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Utt v. Brown

United States District Court, E.D. North Carolina, Western Division

September 3, 2014

ANTHONY B. UTT, Plaintiff,


LOUISE W. FLANAGAN, District Judge.

The matter is before the court on defendants' motion to dismiss (DE 38) pursuant to Federal Rule of Civil Procedure 12(b)(6). The issues raised were fully briefed and are ripe for adjudication. For the foregoing reasons, the court denies defendants' motion.


On June 22, 2012, plaintiff Anthony B. Utt ("Utt"), a state inmate acting pro se, sought to bring this civil rights action as a class action on behalf of himself, as well as previously-named plaintiffs Daniel Capshaw ("Capshaw") and Frankie L. Peach ("Peach"), pursuant to 42 U.S.C. ยง 1983. On December 21, 2012, the court entered an order denying Utt's motion for class certification and dismissed Capshaw and Peach.[1] The court also directed Utt to particularize his individual action.

Utt filed his amended pleading on January 31, 2013. Utt, a practitioner of the Wicca faith, alleged that defendants North Carolina Department of Public Safety ("DPS") Director of Chaplaincy Services Betty Brown ("Brown"), DPS Secretary Robert Lewis ("Lewis"), Harnett Correctional Institution ("Harnett") Superintendent Carlton Joyner ("Joyner"), Sergeant Shaw ("Shaw"), Sergeant Hartshell ("Hartshell"), Sergeant Dorman ("Dorman"), correctional officer Cadrette ("Cadrette"), correctional officer Gressle ("Gressle"), as well as John and Jane Doe defendants violated his rights pursuant to the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). In particular, Utt alleged that defendants refused to allow him to use tarot cards to practice his religion, confiscated his religious property, and denied him the opportunity to participate in corporate worship services. As relief, Utt sought declaratory and injunctive relief, as well as compensatory and punitive damages. On May 31, 2013, the court allowed Utt to proceed with his action against defendants Lewis, Brown, Joyner, Shaw, Hartshell, Dorman, Cadrette, and Gressle, but dismissed Utt's action against the John and Jane Doe defendants.[2]

On September 9, 2013, all remaining defendants filed a motion to dismiss, arguing that Utt failed to state a claim upon which relief may be granted. Defendants' motion was fully briefed.


The facts viewed in the light most favorable to Utt may be summarized as follows. Utt, a state inmate, is incarcerated at Harnett and practices Wicca. (Am. Compl. pp. 2, 6.) On December 29, 2010, defendant Shaw informed Utt that Utt was not permitted to use tarot cards in the prison yard. (Id. p. 6 and Ex. A.) In response, Utt filed a grievance complaining that inmates of other religious faiths such as Christianity were permitted to practice their faith in the prison yard. (Am. Compl. Exs. A-C.) In response, prison staff informed Utt that "[p]er DOP/DOC policy, an inmate may privately pray, worship, mediate, study scriptures, or religious literature if he does not disrupt other inmates, programs, work assignments, or pose a problem for the management, or security of the prison. An inmate is never recognized as clergy nor is he permitted to function as one. Tarot cards are for personal use only." (Id. Ex. B.)

On February 3, 2011, defendant Hartshell confiscated all of Utt's Wiccan religious property, including his sacred items box, as directed by defendant Joyner. (Id. p. 6.) Utt subsequently received a disciplinary infraction for possessing non-threatening contraband. (Id. and Ex. D.) At his disciplinary hearing, the disciplinary hearing officer ("DHO") considered a written statement Utt provided claiming that his confiscated property was not contraband and that he previously had been permitted to have the contested property. (Id.). The DHO also considered Utt's live statement that he "had no problem with all of the items being disposed of according to policy with the exception of the [sacred items box.]" (Id.) Utt argued that he should be permitted to keep his sacred items box because other faith groups (specifically those inmates practicing the "Native American" faith) could have a sacred items box. (Id.) The DHO found Utt guilty of the disciplinary infraction. (Id.)

On March 18, 2011, defendant Cadrette gave Utt a direct order to stop "performing a Wiccan religious ritual in the day room" per a sergeant's instruction that religious observances were only permitted within the religious activities center. (Id.) On October 17, 2012, defendants Gressle and Dorman confiscated from Utt additional Wiccan religious items, including multi-sided homemade dice, a metal checkers and chess container, a pendulum, and twenty-five (25) sets of homemade laminated religious cards. (Id. and Ex. K.) Utt subsequently was charged with a second disciplinary offense for possessing non-threatening contraband.[3] (Id.) Utt ultimately was found guilty of the charged offense, but the DHO directed that Utt's talisman bag be returned to Utt. (Id.) The DHO also directed that Utt's cards be returned for Utt's use during scheduled services. (Id.)

Utt additionally complained to staff that he was not permitted to practice sacred "Esbats." (Id. Ex. F.) In response, prison officials stated the following:

In the Religious Practices Manual it states that "thirteen special days called Espats' [sic] or Full Moon Celebrations may be observed, however, these celebrations are subject to approval of the facility head and shall in no way interfere with work assignments." At this time, the facility head had not approved the Espats [sic] to be observed.

(Id. Ex. G.)


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