Paige et al v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lamont Paige, and
Kevin Whitaker
v. 	Civil No. 18-cv-670-SM
Robert Hazlewood, Warden, FCI-Berlin,
and RSA FNU Feliciano, Chaplain, FCI-Berlin
REPORT AND RECOMMENDATION
Plaintiff Lamont Paige has filed a motion for a preliminary
injunction (Doc. No. 2). 	Defendants object (Doc. Nos. 5, 7).
The motion has been referred to the undersigned magistrate judge
for a hearing, if necessary, and a report and recommendation,
pursuant to 28 U.S.C. § 636(b)(1)(B).
Background
Paige, a Sunni Muslim incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI-
Berlin”), seeks this court’s intervention to ensure that he may
participate with the Sunni Muslim community in congregational
prayer followed by a ceremonial meal on August 22, 2018 to
celebrate Eid al Adha. 	Paige asserts that the chapel was locked
on the date of Eid al Adha in 2017, and that no ceremonial meal
was offered to Sunni Muslims on that date. 	Paige asserts that
his contacts with defendant Warden Robert Hazlewood have led
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Paige to conclude that no preparations have been made this year
to allow Sunni Muslim inmates to celebrate Eid al Adha. 	Paige
requests that this court order the warden to comply with Federal
Bureau of Prisons (“BOP”) policies and regulations, concerning
the accommodation of inmate religious practices, by permitting
chapel services and ceremonial meals on Eid al Adha.
Defendants argue that the motion is moot, as it is premised
on Paige’s mistaken belief that prison officials have not taken
steps consistent with BOP regulations and policies to schedule
Eid al Adha events at FCI-Berlin. 	Defendants represent that
necessary preparations have been made, that a ceremonial meal
and chapel services have been scheduled for August 22, 2018, and
that a sign-up sheet for inmates has been posted and will remain
open through August 10, 2018. 	See Doc. No. 7. 	Exhibits filed
by defendants show that plaintiff Paige is among the inmates
granted accommodations to attend the events. 	See Doc. Nos. 7-1,
7-2. 	Associate Warden Cully Stearns’s declaration avers that
co-plaintiff Kevin Whitaker and other inmates who sign up by
August 10 will also be allowed to take part. 	See Doc. No. 7-1.
Discussion
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
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relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	Irreparable
harm and the likelihood of success weigh most heavily in the
analysis. 	Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008); Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The burden of proof is
on the movant. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
This court held two case management telephone conferences
on the record, on August 3 and 6, 2018, relating to the motion
for a preliminary injunction. 	Plaintiffs stated in those calls
that although they had received Document No. 7, they had not
received Document No. 5 and all of defendants’ exhibits. 	The
court took steps to make plaintiffs aware of the contents of the
pertinent filings and exhibits in both conference calls, and
then invited plaintiffs to raise any concerns they might have
regarding defendants’ proffered evidence.
Plaintiff Whitaker expressed concern that the sign-up
sheets might not be sufficiently clear and legible, such that
inmates might not know whether, and how, to sign up for the
August 22 events, and he asked whether inmates would need to
make individual requests for work accommodations for the holy
day. 	Associate Warden Cully Stearns’s declaration, Doc. No. 7-
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1, supplemented by his statements on the record in the August 6,
2018 conference call, indicate that inmates may find out about,
and sign up for, the August 22 events through a sign-up sheet
posted by the chapel which will remain open through August 10,
2018; through information on TRULINCS; through information and a
sign-up sheet that will be available to inmates attending the
August 10, 2018 Jumu’ah services; and/or by contacting the
chaplain or Associate Warden Stearns directly. 	Stearns further
asserted that town-hall meetings have been held in each of the
prison’s units, to let inmates know about the Eid al Adha
events. 	Defendants have represented that the names of inmates
who sign up by August 10, 2018 will be entered into FCI-Berlin’s
Sentry database so that they will be excused from work on August
22, 2018, without their having to ask for such leave
individually. 	See Doc. Nos. 7-1, 7-2.
Plaintiff Paige expressed a concern that prison officials,
unless enjoined from doing so, could cancel the August 22 Eid al
Adha events, citing safety and security issues. 	Plaintiff
pointed out that in 2017, the chapel was locked on Eid al Adha,
and that prison officials cited safety and security as the
reason why. 	Defendants responded that BOP regulations and
policies allow prison officials to restrict attendance at
religious ceremonies for prison safety and security reasons, see
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28 U.S.C. §§ 548.10(b), 548.18; see also BOP Program Statement
P5360.09 ¶¶ 7, 16 (Doc. No. 5-1).
“A finding of irreparable harm must be grounded on
something more than conjecture, surmise, or a party’s
unsubstantiated fears of what the future may have in store.”
Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To Go, Inc.,
370 F.3d 151, 162 (1st Cir. 2004). 	Absent any showing of bad
faith, and without any grounds for finding that current
conditions in the prison are likely to result in prison
officials acting as they did under conditions that existed a
year ago, events that occurred in 2017 do not provide an
adequate evidentiary basis for this court to conclude that
injunctive relief is needed to avoid irreparable harm this year.
Accordingly, the district judge should deny the preliminary
injunction motion (Doc. No. 2), without prejudice to plaintiffs’
ability to file a new motion if they become aware of evidence
indicating that the events at issue will not be held as
scheduled.
Conclusion
For the foregoing reasons, the district judge should deny
plaintiff Paige’s motion for preliminary injunction (Doc. No. 2)
without prejudice. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
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this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 8, 2018
cc: 	Lamont Paige, pro se
Kevin Whitaker, pro se
T. David Plourde, Esq.
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