1214, 1227 (11th Cir. 2004) (discussing a town zoning ordinance). “While it is true

that courts are not to inquire into the centrality of a particular religious tenet in

undertaking the substantial burden analysis, at a minimum the substantial burden

test requires that a RLUIPA plaintiff demonstrate that the government’s denial of a

particular religious item or observance was more than an inconvenience to one’s

religious practice.” See Allen, 366 F.3d at 1278. Further, we have declined to find

that the denial of a requested religious item substantially burdened a prisoner,

based solely on the fact that he sincerely believed the items were necessary to his

practice. See id. We explained as follows:

      If the word ‘substantial’ in the statutory phrase ‘substantial burden,’
      42 U.S.C. § 2000cc-1(a), is to retain any meaning, it must, at a
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      minimum, be construed as requiring something more than solely the
      denial of a request that is sincere. An alternate approach . . . would
      result in the word ‘substantial’ in § 2000cc-1(a) as being mere
      surplusage, since every governmental action denying a requested item
      to be used in religious observance would give rise to a prima facie
      RLUIPA claim.

Id.

      Smith failed to establish a prima facie case under RLUIPA because he failed

to show that the RARC’s denial of the four items in question had substantially

burdened his religious practice. Allen, 502 F.3d at 1276. Smith offered no

evidence establishing that the four items were fundamental to his practice of

Odinism or that the absence of the items caused anything more than a mere

inconvenience on his religious exercise. See Midrash, 366 F.3d at 1227. While

Smith presented to the court statements in his own affidavit that he needed these

items for worship, those personal assertions—without any support from

authoritative sources—cannot meet the standard for proving a substantial burden.

Allen, 366 F.3d at 1278-79. Moreover, Smith failed to demonstrate how the

RARC’s demand for prisoners to provide authoritative sources in support of their

requests for religious items constituted a substantial burden, as the failure to name

a source does not mandate that an inmate’s request be denied, nor does it prevent a

prisoner from actually engaging in his religious activities. Smith therefore fell

short of demonstrating that the approval of his religious items hinged on his ability



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to provide an authoritative source. Allen, 502 F.3d 1276; Midrash, 366 F.3d at

1227. The District Court did not err in denying this RLUIPA claim.

       B. Equal Protection

       Smith next argues that the court erred in denying his equal protection claims

based on the denial of his religious-items requests. 9 Specifically, he contends that

Native American inmates may use an outdoor fire for their worship services, but

Smith and other Odinist inmates are treated differently. Additionally, inmates

practicing nature-based religions are allowed to keep a sacred box, and nearly all

religions provide a cover for sacred texts, yet Smith has been denied both items.

Smith also contends that Christian inmates are served “free world” food—that is,

food delivered from outside the prison—during special occasions, yet he has been

denied the right to have particular foods during the feast days for Odinism.

       The Equal Protection Clause of the Fourteenth Amendment provides that

“[n]o State shall . . . deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. A prisoner asserting an equal

protection claim must demonstrate that “(1) he is similarly situated with other

prisoners who received more favorable treatment; and (2) his discriminatory

treatment was based on some constitutionally protected interest such as race.”


       9
          As with the RLUIPA claim, Smith limits his argument on appeal regarding his equal
protection claims to RARC’s denial of only a few requests.

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Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) (quotation omitted). Proof of

discriminatory intent or purpose is required to show a violation of the Equal

Protection Clause. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).

      Smith’s equal protection claims fail because he failed to produce any

evidence of discriminatory intent. Village of Arlington Heights, 429 U.S. at 265,

97 S.Ct. at 563. The defendants presented evidence that Smith’s request for a fire

pit had been denied because he already had access to a candle. Furthermore, the

evidence showed that Smith’s requests for the sacred box and leather covering

were denied because research did not show them to be religiously necessary for

Odinism. As there was no discriminatory treatment, summary judgment was

proper as to these equal protection claims. See Jones, 279 F.3d at 946-47.

      Finally, as for Smith’s claim that he was denied free world food solely

because he was an Odinist, he presented no evidence that either he or other

Odinists had actually made requests for free world or specialty foods, or that prison

officials had explicitly denied him those types of food for the feasts. Id. The

District Court did not err in denying these equal protection claims.

      C. Retaliation




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       Smith argues that the District Court erred in rejecting his retaliation claims, 10

in which he alleged that the defendants engaged in adverse action in response to

his pursuit of his religious rights. First, he contends that the defendants retaliated

against him for suing them by transferring him to a higher level of prison security

on two occasions, once in 2008 and another time in March 2011. He says that the

defendants’ proffered reason for the transfers—that they were routine prison-to-

prison swaps—was effectively a sham. Second, Smith argues that he received a

disciplinary write-up based on knowingly false information and was not allowed to

call witnesses during a disciplinary proceeding. Finally, Smith argues that, as

another example of retaliation, prison officials confiscated his books as

contraband.

        “The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). An inmate raises a First Amendment claim of retaliation if

he shows that the prison official disciplined him for filing a grievance or lawsuit

concerning the conditions of his imprisonment. Wildberger v. Bracknell, 869 F.2d

1467, 1468 (11th Cir. 1989).




       10
          In his complaint, Smith listed 14 instances of alleged retaliation. On appeal, he only
challenges the court’s finding on three of the alleged instances.

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      To prove a retaliation claim under the First Amendment, an inmate needs to

show (1) that his speech or act was constitutionally protected, (2) that he suffered

an adverse action from prison officials that would deter a person of ordinary

firmness from engaging in such speech or act, and (3) that the protected speech or

conduct and adverse action were causally connected. Smith v. Mosley, 532 F.3d

1270, 1276 (11th Cir. 2008). “[O]nce the plaintiff ... establish[es] that his

protected conduct was a motivating factor behind any harm, the burden of

production shifts to the defendant. If the defendant can show that he would have

taken the same action in the absence of the protected activity, he ... prevail[s] on ...

summary judgment.” Id. at 1278 (quotation omitted).

      Even though a prisoner does not have a liberty interest in not being

transferred to another prison, he may state a retaliation claim by alleging that he

was transferred due to his filing of a grievance or lawsuit concerning his conditions

of his confinement. See Bridges v. Russell, 757 F.2d 1155, 1156-57 (11th Cir.

1985). However, if a prisoner violates a legitimate prison regulation, he is not

engaged in protected conduct, and he cannot establish the first prong of a

retaliation claim. Mosley, 532 F.3d at 1277. In other words, the prisoner must

show that, as a subjective matter, a motivation for the defendant’s adverse action

was the prisoner’s grievance or lawsuit. Id. at 1278. The question is whether a




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reasonable fact finder would find that the defendants would have disciplined the

prisoner even in the absence of the protected conduct. Id.

      Smith’s act of filing suit against the defendants qualifies as constitutionally

protected conduct, and prison transfers qualify as adverse actions for purposes of

retaliation. See Wildberger, 869 F.2d at 1468; Bridges, 757 F.2d at 1156-57.

Smith’s problem is that the instant lawsuit was filed in May 2010, while Smith’s

first prison transfer occurred in 2008. Hence, there is no causal connection

between the lawsuit and the supposed adverse action. As for the allegedly

retaliatory transfer in March 2011, even assuming that there is a causal connection

and that Smith made out a prima facie case for retaliation, the defendants were

entitled to summary judgment because the reason for transferring Smith—the

“Warden to Warden” swap program between prisons—would have applied

regardless of whether a lawsuit had been filed. Mosley, 532 F.3d at 1278.

      As with the remaining three retaliation claims, all three arguably make the

prima facie case. See id. at 1277. However, for each of these adverse actions, the

defendants provided sufficient reasons why the actions would have taken place

notwithstanding Smith’s lawsuit. See id. First, Smith’s books were confiscated

because they qualified for the “Security Threat Group,” and were deemed

contraband. As for the absence of witnesses during Smith’s disciplinary hearing

regarding the contraband, the defendants stated that neither of Smith’s requested


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witnesses was needed because the witness was not present at the time the

contraband was confiscated. Finally, as Smith was found guilty of possessing

contraband, a reasonable fact finder would conclude that Smith would be

disciplined for such an infraction, even in the absence of the lawsuit. See Mosley,

532 F.3d at 1278. The District Court did not err in dismissing these retaliation

claims.

      D. Establishment Clause

      Smith argues that the District Court erred in concluding that the prison’s

faith based honor dorm did not violate his constitutional rights. He contends that

the dormitory allows inmates to receive mandatory class credit for attending

classes based on Christianity, Islam, Buddhism, and Native American religions.

Odinism is not afforded such status.

      The Establishment Clause of the First Amendment states, “Congress shall

make no law respecting an establishment of religion.” U.S. Const. amend. I. This

restriction has been made applicable to states, as well as state-created entities and

their employees, through the Due Process Clause of the Fourteenth Amendment.

Holloman v. Harland, 370 F.3d 1252, 1284 (11th Cir. 2004).

      Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d. 745 (1971),

sets forth a three-prong test for determining whether a government program is

permissible under the Establishment Clause: (1) the program must have a secular


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legislative purpose; (2) the principal or primary effect is one that neither advances

nor inhibits religion; and (3) the program does not foster an excessive government

entanglement with religion. Holloman, 370 F.3d at 1284. The “excessive

entanglement” component of the Lemon test has been interpreted to mean that

“some governmental activity that does not have an impermissible religious effect

may nevertheless be unconstitutional, if in order to avoid the religious effect

government must enter into an arrangement which requires it to monitor the

activity.” Nartowicz v. Clayton Cnty. School Dist., 736 F.2d 646, 649 (11th Cir.

1984). “The clearest command of the Establishment Clause is that one religious

denomination cannot be officially preferred over another.” Glassroth v. Moore,

335 F.3d 1282, 1299 n.3 (11th Cir. 2003) (quotation omitted).

      The record shows that the faith based honor dorm had a primary secular

purpose, as its stated focus was to teach inmates various life and job skills.

Holloman, 370 F.3d at 1284. Additionally, the principal effect of the program

neither advanced nor prohibited any particular religion, as the dorm’s spiritual-

education element was only one of 20 suggested areas of programming, all of

which were secular. Finally, the record contains no evidence that granting credits

to classes about some, but not all, religions caused ADOC to become excessively

entangled with religion. Holloman, 370 F.3d at 1284; Nartowicz, 736 F.2d at 649.




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      The faith based honor dorm claim fails all three prongs of the Lemon test.

Summary judgment was therefore appropriate.

      E. Due Process – Security Threat Group (STG Designation)

      Smith argues that his due process rights were violated when the defendants

wrongly concluded that his confiscated property featured symbols of the Southern

Brotherhood, an STG group. This false designation deprived him of his property

as well as liberty interests, and ultimately led to the denial of his parole in

September 2012.

      The Due Process Clause of the Fourteenth Amendment protects against

deprivations of life, liberty, or property without due process of law. Bass v. Perrin,

170 F.3d 1312, 1318 (11th Cir. 1999). The Supreme Court has identified two

situations in which a prisoner, already deprived of his liberty, can be further

deprived of his liberty, thus triggering due process guarantees: (1) a change in the

conditions of the prisoner’s confinement that is so severe that it essentially exceeds

the court-imposed sentence, and (2) when the State has consistently bestowed a

benefit to prisoners by statute or policy, and the deprivation of that benefit imposes

a hardship on the prisoner that is atypical of ordinary prison life. Id. (citing Sandin

v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995)).

Prison inmates do not have a liberty interest in discretionary programs such as

prison classifications. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S.Ct.


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274, 279 n.9, 50 L.Ed.2d 236 (1976) (rejecting the notion that every state action

with adverse consequences for prison inmates, such as a prison classification,

qualification for institutional programs, or eligibility for rehabilitative programs,

violates a due process right).

      We find no due process violation here because classifications used by

prisons do not constitute liberty interests. See Moody, 429 U.S. at 88 n.9, 97 S.Ct.

at 279 n.9. Moreover, even if the classification had qualified as a liberty interest,

Smith failed to demonstrate that the classifications created a severe change in

prison conditions or imposed a hardship that was atypical of ordinary prison life.

Bass, 170 F.3d at 1318. Although he stated that he had been denied parole as a

result of the “Southern Brotherhood” designation, Alabama’s parole statute, Ala.

Code § 15-22-26, does not confer a liberty interest protected by the Due Process

Clause, as parole may be granted at the parole board’s discretion. Monroe v.

Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991). The District Court did not err in

rejecting this due process claim.

      F. Due Process – Post-Deprivation Proceeding

      Smith argues that the confiscation and destruction of his artwork, during a

search of his cell, was a direct result of the defendants’ animus toward the religious

content of his artwork. He concedes that an issue such as this normally would be

resolved during a post-deprivation proceeding at the state level. However, the


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post-deprivation remedy in this case would be inadequate, he says, for two reasons.

First, his artwork was confiscated because ADOC officials were prejudiced toward

his belief in Odinism. Second, the Alabama Board of Adjustment requires an

incident report to assess a claim of property loss, yet officials had denied

knowledge of the incident in question.

      Prisoners have no reasonable expectation of privacy, and therefore no Fourth

Amendment protection, in their prison cells. Hudson v. Palmer, 468 U.S. 517,

526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). Accordingly, a § 1983 suit

cannot be based upon an illegal search, unless that search violated another

constitutional provision or federal law. See id. at 530, 104 S.Ct. at 3202.

      A state prisoner also does not have a Fourteenth Amendment due process

claim for the intentional deprivation of his property, provided that a meaningful

post-deprivation remedy is available. Id. at 533, 104 S.Ct. at 3204. The state

remedy does not need to allow recovery to the same extent that a § 1983 suit would

in order to be meaningful. Id. at 535, 104 S.Ct. at 3204-05. Alabama law provides

for a Board of Adjustment to hear claims that a state employee damaged a

prisoner’s property. See Ala. Code § 41-9-60, 41-9-62(a)(1). Claimants have the

right to file and prosecute their claim before the Board in person or through

counsel, and the Board has the power to require state entities to furnish needed

documents or provide witnesses. Id. §§ 41-9-63, 67(a).


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       As indicated above, Smith did not have a reasonable expectation of privacy

in his cell. See Hudson, 468 U.S. at 526, 104 S.Ct. at 3200. Consequently, a

search of his cell did not violate his Fourth Amendment rights, and he has no

§ 1983 cause of action arising from the search. See id. at 530, 104 S.Ct. at 3202.

Moreover, his arguments that the Board of Adjustment is an inadequate remedy

lack merit. The proceedings described by Ala. Code § 41-9-60, et seq. provide

individuals such as Smith an opportunity to present their claims before a neutral

body and for the Board to act as fact finder in determining whether compensation

is warranted. See Ala. Code §§ 41-9-62(a)(1),67(a). Hence, the Board of

Adjustment provided a meaningful post-deprivation proceeding; consequently, the

District Court did not err in granting summary judgment on this claim.

       AFFIRMED. 11




       11
          Smith seeks an award of costs in prosecuting this appeal. He cites no authority for
such an award. His request is therefor denied.
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