United States District Court, M.D. Pennsylvania
Chief Magistrate Judge.
M. MUNLEY JUDGE
the court for disposition is Chief United States Magistrate
Judge Susan E. Schwab’s report and recommendation
(hereinafter “R&R”) in this case involving
allegations that the state prison system is infringing on
Plaintiff Kerry X Marshall’s religious rights. The
R&R recommends that the plaintiff’s motion for a
preliminary injunction be granted in part and that the
plaintiff be allowed to purchase and wear a Nation of Islam
(hereinafter “NOI”) fez while incarcerated. The
defendants (hereinafter “government” or
“state”) has objected to the report and
recommendation. The parties have briefed their respective
positions, and the matter is ripe for disposition.
is an inmate in the custody of the Pennsylvania Department of
Corrections (“DOC”). He is housed at the State
Correctional Institution at Rockview. He is an adherent to
the Nation of Islam religion.
plaintiff’s second amended complaint asserts that he is
required to wear a fez hat pursuant to his religion, NOI. The
DOC, however, does not permit members of his religion wear
Nation of Islam fezzes. Further, they and are not permitted
to conduct Nation of Islam religious services separate from
other Muslim services offered at the prison. (Doc. 135,
Second Am. Compl. ¶ 14). He brings suit pursuant to the
Religious Land Use and Institutionalized Persons Act
(hereinafter “RLUIPA”) seeking an injunction
directing the DOC to allow these religious matters.
plaintiff brings suit pursuant to a federal law, the RLUIPA,
we have federal question jurisdiction. See 28 U.S.C.
§ 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
disposing of objections to a magistrate judge’s report
and recommendation, the district court must make a de
novo determination of those portions of the report
against which objections are made. 28 U.S.C. §
636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d
1077, 1085 (3d Cir. 1983). The court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge. Henderson v. Carlson,
812 F.2d 874, 877 (3d Cir. 1987). The district court judge
may also receive further evidence or recommit the matter to
the magistrate judge with instructions. Id.
Third Circuit Court of Appeals requires that the movant
demonstrate the following: 1) likelihood of success on the
merits; and 2) irreparable injury to the plaintiff if relief
is not ordered. If the movant establishes these two factors,
we balance them with the relative hardship granting or
denying the injunction would inflict on the parties and the
public interest. ADP, LLC v. Rafferty, 923 F.3d 113,
119-120 (3d Cir. 2019).
plaintiff’s second amended complaint asserts that SCI
– Rockview inmates who are members of the NOI are not
allowed to wear NOI fezzes and are not allowed to conduct
their own NOI religious services separate from the other
Muslim services offered at the prison. The preliminary
injunction motion thus seeks an injunction for the following:
1) ordering the defendant to permit plaintiff to purchase and
wear NOI fezzes; 2) allowing a separate Nation of Islam
religious service; and 3) ordering observation of NOI
holidays. The R&R recommends granting a preliminary
injunction with regard to the wearing of an NOI fez. The
defendant has objected to this recommendation.
R&R analyzes all four of the of the preliminary
injunction factors and concludes that they weigh in favor of
granting the preliminary injunction with regard to the
wearing of the fez. The government objects and alleges that
each and every factor in fact weighs in favor of denying the
preliminary objection. We will address each factor in turn.
Likelihood of ...