                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned On Brief July 23, 2004

                 LARRY ECHOLS EL v. FRED FIGUEROA, ET AL.

                 Direct Appeal from the Circuit Court for Hardeman County
                          No. 9397 Jon Kerry Blackwood, Judge



                   No. W2004-00617-COA-R3-CV - Filed December 9, 2004


The Plaintiff, an inmate, filed suit alleging that he was unlawfully deprived his right to practice his
religion and that certain of his religious tapes were confiscated and he was denied the right to
congregate and worship in accordance with his faith. Defendants filed a motion for summary
judgment supported by an affidavit and Plaintiff responded with his own affidavit. Having
determined that there are disputed issues of material fact, we reverse.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Larry Echols El, Pro se.

James I. Pentecost and Brandon O. Gibson, Jackson, Tennessee, for the appellees, Fred Figueroa,
Willie Clemmons and Danny Wilkes.

                                             OPINION

       At the time of filing his complaint, the plaintiff, Larry Echols El, was an inmate in the
Whiteville Correctional Facility (WCF) in Hardeman County, Tennessee. Mr. El was a Wisconsin
inmate and the Wisconsin Department of Corrections had contracted with Corrections Corporation
of America (CCA) to house Wisconsin inmates at CCA’s Whiteville facility. Defendant Fred
Figueroa is described in the complaint as the warden of WCF. Defendant Willie Clemons is
described as the assistant warden of programs and Defendant Danny Wilkes as Chaplin at the WCF.

        The gravamen of Mr. El’s complaint is that he was unlawfully deprived of the right to
practice his religion while incarcerated at WCF. It is alleged that this deprivation consisted of the
confiscation of his religious tapes and the denial of his right to congregate and worship in accordance
with his faith. Mr. El is a member of the Moorish Science Temple of America, Inc. (MSTA). He
states that he is a registered “Moslem” and that his religion “was founded in 1913 A.D. by Prophet
Noble Drew Ali.” The members of the temple are known as Moors. In early September 2000,
Warden Figueroa posted a memo advising inmates that cassette tapes and cassette players were no
longer allowed in the correctional institution. Inmates were advised that they had until September
15, 2000, to remove these items from the facility, either by having the items mailed out, donated, or
destroyed. On or about September 20, 2000, fifteen cassette tapes were removed from the Plaintiff’s
cell.

       On or about April 20, 2001, all WCF inmates were required to complete a Religious
Preference Form if they desired to participate in worship services or religious study groups at WCF.
The Religious Preference Form states in pertinent part as follows:

        If you want to participate in Congregate Worship Services or Religious Study Groups
        or acquire religious property except books and literature you need to fill out this form
        and check what religion you prefer. If you change your mind later and want to
        participate in Congregate Worship Services or Religious Study Groups or acquire
        religious property of a different religion, you have to wait 6 months from the date you
        last filled out the form. If you don’t have any religious preference at this time, you
        can check “No Preference”. If you checked “No Preference” you can fill out this
        form and check the religion you prefer at any time. Participation in any religious
        activity is voluntary.

        CHECK ONE

        ___      This is the first time I have filled out this form.

        ___      I filled out a form like this before, but I am choosing a different religion.

        Check The Religion You Prefer. If You Prefer A Religion That is Not Listed, Write
        It In After The Word, “Other”

        ___      Buddhist                                    ___      Protestant

        ___      Catholic                                    ___      Wicca1

        ___      Islam                                       ___      Other ________________________

        ___      Jewish                                      ___      No Preference

        ___      Native American


        1
           W icca is defined as “witchcraft, esp. benevolent, nature-oriented practices derived from pre-Christian
religions.” Random House Unabridged Dictionary 2172 (2nd ed.1993).

                                                       -2-
         Mr. El describes himself as a Moslem.2 The Defendants filed a motion for summary
judgment which the trial court granted. Mr. El appealed and the issue before this Court is whether
the trial court erred in granting the motion for summary judgment.

                                             Standard of Review

        Our standard of review is as set forth in Staples v. CBL & Associates, Inc., as follows:

                 The standards governing an appellate court’s review of a motion for summary
        judgment are well settled. Since our inquiry involves purely a question of law, no
        presumption of correctness attaches to the lower court’s judgment, and our task is
        confined to reviewing the record to determine whether the requirements of Tenn. R.
        Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
        Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
        Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is
        appropriate where: (1) there is no genuine issue with regard to the material facts
        relevant to the claim or defense contained in the motion, see Byrd v. Hall, 847
        S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as
        a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857
        S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of proving that its
        motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
        523, 524 (Tenn. 1991). When the party seeking summary judgment makes a properly
        supported motion, the burden shifts to the nonmoving party to set forth specific facts
        establishing the existence of disputed, material facts which must be resolved by the
        trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

                To properly support its motion, the moving party must either affirmatively
        negate an essential element of the nonmoving party’s claim or conclusively establish
        an affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585,
        588 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the
        moving party fails to negate a claimed basis for the suit, the non-moving party’s
        burden to produce evidence establishing the existence of a genuine issue for trial is
        not triggered and the motion for summary judgment must fail. See McCarley v. West
        Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the
        moving party successfully negates a claimed basis for the action, the non-moving
        party may not simply rest upon the pleadings, but must offer proof to establish the
        existence of the essential elements of the claim.

              The standards governing the assessment of evidence in the summary
        judgment context are also well established. Courts must view the evidence in the


        2
         “M oslem” is defined as a “[variation] of Muslim. Webster’s Ninth New Collegiate Dictionary 773 (9 th ed.
1991). “Muslim” is defined as “an adherent of Islam.” Id. at 782.

                                                       -3-
       light most favorable to the nonmoving party and must also draw all reasonable
       inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at
       426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment
       only when both the facts and the inferences to be drawn from the facts permit a
       reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d
       150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000)(footnote omitted).

       In support of the motion for summary judgment, Defendants filed the affidavit of Warden
Figueroa which states as follows:

               1.      I[] was employed as Warden at Whiteville Correctional facility
       (“WCF”) in Whiteville, Hardeman County, Tennessee during the time alleged in the
       Complaint. Inmates from the State of Wisconsin, including inmate Larry Echols El,
       were housed at WCF during the time alleged in the Compliant, and efforts were made
       to comply with policies mandated by the Wisconsin Department of Corrections when
       practical and in the best interest of the facility.

              2.      In 1999, the Wisconsin Department of Corrections amended its policy
       to prohibit inmates from possessing cassette tapes and cassette players. This
       amendment was deemed necessary for the safety and security of correctional facilities
       operated by the State of Wisconsin or those contracting with the State of Wisconsin
       to house Wisconsin inmates.

               3.     On or about August 17, 2000, I issued a Memorandum to all WCF
       inmates and staff advising that cassette tapes and cassette players would no longer
       be allowed after September 15, 2000. A copy of the Memorandum is attached hereto
       as Exhibit “A”.

                4.      On or about September 20, 2000, WCF staff confiscated
       approximately fifteen (15) cassette tapes from the Plaintiff. There is no indication
       that the cassette tapes confiscated from the Plaintiff were religious in nature, but even
       if they were, they would still be considered contraband. Furthermore, even if the
       cassette tapes were religious in nature, the Plaintiff had alternative means, such as
       written literature, to obtain and utilize the information contained on the cassette
       tapes.

               5.      Because of an increase in the WCF inmate population, limited
       available space and increasing security needs it became necessary to identify the
       religious preferences of all inmates and to place all sub-groups under a predominate
       denomination as far as scheduling times for religious services.



                                                 -4-
               6.     It is my understanding that the Plaintiff indicated that he was a
       member of the Moorish Science Temple of America. It is further my understanding
       that the Moorish Science Temple of America is a sub-group of the Muslim faith, and
       therefore the Plaintiff would have been allowed to practice his religious beliefs
       during the times scheduled for the Muslim faith.

               7.       There was never any attempt on my part, or any other WCF staff
       member that I am aware, to interfere with the Plaintiff’s right to practice his religious
       beliefs. However, it was deemed in the best interest of the facility to prohibit inmates
       from possessing cassette tapes and cassette players, and it was necessary to schedule
       religious services under a predominate denomination for the reasons indicated above.
       To the best of my knowledge and belief, the Plaintiff was free to engage in the
       practice of his religious beliefs, and the changes in policy did not unreasonably affect
       his ability to practice his beliefs as he so chose.

               8.      Further, Affiant saith not.

        Mr. El filed an affidavit in response which states, in essence, that the fifteen cassette tapes
that were destroyed were religious tapes of the Moorish Science Temple of America religious service
and Sunday school lessons and were destroyed without his permission. He asserts that he was
allowed to practice his religion from 1998 until 2001 when the Moorish Science service was
removed from the schedule and that he was not allowed to congregate in the chapel with other
Moorish members for worship services. He further states that the Moorish service is conducted
differently than other Islamic services and that he follows the teachings of Prophet Drew Ali only.
He further asserts that WCF was built to house 1,536 inmates and that Wisconsin contracted with
CCA to house 1,536 inmates at the Whiteville Correction Facility.

         It is obvious that there are disputed material facts. For example, Warden Figueroa states in
his affidavit that limited space and increasing security needs made it necessary to place all the
inmates in various subgroups under predominant denominations. He does not address why MSTA
was not included in the various religious services. Mr. El states in his affidavit that he was allowed
to practice his religion from 1998 until 2001 when the Moorish Science service was removed from
the schedule and, therefore, he was not allowed to congregate in the chapel with other members of
his faith for worship services. Warden Figueroa’s affidavit does not address why the Moorish
Science service was removed from the schedule for chapel services. Warden Figueroa’s affidavit
states that it is his understanding that MSTA is a subgroup of the Muslim faith and therefore Mr. El
would have been allowed to practice his religious beliefs during the times scheduled for the Muslim
faith. To the contrary, Mr. El’s affidavit states that the MSTA service is conducted differently than
other Islamic services and follows only the teachings of Prophet Drew Ali.




                                                 -5-
        Mr. El contends that this case is governed by the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc - 2000cc-5 (the Act). The Act prohibits governmental3 imposition
of a “substantial burden on the religious exercise” of a prisoner unless the burden “(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)(2)(2003). The rule applies in
cases in which –

                 (1) the substantial burden is imposed in a program or activity that receives
        Federal financial assistance; or
                 (2) the substantial burden affects, or removal of that substantial burden would
        affect, commerce with foreign nations, among the several States or with Indian tribes.

42 U.S.C. § 2000cc-1(b)(1)(2)(2003).

        The Appellees did not address the Act in their brief but argue that there is nothing in this
record to indicate that the policies and regulations imposed on the Appellant were not rationally
related to a legitimate penal logical interest. Each of the cases relied upon by the Appellees predate
the Act, which was enacted September 22, 2000. Sufficient evidence is not found in the record
before us to make a determination as to whether the Act applies to the case at bar. This will be
determined by the trial court on remand.

        Having determined that there are disputed issues of material fact which preclude summary
judgment, the trial court’s grant of summary judgment is reversed and this cause remanded to the
trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed to the
Appellees, Fred Figueroa, Willie Clemons, and Danny Wilkes.



                                                              ___________________________________
                                                              DAVID R. FARMER, JUDGE




        3
         (4)Government
        The term “government” –
                (A) means –
                           (i) a State, county, municipality, or other governmental entity created
                under the authority of a State;
                           (ii) any branch, department, agency, instrumentality, or official of any
                entity listed in clause (i); and
                           (iii) any other person acting under color of State law;

42 U.S.C. § 2000cc-5(4)(2003).



                                                        -6-
