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Paliotta v. State ex rel. Nevada Department of Corrections

Supreme Court of Nevada

September 14, 2017


         Appeal from a district court order granting summary judgment in an inmate litigation (civil rights) matter. Seventh Judicial District Court, White Pine County; Gary Fairman, Judge.

          McDonald Carano Wilson LLP and Adam D. Hosmer-Henner, Reno, for Appellant.

          Adam Paul Laxalt, Attorney General, and Clark G. Leslie, Assistant Solicitor General, Carson City, for Respondent.



          HARDESTY, J.

         Appellant Gilbert Jay Paliotta, a Nevada inmate who follows the Thelemic faith, filed suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment after respondents State of Nevada, Nevada Department of Corrections, and Renee Baker, Warden (collectively, the State) denied his request for a religious diet. The district court dismissed Paliotta's claims, finding as a matter of law that a religious diet is not central to the Thelemic faith. Because the district court used the centrality test rather than the sincerely held belief test in its analysis of Paliotta's Free Exercise and RLUIPA claims, we reverse.


         Paliotta is incarcerated at the Ely State Prison. In March 2011, Paliotta filed a form with the Nevada Department of Corrections declaring himself a Thelemist. According to Paliotta, Thelema was founded in 1904 in Egypt by Aleister Crowley. The religion is based on the idea: "Do what thou wilt shall be the whole of the Law." Practitioners, such as Paliotta, interpret this to partially mean: "eat and drink what one will." Some practitioners also practice other religions in furtherance of their Thelemic beliefs.

         Paliotta contacted the prison chaplain about receiving a traditional Egyptian diet that was "in accordance with [his] Thelemic beliefs." The chaplain suggested that Paliotta request a kosher diet instead, which he did. Later that month, Paliotta submitted an inmate request form indicating that he was waiting to hear back about his request to participate in a religious diet.

         In April 2011, Paliotta submitted an updated request form, which sought a Thelemic diet and stated that Thelema draws its principles from ancient Egyptian religions. He argued that because Egypt once ruled over Hebrews and Jewish people, and Hebrews "ate the original 'kosher5 meal of the Egyptians, " that a kosher meal should be provided to him in accordance with his faith. His request was denied.

         Paliotta then submitted an informal grievance demanding to be placed on a kosher diet or, in the alternative, on a traditional Egyptian diet. The grievance was denied because a kosher diet was not listed under the Department of Correction's regulations as a religious consideration for Thelema. In June and July 2011, Paliotta filed first- and second-level grievances, respectively, challenging the regulation as it improperly categorized Thelema with non-Thelema religions and challenging the denial of the dietary requests because kosher meals were provided to other non-Jewish inmates. The grievances were denied.

         Paliotta filed a verified complaint with the district court against the State. He alleged that in denying his requested dietary plans, the State violated the Free Exercise Clause of the First Amendment, RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment. Specifically, Paliotta alleged that his sincerely held religious belief in maintaining a Thelemic diet was substantially burdened because (1) Thelema is not listed in the Department of Correction's religious guidelines; (2) he requested, and was denied, a traditional Egyptian diet; and (3) he was denied a kosher diet after he sought a compromise in the dietary selection with the State.

         The parties filed competing motions for summary judgment. The district court granted summary judgment for the State because it found that Paliotta's request for a kosher diet was not based in Thelemic beliefs. In reaching its conclusion, the district court engaged in a lengthy analysis of Paliotta's claims within the context of Free Exercise jurisprudence. The district court reasoned that under the First Amendment and RLUIPA, Paliotta only claimed a "social connection" between Thelema and Hebrew traditions, which meant that Paliotta's request for a kosher or traditional Egyptian diet was not based in theological beliefs but secular beliefs. Thus, the district court incorporated its analysis of Paliotta's Free Exercise claims as a part of its analysis of Paliotta's RLUIPA claims and determined that, because he could not sustain a claim under a Free Exercise standard, his RLUIPA claims must similarly fail. The district court did not address Paliotta's equal protection claim.[3] Paliotta appeals the district court's decision.


         On appeal, Paliotta asserts that the district court erred in using the centrality test in determining that Paliotta could not sustain a Free Exercise or RLUIPA claim. The State responds that the district court properly found that Paliotta's request for a traditional Egyptian or kosher diet was not grounded in Thelemic belief and he thus failed to state a claim under Free Exercise or RLUIPA jurisprudence. In examining the parties' respective arguments, we begin our analysis with a brief overview of the requirements for bringing a claim under the Free Exercise Clause and RLUIPA. We then turn to Paliotta's claims and his assignments of error on appeal.

         Free Exercise Clause and RLUIPA claims in general

         While claims under the Free Exercise Clause are often brought in conjunction with claims under RLUIPA, "[t]he standards [for establishing a prima facie case] under RLUIPA are different from those under the Free Exercise Clause." Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010). Although explained in more detail below, a brief overview of the requirements for bringing successful Free Exercise Clause and RLUIPA claims is warranted.

         "In general, a plaintiff will have stated a free exercise claim if: (1) the claimant's proffered belief [is] sincerely held; and (2) the claim [is] rooted in religious belief, not in purely secular philosophical concerns." Walker u. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (alterations in original) (internal quotation marks omitted). Prisoners enjoy protection under the Free Exercise Clause, but that protection is "limited by institutional objectives and by the loss of freedom concomitant with incarceration." Id. (internal quotation marks omitted). Thus, "a prisoner's Free Exercise Clause claim will fail if the State shows that the challenged action is 'reasonably related to legitimate penological interests.'" Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

         In contrast, "[t]o state a claim under RLUIPA, a prisoner must show that: (1) he takes part in a 'religious exercise, ' and (2) the State's actions have substantially burdened that exercise." Id. at 1134. The statutory definition of "religious exercise" is "intentionally broad, " id., and covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief, " id. (quoting 42 U.S.C. § 2000cc-5(7)(A)). If the prisoner shows that he is engaged in a religious exercise that State action has substantially burdened, "the State must prove its actions were the least restrictive means of furthering a compelling governmental interest." Id.

         We turn now to Paliotta's claims.

         Standard ...

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