UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jason A. Czekalski

v. Case No. 18-cv-592-PB Opinion No.

Helen Hanks, New Hampshire Department of Corrections Commissioner; and James Daly, New Hampshire State Prison Chaplain

O R D E R

Before the court is the defendants’ motion for summary

judgment (Doc. No. 81). In that motion, the defendants, New

Hampshire Department of Corrections (“DOC”) Commissioner Helen

Hanks and New Hampshire State Prison (“NHSP”) Chaplain James

Daly, seek a ruling in their favor on the claims remaining in

this case. Also before the court are plaintiff Jason A.

Czekalski’s two cross-motions for partial summary judgment (Doc.

Nos. 68, 69) on his Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) claims.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). In this context, a “material fact” is one that has the “‘potential to affect the outcome of the suit.’” Cherkaoui v.

City of Quincy,

(1st Cir. 2017) (citation

omitted). A “‘genuine dispute’” exists if a jury could resolve

the disputed fact in the nonmovant’s favor. Ellis v. Fid. Mgmt.

Tr. Co.,

(1st Cir. 2018) (citation omitted). In

considering the evidence presented by either party, all

reasonable inferences are to be drawn in the nonmoving party’s

favor. See Theriault v. Genesis HealthCare LLC,

(1st Cir. 2018).

“The party moving for summary judgment bears the initial

burden of showing that no genuine issue of material fact

exists.” Feliciano-Muñoz v. Rebarber-Ocasio,

, 62

(1st Cir. 2020). As to issues on which the party opposing

summary judgment would bear the burden of proof, the movant need

only point out that there is an absence of evidence to support

the nonmoving party’s case. Celotex Corp. v. Catrett,

(1986). Then, the non-movant must point to definite

and competent evidence showing the existence of a genuine issue

of material fact and may not rely on the absence of evidence or

unsupported legal arguments. Irobe v. U.S. Dep’t of Agric.,

, 380 n.4 (1st Cir. 2018); Perez v. Lorraine Enters.,

, 29–30 (1st Cir. 2014); see also Theidon v. Harvard

Univ.,

, 494 (1st Cir. 2020) (non-movant “cannot

rely on ‘conclusory allegations, improbable inferences,

2 acrimonious invective, or rank speculation’” (citation

omitted)). “Speculation about mere possibilities, without more,

is not enough to stave off summary judgment.” Tobin v. Fed.

Express Corp.,

(1st Cir. 2014).

If the party moving for summary judgment bears the burden

of proof on an issue, that party “must provide evidence

sufficient for the court to hold that no reasonable trier of

fact could find other than in its favor.” Am. Steel Erectors,

Inc. v. Local Union No. 7, Int’l Ass’n of Bridge, Structural,

Ornamental & Reinforcing Iron Workers,

(1st Cir.

2008). Then, “the burden shifts to the nonmovant to establish

that a genuine material dispute exists.” Harley-Davidson Credit

Corp. v. Galvin,

(1st Cir. 2015). “At the

summary judgment stage, the absence of evidence on an issue

redounds to the detriment of the party who bears the burden of

proof on that issue.” Perez,

.

II. BACKGROUND

A. Parties

Czekalski is an inmate at the NHSP who was brought up in a

Protestant family, was married to a Catholic woman for about

thirty years, and then converted to Judaism approximately twenty

years ago. His practices at the NHSP have tended to be aligned

with Modern Orthodox Jewish practices. See Dep. of Jason

3 Czekalski, Oct. 16, 2019 (“2019 Czekalski Dep.”) at 25-26, 34

(Doc. No. 85-3, at 66-67, 69); Personal Decl. of Jason A.

Czekalski, Nov. 7, 2019 (“Czekalski Decl. I”) (Doc. No. 68-1, at

5-6).

Defendant Chaplain Daly, a Roman Catholic deacon, has been

the NHSP Chaplain for more than fifteen years. See Decl. of

James P. Daly, Sept. 5, 2018 (“Daly Decl. I”) (Doc. No. 12-1, at

1). Defendant Helen Hanks is the DOC Commissioner.

B. Pertinent DOC Policies Regarding Religious Activities

DOC administrative rules provide that “[r]eligious

programs, individual religious counseling, or both” shall be

offered to all inmates, as appropriate to their custody level

and housing unit. N.H. Admin. R. COR 302.06(a)-(b). The rules

further provide that the DOC “shall encourage religious

volunteers to provide religious ministrations” to inmates in DOC

facilities.

The facility chaplain is the designated point of contact

for religious activities conducted by outside religious visitors

and volunteers at each DOC facility. See Decl. of James P.

Daly, Feb. 11, 2020 (“Daly Decl. II”) (Doc. No. 81-5, at 2); see

also DOC Policy and Procedure Directive (“PPD”) 7.17 ¶¶ II-V

(Doc. No. 12-2). All religious activities, defined as those

activities “designed specifically for worship, instruction,

4 spiritual guidance or counseling” in DOC facilities, are

conducted by or under the auspices of the facility chaplain.

PPD 7.17 ¶ III(A) (Doc. No. 12-2)

The chaplain’s duties include pastoral counseling,

assisting inmates with obtaining religious items and

publications, serving as the librarian for religious materials

in the facility’s Chapel library, screening religious materials

dropped off by religious volunteers/visitors, scheduling

congregate rites or rituals if an approved volunteer is

available, and leading rites and rituals when qualified to do

so. See Daly Decl. II, Doc. No. 81-5, at 2, 5; PPD 7.17

¶¶ V(B), V(C)(3), V(G)(1)-(2), V(I) (Doc. No. 12-2); PPD 7.09

¶ IV(N)(1)(c)(4) (Doc. No. 12-3); see also PPD

305(d)(14)(1)(c)(4) (eff. Feb. 21, 2020).1

Clergy seeking to meet with DOC inmates can choose to

register either as a religious visitor, or as a religious

volunteer. As a general rule, a person is not allowed to

register in both capacities. See DOC Official Visitor

Registration Form (Doc. No. 11-3, at 19). That is, a religious

1PPD305 superseded PPD 7.09 in February 2020. See DOC Admin. Rules and Dep’t Policies, Visiting Policy, available at https://www.nh.gov/nhdoc/policies/documents/305-visiting- policy.pdf (last accessed Dec. 8, 2020). The pertinent parts of PPD 7.09 cited in this Order also appear in PPD 305. In this Order, I generally refer to the provisions as they were numbered in PPD 7.09.

5 visitor who is permitted to provide “individual religious

ministrations” at the NHSP would not also generally be allowed

to lead “congregate religious activities” as an approved

religious volunteer in the same facility. See PPD 7.17

¶ IV(A)(3) (Doc. No. 11-2, at 24); see also DOC Official Visitor

Registration Form (Doc. No. 11-3, at 19).

To become an approved religious volunteer, a person must:

be properly credentialed and vetted, attend DOC training and

orientation, and agree to comply with the same rules that apply

to paid staff relating to inmate interactions. See PPD 2.24

¶ IV(A)(4)(h) (Doc. No. 11-6); PPD 7.17 ¶¶ IV(H), V(C) (Doc. No.

11-2). Once approved, religious volunteers are allowed to meet

with groups of inmates for instruction or other group activities

in the chapel. All inmates in the general prison population are

free to attend such activities. See PPD 7.17 ¶ V(C) (Doc. No.

11-2). DOC policies require that approved religious volunteers

maintain a clinical/professional distance from inmates, PPD 2.24

¶ III(D)(9)(c) (Doc. No. 12-6, at 2), and specifically prohibit

volunteers from “conduct[ing] business of any type for/with

inmates,” and from becoming overly familiar with inmates, PPD

7.17 ¶ IV(H) (Doc. No. 11-2, at 3). Such restrictions, aimed at

deterring undue familiarity between inmates and volunteers or

paid staff, advance the DOC’s legitimate interest in maintaining

institutional security. Nov. 16, 2018 Stip. of Undisputed Facts

6 in Connection with Hr’g on Req. for Prelim. Inj. (“Stip. I”)

¶ 10 (Doc. No. 31, at 4).

Clergy who seek to be certified as “religious visitors” may

attend, but are not required to complete, the same training and

orientation required of religious volunteers. See PPD 2.24

¶ IV(C)(1)(a) (Doc. No. 12-6, at 2). Religious visitors are

allowed to provide individual counseling or instruction to

specific inmates, one-on-one, in the NHSP Visiting Room, but

they may not lead group activities in the chapel. See id.; PPD

7.17 ¶ V(C) (Doc. No. 11-2); DOC Official Visitor Registration

Form (Doc. No. 11-3, at 19).

DOC policies that apply to religious visitors and

volunteers impose restrictions on corresponding with, and

providing to or receiving items from, inmates.2 It is undisputed

here, however, that religious visitors may receive calls from

inmates; correspond with inmates by letter (subject to a 10-page

limit); order books for direct mail to the inmate from the

publisher; and arrange for certain other non-contraband items to

be delivered to an inmate, including religious foods like

challah and matzah. See Stip. I ¶ 6 (Doc. No. 31, at 3); Defs.’

2See PPD 2.24 ¶ IV(D)(9)(g), IV(D)(12)-(13) (Doc. No. 11-6, at 4-5); see also PPD 2.24 ¶¶ IV(A)(3)-(4), IV(C)(1)-(2) (Doc. No. 11-6, at 2-3).

7 Mot. for Summ. J. ¶ 17 (Doc. No. 81, at 7); Daly Decl. I (Doc.

No. 12-1, at 6); 2019 Czekalski Dep. at 162-66 (Doc. No. 85-4,

at 21-22).

DOC policies in effect since June 1, 2017 specifically

prohibit religious visitors and volunteers from bringing any

religious materials with them into the facility. See PPD 7.09

¶ IV(N)(1)(c)(4) (eff. June 1, 2017) (Doc. No. 11-3, at 7); see

also PPD 2.24 ¶ IV(D)(14)(c)(9) (Doc. No. 12-6, at 2). If they

want to use religious materials during their meetings at the

NHSP, religious visitors and volunteers must donate those

materials to the facility ahead of time. DOC policies designate

the chaplain as the person who must receive, pre-screen, and

decide whether to make those materials available for use during

a visit. PPD 7.09 ¶ IV(N)(1)(c)(4) (Doc. No. 11-3, at 7).

C. Rabbi Nafshi and Meetings with Jewish Inmates

Two volunteers have regularly visited the NHSP to meet with

Jewish inmates. One such volunteer, not a rabbi, leads a weekly

Hebrew study group, as well as twice-monthly Shabbat services

which Czekalski attends. See Stip. I ¶¶ 13-16 (Doc. No. 31, at

5). The other is Rabbi Robin Nafshi, a Jewish rabbi who has met

with inmates individually and in small groups at the NHSP for a

number of years. See Dep. of Rabbi Robin Nafshi, Dec. 20, 2019,

at 11-13 (Doc. No. 85-4, at 40) (“Rabbi Nafshi Dep.”).

8 Rabbi Nafshi became Czekalski’s rabbi after he arrived at

the NHSP in 2013; he began interacting with her in spring 2014.

Personal Decl. of Jason A. Czekalski, Nov. 25, 2019, (“Czekalski

Decl. II”) (Doc. No. 69-1, at 1). Until June 1, 2018, Rabbi

Nafshi visited the NHSP about once per month to meet with one or

two inmates at a time, in the relative privacy of the NHSP

chapel, in her capacity as an approved “religious volunteer.”

Inmates Seth Bader and Czekalski generally attended those

meetings together when they were both housed at the NHSP. See

Rabbi Nafshi Dep. at 13-14, 27 (Doc. No. 85-4, at 40-41, 44).

On some occasions, Bader would send a letter to Rabbi Nafshi

ahead of time, asking her questions that they would then discuss

in their meetings, using written materials she would print out

and bring in to share with them. Third Decl. of Seth Bader,

Nov. 20, 2018, ¶ 8 (Doc. No. 68-2, at 12-13) (“Third Bader

Decl.”). Occasionally, she donated books to the Chapel library.

See Third Bader Decl. ¶ 8 (Doc. No. 68-2, at 12-13). The

inmates’ meetings with Rabbi Nafshi typically occurred on

Mondays, Chaplain Daly’s day off. 2019 Czekalski Dep. at 128

(Doc. No. 85-4, at 12)

For a number of years prior to 2018, Rabbi Nafshi had been

allowed to bring written materials with her to the meetings with

inmates in the Chapel, without incident. See Rabbi Nafshi Dep.

at 24 (Doc. No. 85-4, at 43). More recently, however, Rabbi

9 Nafshi found out she needed to drop off written materials in

advance for pre-screening by the Chaplain. See Rabbi Nafshi

Dep. at 24, 44-46 (Doc. No. 85-4, at 43, 48-49); see also Daly

Decl. II ¶ 9 (Doc. No. 81-5, at 9). On April 21, 2017, Chaplain

Daly sent Rabbi Nafshi an email stating that she needed to drop

off written materials in the NHSP mailroom if she wanted to

share those materials with inmates, and that he would bring

those materials to the Chapel after reviewing them, and that the

inmates could not receive more than ten double-sided pages. See

Rabbi Nafshi Dep. at 44-46 (Doc. No. 85-4, at 48-49); Daly Decl.

II ¶ 9 (Doc. No. 81-5, at 9).

Rabbi Nafshi dropped off written materials in advance of

her scheduled visits only twice in 2017/2018, once in March and

once in May. See Rabbi Nafshi Dep. at 23-25 (Doc. No. 85-4, at

43). The March packet was available when she needed it, but the

May 2018 packet, comprised of 67 double-sided pages of

materials, was not. See Rabbi Nafshi Dep. at 23-25 (Doc. No.

85-4, at 43); Daly Decl. II ¶ 10 (Doc. No. 81-5, at 3).

Rabbi Nafshi sent a follow-up email to Chaplain Daly in May

2018 to ask if there had been a problem with the packet she had

planned to use that month. Rabbi Nafshi Dep. at 22, 24-25 (Doc.

No. 85-4, at 43). Chaplain Daly’s emailed response reached her

several weeks later on June 1, 2018. That email said that she

had dropped off too many pages (67 double-sided pages, exceeding

10 the 10-page limit), that an inmate seeking to circumvent the 10-

page limit on incoming mail had taken advantage of her, and that

Chaplain Daly could not understand the relevance of her

materials to inmate spiritual care. See Rabbi Nafshi Dep. at

22, 46-47 (Doc. No. 85-4, at 43, 49); see also Daly Decl. II

¶ 10 (Doc. No. 81-5, at 3). Chaplain Daly has explained that he

inquired into the connection between the content of her

materials and “her charge” as a “clergyman” in light of the

extraordinary volume of material she presented and its burden on

labor-intensive security-screening functions. See Daly Decl. II

¶ 12 (Doc. No. 81-5, at 3).

Rabbi Nafshi testified that she was offended or frustrated

by the tone of Chaplain Daly’s June 1 email, by his slow

responses to her emails and inquiries that could take weeks and

weeks to get an answer, and by what she perceived to be his lack

of an understanding of and interest in Judaism and how a rabbi

could meet the spiritual needs of Jews in prison. See Rabbi

Nafshi Dep. at 21-27 (Doc. No. 85-4, at 42-44). Rabbi Nafshi

sent an email back to Chaplain Daly the same day, saying she

would not be visiting Czekalski and Bader again in the

foreseeable future. See Daly Decl. II ¶ 13 (Doc. No. 81-5, at

4). Czekalski filed this lawsuit within a month of Rabbi

Nafshi’s June 1 decision to stop her NHSP visits. See Compl.

(Doc. No. 1) (docketed June 28, 2018).

11 Several months after this lawsuit was filed, defendants’

counsel asked Rabbi Nafshi if she would consider resuming her

visits in a new capacity, as a “religious visitor.” See Rabbi

Nafshi Dep. at 13 (Doc. No. 85-4, at 40). Rabbi Nafshi agreed.

In November 2018, as part of a negotiated resolution of

plaintiff’s request for a preliminary injunction, Commissioner

Hanks consented to allow Rabbi Nafshi to be redesignated as a

religious visitor at the NHSP under the DOC rules, although she

retains the status of a religious volunteer at the New Hampshire

Women’s Prison. See Decl. of Helen E. Hanks (“Hanks Decl.”)

¶ 6, Feb. 12, 2020 (Doc. No. 81-6, at 4); Pl.’s Personal Decl.,

Mar. 29, 2020 (“Czekalski Decl. III”) ¶ 6 (Doc. No. 85-2, at 2);

see also Nov. 18, 2019 Stip. (Doc. No. 34) (“Stip. II”).

Since November 2018, Rabbi Nafshi has been meeting with

Czekalski approximately once per month in her new capacity.

Their meetings are no longer held in the Chapel; they occur at

an open table in the NHSP Visiting Room, on a day when the other

tables are reserved for attorney-client visits. Hanks Decl. ¶ 6

(Doc. No. 81-6, at 4). Their meetings are one-on-one; inmate

Bader is not allowed to attend at the same time. See 2019

Czekalski Dep. at 167-73 (Doc. No. 85-4, at 22-23). Because

their meetings are considered to be contact visits, Czekalski

must undergo a visual strip search each time he finishes a

meeting with Rabbi Nafshi. See Hanks Decl. ¶¶ 10, 12 (Doc. No.

12 81-6, at 5). Czekalski has claimed that the restrictions on his

contacts with Rabbi Nafshi both before and after her

reclassification have violated his rights under RLUIPA and the

First Amendment.

D. Size and Number of Books in Cells

Czekalski’s claims here also challenge the DOC rules

limiting the size and number of books and magazines he can keep

in his cell, as applied to his written religious materials. DOC

policies provide that religious books retained by inmates “must

be in compliance with the rules and regulations regarding

personal property.” PPD 7.17 ¶ V(G)(1) (Doc. No. 11-2, at 4).

Inmates are generally allowed to keep no more than eleven

books and magazines in their cells, with books limited in size

to 9”x12” and magazines limited to 15”x17”, but with no limits

on the number of pages per publication. See Czekalski Decl. III

¶¶ 2-3, at 1 (Doc. No. 85-2); Hanks Decl. ¶ 23 (Doc. No. 81-6,

at 7); PPD 9.02 ¶ IV(P) (Doc. No. 11-1, at 6); DOC Property

Inventory Form (Doc. No. 11-1, at 15); Decl. of Maj. Jon H.

Fouts, Jan. 8, 2020 (“Fouts Decl.”) ¶ 5 (Doc. No. 75-1, at 2).

E. Religious Goods Catalogs and Bulk Mail

Czekalski’s religious practices also involve his use of

religious materials that vendors market through bulk mailings.

13 DOC rules generally prohibit inmates from receiving bulk mail,

including religious goods catalogs. See Hanks Decl. ¶ 31 (Doc.

No. 81-6, at 9). Czekalski has claimed that without direct

access to such catalogs, he is unable to identify and acquire

the books or other items he needs for his religious practices.

F. Cell Feeds, Prayers, Sabbath Travel, and Fasts

1. Morning Prayers and Cell Feeds

Czekalski’s religious practices include praying before

breakfast every day. His morning prayers typically take him

about 45 minutes to an hour to complete. 2019 Czekalski Dep. at

70 (Doc. No. 85-3, at 78). Czekalski wakes up at about 5:20

a.m. and is typically not done with his prayers in time to go to

the chow hall for breakfast with his unit, which is generally

called out sometime between 5:25 a.m. and 5:40 a.m. See

(Doc. No. 85-3, at 78-80). Czekalski typically prepares

his own breakfast from commissary food he buys. See

(Doc. No. 85-4, at 2). In denying Czekalski’s grievance

requesting daily delivery of a chow hall breakfast to his cell

(“cell feeds”), Commissioner Hanks explained that other Jewish

inmates had been able to schedule their prayers and Sabbath

practices around chow hall mealtimes. See Resp. to Grievance,

June 12, 2018 (Doc. No. 90, at 44).

14 2. Sabbath Observances, Fast Days, and Cell Feeds

Czekalski observes his weekly Sabbath (Shabbat), which

begins at sundown on Friday and ends at sundown on Saturday, by

not walking beyond the confines of his unit’s yard. See 2019

Czekalski Dep. at 35-40 (Doc. No. 85-3, at 69-70). He does not

walk to the chow hall for any meals on Saturdays, or for evening

meals on Fridays in December and January when the days are

short; instead, he eats commissary food he has saved for those

days. See

Commissioner Hanks denied Czekalski’s grievance requesting

regular delivery of a breakfast meal to his cell (a “cell feed”)

as a religious accommodation, see June 14, 2018 Response (Doc.

No. 90, at 44), but then directed on January 24, 2020 that

Czekalski receive cell feeds during his Sabbath, see Hanks Decl.

¶ 27 (Doc. No. 81-6, at 9). Czekalski received cell feeds on

two weekends in January 2020, but none were delivered to him in

February or March 2020. See Czekalski Decl. III (Doc. No. 85-2,

at 6-7).

Czekalski’s religious practices require him to fast on

certain days. The record indicates there are six days in the

Jewish calendar that may be observed by fasting, although

Czekalski fasts on only one, Yom Kippur. See 2019 Czekalski

Dep. at 86, 94-95 (Doc. No. 85-4, at 2, 4); see also DOC Faith

Group Overview, PPD 7.17, attach. 3 (Doc. No. 12-2, at 11).

15 Czekalski has testified that he is not seeking a cell feed to

break his fast after Yom Kippur through this lawsuit, as he

previously arranged to obtain a post-fasting cell feed on that

day. See 2019 Czekalski Dep. at 86, 94-95 (Doc. No. 85-4, at 2,

4).

G. Head Covering

Czekalski’s faith requires him to cover his head at all

times. DOC clothing rules do not generally allow inmates to

wear knit caps or other hats inside, but those rules do not

apply to yarmulkes worn by observant Jews. Hanks Decl. ¶ 28

(Doc. No. 81-6, at 9).

Czekalski keeps one or two yarmulkes in his cell, and he

has worn a yarmulke at court appearances in this case, but he

maintains that his practice of covering his head does not

require him to wear a yarmulke. He considers a snug knit cap -

the type approved by the prison for inmates to wear outdoors –

to be a better head-covering since it stays on his head.

Czekalski further states that some corrections officers have

told him he cannot carry both a knit cap and a yarmulke at the

same time, saying, “You only need one hat; pick one or the

other,” Czekalski Decl. I (Doc. No. 68-1, at 4). When Czekalski

has told those officers there is no rule against wearing a

yarmulke under a hat, they have responded along the lines of,

16 “You are going to follow my rule.” See 2019 Czekalski Dep. at

116-18 (Doc. No. 85-4, at 9-10).

Although Czekalski submitted an Inmate Request Slip (“IRS”)

stating that he should be allowed to choose the type of

religious head covering he wants, including a knit cap, see Jan.

21, 2018 IRS (Doc. No. 90, at 53), Czekalski did not raise the

issue of officers telling him he could not carry or wear a

yarmulke and a hat at the same time. See 2019 Czekalski Dep. at

116-18 (Doc. No. 85-4, at 9-10). DOC Director of Community

Corrections Kim MacKay responded to his knit-cap grievance,

explaining that a knit cap is not considered to be a religious

head-covering. See Feb. 7, 2018 Resp. (Doc. No. 90, at 53).

Czekalski claims here that DOC policies and practices codify an

interpretation of Jewish practices that does not comport with

his knit cap practice.

III. PROCEDURAL HISTORY

Czekalski filed the original complaint in this case in June

2018, several weeks after Rabbi Nafshi stopped visiting him at

the NHSP. His original complaint included claims alleging

violations of his rights under the First Amendment’s Free

Exercise and Establishment Clauses and RLUIPA. He specifically

requested preliminary injunctive relief on the RLUIPA claims he

grouped together as “Count 1,” regarding the impact of

17 restrictions on his contacts with Rabbi Nafshi at that time,

when she was still classified as a “religious volunteer.” See

Compl. (Doc. No. 1), at 13. His original complaint also

included claims relating to his use of a knit cap as a religious

head-covering; the number and size of religious books he could

keep in his cell; his desire to receive religious goods

catalogs; and his demand for cell feeds to accommodate his

religious practices.

The court conducted a preliminary review of the original

complaint and allowed Czekalski’s RLUIPA and First Amendment

claims to be served. Defendants then filed a Rule 12(b)(6)

motion to dismiss. While that motion was pending, the parties

negotiated a resolution of Czekalski’s motion for a preliminary

injunction on Count 1. Those negotiations led to Rabbi Nafshi’s

agreement in November 2018 to resume visits with Czekalski as a

“religious visitor.”

Czekalski responded to the new circumstances affecting his

contacts with Rabbi Nafshi after November 2018 by filing a

motion to amend (Doc. No. 37) the complaint, seeking to add

claims. See Am. Compl. (Doc. No. 37-1). The court, in an Order

issued in August 2019, partially granted the plaintiff’s motion

to amend and partially granted defendants’ Rule 12(b)(6) motion

to dismiss some of the claims that had been asserted in both the

original complaint and the Amended Complaint. See Aug. 28, 2019

18 Order (Doc. No. 59) (“August 2019 Order”). The court has

identified the claims that survived the August 2019 Order as

follows3:

1. By reclassifying Rabbi Nafshi as a religious visitor, defendants, NHSP Chaplain Daly and DOC Commissioner Hanks, substantially burdened Czekalski’s ability to engage in his religious exercise of interacting with a rabbi, in violation of his rights under RLUIPA, in that:

a. Czekalski must undergo a strip search after every visit with Rabbi Nafshi;

b. Czekalski and Rabbi Nafshi cannot freely bring books to their meetings or use the books in the Chapel library during their meetings;

c. Their meeting place, the NHSP Visiting Room, lacks the privacy needed for confidential counselling; and

d. Czekalski cannot participate in group studies with Rabbi Nafshi and other inmates.

2. Defendants NHSP Chaplain James Daly and DOC Commissioner Helen Hanks have substantially burdened Czekalski’s ability to interact with a rabbi, in violation of his rights under the First Amendment, rendering those defendants liable under

, in that:

a. Defendants presently require that Czekalski undergo a strip search after every visit with Rabbi Nafshi, in her capacity as a religious visitor, in violation of his rights under the First Amendment Free Exercise Clause;

3The parties’ summary judgment briefs refer to Czekalski’s claims as “Counts.” For consistency with the August 2019 Order and convenience in responding to the parties’ motions here, this Order refers to Czekalski’s claims using claim numbers and subparts that substantially track those used in the August 2019 Order.

19 b. Defendants do not presently allow Czekalski or Rabbi Nafshi to bring books to or use Chapel library books in their meetings, in her capacity as a religious visitor, in violation of Czekalski’s rights under the First Amendment Free Exercise Clause;

c. Defendants do not presently allow Czekalski to visit with Rabbi Nafshi in a location that is private, where he can receive confidential counselling on private matters, in her capacity as a religious visitor, in violation of his rights under the First Amendment Free Exercise Clause;

d. Defendants do not presently allow Czekalski to join in group studies with Rabbi Nafshi, in her capacity as a religious visitor, in violation of his rights under the First Amendment Free Exercise Clause;

e. When Rabbi Nafshi was classified as a religious volunteer, NHSP Chaplain James Daly did not allow Czekalski to correspond freely with her by mail, subject only to screening for security threats, in violation of Czekalski’s rights under the First Amendment Free Exercise Clause;

f. When Rabbi Nafshi was classified as a religious volunteer, NHSP Chaplain James Daly did not allow Czekalski to rely on her to provide him with assistance in acquiring religious books, religious property, and special foods for festivals, in violation of his rights under the First Amendment Free Exercise Clause;

g. When Rabbi Nafshi was classified as a religious volunteer, NHSP Chaplain James Daly did not allow Czekalski to review written materials brought to the NHSP by Rabbi Nafshi, subject only to screening for security threats, in violation of his rights under the First Amendment Free Exercise Clause;

h. When Rabbi Nafshi was classified as a religious volunteer, DOC restrictions as implemented by NHSP Chaplain James Daly caused Czekalski to lose access to Rabbi Nafshi’s visits, in violation of his rights under the First Amendment Free Exercise Clause; and

20 i. Defendants’ policies relating to inmate-clergy interactions violate the Establishment Clause, in that:

A. Defendants’ rules as to “religious volunteers,” as applied, are based on a Christian model of clergy as officiant or preacher, and not on the Jewish role of rabbis as educators or facilitators, whose role includes helping a Jew research issues related to Judaism and Jewry, assisting Jews in acquiring books and religious property, and assisting Jews in obtaining appropriate foods for religious festivals; and

B. Defendants’ rules regarding inmate interactions with “religious visitors,” as applied to Rabbi Nafshi, have resulted in Czekalski’s visits with his rabbi being demeaned and treated like social visits.

3. Defendants have substantially burdened Czekalski’s ability to practice his faith with respect to religious property and books, in violation of his rights under RLUIPA, in that the DOC rules on (a) the cover size and (b) the number of books an inmate may maintain in his cell, coupled with the lack of secure book storage in the NHSP Chapel library, prevent Czekalski from keeping the books he needs to practice his religion.

4. Commissioner Hanks substantially burdened Czekalski’s ability to practice his faith with respect to the chow hall meal schedule and the availability of cell feeds, in violation of his rights under RLUIPA, in that:

a. Commissioner Hanks refused Czekalski’s request for cell feeds for breakfast to accommodate his morning prayer schedule;

b. Commissioner Hanks refused Czekalski’s request for cell feeds to break the fast after all six Jewish fast days; and

c. Commissioner Hanks refused Czekalski’s request for cell feeds to accommodate his observance of the Sabbath by avoiding the walk to chow hall each Saturday and on Friday evenings in December and January.

21 5. Commissioner Hanks has violated Czekalski’s First Amendment rights under the Establishment Clause, rendering her liable under

, by citing a rationale that favors religious practices that differ from Czekalski’s actual practice of Judaism, in that:

a. Commissioner Hanks refused Czekalski’s request to receive a cell feed for breakfast to accommodate his morning prayer schedule;

b. Commissioner Hanks refused Czekalski’s request for cell feeds to break his fasts after any fast days other than Yom Kippur; and

c. Commissioner Hanks refused Czekalski’s request for cell feeds to accommodate his observance of the Sabbath by avoiding the walk to chow hall on the dates and times when he observed the Sabbath, every Saturday and, in December and January, on Friday evenings.

6. Commissioner Hanks has substantially burdened Czekalski’s religious practice of wearing a head covering, in violation of his rights under RLUIPA, in that:

a. Czekalski has been required to remove his head covering during meals at the NHSP; and

b. Czekalski has been told he cannot have both a hat and a yarmulke in his possession at the same time, although the yarmulke does not stay on outside.

7. Commissioner Hanks has substantially burdened Czekalski’s ability to practice his religion by wearing a head covering, in violation of his rights under the First Amendment, rendering her liable under

, in that:

a. Commissioner Hanks has burdened Czekalski’s practice of covering his head, in violation of the Free Exercise Clause, by denying Czekalski’s grievances and allowing restrictions on his use of a knit cap as a religious head covering (i.) inside and (ii.) outside;

b. By denying Czekalski’s grievances, Commissioner Hanks defined what constitutes a “religious head-

22 covering” in a manner favoring a practice of Judaism that differs from Czekalski’s practices, in violation of the Establishment Clause.

8. DOC mail regulations as implemented by Commissioner Hanks and NHSP Chaplain Daly do not allow Czekalski to receive bulk mail catalogs, which he needs to acquire religious books and property, and such catalogs are not otherwise available to Czekalski, in violation of his rights under RLUIPA.

The August 2019 Order limited Czekalski’s available relief

on certain of the above-listed claims by:

 Dismissing Czekalski’s claims for damages asserted under RLUIPA, and his claims for damages asserted against any defendant in his or her official capacity;

 Dismissing Claims 2(e)-(h) and 2(i)(A) to the extent they sought injunctive relief; and

 Dismissing Claims 2(e)-(h) and 2(i)(A) to the extent they sought damages against Commissioner Hanks in her individual capacity.

See Aug. 28, 2019 Order (Doc. No. 59), at 28.

In two partial summary judgment motions (Doc. Nos. 68, 69),

Czekalski seeks relief on each of his RLUIPA claims that

survived the August 2019 Order (Claims 1, 3, 4, 6, and 8).

Defendants filed their own motion for summary judgment on

Czekalski’s First Amendment and RLUIPA claims. See Doc. No. 81.

23 IV. DISCUSSION

A. Ripeness (Claims 4(b), 5(b))

In Claims 4(b) and 5(b), Czekalski asserts that

Commissioner Hanks’s denial of his grievance seeking a cell feed

at the end of each Jewish fast day violated his rights under

RLUIPA and the First Amendment. Defendants argue that those

claims are not justiciable at this time.

[A] claim is ripe only if the party bringing suit can show both that the issues raised are fit for judicial decision at the time the suit is filed and that the party bringing suit will suffer hardship if “court consideration” is withheld.

Labor Rels. Div. of Constr. Indus. of Mass. v. Healey,

(1st Cir. 2016) (citation omitted); see also Reddy v.

Foster,

(1st Cir. 2017). Czekalski testified

he does not presently observe any fast other than Yom Kippur,

and he is not sure whether he will observe any fasts other than

Yom Kippur in the future. See 2019 Czekalski Dep. at 94-98

(Doc. No. 85-4, at 4-5); Czekalski Decl. I (Doc. No. 68-1, at 5-

6). He further testified he is not seeking cell feeds to break

his Yom Kippur fast in this case. See 2019 Czekalski Dep. at

94-98 (Doc. No. 85-4, at 4-5).

Whether Czekalski will observe a religious fast on any day

other than Yom Kippur in the future, what that fast might

entail, and whether he will be able to receive a post-fasting

meal without court involvement is not presently known, making

24 Claims 4(b) and 5(b) unripe for resolution at this time. The

speculative nature of the claims counsels against any finding of

hardship; and there is no evident prejudice in making Czekalski

wait until such time as he observes a fast, does not receive a

cell feed, and then completes the process of grieving that

issue, see 42 U.S.C. § 1997e(a), before seeking judicial relief.

Accordingly, plaintiff’s (first) motion for partial summary

judgment (Doc. No. 68) is denied as to his post-fasting cell

feed claim (Claim 4(b)). Defendants’ motion for summary

judgment is granted, in part, to the extent that both Claims

4(b) and 5(b), relating to that cell feed claim, are dismissed

as unripe.

B. PLRA Exhaustion

In their motion for summary judgment, defendants rely on

the affirmative defense that Czekalski has failed to exhaust his

claims through the DOC’s administrative grievance process, as

required by the Prison Litigation Reform Act,

(e) (“PLRA”). The defendants specifically argue that

Czekalski failed to exhaust any of his claims that seek money

damages as relief, and any of his claims asserted under RLUIPA

and the First Amendment arising from Rabbi Nafshi’s November

2018 reclassification as a religious visitor (Claims 1(a)-(d),

2(a)-(d), and 2(i)(B)).

25 The pertinent provision of the PLRA provides as follows:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). The PLRA exhaustion requirement applies

to RLUIPA claims and § 1983 claims. See Cutter v. Wilkinson,

, 723 n.12 (2005); Fuqua v. Ryan,

,

846 n.9 (9th Cir. 2018).

1. Preservation of Exhaustion Defense

Czekalski argues that defendants waived the PLRA exhaustion

defense and forfeited their ability to move for summary judgment

on that defense by failing to comply with a scheduling order in

this case that set a deadline for motions based on PLRA

exhaustion, which expired in 2019, before defendants filed their

motion. I address those waiver and forfeiture arguments before

turning to the merits of the defendants’ PLRA exhaustion

defense.

In general, a party preserves an affirmative defense by

stating it in the answer. See Fed. R. Civ. P. 8(c)(1).

Defendants’ list of defenses in their September 11, 2019 Answer

(Doc. No. 61) explicitly cited plaintiff’s failure to comply

with the PLRA exhaustion requirement as an affirmative defense.

Answer at 13. They had previously listed the same defense in

26 the same terms in their October 4, 2018 proposed discovery plan

(Doc. No. 18), and defendants specifically proposed that summary

judgment proceedings in this case be bifurcated, with an earlier

deadline for motions for summary judgment based on “PLRA

Exhaustion,” and a later deadline for summary judgment based on

“[a]ll other issues.” Oct. 16, 2018 Order on Discovery Plan

(Doc. No. 20). Because defendants listed PLRA exhaustion in

their October 2018 discovery plan and in their September 11,

2019 Answer, plaintiff received timely notice regarding that

defense in this case.

Czekalski argues that the defendants nevertheless waived

the defense when they failed to brief it sooner in a motion on

the pleadings. Since PLRA exhaustion is an affirmative defense,

defendants’ failure to raise that issue at the pleading stage is

not a waiver. Cf. Albino v. Baca,

(9th Cir.

2014) (en banc) (summary judgment motion, not Rule 12(b) motion,

is appropriate device for pretrial resolution of exhaustion

issues if material facts are undisputed).

Plaintiff argues that the defendants waived the defense by

failing to file their motion for summary judgment based on PLRA

exhaustion on or before the latest date allowed in the

scheduling order for such motions. See Sept. 27, 2019 Order

(establishing Sept. 19, 2019 (nunc pro tunc) as deadline for

PLRA summary judgment motions, and establishing later deadline

27 for merits-based summary judgment motions). In general,

however, an exhaustion defense may be “adjudicated at any point

in the development of a lawsuit that the rules of procedure

allow,” including in an evidentiary hearing before the court.

Anderson v. Jutzy,

(E.D. Mich. 2016).

Since defendants were neither ordered by the court, nor required

by any generally applicable procedural rule, to litigate their

PLRA exhaustion defense through the summary judgment process,

their failure to file a motion raising that issue by the

September 19, 2019 deadline in the scheduling order for such

motions is not properly deemed to be a waiver of that defense.

2. Scheduling Order Noncompliance

Defendants’ failure to meet the scheduling order’s deadline

for summary judgment motions asserting PLRA exhaustion issues

raises the question of whether that noncompliance should stop

the court from considering the merits of the defendants’ PLRA

exhaustion defense in ruling on their motion for summary

judgment. In general, the court has discretion to extend or

reopen a scheduling order’s deadline to consider the merits of a

late-filed motion for “good cause.” See Fed. R. Civ. P. 16(b).

Factors that may be relevant to that inquiry include the moving

party’s diligence and reasons for the delay, the potential

prejudice to the opposing party, and the impact of the delay on

28 the orderly administration of the court’s docket. Rosario-Diaz

v. Gonzalez,

(1st Cir. 1998).

Defendants filed their motion for summary judgment before

the deadline for filing non-PLRA summary judgment motions, but

without filing any motion to reopen the PLRA exhaustion motion

deadline. Although the diligence of the party seeking an

extension generally carries the most weight, see

; see

also O’Connell v. Hyatt Hotels of P.R.,

(1st

Cir. 2004) (noncompliant party’s “indifference” to scheduling

order can be determinative, even in absence of prejudice), a

court’s discretionary decision to extend deadlines in a

particular case can rest on the court’s interest in managing its

own docket, coupled with a lack of prejudice to the opposing

party. See, e.g., Felix v. Lugas, No. 1:00-cv-12225-WGY,

, at *1 n.2,

, at *2 n.2

(D. Mass. Mar. 2, 2004) (finding good cause based on lack of

prejudice and likelihood that recommended disposition could

expedite final resolution), R&R adopted, No. 1:00-cv-12225-WGY

(D. Mass. Mar. 26, 2004). Cf. O’Brien v. Town of Bellingham,

, 527 (1st Cir. 2019) (“district court judges ‘enjoy

great latitude in carrying out case-management functions’”

(citation omitted)).

Here, I find that case management issues and the absence of

prejudice to the plaintiff carry substantial weight in the good

29 cause inquiry. Addressing the PLRA exhaustion defense on the

merits in the context of the parties’ cross-motions for summary

judgment is likely to promote judicial economy and the orderly

disposition of issues without causing the plaintiff any undue

prejudice. The parties exchanged all pertinent grievance

documents relating to Czekalski’s claims in the original

complaint in October/November 2018. See Oct. 16, 2018 Order

(Doc. No. 20) (setting deadlines for exchange of grievance

records). Plaintiff had adequate notice and time after

defendants filed their September 2019 answer preserving their

PLRA exhaustion defense to undertake any additional discovery

relating to the Amended Complaint before defendants filed their

summary judgment motion in February 2020. In addition, the

court granted the plaintiff’s request for extra time and pages

to respond to defendants’ summary judgment motion. The PLRA

exhaustion issues have been briefed and could be ripe for

disposition now, to the extent defendants establish that the

material facts are undisputed.

Furthermore, exhaustion requirements, in general, are

mechanisms of “‘judicial traffic control.’” Albino,

(citation omitted). The judge, not a jury, is ultimately

responsible for ruling on the merits of a PLRA exhaustion

defense. See id.; Messa v. Goord,

(2d Cir.

2011). That means, as to any claims that survive the cross-

30 motions for summary judgment, I could be called to rule on the

merits of the defendants’ PLRA exhaustion defense in this case

in a pretrial proceeding, even if I were to deem defendants’

instant summary judgment motion to be untimely to the extent it

seeks relief based on their PLRA exhaustion defense. Nothing in

the record suggests, however, that any additional proceedings or

briefing going forward would aid in the fair resolution of any

PLRA exhaustion issues that can be resolved on undisputed facts

as a matter of law now.

Under such circumstances, I find that there is good cause

to modify the scheduling order, nunc pro tunc, to allow for my

consideration of defendants’ PLRA exhaustion arguments in their

motion for summary judgment, and to resolve those issues if

there is no factual dispute. I thus turn to considering those

issues.

3. PLRA Exhaustion Requirements

The PLRA exhaustion requirement is designed to “afford[]

corrections officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.”

Porter v. Nussle,

, 524–25 (2002). Claims that have

not been exhausted through the available administrative remedy

procedures in prison are subject to dismissal. Kasiem v. Switz,

(S.D.N.Y. 2010).

31 “[P]roper exhaustion” is required by the statute, which

means an inmate must use all of the steps that the prison

grievance system makes available in its administrative grievance

process, and do so in conformity with the prison’s deadlines and

other critical procedural rules. Woodford v. Ngo,

(2006). “[I]t is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.” Jones

v. Bock,

(2007). The PLRA’s proper exhaustion

requirement provides prison officials with an opportunity: (1)

to impose an orderly structure on the proceedings before them;

(2) to correct their own errors; and (3) to create an

administrative record that is helpful to the court. Woodford,

. There is one exception to the rule

requiring that a prisoner exhaust all of the administrative

remedies provided by the prison; that is, “a prisoner need

exhaust only ‘available’ administrative remedies.” Ross v.

Blake,

(2016).

The failure to exhaust available grievance remedies is an

affirmative defense as to which defendants bear the burden of

proof. See Jones,

; Albino,

.

At the summary judgment phase, defendants bear the initial

burden of showing that plaintiff failed to exhaust generally

available administrative remedies. See Hubbs v. Suffolk Cty.

Sheriff’s Dep’t,

(2d Cir. 2015); Albino, 747

32 F.3d at 1172; Tuckel v. Grover,

(10th Cir.

2011). Then, “the burden shifts to the prisoner to come forward

with evidence showing that there is something in his particular

case that made the existing and generally available

administrative remedies effectively unavailable to him.”

Albino,

; see also Tuckel,

.

4. DOC Grievance Process

The DOC has a three-step grievance policy that requires

inmates to provide “sufficient detail” regarding “the nature of

the complaint or request and what relief or action is requested”

in the grievance documents submitted at all three levels: the

inmate’s IRS (Level I), appeal to the Warden (Level II), and

final appeal to the DOC Commissioner (Level III). Hanks Decl.

¶ 8 (citing PPD 1.16 ¶¶ IV(A)(2), (B)(2), (C)(2)). This

requirement affords corrections officials the opportunity to

resolve an inmate’s complaints internally at the lowest

effective level. See Sunn v. Cattell, No. 02-cv-168-M,

,

, at *4,

, at

*12 (D.N.H. Oct. 31, 2002).

5. Exhaustion Efforts as to Religious Visitor Claims

Defendants move for summary judgment as to Claims 1(a)-(d),

2(a)-(d), and 2(i)(B), based on Czekalski’s alleged failure to

33 properly exhaust those claims, which arise from the restrictions

placed on Czekalski’s contacts with Rabbi Nafshi after she

became a religious visitor in November 2018. Czekalski sought

leave to add those claims to this action in January 2019, and

the court granted him leave to do so in the August 2019 Order.

As evidence that Czekalski did not exhaust his grievance

remedies relating to those claims before he sought to add them

to this case, defendants offer Commissioner Hanks’s sworn

statement:

Mr. Czekalski undertook to amend his lawsuit by asserting that restrictions imposed on his interactions with Rabbi Nafshi, now as a religious visitor, substantially burdened his exercise of religion. Mr. Czekalski grieved none of those asserted restrictions.

Hanks Decl. ¶ 7 (Doc. No. 81-6, at 4) (emphasis in original).

Czekalski has not produced any evidence showing he invoked

or exhausted the grievance process as to those claims after

November 2018, when Rabbi Nafshi was reclassified as a religious

visitor. And it is undisputed that until November 2018, Rabbi

Nafshi had never registered as a “religious visitor,” and thus

never had contacts with Czekalski prior to November 2018 to

which the “religious visitor” rules applied. This court has

reviewed the grievance records in the docket, and there are no

pertinent grievance documents that substantiate Czekalski’s

unsworn assertion that he exhausted his claims relating to the

“religious visitor” restrictions before he filed this lawsuit.

34 Those grievances, without exception, concern the “religious

volunteer” restrictions at issue in Claims 2(e), 2(g), and 2(h),

to the extent they appear to relate to Rabbi Nafshi at all.

See, e.g., Doc. No. 90, at 124-30.

Czekalski has not argued that the grievance process was

unavailable to him with respect to his contacts with Rabbi

Nafshi after November 2018. Nor could he, given the record

before this court, which contains an abundance of IRSs and

grievance forms he filed about his religious practices. See,

e.g., Doc. No. 90, at 43-166. Under such circumstances, there

is no genuine issue of material fact regarding whether the

grievance process was sufficiently available to Czekalski.

Under the PLRA, he was required to use that process properly.

Accordingly, defendants’ motion for summary judgment is

granted, in part, to the extent it is based on plaintiff’s

failure to exhaust his available administrative remedies as to

Claims 1(a)-(d), 2(a)-(d), and 2(i)(B). Those claims are

dismissed. Czekalski’s (second) motion for partial summary

judgment (Doc. No. 69), seeking judgment as a matter of law in

his favor on “Count 1” is thus denied. Defendants’ motion for

summary judgment (Doc. No. 81) on Count I is granted.

35 6. Exhaustion of Claims for Money Damages

Defendants also move for summary judgment on all of

plaintiff’s claims for money damages in this action, arguing

that plaintiff failed to properly exhaust those claims. Defs.’

Mot. for Summ. J. at 27 (Doc. No. 81). Commissioner Hanks’s

declaration states that the DOC grievance policy (which is not

reproduced as part of the record here) requires inmates to

provide details regarding the relief or action they request at

each level of the grievance process, and that Czekalski did not

include a demand for “money damages” in his grievances relating

to the claims for money damages in this case.

The record shows that Czekalski submitted a number of

grievances that described the types of relief or action he

wanted prison officials to provide to him through the grievance

process, including, for example: cell feeds; the ability to wear

a knit cap indoors without harassment; a loosening of limits on

his access to bulk mail catalogs; and more secure storage for

books about Judaism in the Chapel library. To that extent, his

grievances were consistent with the grievance policy’s

requirement that inmates detail the relief or action they seek.

The DOC grievance policy is not an exhibit in this case.

The grievance forms in the record do not state whether inmates

must list damages. See, e.g., Doc. No. 90, at 47-50. The

record before me is silent as to whether the policy explicitly

36 requires an inmate to list “money damages” or “compensation” as

part of the relief requested, regardless of whether such relief

is available through the grievance process. This case is thus

distinguishable from cases such as Johnson v. Wireman,

, 99 (3d Cir. 2020) (where prison grievance procedures

state that inmate “must” or “should” specify whether he seeks

“compensation,” inmate’s failure to include a request for

compensation in his grievances “did not properly exhaust his

claim for money damages”).

In Morales v. Doe #2, No. 17-cv-234-SM,

,

,

(D.N.H. Mar. 24, 2020),

the defendant prison officials unsuccessfully pressed the same

exhaustion argument raised here, concerning an inmate’s failure

in that case to demand damages in his grievance documents. The

court in Morales observed that defendants’ argument asserted the

converse of the holding in Booth v. Churner,

(2001) (prisoners must exhaust such prison grievance processes

as are available, even if the money damages they ultimately seek

in court are not offered as a grievance remedy). In turning

that holding around to serve their argument - that an NHSP

inmate must demand money damages from prison officials before

such damages may be requested in court – defendants effectively

divorced the outcome in that case from its rationale. See

Booth,

(“one ‘exhausts’ processes, not forms of

37 relief”), cited in Morales,

, at *20,

, at *7.

In light of such cases and record evidence that appears

inconsistent with Commissioner Hanks’s declaration,4 I conclude

that defendants have not shown that there is an absence of

material fact as to whether Czekalski failed to properly exhaust

his available prison grievance remedies as to all of his claims

for money damages. Accordingly, I deny defendants’ motion for

summary judgment, in part, to the extent they seek an order

precluding all claims for money damages here based on the PLRA.

C. Establishment Clause Claims

Defendants seek judgment as a matter of law on Czekalski’s

Establishment Clause claims, including his claims concerning

restrictions applicable to Rabbi Nafshi when she was a religious

volunteer (Claim 2(i)(A)). Czekalski highlights no particular

terms of the policies at issue that promote one religion or one

type of clergy over another; rather, he has claimed that the DOC

rules governing “religious volunteers” violate the Establishment

Clause because they are modeled on and favor what he considers

4See May 2018 Grievance, Doc. No. 90, at 46 (“All I want are breakfast cell feeds . . . . But take note, if I am forced to litigate this issue, I will be seeking . . . compensation for every meal I have had to provide for myself.”).

38 to be the principal role of clergy in some Christian faiths

(especially, “Catholic priests”): preaching, leading group

services, and administering sacraments. To that extent, he

claims that the religious volunteer rules are not equally

applicable to, compatible with, or supportive of, the

“educator,” “facilitator,” and social-worker roles of Jewish

rabbis; and, as applied to Rabbi Nafshi, he claims those rules

impaired the value of her contacts with him to a greater extent

than they impair the ability of a Catholic priest to perform

what the priest’s faith and Catholic inmates principally require

of clergy. Defendants contend that they are entitled to

qualified immunity with respect to that Establishment Clause

claim.

1. Principles and Tests under Establishment Clause

The Establishment Clause, made applicable to the States

through the Fourteenth Amendment, see Everson v. Bd. of Educ.,

(1947), provides that “Congress shall make no law

respecting an establishment of religion.” U.S. Const. amend. I.

The First Amendment’s Establishment Clause bars a state from preferring one religion over another, but states remain free to “accommodate religious practices . . . without violating the Establishment Clause.”

Staples v. N.H. State Prison, No. 16-cv-33-PB,

,

, at *5,

, at *13

39 (D.N.H. Mar. 17, 2017) (internal citation omitted) (quoting

Cutter,

).

In evaluating whether there are Establishment Clause

problems with state laws or practices that do not involve

monuments or other “long-standing” ceremonial invocations and

uses of religious symbols, the Supreme Court has articulated

“three interrelated analytical approaches”:

the three-prong analysis set forth in Lemon v. Kurtzman,

(1971); the “endorsement” analysis, first articulated by Justice O’Connor in her concurrence in Lynch v. Donnelly,

(1984), and applied by a majority of the Court in County of Allegheny v. ACLU,

(1989); and the “coercion” analysis of Lee v. Weisman,

(1992).

Freedom from Religion Found. v. Hanover Sch. Dist.,

(1st Cir. 2010); see also Am. Legion v. Am. Humanist Ass’n,

(2019) (eschewing Lemon test in

case involving “longstanding monuments, symbols, and

practices”).

Under Lemon, a government policy or practice violates the

Establishment Clause if (1) it has no secular purpose, (2) its

primary effect advances or inhibits religion, or (3) it fosters

an excessive entanglement with religion. Lemon,

. The endorsement analysis considers whether “the

challenged governmental action has the purpose or effect of

endorsing, favoring, or promoting religion,” Freedom From

Religion Found.,

(citations, brackets, and

40 internal quotation marks omitted). The coercion test is

premised on the guarantee that the “government may not coerce

anyone to support or participate in religion or its exercise, or

otherwise act in a way which ‘establishes a [state] religion or

religious faith, or tends to do so.’” Lee,

(citation omitted).

At least one circuit court has held that prison policies

ostensibly accommodating inmates’ religious freedom – if

challenged as invalid under the Establishment Clause – are

properly subjected to the test developed in Turner v. Safley,

(1987). See Brown v. Collier,

(5th Cir. 2019). Under this test, a court must find such prison

policies to be valid, if they are “reasonably related to

legitimate penological interests,” while appropriately deferring

to prison officials’ judgments in matters of prison

administration that are within their professional expertise.

Turner,

; see also Brown,

(applying Turner factors to Establishment Clause claims). I

need not stake out a position on the applicability of Turner

because it does not affect my analysis of Czekalski’s

Establishment Clause claims.

41 2. Qualified Immunity

Government officials, in undertaking actions claimed to

violate federal rights, are “‘entitled to qualified immunity

unless the official violated a statutory or constitutional right

that was clearly established at the time of the challenged

conduct.’” Hunt v. Massi,

(1st Cir. 2014)

(citation omitted); see also Kisela v. Hughes,

(2018) (qualified immunity “‘protects all but the plainly

incompetent or those who knowingly violate the law’” (citation

omitted)). When a defendant invokes qualified immunity, the

burden is on the plaintiff to show its inapplicability. See

Rivera-Corraliza v. Puig-Morales,

(1st Cir.

2015).

The “clearly established” inquiry has two related aspects:

(1) the clarity of the law when the alleged misconduct occurred;

and (2) the clarity of the law as applied to the circumstances

at issue. See Rocket Learning, Inc. v. Rivera-Sánchez,

(1st Cir. 2013). In general, the clearly-established

inquiry must be undertaken in light of the specific context of

the case, not as a broad generalized proposition, except in

obvious or extreme cases. See Brosseau v. Haugen,

(2004). “An officer ‘cannot be said to have violated a

clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the

42 defendant’s shoes would have understood that he was violating

it.’” Kisela,

.

In moving for summary judgment on Claim 2(i)(A), defendants

have invoked the doctrine of qualified immunity. The pertinent

question for this court’s analysis of that defense is

contextual: whether a reasonable prison official would have been

aware that a prison policy allowing a volunteer clergy member to

perform group religious activities with Jewish inmates in

prison, including participating in ceremonies such as those that

Catholic inmates may expect or require their clergy to lead,

would violate the Establishment Clause if that policy also

limited the same volunteer’s ability to provide personal

instruction and counseling through the mail or phone calls, and

other forms of individualized assistance or social work, which

those who practice Judaism may expect or require of their

clergy. The cases cited in the briefs relating to religious

volunteer policies are neither on point nor supportive of a

finding of an Establishment Clause problem in the circumstances

giving rise to Claim 2(i)(A). See, e.g., Brown,

(policy requiring inmate religious groups to be directly

supervised by guards or outside volunteers, which had the effect

of making availability of congregate services dependent on

outside volunteer availability, did not violate Establishment

Clause, as policy was neutral with respect to content, and was

43 reasonably related to legitimate safety and security interests;

and fact that more Christian than Muslim volunteers were

available was not due to prison policy). Cf. Bader v. Wrenn,

(1st Cir. 2012) (“Bader II”) (no RLUIPA

violation had been shown as to inmate’s transfer that negatively

impacted his access to group worship and counseling, where those

religious disadvantages depended proximately on decisions and

actions not attributable to transfer). Those cases do not

demonstrate that there is established law, controlling cases, or

a consensus of persuasive authority, that would alert reasonable

prison officials to an Establishment Clause problem in this

context.

Czekalski seeks to redefine the pertinent question for the

qualified immunity analysis to include allegations that a

religiously-biased chaplain was operating a state-funded

Catholic Church at the NHSP. But that claim differs

substantially from the Establishment Clause claims that this

court has allowed to proceed in this case. Moreover, that claim

lacks evidentiary support. If construed in a light most

favorable to plaintiff, all of the evidence concerning incidents

in which Chaplain Daly may have harbored or expressed a

religious bias involve other parties and circumstances that are

too remote in time and unconnected to the circumstances at issue

44 here,5 to allow a reasonable jury to find that any religious bias

has affected defendants’ development or implementation of the

policies at issue. The evidence and cases Czekalski cites in

support of his conclusory arguments bear little resemblance to

the evidence in the record here relating to Claim 2(i)(A).6

Czekalski has thus failed to carry his burden of

demonstrating that qualified immunity is unavailable as to Claim

2(i)(A). I grant defendants’ motion for summary judgment, with

respect to Claim 2(i)(A).

5The November 9, 2019 Declaration of Christopher Palermo (Doc. No. 29-1), for example, expresses that inmate’s opinion that Chaplain Daly has operated a “de facto Catholic Church” that discriminates against non-Catholics, including, specifically, Palermo’s Pagan religion.

6See, e.g., Lemon,

(school-aid statute authorizing government inspection of parochial school records created impermissible relationship between church and state); Cutter,

(RLUIPA on its face does not violate Establishment Clause, because, among other things, it does not single out any bona fide faith for disadvantageous treatment); Hernandez v. Comm’r,

(1st Cir. 1987) (finding no Establishment Clause violation in content-neutral disallowance of charitable deductions for payments made to a church, where church provided commensurately-valued services in return for such payments), aff’d,

(1989); Bader v. Wrenn,

(D.N.H. 2008) (“Bader I”) (prison’s recommendation that inmate participate in secular rehabilitation program did not violate Establishment Clause even though program’s core principal had roots in Quaker philosophy).

45 3. Remaining Establishment Clause Claims

The August 2019 Order identified several other

Establishment Clause claims -- Claims 5(a), 5(c), and 7(b) --

that survived defendants’ Rule 12(b)(6) motion, which the court

allowed to proceed as claims for damages and injunctive relief.

Those claims challenge what Czekalski characterizes as evidence

that the prison favors the religious practices of Jewish inmates

whose observances differ from his.

Neither plaintiff nor defendants briefed Claims 5(a), 5(c),

and 7(b) in their cross-motions for summary judgment.

Defendants’ motion for summary judgment does not list those

Establishment Clause claims as claims stated in the pleadings.

In the absence of a motion specifically targeting those claims,

and without briefing on whether the facts are undisputed and as

to the reasons why summary judgment is appropriate on Claims

5(a), 5(c), and 7(b), the court declines to address them further

at this time. The court anticipates that in the case management

conference to be scheduled regarding the issues that survive

this Order, the parties will present joint or separate proposals

for the expeditious resolution of those claims, including as

appropriate, a supplemental round of dispositive motions.

46 D. Remaining Injunctive Relief Claims

The last set of injunctive relief claims at issue in the

parties’ motions arise under RLUIPA (Claims 3, 4(a), 4(c), 6, 8)

and the Free Exercise Clause (Claim 7(a)).

1. RLUIPA

RLUIPA bars certain prisons, including the NHSP, “from

substantially burdening an inmate’s religious exercise unless

the regulation under attack is the least restrictive way to

advance a compelling state interest.” Kuperman v. Wrenn,

(1st Cir. 2011). To state a claim under RLUIPA, the

“plaintiff bears the burden of demonstrating that he or she

wishes to engage in (1) a religious exercise (2) motivated by a

sincerely held belief, which exercise (3) is subject to a

substantial burden imposed by the government.” LeBaron v.

Spencer,

(1st Cir. 2013) (internal quotation

marks and citation omitted).

Once a plaintiff has established that his religious exercise has been substantially burdened, the onus shifts to the government to show [] that the burden furthers a compelling governmental interest and [] that the burden is the least restrictive means of achieving that compelling interest.

Spratt v. R.I. Dep’t of Corr.,

(1st Cir. 2007);

see also Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

707, 718 (1981) (“‘only those interests of the highest order’”

may be sufficiently compelling (citation omitted)).

In general, RLUIPA provides more protections to an inmate’s

religious exercise than the First Amendment Free Exercise

Clause. Yahtues v. Dionne, No. 16-cv-174-SM,

,

, at *10,

, at *30 (D.N.H.

Mar. 27, 2020) (citations omitted). “Therefore, ‘[i]f there is

no RLUIPA violation, there will be no Free Exercise Clause

violation.’”

(citations omitted).

Defendants here do not generally dispute that plaintiff’s

sincerely-held Jewish faith drives each of the religious

practices and observances at issue. And they do not dispute

that those practices and observances are “religious exercises,”

to which RLUIPA applies. Moreover, it is undisputed that a

prison’s compelling interests can include staunching the flow of

contraband within and into a prison, see Holt v. Hobbs,

, 363 (2015), and protecting life and property from cell

fires, see Washington v. Klem,

(3d Cir. 2007).

At issue here with respect to each RLUIPA claim is whether the

prison policies as applied to Czekalski have substantially

burdened his religious practices, and, if so, whether a

reasonable jury could find that those policies are the least

restrictive means of advancing compelling safety and security

interests.

48 2. Substantial Burden

Plaintiff has the burden of demonstrating that his

religious exercise has been substantially burdened:

[A] substantial burden on one’s exercise of religion exists “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

Perrier-Bilbo v. United States,

, 431 (1st Cir.

2020) (citing Thomas, 450 U.S. at 717-18; Navajo Nation v. U.S.

Forest Serv.,

, 1069–70 (9th Cir. 2008) (“a

‘substantial burden’ is imposed only when individuals are forced

to choose between following the tenets of their religion and

receiving a governmental benefit or coerced to act contrary to

their religious beliefs by the threat of civil or criminal

sanctions” (internal citations omitted))).

The plaintiff must also show that the government is

responsible for that burden. Cf. Bader II,

(where inmate’s religious disadvantages depended proximately on

decisions and actions that were not attributable to government,

no RLUIPA violation had been shown); Ouahman v. Barnes, No. 11-

CV-075-SM,

, at *4,

,

at *10 (D.N.H. Oct. 1, 2012) (where prison provided instructions

to inmate on how to get religious text on his own and then took

49 no steps to prohibit him from doing so, RLUIPA was not violated

by failure to provide religious text directly to inmate), R&R

adopted, No. 11-CV-75-SM,

,

(D.N.H. Oct. 25, 2012).

3. Least Restrictive Means

If plaintiff has shown that a prison policy has

substantially burdened his religious exercise, defendants can

avoid liability by showing that the policy at issue is the least

restrictive means of advancing a compelling interest. In making

that showing, prison officials must generally demonstrate that

they have actually considered and rejected the efficacy of “at

least some” other, less restrictive measures before adopting the

challenged policies. Spratt,

& n.11. “A blanket

statement that all alternatives have been considered and

rejected . . . will ordinarily be insufficient.”

at 41

n.11.

4. Limits on Catalogs, Books, and Magazines

In Claims 3(a) and 3(b), plaintiff moves for summary

judgment on his RLUIPA claims challenging the prison’s limits on

the size and number of books and magazines that he can keep in

his cell, as applied to his religious books. Those claims are

properly considered along with Claim 8, challenging defendants’

50 practice of prohibiting inmates from receiving bulk mail, which

Czekalski asserts impairs his ability to use religious goods

catalogs to identify and purchase the items and books he needs

to study and practice his Jewish faith. Defendants object to

each of those RLUIPA claims, and they have filed a cross-motion

for summary judgment on Claims 3 and 8.

a. Religious Supply Catalogs (Claim 8)

The DOC mail policy challenged in Claim 8 states, in

pertinent part:

Bulk mail that advertises or solicits any item or service that inmates are not authorized to receive will not be forwarded to the inmates but will be removed from the institution and destroyed. Mail order catalogs of popular vendors will be available for use in the library. The Warden can make exceptions to this policy.

PPD 5.26 ¶ IV(E)(5) (Doc. No. 12-5, at 5). It is undisputed

that the policy, as applied, has prevented Czekalski from

receiving religious supply catalogs through the mail. See Hanks

Decl. ¶ 31 (Doc. No. 81-6, at 9) (“By NHDOC policy, the inmate

mail service will not accept bulk mail supply catalogs.”).

Czekalski claims that the practice at issue violates RLUIPA

by preventing him from receiving catalogs of religious books and

other religious supplies, without which he cannot know what

books or other religious items are available for him to

purchase. Czekalski acknowledges that the NHSP Chapel library

51 has a few catalogs that are available to him, but they are out-

of-date and several years old and list books that are out-of-

print. Czekalski Decl. I, at 4 (Doc. No. 68-1). Czekalski does

not identify in the record, however, any specific book or

periodical that he has sought but been unable to locate, or any

topic of interest or importance to his religious practice that

he was unable to pursue, due specifically to the DOC’s

disallowance of bulk mail catalogs.

Pursuant to DOC policy, a DOC chaplain’s position entails,

among other things, “assist[ing] inmates with obtaining

religious books and periodicals.” Daly Decl. II ¶ 7, at 2 (Doc.

No. 81-5 at 2) (citing PPD 7.17(V)(G)(1)). Consistent with that

policy, Chaplain Daly has averred that he is, and has been

during Czekalski’s incarceration at the NHSP, able and willing

to assist Czekalski in obtaining religious books; Chaplain Daly

counts, as part of his job, “assisting in the acquisition of

religious books and periodicals, downloading, as necessary, book

and periodical catalogs, and communicating with publishers and

distributors to ensure, as necessary, that inmate requests are

met,” as well as making sure that “books and magazine dimensions

conform to DOC regulations.” Daly Decl. II ¶ 8 (Doc. No. 81-5

at 2).

It is undisputed that Czekalski has never asked Chaplain

Daly to assist him in obtaining religious books or periodicals,

52 or downloading religious goods catalogs. Czekalski explains

that Chaplain Daly “is not qualified to assist [him] in [his]

religious learning” because he is a Christian, and because

“[t]here are too many conflicts and too many differences between

the religions.” 2019 Czekalski Dep., at 50 (Doc. No. 81-2, at

12). Czekalski further cites Chaplain Daly’s “open indifference

and/or hostility toward Non-Catholics” as a basis for his claim

that Chaplain Daly cannot adequately conduct a search for Jewish

religious materials or catalogs of such materials. Pl.’s Reply

(Doc. No. 85-1, at 2). In his deposition, Czekalski testified

as follows:

DEFENDANTS’ COUNSEL: What, if any, effort have you made to enlist the aid of Chaplain Daly in ordering books or religious property through catalogs?

CZEKALSKI: Minimal, mostly because I am made to feel unwelcome in his presence.

Q: When you say “minimal,” you mean never, right?

A: Never. I think I might have received help on Passover Matzoh once or twice, but that would be about it.

. . .

Q: Why do you feel unwelcome in his presence?

A: He just gives off a vibe that if you’re not Christian, or particularly, his type of Christian, he really doesn’t want to deal with you.

2019 Czekalski Dep., at 125 (Doc. No. 85-4, at 11).

53 Czekalski also states that he is not the only non-Christian

inmate who has had difficulty ordering religious books.

Czekalski Decl. I (Doc. No. 68-1, at 5). Another inmate, a

Wiccan, ordered religious materials from a vendor in June 2019,

using information provided by Chaplain Daly; the vendor returned

the inmate’s check in July 2019, stating that the items were

discontinued. Decl. of Wayne Benware, Nov. 6, 2019 (Doc. No.

68-2, at 9). That inmate has found Chaplain Daly to be

“unfriendly and unhelpful” to non-Christian inmates. Doc. No.

68-2, at 9.

In his pleadings (Doc. No. 1), Czekalski stated that “the

only way [he] can order books or religious property is through

[religious supply] catalogs as he has no one on the outside to

assist him.” Compl. ¶ 87 (Doc. No. 1). There is evidence,

however, that Czekalski has obtained information about religious

books and periodicals from Rabbi Nafshi, see, e.g., Nafshi Ltr.

(Doc. No. 68-1, at 11) (providing information about how to

subscribe to the Jerusalem Post Ivrit, a periodical).

Additionally, Chaplain Daly maintains the NHSP Chapel library,

which has “Jewish books” available to be viewed and signed out

by Jewish inmates upon request. Daly Decl. II ¶¶ 17, 19 (Doc.

No. 81-5 at 5). Czekalski has made use of the NHSP Chapel

library to borrow books relating to his religion.

54 Czekalski has failed to demonstrate, by any submission of

evidentiary quality, that his religious practice is or has been

“substantially burdened” by the DOC’s prohibition on bulk mail

catalogs, as applied in his circumstances. Neither the

evidence, construed in a light most favorably to plaintiff, that

Chaplain Daly has at times expressed a bias against non-

Catholics, nor Czekalski’s speculation that Chaplain Daly would

not or could not help him obtain what he needed because he is a

Catholic deacon, is evidence that asking Chaplain Daly for

assistance in procuring books and catalogs specific to his

religious practice and interests would be fruitless. Also,

Czekalski can seek assistance from Rabbi Nafshi who, as a

religious visitor, can send him printouts or photocopied pages

of catalogs for the types of materials Czekalski wants. As

Czekalski has not explained how the inability to receive

catalogs in the mail has actually burdened his religious

practice, or stated with specificity what materials he has not

been able to access as a result of the bulk mail policy, he has

failed to show that his religious practice is substantially

burdened. Even if the receipt of such catalogs through the mail

would make his religious practice easier, a “[s]ubstantial

burden requires something more than an incidental effect on

religious exercise” or inconvenience. Signs for Jesus v. Town

of Pembroke,

, 111 (1st Cir. 2020) (internal

55 quotation marks omitted) (citing Midrash Sephardi, Inc. v. Town

of Surfside,

(11th Cir. 2004)).

Czekalski has failed to meet his burden to demonstrate that

his religious exercise is substantially burdened by the DOC’s

bulk mail catalog policy, and he has failed to show that there

is any genuine issue of material fact as to that element of his

RLUIPA claim, with respect to Claim 8. Accordingly, defendants’

motion for summary judgment (Doc. No. 81) on Claim 8 is granted,

and plaintiff’s motion is denied (Doc. No. 68), to the same

extent.

b. Book Size Limit (Claim 3(a))

Plaintiff has claimed that the limits on the dimensions of

books and magazines in his cell substantially burdens his

religious self-study relating to Jewry, Judaism, and Israel. As

evidence of that burden, he offers his sworn statement that he

once owned a book containing pictures of Israel that exceeded

the book size limit, which he gave to Rabbi Nafshi, and that

there are other (unspecified) books relating to his religion he

would want in the future, which may be oversized.

Evidence including Czekalski’s prior ownership of an

oversized book (given to Rabbi Nafshi who visits him

periodically and has donated books to the Chapel library in the

past) does not provide a basis for a reasonable jury to find

56 that the book size limit puts pressure on Czekalski to modify

his self-study practices and alter his beliefs, or otherwise

imposes a substantial burden in violation of RLUIPA. Without

any evidence suggesting that there are areas of religious study

he cannot pursue or specific oversized books he needs that are

unavailable in a permissible size, plaintiff has not carried his

burden of showing that the book size limit imposes a substantial

burden, or that there is a genuine issue of material fact on

that issue. Accordingly, plaintiff’s motion for summary

judgment on Claim 3(a) is denied, and defendants’ motion for

summary judgment on that claim is granted.

c. Book Quantity (Claim 3(b))

Plaintiff has also claimed that the prison’s prohibition on

keeping more than eleven books and magazines in his cell imposes

a substantial burden on his religious practices, in violation of

his rights under RLUIPA. Commissioner Hanks’s declaration

describes the policy as follows:

[PPD 9.02] provides that inmates can have no more than eleven (11) books . . . or magazines . . . plus an electronic tablet, in their cells. If an inmate should exceed that limit – thereby generating unauthorized property – but nonetheless wishes to retain access, he may rotate old texts for new ones – that is, by mailing the additional items outside the facility to a designated individual or donating them to the Prison or Chapel libraries.

Hanks Decl. ¶ 23 (Doc. No. 81-6, at 7-8) (emphasis in original).

57 Czekalski has explained in a declaration that he needs

access to a number of books in his cell each day to engage in

his religious studies. His list of more than twelve books he

states he needs to study his religion is not further

characterized by the evidence as a list of books his practices

require him to read every day. That list includes titles

suggesting overlapping subject matter in some cases (several

dictionaries and lexicons of Biblical Hebrew, for example); some

books he says will donate to the Chapel library when he is

finished with them; and his acknowledgement that he has kept

three non-religious books in his cell that count towards the

eleven-book maximum. See Czekalski Decl. III (Doc. No. 85-2, at

4). Czekalski further avers that he has plans to follow a

practice of reading about a page a day of the Talmud, which he

estimates will require him to purchase a new volume

approximately once every five weeks; his declaration clarifies

that following that practice will require him to keep one or two

volumes in his cell at a time (the one currently being read, and

the next in sequence), which he plans to donate to the Chapel

library when he is done. See Czekalski Decl. III (Doc. No. 85-

2, at 4-5).

To the extent Czekalski needs access on a given day to a

different text than the eleven he is allowed to keep in his cell

58 at that time, the evidence shows he can make arrangements to

acquire new texts by donating an equal number to the NHSP Chapel

library or by giving them to someone outside, like Rabbi Nafshi,

and then buying or borrowing new ones. Czekalski has conformed

to the rule’s limits in the past by surrendering or donating

non-conforming books, although he has had concerns about losing

access to donated books because of the lack of adequate secured

storage in the library, and the risk he will be transferred.

See Czekalski Decl. III (Doc. No. 85-2, at 4-5). With regard to

those considerations, Czekalski has averred that he “cannot

depend on the Chapel library and must be allowed to own the

necessary books as personal property.” Czekalski Decl. I (Doc.

No. 68-1, at 1). It is undisputed, however, that arrangements

have been made for the acquisition of another cabinet to keep

books reserved for Jewish inmates securely locked in the Chapel

when not in use. Daly Decl. II ¶ 18 (Doc. No. 81-5, at 5). And

absent evidence of any impending transfer, Czekalski’s concerns

in that regard are speculative.

“The prison must permit a reasonable opportunity for an

inmate to engage in religious activities but need not provide

unlimited opportunities.” Van Wyhe v. Reisch,

(8th Cir. 2009). The prison policy at issue (including its

complete lack of a page-length restriction) provides Czekalski

with a reasonable opportunity to acquire books and study his

59 religion each day, keeping in his cell at any given time a

subset of all of the titles he lists as books he needs. It

requires speculation unwarranted by the evidence before me to

conclude that Czekalski needs access in his cell to more than

eleven of those books each day to meet his religious

requirements, when he has the option of donating and borrowing

books from the Chapel library. Compare

(no

substantial burden where inmate was not permitted to have in-

cell tape player to learn Hebrew, but had access to tape player

outside his cell and was permitted to study Hebrew books in his

cell), with Washington,

(substantial burden was

established where inmate’s religion required him to read four

religious books per day but prison policy allowed him to possess

only ten at any time). See also Gordon v. Mullins, No. 7:12-cv-

00494,

, at *4,

, at

*19-20 (W.D. Va. Mar. 20, 2014) (thirteen-book limit on books

that inmate could keep in cell, enforced by officers’

confiscation of excess religious books, may have made it “more

inconvenient, difficult, and expensive for [inmate] to learn,

understand, and practice” his religion, but this did not amount

to substantial burden, where defendants did not limit inmate’s

ability to acquire books from another source, so long as he

relinquished an equal number), aff’d,

(4th Cir.

2014). No reasonable jury could conclude that the requirement

60 of keeping no more than eleven books in his cell at a time,

coupled with the option of donating and obtaining new books from

the Chapel library, imposes a substantial burden under RLUIPA.

Accordingly, I deny plaintiff’s motion for summary judgment on

Claim 3(b) and grant defendants’ motion on that same claim.

5. Cell Feeds (Claims 4(a) and 4(c))

In Claims 4(a) and 4(c), Czekalski claims that defendants’

refusal to provide him with cell feeds every morning and during

his Shabbat observance imposes a substantial burden on those

religious exercises because he has had to make a meal for

himself from food he purchases from the commissary. The

availability of commissary food is an alternative to chow hall

meals that the prison already provides. If, however, an inmate

is indigent and cannot afford to pay his own meal expenses,

prison authorities may be required to deliver meals to an inmate

as a further accommodation for his religious observances. Cf.

Combs v. Washington, No. C12-5280 RBL,

, at *22,

, at *57-58 (W.D. Wash. June 11,

2014) (absent evidence of inmate’s indigence, inmate’s choice to

eat food in his cell on his Sabbath that he purchased from

commissary did not support a finding of substantial burden), R&R

approved,

,

(W.D.

Wash. Aug. 29, 2014), aff’d,

(9th Cir. 2016).

61 This court’s records show that Czekalski filed three civil

rights cases in the District of New Hampshire since November

2017. He has paid the $400.00 filing fee upfront in each,

including most recently, a filing fee paid on February 4, 2019.

He had approximately $1,500.00 in savings in January 2020, see

Dep. of Jason Czekalski, Jan. 15, 2020 (“2020 Czekalski Dep.”),

at 18 (Doc. No. 85-4, at 34). Since April 2020, however, the

Department of Veterans Affairs has been garnishing all of the

monthly disability benefits he had been receiving, for an

overpayment that is likely to take the agency approximately

twenty years to recoup, see Doc. No. 86, at 3. While no

reasonable jury could find in favor of Czekalski on the issue of

whether his current financial status amounts to indigence, there

is at least a jury question on whether receiving no cell feeds

amounts to the imposition of a substantial burden on his

religious practices, where the cost of the food he buys

outstrips his income, other inmates receive meals without cost,

and there are other expenses a jury could find Czekalski will

likely incur, which will reduce his savings if he cannot defer

them. See Jones v. Carter,

(7th Cir. 2019)

(where inmate “testified to his meager sources of income, and

the state has confirmed that the cost to [the inmate] of

subsidizing his own religiously compelled diet would

systematically outpace his reliable income,” substantial burden

62 was properly found). Accordingly, I deny both parties’ cross-

motions for summary judgment the issue of substantial burden as

to Claim 4(a).

Similarly, there is a genuine issue of material fact on the

issue of whether defendants continue to be responsible for

denying Czekalski the opportunity to receive cell feeds during

his Shabbat hours. Such a denial, if it were established, could

amount to the imposition of an additional burden on Czekalski.

Therefore, the cross-motions for summary judgment, concerning

Claims 4(a) and 4(c), are denied with respect to the issue of

whether Czekalski’s religious practices are substantially

burdened.

As to whether there is any compelling interest served by

denying Czekalski cell feeds each morning and during his Sabbath

travel restriction, and whether that policy is the least

restrictive means of advancing a compelling interest, Czekalski

points to the array of circumstances in which cell feeds are

provided regularly or intermittently to inmates in his unit.

Meals are delivered to cells to accommodate inmate observances

of multi-day fasts like Ramadan. Defendants have not provided

any evidence upon which a reasonable jury could find in their

favor on the elements of compelling interest and least

restrictive means.

63 Accordingly, I rule on the cross-motions for summary

judgment (Doc. Nos. 68, 81) on an element-by-element basis, with

respect to Claims 4(a) and 4(c). As there remains a genuine

dispute of material fact regarding the existence of a

government-imposed substantial burden relating to Czekalski’s

morning prayers and Sabbath observance, I deny both parties’

motions on that issue with respect to Claims 4(a) and 4(c). But

as defendants have not effectively countered plaintiff’s

demonstration of the absence of evidence to support findings

favoring defendants on the elements of compelling interest and

least restrictive means (Doc. No. 68), I grant Czekalski’s

motion on those elements and deny defendants’ motion (Doc. No.

81) on those same elements, as to Claims 4(a) and 4(c).

6. Head Covering (Claims 6(a)-(b), 7(a)(i)-(ii))

Czekalski argues in Claim 6 and Claim 7(a) that the

prison’s clothing rules, as applied, violate RLUIPA and the

First Amendment Free Exercise Clause, as they do not allow him

to wear a hat that stays on his head both inside and outside, as

his religious practice requires. Those rules state, in

pertinent part, “hats are not to be worn inside.” See NHSP

Manual for the Guidance of Inmates at 9 (Doc. No. 11-9, at 2).

The no-hats-inside rule does not apply, however, to yarmulkes

worn by Jewish inmates. See Hanks Decl. ¶ 28 (Doc. No. 81-6, at

64 9); see also DOC Faith Group Overview (listing “yarmulke (skull

cap)” as allowable personal item for Jewish inmates) (Doc. No.

11-2, at 11). Czekalski claims in this case that: (1) his

religious practice requires him to cover his head everywhere;

(2) because a yarmulke does not stay on his head outside, he

chooses to wear a knit cap both inside and outside as a head

covering; and (3) he has been told by some corrections officers

that he has to choose between wearing a knit cap or a yarmulke

and cannot carry both at the same time.

a. Indoors (Claims 6(a) and 7(a)(i))

Defendants point to undisputed evidence that they have

already accommodated Jewish inmates’ head covering practices by

excepting yarmulkes from the no-hats-inside rule. Czekalski’s

religion allows him to wear a yarmulke as a religious head-

covering, and he has testified that if he were required to wear

only a yarmulke inside, he would not be violating any tradition

or tenet of Judaism. 2019 Czekalski Dep. at 112 (Doc. No. 85-

4). Czekalski has worn a yarmulke in court proceedings in the

courthouse in this case, and there is no suggestion in the

record that he cannot effectively cover his head inside by

wearing a yarmulke. Czekalski has thus failed to show that his

religious exercise of wearing a religious head covering indoors

65 has been substantially burdened by any prison policy enforced by

defendants.

Accordingly, I deny Czekalski’s motion for summary judgment

on Claim 6(a), and I grant defendants’ motion for summary

judgment on Claims 6(a) and 7(a)(i), the related Free Exercise

Clause claim that also requires proof of a substantial burden.

See Roman Cath. Bishop of Springfield v. City of Springfield,

(1st Cir. 2013) (“[t]he free exercise inquiry

asks whether government has placed a substantial burden on the

observation of a central religious belief or practice and, if

so, whether a compelling governmental interest justifies the

burden” (internal quotation marks and citations omitted)).

b. Outdoors (Claims 6(b) and 7(a)(ii))

Czekalski challenges as a violation of RLUIPA and the Free

Exercise Clause the “harassment” he claims he has experienced,

when guards have told him he cannot carry both a yarmulke and a

hat and must choose one or the other. The court has liberally

construed such allegations as stating a separate RLUIPA claim

identified as Claim 6(b), and a related First Amendment

religious freedom claim, identified in this Order as Claim

7(a)(ii), regarding the impact of those guards’ remarks on

Czekalski’s practice of keeping his head covered inside and

outside.

66 Defendants point to the undisputed evidence that the

prison’s written no-hats-inside policy applies only to the

indoor wearing of hats that are not approved as religious head

coverings; there is no prison rule against wearing the type of

knit cap Czekalski wants to wear outdoors. Defendants also

point to Czekalski’s testimony that there is no written prison

policy, or tenet or tradition in Judaism, that prevents him from

wearing a yarmulke under a knit cap outdoors.

Czekalski’s testimony regarding what some guards have told

him, about having to choose between a cap and a yarmulke, does

not amount to evidence that his religious practice of covering

his head has been subjected to any substantial burden or

coercive pressure by defendants in this case. There is no

suggestion that Czekalski has been written up for wearing a

yarmulke, a hat, or both outside, and there is also no evidence

that those incidents where guards have told him he cannot carry

both a hat and a yarmulke have happened more often than

sporadically. See Ealom v. United States, No. 18-3045-SAC,

, at *4,

, at *8-9 (D. Kan.

Apr. 20, 2018) (allegations that guards harassed detainee for

wearing a religious head wrap, “threatened her with a

disciplinary violation, and at least once forced her to make a

choice between removing the head covering and receiving her

prescribed medication,” appeared to be only sporadic incidents,

67 which did not substantially burden detainee’s religious

beliefs). Cf. Bridges v. Dart,

, 479 (7th Cir.

2020) (to demonstrate that unlawful practice amounted to policy,

“there must be some evidence demonstrating that there is a

policy at issue rather than a random event or even a short

series of random events”).

The record before me does not suggest a reasonable basis

for a jury to find that Czekalski’s religious exercise of

covering his head has been substantially burdened by any policy

or practice attributable to defendants. Defendants’ motion for

summary judgment (Doc. No. 81) is therefore granted with respect

to both Claim 6(b) and 7(a)(ii), and Czekalski’s cross-motion

for summary judgment on his RLUIPA claims is denied to the

extent it seeks such relief on Claim 6(b).

E. Remaining Claims (Claims 2(e)-(h))

The last set of claims in this case relate to the prison

policies that limited Czekalski’s contacts with Rabbi Nafshi

prior to November 2018, when she was classified as a religious

volunteer (Claims 2(e)-(h)). Czekalski has contended here that

the restrictions summarized in Claims 2(e)-(h) have violated his

rights under the First Amendment’s Free Exercise Clause, giving

rise to defendants’ liability under

.

Defendants have moved for summary judgment on those claims.

68 1. Free Exercise Clause and Turner

Inmates retain the protections afforded by the Free

Exercise Clause, “‘including its directive that no law shall

prohibit the free exercise of religion.’” Shakur v. Schriro,

(9th Cir. 2008) (citation omitted). “[T]he

free exercise inquiry asks whether government has placed a

substantial burden on the observation of a central religious

belief or practice and, if so, whether a compelling governmental

interest justifies the burden.” Roman Cath. Bishop,

(internal quotation marks and citations omitted).

Prison policies that impinge on inmates’ First Amendment

rights, including their religious freedom rights, are valid if

the restraints imposed by such policies are reasonably related

to legitimate government objectives and are not excessive in

relation to those objectives. See Bell v. Wolfish,

, 538-40 & n.20 (1979); see also Turner,

;

Yahtues,

, at *10,

,

at *30. Courts evaluating such prison policies must do so with

due deference to the professional expertise and judgment of

corrections officials on issues of institutional safety,

security, and order. See Pell v. Procunier,

(1974); see also Turner,

. The factors relevant

69 to that inquiry, known as the “Turner factors,” specifically

include:

“(1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) the impact that accommodating the right will have on prison resources; and (4) the absence of alternatives to the prison regulation.”

LeBaron,

-32 (quoting Kuperman,

). The burden “is not on the State to prove the validity of

prison regulations but on the prisoner to disprove it.” Overton

v. Bazzetta,

(2003).

2. Claims 2(e) and 2(f)

The policies that restricted Rabbi Nafshi’s contacts with

Czekalski when she was a religious volunteer included those at

issue in Claims 2(e) and 2(f):

 The policy that generally prohibits religious volunteers from corresponding with inmates by mail, see PPD 2.24 ¶ IV(D)(9)(g), IV(D)(12)-(13) (Doc. No. 11-6, at 4-5) (volunteers may not correspond with inmates without authorization of their staff supervisor); and

 The policy that generally prohibits religious volunteers from helping inmates acquire books, property, and special foods (Claim 2(f)), see PPD 7.17 ¶ IV(H) (Doc. No. 11-2, at 3) (volunteers may not “conduct business of any type for/with inmates”); PPD 2.24 ¶¶ IV(A)(3)-(4), IV(C)(1)-(2) (Doc. No. 11-6, at 2-3) (volunteers may not give or sell items to inmates without permission of the Commissioner).

70 Citing the Turner test as grounds for granting their motion

for summary judgment on those claims, defendants have pointed to

their legitimate institutional security interest in avoiding

volunteers’ undue familiarity with inmates as the rationale for

those rules, which plaintiff has not disputed. See Stip. I ¶ 10

(Doc. No. 31, at 4) (such proscriptions, “aimed at deterring

‘undue familiarity’ between inmates, on the one hand, and staff

and volunteers, on the other, advance the legitimate penological

interest of maintaining institutional security”). See generally

Moorehead v. Keller,

(W.D.N.C. 2012)

(policy prohibiting correspondence with volunteers,

characterized by inmate as his “‘spiritual advisors,’” was

reasonably related to legitimate penological interest of

deterring undue familiarity). There is no genuine issue of

material fact on that factor, which weighs in favor of finding

the rules to be valid.

With respect to the second Turner factor, the record here

provides a number of examples of alternate means available to

Czekalski for exercising the same or substantially similar

religious practices involving his contacts with Rabbi Nafshi at

issue in Claims 2(e) and 2(f) when Rabbi Nafshi was a religious

volunteer. Those alternatives included in-person meetings with

Rabbi Nafshi in the Chapel prior to June 2018, self-study using

books in his cell or in the Chapel library, participation in

71 group activities coordinated by the other Jewish religious

volunteer, and working with the chaplain to obtain religious

items, as a substitute for obtaining items with the Rabbi’s

assistance. No reasonable jury could conclude from the record

that adequate alternatives were unavailable to Czekalski to

accommodate his religious practices for the period of time at

issue in Claims 2(e) and 2(f).

As to the third and fourth Turner factors, Commissioner

Hanks has explained that the restrictions are the least

restrictive means of advancing that interest. “[A]bridging any

one” of the restrictions at issue would sow undue familiarity

among volunteers and inmates, potentially compromising

institutional security. Hanks Decl. ¶ 4 (Doc. No. 81-6, at 2).

The court defers to Commissioner Hanks’s statements with respect

to Claims 2(e) and 2(f), as they reflect her professional

judgment about prison security. See Kuperman,

.

Plaintiff argues that correspondence from Rabbi Nafshi

could have been screened only for contraband, and not restricted

altogether. But he offers no evidence that the risk of undue

familiarity that the restrictions are designed to address would

have been served by routine screenings for contraband, without

any substantial impact on security resources that could be

required to respond to the resulting risks of undue familiarity

developing between the volunteer and inmates.

72 Plaintiff further contends that defendants’ past practices

provide an alternative to applying the restrictions at issue in

Claims 2(e) and 2(f) to his contacts with Rabbi Nafshi when she

was a religious volunteer. There is, however, no evidence of

any variation in the manner in which those specific rules were

applied over time, which could provide an example of an

alternative to the restrictions at issue in Claims 2(e) and (f).

Furthermore, a change in the manner in which those policies had

been enforced over time would not drive a finding that the

restrictions were not reasonably related to a legitimate

penological purpose. See Chance v. Tex. Dep’t of Crim. Just.,

(5th Cir. 2013) (“the mere existence of a

prison policy that differs from a past policy or another

institution’s policy does not necessarily entitle a plaintiff to

survive summary judgment on his RLUIPA claim”).

Each of the Turner factors upon which there is evidence

weighs in favor of defendants, with respect to the restrictions

at issue in Claims 2(e) and 2(f). Accordingly, defendants’

motion for summary judgment on those claims is granted.

3. Claim 2(g)

In Claim 2(g), Czekalski raises a Free Exercise Clause

challenge to Chaplain Daly’s role in preventing Rabbi Nafshi

from distributing written religious materials she chose to her

73 meetings with Czekalski when she was a religious volunteer prior

to November 2018. In his pleadings and in the proposed order

filed with the original complaint, see Doc. No. 1, at 5-6; Doc.

No. 1-1, at 1), Czekalski objects to the policy that prevented

Rabbi Nafshi from continuing to bring large volumes of written

materials to her visits with inmates, without prior review.

The formal policies underlying Chaplain Daly’s review of

such materials are summarized in an April 21, 2017 email to

Rabbi Nafshi:

I informed [Rabbi Nafshi], then a religious “volunteer,” of the requirements of PPD 5.26 . . . that as to such articles and Internet printouts as she or an inmate might wish to discuss on visits, “[t]en double sided pages is the maximum number of pages that can be received by inmates. Any material you intend to allow them to review must be dropped off at the Mail Room during business hours 0800-1500 hrs. I will review the material and then bring it to the Chapel.”

Daly Decl. II ¶ 9 (Doc. No. 81-5, at 2). See also PPD 5.26

¶ IV(D)(2)(a), (E)(2) (allowing articles, Internet printouts,

and photocopies to be sent to inmates through Mailroom if those

materials are comprised of less than ten pages) (Doc. No. 12-5,

at 9). PPD 7.09 ¶ IV(N)(1)(c)(4) (Doc. No. 12-3) further

provides that visiting clergy planning to use written religious

materials must submit those materials to the chaplain for prior

review, and if the chaplain approves, the chaplain will make

those materials available for use.

74 a. Ten-Page Limit

The ten-page limit passes scrutiny under Turner. First,

the policy is rationally related to the prison’s interest in

ensuring that incoming packages of written materials can be

effectively pre-screened for contraband, which can include small

items folded in between pages and illicit drugs transmitted

through powders and liquids that can appear as ink or stains on

a page, see Hanks Decl. ¶ 5 (Doc. No. 81-6, at 2); Fouts Decl.

¶ 16 (Doc. No. 75-1, at 4). The fewer the number of pages that

must be screened, the less the chance that contraband will enter

the prison environment through those pages.

Second, there are alternative ways an inmate like Czekalski

could exercise his rights affected by the page-limit on

religious volunteer materials, including asking the volunteer to

bring fewer materials in each time, spreading out a large volume

of pages over multiple visits, acquiring the materials at issue

directly from the publisher, using materials already in the

Chapel library’s collection, or discussing topics raised in new

materials without sharing them in written form during a clergy

visit. No reasonable jury could find an absence of adequate

alternatives upon the undisputed evidence in the record.

As to the third and fourth factors, Czekalski has offered

the alternative of simply allowing Rabbi Nafshi to bring in

large volumes of papers without prescreening, as the evidence

75 suggests she did for many years without incident. But that

alternative does not meet the legitimate penological purposes

served by the ten-page limit, that is, reducing the ways in

which contraband can enter the facility through inadvertence,

without imposing extra resource demands on the prison’s security

staff. Commissioner Hanks’s declaration makes it clear that the

screening function is labor-intensive and time-consuming; each

incremental addition of pages that must be screened increases

the risk of error and imposes a drain on already scarce time and

staff resources available for the important security-related

task. See Hanks Decl. ¶¶ 5, 31 (Doc. No. 81-6, at 2, 9). This

court must defer to the prison officials’ decision in that

regard. No ready alternative to a content-neutral page-limit

appears available given the evidence in the record.

All of the Turner factors weigh in favor of finding the

ten-page limit on religious materials to be reasonably related

to a legitimate security purpose, based on the undisputed facts

before me. See Lewis v. Clark,

(10th Cir.

2016) (prison’s ten-page limit on incoming mail upheld under

Turner, in case presenting First Amendment free speech and

association claims). Accordingly, I grant defendants’ motion

for summary judgment on the ten-page limit at issue in Claim

2(g).

76 b. Content Screen

Defendants move for summary judgment on the Free Exercise

Clause claim challenging the screening Chaplain Daly is alleged

to have applied to written religious materials selected by Rabbi

Nafshi for use with inmates. Citing cases indicating that

sporadic or isolated acts burdening a religious practice will

not be deemed to impose a substantial burden, see, e.g.,

Mubashir v. Moore, No. 3:10 CV 2802,

, at *6,

, at *18 (N.D. Ohio Apr. 19, 2011)

(denial of services in Chapel on two occasions amounted to

isolated instances that did not violate inmate’s First Amendment

rights (citing cases)), defendants contend that Czekalski’s loss

of use of materials, attributable to Chaplain Daly’s conduct,

did not substantially burden Czekalski’s religious exercise.

Viewed in a light most favorable to plaintiff, there is

evidence of one incident in 2018 when Chaplain Daly reviewed and

then questioned the content of materials Rabbi Nafshi had

selected: specifically, the 67-page packet of materials she

planned to provide to Bader and Czekalski in May 2018. There is

no evidence, however, that Chaplain Daly (the sole defendant

remaining on Claim 2(g)) took any similar action resulting in

Czekalski’s loss of access to any other written materials on any

other date.

77 Rabbi Nafshi testified in her deposition that those

materials included print-outs regarding “Israeli history, or

Israeli military history, or Jewish identity questions, which

for many Jews goes to the heart of their identity as Jews.”

Rabbi Nafshi Dep. at 22, 24-25 (Doc. No. 85-4, at 43). The

record does not suggest, however, that Rabbi Nafshi was unable

to discuss those matters with the inmates on that date, lacking

access to those specific documents. Absent any evidence that

Czekalski’s loss of access to those specific written materials

on that single occasion placed more than an incidental burden on

his religious exercise of meeting with Rabbi Nafshi, the

screening at issue in Claim 2(g) did not violate Czekalski’s

free exercise rights. See Signs for Jesus, 977 F.3d at 111

(substantial burden requires more than inconvenience or

incidental effect on religious exercise). Finding no triable

issue in the record before me on that question, I grant

defendants’ motion for summary judgment on Claim 2(g).

4. Qualified Immunity on Claim 2(h)

Defendants invoke qualified immunity as grounds for their

motion seeking summary judgment on Claim 2(h), which concerns

Rabbi Nafshi’s June 1 decision to cease visiting inmates at the

NHSP. Defendants’ motion for summary judgment on that claim

succeeds.

78 The question relevant for the qualified immunity analysis

relating to Claim 2(h) is contextual, taking into account

evidence of Rabbi Nafshi’s voluntary engagement and cessation of

her role as a religious volunteer: Would a reasonable prison

official have been aware of a First Amendment free exercise

problem, when a religious volunteer initiates a break in regular

visits with an inmate lasting approximately six months, after

the chaplain notified her of his concerns relating to the

materials the volunteer planned to use with inmates and the

chaplain’s conclusion that she had been manipulated by inmates

seeking to circumvent prison rules.

The court is satisfied that there is no clearly established

law, manifested in any controlling case or in a robust consensus

of persuasive authority from other jurisdictions, regarding the

First Amendment free exercise issues presented as to Claim 2(h),

sufficient to overcome defendants’ invocation of their qualified

immunity defense, given Rabbi Nafshi’s voluntary actions in this

context. Cf. Bader II,

(no RLUIPA violation had

been shown where prison transfer that negatively impacted

inmate’s access to group worship and counseling depended

proximately on decisions and actions of potential religious

volunteers and were not attributable to prison transfer).

Accordingly, defendants’ summary judgment motion is granted as

to Claim 2(h).

79 IV. CONCLUSION

For the foregoing reasons, defendants’ motion for summary

judgment (Doc. No. 81) and Czekalski’s (first) motion for

partial summary judgment (Doc. No. 68) are both granted in part

and denied in part, and Czekalski’s second motion for partial

summary judgment (Doc. No. 69) is denied. The parties are

directed to file joint or separate proposed revisions to the

pretrial schedule by January 7, 2021, and the clerk’s office is

directed to schedule a case management conference with the

parties by telephone or video conference thereafter, at which

those proposed revisions will be discussed.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

December 8, 2020

cc: Jason Czekalski, pro se Seth M. Zoracki, Esq.

80