                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-7151



FRANCIS PARKS-EL,

                                                 Plaintiff - Appellant,

             versus


RUFUS FLEMING, Regional Director; SHELLY
ROBERTSON, Treatment of Programs Supervisor;
MICHAEL W. HARRELL, Chaplain; JAMES V. BEALE,
Warden; MARVIN LEE, Major; CHARLES ALLEN,
Assistant Warden of Operation; WILLIETTE
COPELAND, Associate Warden of Programs; DAVID
CLARKE, Operation Officer; CARL E. FLOWERS,
Treatment of Programs Supervisor; SANDRA
BEALE,   Institutional   Ombudsman;   TIMOTHY
DARDEN, Sergeant/Investigator,

                                                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-00317-JCC)


Submitted:    November 22, 2006              Decided:   January 10, 2007


Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Francis Parks-El, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Francis Parks-El appeals from the dismissal of his civil

rights complaint for failure to state a claim under the Free

Exercise Clause of the First Amendment, the Religious Land Use and

Institutionalized Persons Act, Pub. L. No. 106-274, 114 Stat. 804,

42 U.S.C. § 2000cc-1(a) (2000) (“RLUIPA”), and the Equal Protection

Clause of the Fourteenth Amendment.    We have reviewed the record

and find no reversible error in the district court’s dismissal of

Parks-El’s equal protection claim.     Accordingly, we affirm the

dismissal of that claim for the reasons stated by the district

court.    See Parks-El v. Fleming, No. 1:06-cv-00317-JCC (E.D. Va.

June 13, 2006).    With regard to Parks-El’s First Amendment and

RLUIPA claims, we vacate the district court’s dismissal and remand

for further proceedings.*

           This court reviews de novo a district court’s dismissal

for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)

(2000).   Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 248 (4th

Cir. 2005) (citing Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.

2002)).    A court should not dismiss a complaint for failure to

state a claim unless “after accepting all well-pleaded allegations

in the plaintiff’s complaint as true and drawing all reasonable

factual inferences from those facts in the plaintiff’s favor, it


     *
      No part of this opinion should be read as an indication of
our assessment of the merits of Parks-El’s claims, as we conclude
only that they were prematurely dismissed.

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appears certain that the plaintiff cannot prove any set of facts in

support of his claim entitling him to relief.”         Slade, 407 F.3d at

248 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th

Cir. 1999)).

           Parks-El alleged that on October 18, 2005, he received a

memorandum from Chaplain Michael Harrell, informing Parks-El that

he and another inmate had been suspended from attending all chapel

functions for a period of sixty days. According to the memorandum,

Parks-El was suspended from all chapel services, “including but not

limited to their religious services,” due to his involvement in the

posting of unauthorized flyers in the inmate housing units.            The

flyers promoted an unauthorized gathering that had previously been

denied by the Chaplain.     Parks-El alleged that he had nothing to do

with the unauthorized posting. Parks-El contends that after he was

told by prison officials that the investigation into the infraction

was ongoing, he was eventually informed by the investigating

officer that the investigation already had been completed by

October 18, 2005, and that Parks-El had been cleared of any

wrongdoing.    Nevertheless, the suspension apparently continued

through   December   17,   2005.    While   Parks-El   appeared   to   have

exhausted his available administrative remedies in order to get the

suspension reversed, he was ultimately unsuccessful.

     Parks-El contends the suspension prevented him from attending

chapel services during a period that overlapped with Ramadan, the


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Holy Month of Fasting.         According to Parks-El, participation in

Ramadan is “a Divine Law from Allah” to which all Muslims must

adhere. However, because of the suspension, Parks-El was prevented

from participating in Ramadan with fellow Muslims in congregational

prayers,      specifically    the   Eid-ul-Fitr    prayer,    which,   Parks-El

asserts, is a “must” for all Muslims because it completes the

period of Ramadan.      Parks-El contends that he was thus unable to

properly complete the period of fasting during Ramadan, which is

required for Muslims under the Qur’an.

              Section 3 of the RLUIPA provides, in part, 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 burden furthers “a compelling governmental interest,”

and does so by the “least restrictive means.”           42 U.S.C. § 2000cc-

1(a).    The petitioner has the burden of persuasion as to whether

the    government    action    substantially      burdens    his   exercise    of

religion.       Adkins v. Kaspar, 393 F.3d 559, 567 n.32 (5th Cir.

2004), cert. denied, 125 S. Ct. 2549 (2005); Civil Liberties for

Urban Believers v. Chicago, 342 F.3d 752, 760 (7th Cir. 2003).

Once    the    petitioner     establishes     a   substantial      burden,    the

Government bears the burden of persuasion that its practice is in

furtherance of a compelling government interest and is the least

restrictive means of furthering that interest. Adkins, 393 F.3d at

567 n.32.


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            The RLUIPA defines the term “religious exercise,” to

include “any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.”               42 U.S.C. § 2000cc-

5(7)(A).     The Supreme Court has stated that the “exercise of

religion”    includes     not    only   belief   and   profession,   “but     the

performance of . . . physical acts [such as] assembling with others

for a worship service [or] participating in sacramental use of

bread and wine.”         Cutter v. Wilkinson, 544 U.S. 709, 720 (2005)

(internal citations and quotations omitted).             In the present case,

it is the act of assembling with others for the purpose of

worshiping together that is the religious exercise at issue, not

merely the act of worship generally.               Accordingly, the RLUIPA

analysis in this case must focus on whether the religious practice

of a required congregational prayer was substantially burdened,

rather than on whether Parks-El’s religious profession as a whole

was substantially burdened.

            In “substantial burden” determinations, the religious

practice does not have to be mandated by the religion in order for

the burden to be found “substantial,” as the text of the RLUIPA

makes clear. 42 U.S.C. § 2000cc-5(7)(A); see also Adkins, 393 F.3d

at 570 (petitioner has burden of demonstrating that the religious

practice    at   issue    is    important   to   the   free   exercise   of   his

religion). However, the fact that a particular practice is in fact

mandated is “surely relevant” to determining whether the burden is


                                        - 6 -
substantial. Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003)

(defining “substantial burden” for First Amendment claims). Parks-

El explicitly professes that the Eid-ul-Fitr prayer was central to

his Muslim faith, and he asserts that such prayer had to be

performed congregationally.

          Parks-El has identified a specific religious practice,

the congregational Eid-ul-Fitr prayer, and has asserted that he was

unable to perform the prayer because he was barred from the chapel.

Parks-El contended that the prohibition forced him to modify his

religious behavior, as he was unable to perform a required prayer,

and that this constituted a violation of his religious beliefs, as

this prayer is a central requirement of the Muslim faith.           See

Adkins, 393 F.3d at 570.   Parks-El has alleged that these burdens

are “significant,” as the inability to perform the required prayer

prevented him from properly completing his observance of Ramadan.

Id.    After   reviewing   Parks-El’s   complaint   and   drawing   all

reasonable factual inferences in his favor, and in light of the

standards imposed for review of civil rights complaints submitted

by pro se petitioners, we find that Parks-El has alleged sufficient

facts to withstand summary dismissal of his RLUIPA claim and, by

extension, his free exercise claim, to which the district court

applied the same analysis.

          In sum, we affirm the district court’s dismissal of

Parks-El’s equal protection claim, vacate the dismissal of his


                                - 7 -
RLUIPA   and    free   exercise   claims,     and   remand   for   further

proceedings.     We also deny Parks-El’s “Motion for Production of

Document.”     We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                       AFFIRMED IN PART;
                                            VACATED AND REMANDED IN PART




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