United States District Court, M.D. Florida, Tampa Division
GARY STEVEN BAKER, JR. Plaintiff,
M. PARSONS, et al., Defendants.
S. SCRIVEN UNITED STATES DISTRICT JUDGE
cause comes before the Court on Defendants M. Parsons and A.
Taylor's motion for summary judgment (Doc. 63), Plaintiff
Gary Steven Baker, Jr.'s response (Doc. 66), and
Defendants' reply (Doc. 73). Also before the Court is
Plaintiff's cross-motion for summary judgment (Doc. 64)
and appendix thereto (Doc. 65), Defendants' response
(Doc. 67), and Plaintiff's reply. (Doc. 69) Having
considered the motions and being otherwise fully advised, the
Court ORDERS that Plaintiff's motion for
summary judgment (Doc. 64) is DENIED, and
Defendants' motion for summary judgment (Doc. 63) is
Baker brings this action under Title 42 United States Code
Section 1983, alleging that, while confined in the Hardee
Correctional Institution, Defendants violated Baker's (1)
right to exercise his religion, and (2) right to equal
protection. He also asserts that Defendants violated his
rights under the Religious Land Use of Institutional Persons
Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, and
under Florida's Religious Freedom Restoration Act of 1998
(“FRFRA”), Fla. Stat. § 761.03.
Plaintiff claims that Defendants have improperly denied his
requests to possess or use items of alleged significance to
his Mystic faith. He also claims that Defendant Parsons
refused to assist Plaintiff in observing a sacred religious
fast. Finally, he contends that Defendants have, on the basis
of his religion, denied him access to the chapel and denied
his request to schedule a Mysticism study group. He seeks
declaratory and injunctive relief,  along with nominal
earlier order dismissed Plaintiff's claims against
Defendants Lawrence, Mount, and Bowden. (Doc. 41 at 6-7) At
this stage of the proceedings, the only remaining defendants
in this case are M. Parsons (Chaplain) and Alex Taylor
(Administrator of Chaplaincy Services, Florida Department of
Court notes that, upon review, the complaint does not clearly
specify whether Plaintiff is suing Defendants in their
official or individual capacities. “[W]hile it is
‘clearly preferable' that a plaintiff state
explicitly in what capacity defendants are being sued,
‘failure to do so is not fatal if the course of
proceedings otherwise indicates that the defendant received
sufficient notice.' ” Young v. Apartments, Inc.
v. Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir.
2008) (quoting Moore v. City of Harriman, 272 F.3d
769, 772 (6th Cir.2001)).
inferred from the Complaint that Plaintiff sued them in both
capacities. (Doc. 63 at 4, 19, 21-23) However, in his
response to Defendants' motion for summary judgment,
Plaintiff clarifies that he asserts RLUIPA claims against
Defendants in their official capacities (Doc. 66 at 3, 10,
11, 21) and he asserts free exercise, equal protection, and
FRFRA claims against Defendants in their individual
capacities. (Doc. 66 at 11-12, 21-22) Therefore, Plaintiff
has affirmatively repudiated individual capacity RLUIPA
claims and official capacity free exercise, equal protection,
and FRFRA claims against Defendants. Accordingly,
Defendants' motion for summary judgment on those claims -
to the extent the complaint could have been construed to
raise them - is GRANTED.
granting of summary judgment is proper “if pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56. See In re Optical
Technologies, Inc., 246 F.3d 1332, 1334 (11th Cir.
2001). A court must view the documents in the light most
favorable to the non-moving party and the documents must show
that the non-moving party is not entitled to relief under any
set of facts alleged in the complaint. See generally,
Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir.
1997); Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590 (11th Cir. 1995).
56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “In such a situation, there can be
‘no genuine issue as to any material fact,' since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Id. at 322-23.
the non-moving party bears the burden of proof on an issue at
trial, “the moving party [is not required to] support
its motion with affidavits or other similar materials
negating the [non-moving party's] claim.”
Id. at 323 (emphasis in original). Instead, the
movant simply “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any' which it
believes demonstrate the absence of a genuine issue of
material fact.” Id.
the movant presents evidence that, if not controverted, would
entitle the movant to a judgment at trial, the burden shifts
to the non-moving party to assert specific facts
demonstrating the existence of a genuine issue of fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Pennington v. City of Huntsville,
261 F.3d 1262 (11th Cir. 2001).
though an allegation in a pro se complaint is held
to a less stringent standard than a formal pleading drafted
by a lawyer, Haines, 404 U.S. 520, Tannenbaum v.
United States, 148 F.3d 1262 (11th Cir. 1998), the
plaintiff's allegations must have factual support.
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Burger King Corp. v.
Weaver, 169 F.3d 1310, 1321 (11th Cir.) reh'g
and suggestion for reh'g en banc denied, 182 F.3d
938 (11th Cir.), cert. dismissed, 528 U.S. 948
(1999). “A court need not permit a case to go to a
jury, however, when the inferences that are drawn from the
evidence, and upon which the non-movant relies, are
‘implausible.' “ Cuesta v. School Bd. of
Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002).
See also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
review of the record, the following facts appear uncontested:
all times relevant to this lawsuit, Plaintiff was, and
remains, housed at Hardee Correctional Institution
(“HCI”). (Doc. 1 at 1; Doc. 42 at 1)
all times relevant to this lawsuit, Defendant M. Parsons was
employed as the Chaplain at HCI. (Doc. 1 at 3; Doc. 42 at 1)
all times relevant to this lawsuit, Defendant Alex Taylor was
employed by the Department of Corrections as the
Administrator of Chaplaincy Services. (Doc. 1 at 4; Doc. 42
Prison chaplains “must work with and accommodate
numerous religions that are different from the
chaplain[']s own beliefs, ” and space designated
for religious activities must be shared by all inmates at
HCI. (Doc. 63 Ex. 1 at 6)
Prior to the events challenged in the instant lawsuit,
Plaintiff identified his religion as Odinism. (Doc. 64 at 2)
While observing that religion, HCI officials confiscated
Plaintiff's lighter from his cell as part of a shake-down
for contraband. (Doc. 64 at 6; Doc. 63 at 20)
October 3, 2011, Plaintiff wrote to Defendant Parsons,
Chaplain at HCI, requesting “access to, or the
information pertaining to[, ] what all the religion Mysticism
is allowed to practice, receive, medallion to wear,
e[tc].” He explained that he “would like to know
all this before changing my faith, if I so do choose to in
the future.” (Doc. 63 Ex. 1 at 12; Doc. 65 Ex. 11 at 2)
a. Defendant Parsons respo1nded,  “Currently there is
no information through DOC regarding this religion.”
(Doc. 63 Ex. 1 at 12; Doc. 65 Ex. 11 at 2)
Sometime thereafter, Plaintiff changed his religious
affiliation to Mysticism and submitted the paperwork to
change his listed affiliation with HCI.
DOC recognizes Mysticism as a religion but has established no
guidelines as to the practice of Mysticism. (Doc. 63 Ex. 1 at
2; Doc. 67 at 5)
October 18, 2011, Plaintiff submitted the following request
to Defendant Parsons (Doc. 63 Ex. 1 at 13; Doc. 65 Ex. 3 at
Sir, I spoke to you when I changed my religion to Mysticism.
You told me that you would deny everything I requested or
tried to get in. I have already written Alex Taylor
concerning this issue and what I need to be able to pray as .
. . “God” tells me to pray, when to pray and how.
Since they have taken lighters off the compound, and I need
to light incense during prayer, I am requesting access to the
chapel to pray and meditate 8 times a day, 4 times will be
the same every day, the other four will change daily. I will
need access to a lighter, or one match per prayer. If you
have any questions, please call me up for exact times.
a. Defendant Parsons responded, “At this point it is
not possible for you or anyone to come into the chapel to
pray 4-8 times a day[.] We will await a response from Mr.
Taylor.” (Doc. 63 Ex. 1 at 13; Doc. 65 Ex. 3 at 2)
Defendant Taylor recalls that Defendant Parsons contacted him
during the fall of 2011 concerning Mysticism. Defendant
Parsons contacted him by telephone or email, and he responded
by telephone. (Doc. 63 Ex. 1 at 5)
Defendant Taylor did not communicate with Plaintiff. (Doc. 64
October 25, 2011, Plaintiff submitted the following request
to Defendant Parsons (Doc. 63 Ex. 1 at 16; Doc. 65 Ex. 11 at
I am writing to advise you of all the materials I need for
daily prayer and communion with God in my religion as God
told me directly. I need incense Frankin[c]ense/My[rrh] and
sandalwood, charcoal bricks/disk, matches or a lighter,
assorted color [tapered] candles, mystical oil #1 ancient
wisdo[m] or High Johns and #2 anointing, small plastic bottle
to keep daily applications, . . . 25 crystal/stone runes and
1 box to house these in, all except runes to be kept in
locker. I will also need a medallion that reflects my
religious beliefs. Now that you know that I need these items
and what they are, your position as chaplain should be to
promptly obtain them so as for prayer and communion with God.
a. Defendant Parsons denied the request without explanation.
(Doc. 63 Ex. 1 at 16; Doc. 65 Ex. 11 at 4)
October 26, 2011, Plaintiff filed an informal grievance that
stated the following (Doc. 63 Ex. 1 at 18-19; Doc. 65 Ex. 11
I am grieving the fact that Chapl[a]in Parsons is [refusing]
to make accommodations to allow me to pray and commune with
God and be able to receive the items needed; to which are
mystic oil, incense Frankin[c]ense/myr[r]h & sandalwood,
charcoal disk, assorted [tapered] candles, box to house these
items, a small plastic bottle to hold daily amount of
mystical oil, hard stick matches or a lighter, and a
religious medallion that reflects my faith, Mysticism.
Chapl[a]in Parsons stated from our first conversation that he
would deny me anything I requested. It is evident that
Chapl[a]in Parsons is not in compliance with Chpt.
33-503.001(c), 2(a), 2(b), 2(c), 2(c)(3)[, ] thus he is
maliciously denying myself prayer until someone in
Tallahassee demands that he does conform to the Constitution;
to religious freedom and chpt. 33-503.001c, 2a, 2b, 2c, 2c3.
Which Chapl[a]in Parson[s'] job should mandate as
chapl[a]in that he does conform to the Constitution 1st
Amendment, “Freedom of Religion” and Chapter
33-503.001(c), 2(a), 2(b), 2(c), 2(c)(3).
Relief sought: That Chapl[a]in Parsons makes availability of
the chapel for me to pray 8 times a day and be able to order
everything and take the daily needed amount to do my prayers
within my cell, as I was doing before the lighters became
contraband. And that Chapl[a]in Parsons be instructed on the
religious rights of those who practice a recognized Religion
and the description of his job title in Chapter 33-503.001
and how he shall help inmates to further their spirituality.
a. The informal grievance was denied with the following
explanation (Doc. 63 Ex. 1 at 18; Doc. 65 Ex. 11 at 5):
Your grievance has been received, reviewed, evaluated and
the following has been determined.
33-503.001 sections (1)(a)1, 2 and three states the
The Chaplaincy Service Section of the Office of Education and
Initiatives Is responsible for:
1. Developing and evaluating religious programs throughout
the Department 2. Coordinating all religious programs
throughout the Department 3. Providing general assistance and
guidance to chaplain.
In previous conversations with the chaplain you were informed
that although the Department recognizes Mysticism there are
no guidelines for this religion within the Technical Guide.
The authority to develop such guidelines clearly is with The
Chaplaincy Service, not the local Chaplain.
Based upon the Florida Admin[.] code as quoted above[, ] your
grievance is denied.
Plaintiff filed a second informal grievance on the same day,
October 26, 2011 (Doc. 63 Ex. 1 at 20; Doc. 65 Ex. 3 at 3):
I am grieving the fact that Chapl[a]in Parsons and myself
talked over 10 days ago about my faith
“Mysticism.” At that time and until now,
Chapl[a]in Parsons has not attempted to find out what times I
must pray and commune with God, nor has he called me in to be
able to pray and commune w/ God. He is not making an attempt
to help me further my spirituality, as per his job
requirement per Chpt. 33-.001c, 2(a), 2(b), 2(c),
Relief sought: To be allowed to pray and commune with God,
with Chapl[a]in Parsons trying to further my spiritual needs,
or a chapl[a]in who abides by Chpt. 33-.001[, ] Replace
and[/]or instruct Chapl[a]in Parsons on his duties.
a. The informal grievance was denied using the exact same
explanation as the denial of his other October 26, 2011
grievance. (Doc. 63 Ex. 1 at 20; Doc. 65 Ex. 3 at 3); see
supra ¶ 13(a).
November 9, 2011, Plaintiff appealed the denials of his
October 26, 2011 informal grievances. (Doc. 63 Ex. 1 at
21-22; Doc. 65 Ex. 11 at 9-10).
a. HCI's warden denied the grievance, explaining that the
response to his informal grievance was appropriate and that
Defendant Taylor would advise Plaintiff concerning his
issues. (Doc. 63 Ex. 1 at 23; Doc. 65 Ex. 11 at 8)
b. On December 6, 2011, Plaintiff appealed to the Secretary
of the Florida Department of Corrections. (Doc. 65 Ex. 11 at
i. The Secretary denied the appeal in March 2012, explaining
(Doc. 63 Ex. 1 at 25; Doc. 65 Ex. 11 at 13):
Your administrative appeal has been received, evaluated and
referred to Chaplaincy Services who provided the following
According to your request and the chaplain's replies you
were appropriately told that you could not be called to the
chapel 8 times a day for prayer nor have a match for each
prayer. The Chapel schedule is based on time, space and
supervision availability; no group or individual is permitted
to use the chapel 8 times every day. If you desire a
medallion you should notify that chaplain as to the medallion
you request then the chaplain can determine if the medallion
is permitted. You must have the religious headquarters of
your faith group write to the chaplain, using their own
letterhead paper, the requirements and religious
paraphernalia necessary for their faith. The institution
September 8, 2013, Plaintiff submitted a request to food
service to be given only fruit juice and no food during an
upcoming forty-day religious fast. (Doc. 65 Ex. 16 at 2)
a. The response to his request indicated that Defendant
Parsons would need to make the request on Plaintiff's
behalf. (Doc. 65 Ex. 16 at 2)
b. Plaintiff, accordingly, submitted a request to Defendant
Parsons, who denied the request, explaining that Plaintiff
could eat or drink what was offered by food service, or
choose not to do so. Permission from a chaplain was not
required. (Doc. 65 Ex. 16 at 3)
c. Plaintiff, ultimately, received assistance from Assistant
Warden Morris and Food Service. (Doc. 65 Ex. 16 at 4)
February 28, 2014, Plaintiff submitted an inmate request to
Defendant Parsons regarding the February 26, 2014,
confiscation of his tarot cards. He asked that the cards be
returned to him, rather than be stored in the chapel.
Alternatively, he requested that the cards be stored in the
chapel for his use only and that he be placed on the call-out
list daily at the same time to use them in the chapel. (Doc.
65 Ex. 12 at 2)
a. Defendant Parsons denied the request, explaining that: (1)
pursuant to Florida Administrative Code Section
33-602.201(13)(d), his tarot cards would remain in the
chapel; and (2) he could submit an inmate request to be
placed on the call-out list to use them in the chapel, and he
would be placed on the call-out list as time and space
permitted. (Doc. 65 Ex. 12 at 2)
May 9, 2014, Plaintiff submitted a request to Defendant
Parsons for a time slot for a Mysticism study group for five
registered mystic inmates at HCI. (Doc. 63 Ex. 1 at 28)
a. Defendant Parsons responded by explaining that he
“need[ed] a request from everyone who wants this class