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Marshall v. Corbett

United States District Court, M.D. Pennsylvania

September 27, 2019

KERRY X MARSHALL, Plaintiff
v.
TOM CORBETT, ET AL., Defendants

          Schwab Chief Magistrate Judge.

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Before 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.

         Background

         Plaintiff 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.

         The 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.

         Jurisdiction

         As 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 States.”).

         Standard of review

         In 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.

         The 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).

         Discussion

         The 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.[1]

         The 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.

         I. Likelihood of ...


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