by Mark Wilson

On January 26, 2022, a Muslim Nevada prisoner notched his second victory in as many months against state prison officials at the U.S. Court of Appeals for the Ninth Circuit, which upheld a lower court’s decision ordering officials with the state Department of Corrections (DOC) to allow him to keep scented oil in his cell for use with his prayers. Doing otherwise, the Court said, would substantially and unreasonably burden his religious exercise.

The decision followed another Court ruling in December 2021, allowing allegations of unconstitutional conditions of confinement at Southern Desert Correctional Center (SDCC) filed by the prisoner, Lausteveion Delano Johnson, to proceed to trial at the district court.

Not What His Faith or
the Law Requires

In his more recent case, Johnson noted he has practiced his Islamic faith since 2008, following precepts that include prayer five times a day for all adults except menstruating women.

A pre-prayer ritual symbolizes purification by washing hands, face and feet before putting on clean clothing. Following the Prophet Muhammed’s practice, devout Muslims also anoint themselves on the wrists and neck or hair before each of the five prayers with a drop of oil that is scented, purified and blessed by a religious leader known as an Imam.

But DOC rules governing prisoner religious practices completely prohibited the use of any scented oil in 2013. The rule was amended in 2017, allowing prisoners to purchase up to six one-ounce bottles of scented oil for “group use” during religious services, but it must be kept in the prison chapel.

So Johnson could use scented oil only once a week during group prayer services in the chapel. Otherwise the rule deprived him of it for 34 of his 35 weekly prayers, he said. He also rejected unscented oil as having “no Islamic significance.”

He further pointed out that Nevada prisoners are allowed to possess similar items in their cells, including 14-ounce bottles of unscented baby oil, cocoa butter lotion, various scents of deodorant, and cosmetics like nail polish.

Johnson brought suit pro se in federal court for the District of Nevada, later aided by attorney Renee Cooper of the Legal Aid Center of Southern Nevada, alleging that the scented-oil ban violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. Following a bench trial in February 2020, the district court agreed that DOC had substantially burdened Johnson’s religious exercise, effectively imposing an “outright ban” on his religious practice without any demonstration there weren’t less-restrictive means of achieving the institutional security interest it claimed in denying scented oil: to prevent prisoners from obscuring body odor that would otherwise alert officials to a failure to maintain good hygiene.

As a result, the district court ordered prison officials to allow Johnson to possess no more than a half-ounce of scented oil in his cell, replenishing the supply at weekly Muslim group prayers from a bottle kept by the chaplain. See: Johnson v. Lopez, 2020 U.S. Dist. LEXIS 190329 (D. Nev.).

Defendant prison officials then appealed, but the Ninth Circuit affirmed the district court’s decision. “Nevada insists that its regulation is acceptable because Johnson may still pray with scented oil for one prayer each week and use unscented baby oil for the rest of his prayers,” the Court noted. “But that’s not what Johnson’s faith or the law requires.”

Moreover, in its attempt to argue the ban doesn’t burden Johnson’s religious exercise, the Court said that “Nevada grossly misses the mark.”

“Nevada contends that the use of scented oil for Johnson’s prayer is not really that important to his worship practice—it’s just a mere preference,” the Court noted. “What’s more, Nevada appears to argue that Johnson must point to textual support or oral history proving that the Prophet Muhammed used scented oil in prayer,” arguments that the Court said “flout RLUIPA’s plain text and our precedent.”

Agreeing with the district court that prohibiting Johnson from complying with his religious beliefs for 34 of 35 prayers every week imposes a substantial burden on his religious exercise, the Court “compare[d] that burden to other necessities,” noting that “[n]o one would deny that depriving Johnson of 34 out of 35 adequate meals would be a substantial burden. Or that providing Johnson with sufficient clothing only once every 35 days would be a substantial burden.”

The Court also agreed with the lower court that prison officials failed to meet their burden of showing that the “outright ban” on scented oil was the least restrictive means of serving a compelling security interest. See: Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022).

After that, the Court then granted Johnson’s motion for attorney’s fees on March 4, 2022, sending the matter to a Circuit Mediator for a final calculation of the award amount. See: Johnson v. Baker, 2022 U.S. App. LEXIS 5800 (9th Cir.).

But that mediation was exhausted without an agreement, so the decision on the amount of the fee award then moved to the Appellant Commissioner on March 25, 2022. See: Johnson v. Baker, 2022 U.S. App. LEXIS 7910 (9th Cir.); and USCA (9th Cir.), Case No. 20-17202.

Another Victory at the Court

In a separate pro se action filed by Johnson, the district court in October 2020 denied qualified immunity (QI) to prison officials on Johnson’s challenges to his conditions of confinement at SDCC, including an allegedly deficient fire safety system, inadequate dental care, his top-bunk assignment, and overcrowded and unsafe living conditions.

Defendants appealed to the Ninth Circuit, which issued a decision on December 3, 2021, affirming the district court’s order. In it, the Court noted that Defendants had not previously raised QI as a defense to Johnson’s claims about the fire system at the district court, so it “will not be considered for the first time on appeal,” citing In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014).

Defendants were also late claiming QI as a defense to Johnson’s inadequate dental care claim, not raising it until their reply brief even though circuit precedent had already established that “[b]ecause this argument was not raised clearly and distinctly in the opening brief, it has been waived,” quoting McKay v. Ingleson, 558 F.3d 888, (9th Cir. 2009).

Regarding Johnson’s challenge to his top-bunk assignment, the Court noted that “the record indicates that he repeatedly notified defendants that his assignment to a top bunk without a ladder was causing him excruciating pain due to his pre-existing knee and back conditions.” Moreover, the Court added, the law was at the time “clearly established that a prison official who displays deliberate indifference to an inmate’s serious pain or medical needs violates the Eighth Amendment,” citing Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006).

Defendants’ argument that as top administrators they couldn’t be held liable for something so petty as a bunk assignment also failed, the Court said, noting that “a prison administrator can be liable for deliberate indifference to a prisoner’s medical needs if he knowingly fails to respond to an inmate’s requests for help” under Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).

Finally, Defendants’ attempt to assert QI as a defense to Johnson’s other claims also failed, the Court said, since Defendants “did not offer any evidence contesting Johnson’s allegations” and relied instead on the fact that he didn’t allege any harm had resulted. But that wasn’t necessary, the Court said, noting that “a substantial risk of harm” is sufficient to sustain an Eighth Amendment claim, as the U.S. Supreme Court laid out in Farmer v. Brennan, 511 U.S. 825 (1994).

So Johnson’s case was sent back to the district court to proceed to trial on his claims. On appeal, Johnson was represented by Washington, D.C. attorneys William C. Perdue of Arnold & Porter Kaye Scholer, LLP and Samuel Weiss of Rights Behind Bars. See: Johnson v. Dzurenda, 2021 U.S. App. LEXIS 35739 (9th Cir.).

The case has now returned to the district court, and PLN will report further developments. See: Johnson v. S. Desert Corr. Ctr., USDC (D. Nev.), Case No. 2:19-cv-00232. 

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