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,
Paul Laxalt, Attorney General, and Clark G. Leslie, Assistant
Solicitor General, Carson City, for Respondent.
THE COURT EN BANC.
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.
AND PROCEDURAL HISTORY
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
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.
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.
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.
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.
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. Paliotta appeals
the district court's decision.
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.
Exercise Clause and RLUIPA claims in general
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.
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)).
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.
now to Paliotta's claims.