1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RAY SCOTT HEID, et al., : 

 : 

 Plaintiffs, : 

 : Case No. 2:18-CV-311 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

GARY MOHR, et al., : 

 : Magistrate Judge Deavers 

 Defendants. : 

OPINION & ORDER 

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 

38) and Motion to Recuse (ECF No. 10). Plaintiffs seek to enjoin the Ohio Department of 

Rehabilitation and Corrections (“ODRC”) from refusing Plaintiffs access to material of the 

Christian Separatist Church (“CSC”). On December 14, 2018, this Court held a 65.1 Conference 

to discuss the Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”) and denied Plaintiffs’ 

Motion for a TRO. The Court held a Preliminary Injunction hearing on January 11, 2019, at 9:30 

a.m. For the reasons set forth below, Plaintiffs’ Motion for a Preliminary Injunction and Motion 

to Recuse are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND 

 Plaintiffs are inmates at Ohio correctional facilities. Plaintiff Ray Scott Heid is 

incarcerated at Southeastern Correctional Complex (“SCC”), and Plaintiff James Damron is 

incarcerated at Ross Correctional Institution (“RCI”), where Plaintiff Heid was previously held. 

Plaintiffs Ray Scott Heid and James E. Damron are Christian Separatists who allege that Ohio 

prison officials are denying them access to religious literature in violation of the First 

Amendment, Fourteenth Amendment, and the Religious Land Use and Institutionalized Persons 
2 

Act (“RLUIPA”). Plaintiffs allege that in 2015, their Christian Separatist literature was removed 

from the prison and taken from their individual possession. Plaintiffs have complained that they 

no longer have access to Positive Christianity in the Third Reich, Was Adolf Hitler a Bible 

Christian?, and Christian Principles of National Socialism in the prison library. (ECF No. 37 at 

7). Plaintiff Damron alleges that officials confiscated Positive Christianity in the Third Reich

and Mein Kampf, and Plaintiff Heid alleges ODRC confiscated Mein Kampf in December 2015. 

Additionally, Plaintiffs allege that they cannot access CSC sermons on CDs. 

 ODRC has prohibited this material on two grounds. First, ODRC regards the swastika as 

a symbol of a security threat group (“STG”). Second, ODRC policy 5120-9-19, PRINTED 

MATERIAL states the following: 

Printed material is excludable if it is deemed to be detrimental to, or pose a threat 

to the rehabilitation of inmates; the security of the institution; or the good order or 

discipline of the institution. Examples of such material include, but are not 

limited to printed material: 

(1) Which facilitates, encourages, incites, promotes, or instructs, in criminal 

activity such as rioting or illegal drug use. 

(2) Which depicts, encourages, incites, or describes activities which may lead 

to the use of physical violence against others. 

(ECF No. 38 at 5). In December 2015, ORDC officially banned Positive Christianity in the 

Third Reich and Was Adolf Hitler a Bible Christian?. (ECF No. 37 at 7). ODRC specifically 

justified banning Positive Christianity in the Third Reich based on the swastika on the cover. 

 Plaintiffs argue in their Second Amended Complaint that ODRC’s policies are 

discriminatory because ODRC allows Hindus to use the swastika, allows other books containing 

the swastika in the RCI library, and allows the swastika as used in JPay’s KA Lite videos on 

Nazi Germany. (ECF No. 37 at 8). Additionally, the Magen-David star (also known as the Star 

of David or six-pointed star) is allowed within the prison system even though gangs use it as a 

symbol. Plaintiffs allege that “white gangs have their own gang symbols distinct from the 
3 

swastika.” (ECF No. 37 at 13). Plaintiffs’ Motion for Preliminary Injunction, however, has 

focused solely on the alleged First Amendment and RLUIPA violations. This Court will 

therefore address only the First Amendment and RLUIPA claims under the Preliminary 

Injunction standard. 

II. MOTION FOR RECUSAL 

Plaintiff Heid has moved to recuse the Court under 28 U.S.C. § 455(a), (b)(1) & (3). 

(ECF No. 10). Recusal is appropriate where a judge’s “impartiality might reasonably be 

questioned,” 28 U.S.C. § 455(a), or “[w]here he has a personal bias or prejudice concerning a 

party . . . ,” 28 U.S.C. § 455(b)(1), or “expressed an opinion concerning the merits of the 

particular case in controversy.” § 455(b)(3). The Court orally denied Plaintiff Heid’s motion at 

the Preliminary Injunction hearing and sets forth its rationale more fully below. 

As this Court explained in its denial of Plaintiff Heid’s motion to recuse in The Christian 

Separatist Church Society of Ohio, the Wife of Christ, Prosopopeia, et al. v. Ohio Dep’t of 

Rehab. and Corrs. et al., 2:15-cv-2757 (“Christian Separatist I”), § 455 “is not based on the 

subjective view of a party,” but, rather, “imposes an objective standard: a judge must disqualify 

himself where a reasonable person with knowledge of all the facts would conclude that the 

judge’s impartiality might reasonably be questioned.” Burley v. Gagacki, 834 F.3d 606, 615-16 

(6th Cir. 2016) (citations and quotations omitted). (2:15-cv-2757, ECF No. 60). This is a high 

standard. As the Sixth Circuit explained in Lyell v. Renico, 

[A] judge’s misconduct at trial may be “characterized as bias or prejudice” only if 

“it is so extreme as to display clear inability to render fair judgment,” Liteky v. 

United States, 510 U.S. 540, 551 (1994) (internal quotation marks omitted), so 

extreme in other words that it “display[s] a deep-seated favoritism or antagonism 

that would make fair judgment impossible,” id. at 555. “[J]udicial remarks during 

the course of a trial that are critical or disapproving of, or even hostile to, counsel, 

the parties, or their cases ordinarily do not support a bias or partiality challenge.... 

[But] they will do so if they reveal such a high degree of favoritism or antagonism 
4 

as to make fair judgment impossible.” Id. (emphasis omitted). “[E]xpressions of 

impatience, dissatisfaction, annoyance, and even anger, that are within the bounds 

of what imperfect men and women ... sometimes display,” by contrast, do not 

establish such bias or partiality. Id. at 555-56; see also In re Murchison, 349 U.S. 

133, 136 (1955); Offutt v. United States, 348 U.S. 11, 17 (1954). 

Lyell v. Renico, 470 F.3d 1177, 1186–87 (6th Cir. 2006) (quoting Liteky v. United States, 510 

U.S. 540, 551 (1994)), abrogated on other grounds as recognized in English v. Berghuis, 529 F. 

App’x 734, 744-45 (6th Cir. 2013). 

 Plaintiff Heid alleges a number of supposed instances of bias stemming from this Court’s 

rulings in Christian Separatist I. Plaintiff Heid alleges that the Court disregarded the law, 

disregarded Plaintiffs’ facts, created a defense for the Defendants, and deprived Plaintiff of his 

right to trial by jury. (ECF No. 10 at 18). 

 Plaintiff Heid focuses much of his Motion on the Court’s use of the term “segregated” to 

describe the Christian Separatists’ request for separate congregate worship in Christian 

Separatist I. Plaintiff Heid alleges that the term “segregated” implies racial segregation, which 

Plaintiffs did not request. Plaintiff Heid alleges bias because the Court acknowledged that 

Plaintiffs were not seeking racially segregated worship services but then in upholding ODRC’s 

policy prohibiting congregate worship, the Court noted that “racially segregated worship is not 

tenable in a prison setting.” (2:15-cv-2757, Doc. No. 110 at 13). This Court has already 

responded to such claims in a Motion to Recuse in Christian Separatist I. (2:15-cv-2757, Doc. 

No. 60). The Court will note here, however, that in addition to the reasons already given in 

denying the Motion to Recuse in Christian Separatist I, the Sixth Circuit recently described 

Plaintiff’s contention that the request for separate congregate worship was not a request for 

racially segregated worship as “disingenuous at best.” (Christian Separatist Church Society of 
5 

Ohio, the Wife of Christ, Prosopopeia, et al. v. Ohio Dep’t of Rehab. and Corrs. et al., No. 18-

3404, slip op. at 7 (6th Cir. Feb. 13, 2019)). 

Plaintiff Heid also takes issue with the Court’s conclusion that the “issues of white 

supremacy that are deeply intertwined with Plaintiffs’ ‘militant’ religion foster animosity and are 

. . . likely to fuel racial violence.” (ECF No. 10-1 at 1 (quoting 2:15-cv-2757, Doc. No. 110 at 

12–13)). Plaintiff Heid asserts that the Court’s opinions show that the Court believes the 

Plaintiffs to be white supremacists and that such a belief would show that the Court is biased 

against the Plaintiffs. Plaintiff Heid’s affidavit defines white supremacy and concludes that the 

Court saw Christian Separatism’s beliefs as a “worldview . . . of white slave masters with violent 

control or power over other races.” (ECF No. 10-1 at 2). But that is Plaintiff Heid’s 

interpretation of “white supremacy” as applied to Christian Separatism, not this Court’s. 

Moreover, Plaintiff Heid misreads the Court’s pronouncement. The quoted language does not 

identify Plaintiffs as white supremacists; rather, the Court observed that Christian Separatism is 

intertwined with white supremacist ideas. 

Plaintiff Heid has cited three other rulings from the Court in Christian Separatist I as 

alleged instances of bias. The first is this Court’s construction of the Plaintiffs’ complaint as 

bringing an RLUIPA claim against defendants in their individual capacity. The second is the 

Court’s denial of Plaintiffs’ Motion to Amend Complaint in Christian Separatist I, and the 

Court’s subsequent dismissal of Damron v. Dodrill as duplicative of the claims in Christian 

Separatist I. (ECF No. 10 at 9, 15–18). Third, Plaintiff Heid has alleged that the Court deprived 

him of his right to have facts found by a jury. (ECF No. 10 at 7). 

As to Plaintiff Heid’s first contention, Plaintiff’s complaint in Christian Separatist I

separately named as defendants the Ohio Department of Rehabilitation and Corrections and 
6 

individual officers of ODRC and specifically stated that the suit was against the individual 

defendants in their official and individual capacities. Although this Court liberally construes pro 

se complaints, this Court need not “conjure allegations on a litigant’s behalf.” Erwin v. 

Edwards, 22 F. App’x 579, 580 (6th Cir. 2001). Although Plaintiff Heid argues that this Court 

construed his RLUIPA claim “under an unsound individual capacity” theory, the Court allowed 

Plaintiffs’ RLUIPA claims to proceed against the Defendants in their individual capacities. 

(ECF Nos. 12, 42). The Court never decided that Plaintiff Heid could not bring an RLUIPA 

claim against Defendants in their individual capacities. Instead, the Court granted summary 

judgment for the Defendants because the Court found ODRC’s policy permissible under 

RLUIPA. (ECF No. 110 at 13). The Court explicitly stated that it was not reaching the question 

of whether RLUIPA allowed a claim against Defendants in their individual capacities. (ECF No. 

110 at 5). 

Second, Plaintiff Heid alleges that he should have been permitted to amend his complaint 

in Christian Separatist I and that the Court erred by denying that amendment and then 

dismissing Plaintiffs’ action in Damron et al. v. Dodrill et al., 2:17-cv-337 because “Plaintiffs 

did not assert any new material facts that cure any deficiencies in their claims dismissed in 

Christian Separatist I . . . .” (2:17-cv-337, Doc. No. 1 at 3–4). Plaintiff Heid asserts that this 

conclusion was incorrect because the claims in Christian Separatist I were based on denial of 

separate congregate worship services, and the complaint in Damron v. Dodrill included the 

additional claims to have Christian Separatism recognized as a legitimate religion in ODRC and 

several instances of alleged retaliation and discrimination against Christian Separatists. The 

allegations in the complaint in Damron v. Dodrill were included in two requests to amend the 

complaint in Christian Separatist I (ECF Nos. 26, 41), both of which were denied. (ECF Nos. 
7 

33, 88). The Sixth Circuit reviewed the denial of the second motion to amend the complaint in 

Christian Separatist I and found that “[t]he court properly concluded that the proposed 

amendments would be futile.” Christian Separatist Church Society of Ohio, the Wife of Christ, 

Prosopopeia, et al. v. Ohio Dep’t of Rehab. and Corrs. et al., No. 18-3404, slip op. at 8 (6th Cir. 

Feb. 13, 2019). Therefore, Plaintiff Heid’s contention that he should have been allowed to 

amend his complaint fails and so does his contention that Damron v. Dodrill should not have 

been dismissed because of duplicative claims. 

Finally, this Court did not usurp the role of a jury in ruling on any of Plaintiff Heid’s 

motions. On a motion for summary judgment, this Court is required to evaluate whether there is 

a genuine dispute of material fact. In so doing, this Court must evaluate to some extent the 

Plaintiffs’ proffered evidence to determine whether they have raised a genuine dispute of 

material fact. That is all this Court did in granting summary judgment for Defendants in 

Christian Separatist I. 

Plaintiff Heid has failed to show any actual bias or prejudice on the Court’s behalf that 

would require judicial disqualification. Given Plaintiff Heid’s arguments for recusal, it is hard to 

see how any ruling that finds against Plaintiff or disagrees with his view of his religion would 

satisfy Plaintiff Heid as having received a fair adjudication. But it is not the role of this Court to 

adopt, wholesale, Plaintiff’s views. When a plaintiff comes before the court, he does so with his 

best arguments and is met with the same from his opponents. It is the court’s task to evaluate the 

arguments, determine which law governs, and apply the law to the facts. On a motion for 

summary judgment, the Court views the evidence in the light most favorable to the nonmoving 

party. But this does not mean that the Court must blindly accept any fact a plaintiff puts forth as 

having raised a genuine dispute of material fact. 
8 

RLUIPA requires that courts give deference to the experience and expertise of prison 

officials. This Court has done just that. This Court is not required to take Plaintiff’s continued 

protestations that his religion does not pose a security risk as unrebutted fact. Because this 

Court’s previous rulings would not lead “a reasonable person with knowledge of all the facts [to] 

conclude that the judge’s impartiality might reasonably be questioned,” Burley, 834 F.3d at 616, 

Plaintiff Heid’s Motion to Recuse is DENIED. 

III. PRELIMINARY INJUNCTION 

The “purpose of a preliminary injunction is merely to preserve the relative positions of the 

parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981). In light of its “limited purpose,” a preliminary injunction is “customarily granted on the 

basis of procedures that are less formal and evidence that is less complete than in a trial on the 

merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 

(6th Cir. 2007). Accordingly, a party need not prove her case in full at a preliminary injunction 

hearing. Id. But see Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000) (noting that the “proof 

required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof 

required to survive a summary judgment motion”). 

When considering a motion for preliminary injunction, a district court must balance four 

factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the 

movant would suffer irreparable injury without the injunction; (3) whether issuance of the 

injunction would cause substantial harm to others; and (4) whether the public interest would be 

served by the issuance of the injunction. Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 

580, 590–91 (6th Cir. 2012). These four considerations are “factors to be balanced, not 

prerequisites that must be met.” Certified Restoration, 511 F.3d at 542. Whether the combination 
9 

of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion 

of the district court. See Leary, 228 F.3d at 739. In the First Amendment context, however, “the 

likelihood of success on the merits often will be the determinative factor.” Connection Distrib. 

Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). 

A. Likelihood of Success on the Merits 

 Plaintiffs have alleged violations of the First Amendment and RLUIPA. They bring their 

First Amendment claim under 42 U.S.C. § 1983 and their RLUIPA claim under 42 U.S.C. § 

2000cc. This Court finds that the state has met its RLUIPA burden. Because the state has a 

higher burden under RLUIPA than under the First Amendment, and the state has met that higher 

burden, this Court does not address Plaintiffs’ First Amendment claims. Before addressing those 

claims, however, a discussion of qualified immunity and standing are appropriate. 

1. Qualified Immunity and Sovereign Immunity 

 This Court may sua sponte examine whether sovereign immunity or qualified immunity 

would bar Plaintiffs’ claims. S&M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). 

Plaintiffs have sued Defendants in their individual and official capacities. At the preliminary 

injunction stage, they have asked only for injunctive relief as opposed to damages (which they 

have alleged in their complaint). As in Mann v. Wilkinson, No. 2:00-cv-0706, 2007 U.S. Dist. 

LEXIS 94002 (S.D. Ohio Dec. 21, 2007), “to the extent that [Plaintiffs] seek[] prospective 

injunctive relief concerning [their] religious [literature], qualified immunity is not a defense.” Id.

at *21. 

2. Standing 

 Since the initial filing of the complaint, Plaintiff Heid has been transferred from RCI to 

SCC. The complaint and the TRO reference only events at RCI. Plaintiff Heid represented at 
10 

the Preliminary Injunction hearing that he still does not have the CSC CDs at SCC, nor is he 

allowed to have publications bearing the swastika. Plaintiff Heid thus has standing to pursue 

these claims. Plaintiff Damron’s standing is not in doubt. 

3. RLUIPA 

 Plaintiffs have alleged that ODRC’s policies prohibiting access to Christian Separatist 

literature violate RLUIPA. RLUIPA states that “‘no [state or local] government shall impose a 

substantial burden on the religious exercise of a person residing in or confined to an institution,’ 

unless the government shows that the burden furthers ‘a compelling governmental interest’ and 

does so by ‘the least restrictive means.’” Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) (quoting 

42 U.S.C. § 2000cc-1(a)(1)-(2)). RLUIPA applies to “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” § 2000cc-2(a). Although the state 

must show that the burden furthers a compelling governmental interest in the least restrictive 

way, “[l]awmakers anticipated . . . that courts entertaining complaints under § 3 [of RLUIPA] 

would accord ‘due deference to the experience and expertise of prison and jail administrators.’” 

Cutter, 544 U.S. at 717 (quoting 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sen. 

Hatch and Sen. Kennedy on RLUIPA)). 

 Plaintiffs have the burden to show both “that the relevant exercise of religion is grounded 

in a sincerely held religious belief” and “that the Department’s . . . policy substantially burdened 

that exercise of religion.” Holt v. Hobbs, 135 S.Ct. 853 (2015). If Plaintiffs meet their burden, 

then the state bears the burden of showing that the policy is the least restrictive means to further 

a compelling governmental interest. 

 The sincerely held belief inquiry focuses on the authenticity of a belief. Haight v. 

Thompson, 763 F.3d 554, 567 (6th Cir. 2014). Under RLUIPA, courts cannot conduct an 
11 

“inquiry into whether a particular belief or practice is “central” to [an individual’s] religion.” 

Cutter, 544 U.S. at 725 n.13. A prison, however, may “still . . . give some consideration to an 

organization’s tenets” on the rationale that “the more a person’s professed beliefs differ from the 

orthodox beliefs of his faith, the less likely they are to be sincerely held.” Haight, 763 F.3d at 

567 (citing Vinning-El v. Evans, 657 F.3d 591, 591 (7th Cir. 2011)). This Court does not doubt 

the sincerity of Plaintiffs’ beliefs. The State at the Preliminary Injunction hearing attempted to 

show that Plaintiffs’ beliefs are not a religion, although the State made no such argument in its 

Response in Opposition to the Preliminary Injunction. 

Courts may consider whether a particular set of beliefs is a religion. See, e.g., Kaufman 

v. McCaughtry, 419 F.3d 678, 681–82 (7th Cir. 2005); Hale v. Federal Bureau of Prisons, No. 

18-1141, 2019 WL 117616, at *4–6 (10th Cir. Jan. 7, 2019). The Sixth Circuit has not 

articulated a test for whether a set of beliefs is a religion, but it has noted that in the RFRA 

context, the plaintiff must show a substantial burden to “a religious belief rather than a 

philosophy or way of life.” General Conference Corp. of Seventh-Day Adventists v. McGill, 617 

F.3d 402, 410 (6th Cir. 2010) (quoting United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 

1996)). United States v. Meyers lists five factors for whether a belief system is a religion: 

“ultimate ideas, metaphysical beliefs, moral or ethical system, comprehensiveness of beliefs, 

[and] accoutrements of religion.” Meyers, 95 F.3d at 1483. Accoutrements of religion, in turn, 

includes whether a system of beliefs has: “[a] founder, prophet, or teacher; important writings; 

gathering places; keepers of knowledge; ceremonies and rituals; structure or organization; 

holidays; diet or fasting; appearance and clothing; and propagation.” Id. at 1483–84. The Tenth 

Circuit’s Meyers factors are similar to the Third Circuit’s test. The Third Circuit considers 

whether the belief system includes: “(1) an attempt to address ‘fundamental and ultimate 
12 

questions’ involving ‘deep and imponderable matters’; (2) a comprehensive belief system; and 

(3) the presence of formal and external signs like clergy and observance of holidays.” Sutton v. 

Rasheed, 323 F.3d 236, 251 n.30 (3d Cir. 2003) (quoting Africa v. Commonwealth of 

Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981)). The Seventh Circuit considers whether “a 

person sincerely holds beliefs dealing with issues of ‘ultimate concern’ that for her occupy a 

‘place parallel to that filled by . . . God in traditionally religious persons.’” Kaufman, 419 F.3d at 

681 (quoting Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688 n.5 (7th Cir. 1994)). 

Most courts to have addressed challenges brought by groups that hold racist beliefs have 

assumed without discussion that such groups hold beliefs which qualify as religious and are 

entitled to protection under the First Amendent, RLUIPA, or RFRA. See, e.g., Mann, 2007 U.S. 

Dist. LEXIS 94002 (considering an RLUIPA claim brought by members of the Christian Identity 

Church); McCabe v. Arave, 827 F.2d 634, 636–37 n.2 (9th Cir. 1987) (assuming that the Church 

Jesus Christ Christian, which includes “racial hatred, revenge and violence” and included the 

Aryan Nation as its “alter ego,” was a religion for purposes of the First Amendment); Murphy v. 

Missouri Dep’t of Corrs., 814 F.2d 1252, 1255–56 (8th Cir. 1987) (finding that plaintiffs were 

not harmed when district court assumed without deciding that Church of Jesus Christ Christian 

was a religion). In some cases, the defendants did not challenge that the beliefs in question 

constituted a religion. See Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006). Courts to have 

addressed the issue have been split on whether groups that espouse views similar to the views of 

the Christian Separatist Church are religions. The Tenth Circuit has found that “Creativity,” 

which has as “one of [its] central tenets” the belief that “Good is personified by the White Race 

and the crusade for its future, while evil is personified by its antithesis in this world, the Jewish 

Race,” is not a religion. Hale, 2019 WL 117616, at *1–5. But the Third Circuit has held that the 
13 

Nation of Islam, whose “members want to establish a separate territory where black people can 

live independently and ‘believe the offer of integration is hypocritical and is made by those who 

are trying to deceive the black peoples into believing that their 400-year-old enemies . . . are, all 

of a sudden, their ‘friends,’” is entitled to First Amendment protection as having “views . . . 

sufficiently rooted in religion.” Sutton, 323 F.3d at 252. The Eighth Circuit cast significant 

doubt on a district court’s determination that the Church of Jesus Christ Christian was not a 

religion, finding that “the district court may have erred in its conclusion that the inmates’ beliefs 

are purely secular” and that “the inmates’ religion may be comprehensive and that it may address 

fundamental and ultimate questions.” Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985). 

The Eighth Circuit remanded the case to the district court for further consideration. 

In addition to noting that RFRA, and therefore RLUIPA, required a claim based on “a 

religious belief rather than a philosophy or way of life,” General Conference Corp. of SeventhDay Adventists, 617 F.3d at 410, the Sixth Circuit has also opined that “a court’s attempt to 

distinguish between what is or is not a religious belief might implicate the Establishment 

Clause.” New Doe Child #1 v. Congress of United States, 891 F.3d 578, 588 n.4 (6th Cir. 2018) 

(citing New York v. Cathedral Acad., 434 U.S. 125, 133 (1977)). While the State presented some 

evidence at the Preliminary Injunction hearing regarding what the Christian Separatist Church 

believes, including the Christian Separatist Catechism for the Anointed Nation, this issue was not 

sufficiently addressed by either party for this Court to determine whether Christian Separatism is 

a religion. Because this Court finds that the State has shown its decisions are the least restrictive 

means of furthering a compelling governmental interest, however, this Court need not reach the 

issue of whether Christian Separatism is a religion. 
14 

 In order to prevail, Plaintiffs must show that the ODRC policy places a substantial burden 

on their religious exercise. A policy is a substantial burden if it “places substantial pressure on 

an adherent to modify his behavior and to violate his beliefs.” Haight, 763 F.3d at 565. Being 

forced to choose between violating religious beliefs and facing discipline in the prison context is 

a substantial burden. Holt, 135 S.Ct. at 862. RLUIPA prohibits inquiring into “whether the 

RLUIPA claimant is able to engage in other forms of religious exercise.” Id. The State may be 

required “to incur expenses in its own operations to avoid imposing a substantial burden on 

religious exercise.” § 2000cc-3(c). 

 Plaintiffs argue that ODRC’s policies substantially burden their religious exercise 

because the policies prevent them from obtaining “full knowledge of truth.” Plaintiffs allege that 

not having access to sermons on CDs prevents them from “fully study[ing] the precepts of [their] 

faith.” (ECF No. 37 at 6–7). The State’s arguments that Plaintiffs can still practice their faith 

individually, have sacred texts, and visit with clergy, ECF No. 44 at 12, are comparisons 

specifically prohibited under RLUIPA. See Holt, 135 S.Ct. at 862. Plaintiffs introduced next to 

no evidence regarding their religious CDs or the publication Christian Principles of National 

Socialism. Therefore, Plaintiffs have not carried their burden to show that not having these CDs 

or Christian Principles of National Socialism is a substantial burden. This Court will therefore 

address only Plaintiffs’ claims regarding access to Positive Christianity in the Third Reich, Was 

Adolf Hitler a Bible Christian?, and Mein Kampf–The Ford Translation. 

This Court doubts that prohibiting access to the challenged publications and prohibiting 

the swastika as a symbol is a substantial burden on Plaintiffs’ free exercise rights. While courts 

hearing claims under RLUIPA are prohibited from inquiring into the truth of the religious 

beliefs, it is a threshold requirement for RLUIPA protection that an inmate’s religious exercise 
15 

be substantially burdened. Haight, 763 F.3d at 565. See also Smith v. Governor of Alabama, 

562 F. App’x 806, 813 (11th Cir. 2014) (finding that Plaintiff had not shown a substantial burden 

because he had not offered evidence that the items requested “were fundamental to his practice 

of Odinism or that the absence of the items caused anything more than a mere inconvenience on 

his religious exercise.”). As Plaintiff Heid testified in response to the Court’s questions at the 

Preliminary Injunction hearing, neither the New Testament nor the Old Testament requires the 

use of the swastika. The swastika is symbolic, and Plaintiff Heid testified that he uses the 

swastika to represent his faith and sees the swastika as an integral part of his religious practice. 

There is nothing in the record, or in generally accepted Christian doctrine, however, which 

supports the swastika as an integral part of the practice of Christianity. Thus, this Court finds 

that Plaintiff Heid’s use of the swastika is not an integral part of his religious practice. 

 The Court is then left to consider whether restricting Plaintiffs’ access to three books: 

Positive Christianity in the Third Reich, Was Adolf Hitler a Bible Christian?, and Mein Kampf–

The Ford Translation, imposes a substantial burden on Plaintiffs’ free exercise rights. A 

substantial burden may be upheld if it is the least restrictive means of furthering a compelling 

government interest. Courts are expected to defer to the judgment of prison officials “in 

establishing necessary regulations and procedures to maintain good order, security and 

discipline, consistent with consideration of costs and limited resources.” Cutter, 544 U.S. at 713 

(quoting Joint Statement of Hatch and Kennedy)). RLUIPA “does not elevate accommodation of 

religious observances over an institution’s need to maintain order and safety.” Cutter, 544 U.S. 

at 722. 

Maintaining prison security is a compelling interest, but it must be the “actual purpose” 

behind ODRC’s policies and actions, rather than mere “post hoc rationalizations.” Haight, 763 
16 

F.3d at 562–63. Additionally, some consideration is due the connection between the 

accommodation requested and the security risk posed by these particular Plaintiffs. See Haight, 

763 F.3d at 563 (“[W]e know next to nothing about why a sweat lodge presents a compelling 

security problem as to “that” particular group of inmates—the inmates who made the request and 

who filed this lawsuit.”); Mann, 2007 U.S. Dist. LEXIS 94002, at *19 (denying summary 

judgment because, among other things, there was “no evidence that [Plaintiff] ever used the 

religious literature in question . . . to incite or promote acts of violence or to enlist prisoners in a 

gang.”). The key distinction as to whether prison officials may prohibit racially inflammatory 

literature for security reasons is “whether prison officials are able to demonstrate, in a fashion 

not reasonably subject to dispute, that a particular piece of literature advocates not only 

separation of the races or supremacy of one race over another, but also violent acts in order to 

promote a racially separatist agenda.” Mann, 2007 U.S. Dist. LEXIS 94002, at *17. 

While the State has shown no link between these materials and violence from Plaintiffs 

Heid and Damron, the State has adduced evidence demonstrating that the publications encourage 

violence and include “inflammatory rhetoric.” (ECF No. 44 at 12). The State has provided the 

following passage from Mein Kampf as an example: 

 The only way to achieve success is through a constant and regular use of 

violence. This persistence can only happen with a definite intellectual and 

spiritual conviction backing it up. All violence not founded on a solid spiritual or 

intellectual basis is indecisive and uncertain. 

(Id.). This passage includes a call to violence. Because of this call to violence, ODRC had a 

compelling interest in banning Mein Kampf–The Ford Translation. 

ODRC also excluded Positive Christianity in the Third Reich and Was Adolf Hitler a 

Bible Christian? because of Nazi swastika symbolism that was “too inflammatory for prison 

environment,” could be used by STGs, and could lead to violence. Def’s. Ex. D-8 at 2; D-9 at 2. 
17 

At the Preliminary Injunction hearing, the State called Brian Niceswanger, the administrative 

assistant for the southeast regional director, as a witness. Mr. Niceswanger has worked in the 

office of prisons for ten years and been with the Department of Rehabilitation and Corrections 

for twenty years. In his current role, Mr. Niceswanger spends time in the prisons, works with 

security staff including local security group coordinators, and tracks violent incidents to 

determine how best to address such situations. He testified that the swastika is an incendiary 

symbol in the prison context and that white supremacist groups use that symbol to identify likeminded individuals and attempt to “group up.” 

The State also called Eric Graves, the STG coordinator at RCI. He has held that position 

since the end of June 2014. For four years before that, he was the STG coordinator at a level two 

institution. He has been with ODRC for more than twenty-eight years. In his position as STG 

coordinator at RCI, Mr. Graves tracks and monitors gang affiliations inside prisons. He testified 

that roughly forty-seven percent of inmates at RCI have a gang affiliation and that the swastika 

can lead to violent altercations inside prison. He also testified that it was important to know 

which inmates were affiliated with which gangs because it was important to not have too many 

inmates of one affiliation together in a cell block. 

Finally, the State called Matthew Gillum, the south regional STG investigator, assistant 

coordinator for the department of corrections. He has been in that role for four years; prior to 

that, he was an STG coordinator assistant investigator. Mr. Gillum cast doubt on whether an 

officer would be able to determine during an altercation whether an individual with a swastika 

was using that swastika for gang purposes or for religious purposes. He also testified that gangs 

in prison engage in extortion and otherwise present a threat of violence. 
18 

The testimony from these prison officials shows that ODRC is acutely aware of the 

danger of prison gang activity and works actively to prevent such activity and any possible 

violence. This Court must defer to the experienced judgment of these prison officials. 

While the State does not contest that Plaintiffs Heid and Damron have not been violent 

and are not members of an STG, the State has also introduced testimony that Heid and Damron 

having the swastika would make it more difficult for staff to identify STG members. Thus, the 

State’s rationale for banning the swastika is not limited only to the security risk, if any, that 

Plaintiffs Heid and Damron pose, but rather takes into account the increased burden on ODRC 

staff to respond to prison altercations or prevent gang activity and affiliations. Nothing in 

RLUIPA, nor Sixth Circuit precedent, prohibits the State from basing its compelling justification 

on the strain on prison staff and resources. 

 Once a policy furthers a compelling government interest, “the Court must determine 

whether the . . . policy as applied to plaintiff is the least restrictive means of enforcing the 

compelling interest.” Glenn v. Ohio Dep’t of Rehab. & Corr., 2018 U.S. Dist. LEXIS 80833, at 

*9–10 (N.D. Ohio May 14, 2018). Although the State “bears the burden of proof to show its 

practice is the least-restrictive means, it is under no obligation to dream up alternatives that the 

plaintiff himself has not proposed.” Christian Separatist Church Soc’y v. Ohio Dep’t of Rehab. 

& Corr., No. 2:15-cv-2757, 2018 U.S. Dist. LEXIS 54984, at *10 – 11 (S.D. Ohio Mar. 30, 

2018) (Marbley, J), but, “defendants must show that alternatives . . . were considered.” 

Hardaway v. Haggerty, No. 05-70362, 2011 WL 761494, at *6 (E.D. Mich. Feb. 25, 2011). The 

Court “‘must take adequate account of the burdens a requested accommodation may impose on 

nonbeneficiaries’ and may correctly consider ‘[c]ost to the government’ as an ‘important 

factor.’” Christian Separatist Church Soc’y v. Ohio Dep’t of Rehab. & Corr., 2011 WL 761494 
19 

at *11 (quoting Equal Employment Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, 

Inc., 884 F.3d 560, 593 (6th Cir. 2018). Additionally, “once prison officials have provided 

expert testimony sufficient to justify the security regulation and resultant impingement of 

prisoner rights, ‘the courts must defer to the expert judgment of the prison officials unless the 

prisoner proves by substantial evidence that the officials have exaggerated their response to 

security considerations.” Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir. 2005) (quoting 

Espinoza v. Wilson, 814 F.2d 1093 (6th Cir. 1987)). 

 The only alternative that the Plaintiffs have suggested is that the CDs be kept in the main 

library. (ECF No. 38 at 14). The Plaintiffs have not met their burden under RLUIPA of showing 

that not having access to these CDs is a substantial burden on their religion. Even if it were, 

however, tt is hard to see how such a solution is a less restrictive alternative. The State has 

argued that these materials incite violence. Whether inmates have these materials in their cells or 

in the prison library, they present the same risk of violence. The Defendants assert that they 

cannot allow these Plaintiffs to have accommodations without compromising security and 

fostering resentment. These are rationales that courts consider in determining whether a prison’s 

approach is the least restrictive means of ensuring prison safety. Hoevenaar, 422 F.3d at 371–

72. The Southern District of Ohio in Mann v. Wilkinson considered the possibility of redacting 

violent phrases, but Plaintiffs have suggested no such solution. Mann, 2007 U.S. Dist. LEXIS 

94002, at *21. Thus, because the banned material threatens prison safety and Plaintiffs have not 

offered alternatives, on the record from the Preliminary Injunction hearing, the State would 

likely prevail in showing that the ban on Positive Christianity in the Third Reich, Was Adolf 

Hitler a Bible Christian?, and Mein Kampf–The Ford Translation are the least restrictive means 

of furthering prison safety. 
20 

Haight v. Thompson does not suggest otherwise. The Sixth Circuit in Haight rejected 

prison official’s argument that they could not accommodate inmates under RLUIPA because 

doing so would require making an exception to prison rules that would open the proverbial 

floodgates for more exceptions. Making exceptions is the whole point of RLUIPA, and 

“[r]ejecting accommodation requests on the ground that an exception to a general prison policy 

will make life difficult for prison wardens . . . has no place as a stand-alone justification under 

RLUIPA.” Haight, 763 F.3d at 562. Here, the State is not rejecting Plaintiffs’ requests for the 

swastika merely because doing otherwise would require making an exception to the rules. 

Rather, the State has shown that the swastika is a symbol that can foster gang activity. This is a 

far cry from the sweat lodge at issue in Haight, which prison officials asserted almost without 

justification, was a security risk. 

 A prison’s regulation fails under RLUIPA if “the prisoner proves by substantial evidence 

that the officials have exaggerated their response to security considerations.” Hoevenaar, 422 

F.3d at 370 (quoting Espinoza, 814 F.2d at 1099). Plaintiffs argue that banning Christian 

Separatists’ use of the swastika is arbitrary and irrational because the swastika is allowed in other 

contexts, namely by Hindus and for use in historical narratives about Nazi Germany. They also 

allege that the Star of David is a gang symbol that is allowed while the swastika is not. (ECF 

No. 38 at 12). Plaintiffs have argued that banning the swastika because of associations it may 

have to gangs is arbitrary because gangs have their own, unique symbols. (ECF No. 38 at 18). 

This is not substantial evidence of an exaggerated response. Defendants have asserted that the 

Hindu swastika is different from the swastika used in the Plaintiffs’ requested publications and 

Plaintiff Damron admitted that the Hindu swastika may be somewhat different from the swastika 

Plaintiffs seek to access. ODRC does not ban all literature from the Christian Separatist Church, 
21 

only the swastika. See, e.g., Murphy v. Missouri Department of Corrections, 824 F.2d 1252 (8th 

Cir. 1987) (finding a prison regulation banning all Aryan Nations literature overbroad). 

Therefore, Plaintiffs Heid and Damron have not shown a strong likelihood of success on the 

merits. 

 This ruling comports with this Court’s pronouncement in Damron et al. v. Jackson, No. 

2:09-cv-50, 2011 WL 4402767 (S.D. Ohio Sept. 21, 2011). In Damron v. Jackson, this Court 

followed the reasoning of Mann v. Wilkinson and denied summary judgment for Defendants, 

finding a genuine issue of material fact as to whether ODRC’s banning of religious literature was 

the least restrictive means of furthering the compelling interest in prison security. Damron v. 

Jackson, 2011 WL 4402767 at *6. The Court noted that “Defendant has identified no more 

specific information, such as quotations from these materials calling for violence or records of 

incidents involving Damron (or any other person) employing such materials to promote violence 

or gang affiliation.” Id. Here, ODRC has pointed the Court to quotes from Mein Kampf–The 

Ford Translation advocating violence and introduced substantial evidence to support its 

compelling interest in banning the swastika as an STG identifier. Additionally, the Summary 

Judgment Order in Damron v. Jackson decided only that Damron’s claims could proceed; it did 

not decide that Damron’s claims were meritorious. Similarly, this Court limits its analysis on a 

motion for preliminary injunction to whether Plaintiffs have shown a strong likelihood of success 

and not whether Plaintiffs have proved or failed to prove the merits of their claims. The Court is 

limited to the arguments and evidence advanced in the parties’ pleadings and at the Preliminary 

Injunction hearing. 
22 

B. Irreparability of Harm, Substantial Harm to Others, and Public Interest 

 In the First Amendment context “the likelihood of success on the merits often will be the 

determinative factor.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). 

Although RLUIPA imposes standards different from those under the First Amendment, RLUIPA 

provides statutory protection for First Amendment values. Therefore, the likelihood of success on 

the merits is also key in the RLUIPA context. See, e.g., Buchanan v. Burbury, 2006 U.S. Dist. 

LEXIS 48244 (N.D. Ohio July 17, 2006). Supreme Court precedent is clear that “even minimal 

infringement upon First Amendment values constitutes irreparable injury sufficient to justify 

injunctive relief.” Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989). Because the Plaintiffs 

are not likely to succeed on their RLUIPA claim, they have not shown irreparable harm. Nor have 

Plaintiffs shown that granting the preliminary injunction is in the public interest. Showing a 

constitutional violation would also generally show that granting a preliminary injunction does not 

pose a substantial harm to others. Here, however, the Court considers the possible harm to ODRC 

employees and other inmates if Plaintiffs are allowed access to their requested literature and are 

allowed to possess images of the swastika. If such symbol does lead to violence or burdens prison 

officials, the prison system could be substantially disrupted. Therefore, Plaintiffs have not met the 

substantial harm to others prong of the preliminary injunction test. 

IV. CONCLUSION 

 For the foregoing reasons, Plaintiffs’ Motions are DENIED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley ___________ 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: March 4, 2019