14‐581 Barnes v. Furman, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of October, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

ARRELLO BARNES, Plaintiff‐Appellant,

v. 14‐581

FURMAN, FEDELE, KERBEIN, ROBERT MURPHY, CORRECTION OFFICER, HOWARD MATASAR, T. STANLEY, P. CORCORAN, CHAPPIUS, JR., M. McGINNIS, A. BARLETT, NAPOLI, JOHN NUTTAIL, EVERETTE, LITWILDER, BRIAN FISHER, THOMAS EAGEN, Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Arrello Barnes, pro se, Attica, New York.

FOR DEFENDANTS‐APPELLEES: Denise A. Hartman, Martin A. Hotvet, Assistant Solicitors General, for Barbara D. Underwood, Solicitor General, and Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York.

Appeal from the United States District Court for the Western District of

New York (Larimer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in

part and VACATED in part, and the case is REMANDED.

Plaintiff‐appellant Arrello Barnes, proceeding pro se, appeals from the

judgment of the district court entered February 12, 2014 in favor of various prison

officials in the New York State Department of Correctional Services (ʺDOCSʺ)

dismissing his complaint alleging claims under

and the Religious Land

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (ʺRLUIPAʺ). Barnes

alleges that prison officials: 1) denied him kosher meals for a three or four‐month

period in 2004 because he then identified as ʺHebrew Israelite,ʺ not ʺJewishʺ; and 2)

confiscated his religious head covering ‐‐ a Tsalot‐Kob1 ‐‐ in 2007 because he then

identified as ʺJewish,ʺ not ʺRastafarian.ʺ Barnes also seeks injunctive and declaratory

relief to permit the wearing of Tsalot‐Kobs by Hebrew Israelite and Jewish inmates.

1 A Tsalot‐Kob is ʺa hemispheric head cap that can be made of cloth, knitted or crochetedʺ and ʺmeasures approximately 12ʺ long at its longest point in order to cover all [dread]locks.ʺ Appelleesʹ Add. at 6. ‐ 2 ‐

By decision and order also filed February 12, 2014, the district court

granted defendantsʹ motion for summary judgment and denied Barnesʹs cross‐motion

for summary judgment. The district court held that Barnesʹs kosher meals claim failed

as a matter of law and that defendants were entitled to qualified immunity for

confiscating Barnesʹs religious head covering. We assume the partiesʹ familiarity with

the underlying facts, the procedural history, and the issues on appeal.

We review de novo the district courtʹs grant of summary judgment, with

the view that ʺ[s]ummary judgment is appropriate only if the moving party shows that

there are no genuine issues of material fact and that the moving party is entitled to

judgment as a matter of law.ʺ Miller v. Wolpoff & Abramson, L.L.P.,

(2d

Cir. 2003). On summary judgment, the court must consider ʺnot whether . . . the

evidence unmistakably favors one side or the other but whether a fair‐minded jury

could return a verdict for the plaintiff on the evidence presented.ʺ Anderson v. Liberty

Lobby, Inc.,

(1986).

We also review de novo the district courtʹs ruling that defendants are

entitled to qualified immunity. See Lynch v. City of New York,

(2d Cir.

2013). Qualified immunity shields a government official from liability for civil damages

ʺif his conduct did not violate plaintiffʹs clearly established rights or if it would have

been objectively reasonable for the official to believe that his conduct did not violate

plaintiffʹs rights.ʺ Mandell v. Cty. of Suffolk,

(2d Cir. 2003). The Court

ʺmust look to both the clarity of the law establishing the right allegedly violated as well ‐ 3 ‐

as whether a reasonable person, acting under the circumstances the[n] confronting a

defendant, would have understood that his actions were unlawful.ʺ Ford v. McGinnis,

, 596‐97 (2d Cir. 2003) (internal quotation marks omitted).

A. Denial of Kosher Meals

The district court held that defendantsʹ requirement that Barnes identify

as Jewish to receive kosher meals did not substantially burden his religious exercise.

But this was not Barnesʹs claim. Instead, Barnes sought relief with respect to an earlier

period of time, the three or four months from April 2004, when he was transferred to

Southport Correctional Facility, to early July 2004, when he began receiving kosher

meals while still registered as a Hebrew Israelite. His complaint is not that he was later

required to register as Jewish, but that he was denied kosher meals for three or four

months until the Central Office Review Committee approved his request that inmates

identifying as Hebrew Israelite should receive kosher meals. The district court did not

consider this claim.

Prisoners have a right to a diet consistent with their religious beliefs. Ford,

; McEachin v. McGuinnis,

, 203‐4 (2d Cir. 2004). Here, Barnes

alleges that he was denied kosher meals for three or four months, a time period that is

not ʺso trivial that [it is] most properly ignored.ʺ McEachin,

n.6.

Defendants do not address whether the facts alleged demonstrate the

violation of Barnesʹs constitutional rights, instead urging us to proceed to the second

step of the qualified immunity analysis and arguing that their actions were objectively ‐ 4 ‐

reasonable. See Pearson v. Callahan,

(2009) (ʺThe judges of the district

courts and the courts of appeals should be permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.ʺ). We elect to

do so and we agree that, on the record before us, defendants were entitled to qualified

immunity as a matter of law because it was objectively reasonable for them to believe,

at the time, that their denial of kosher meals to an inmate who self‐identified as a

Hebrew Israelite did not violate the inmateʹs rights.

In April 2004, when Barnes arrived at Southport, the Orientation Manual

provided that kosher meals were ʺavailable to Jewish inmates.ʺ Because Barnes was

registered as Hebrew Israelite and not Jewish, he was not given kosher meals. Barnes

wrote letters and filed a grievance requesting kosher meals, and on June 23, 2004, the

Central Office Review Committee granted the grievance, concluding that it was

ʺappropriateʺ for inmates self‐identifying as Hebrew Israelites to be given Kosher

meals. Barnes began receiving kosher meals shortly thereafter.

Hence, while Barnes was first denied kosher meals in accordance with

Southport policy because he had not registered as Jewish, the decision was reversed by

central DOCS authorities after Barnes complained. While it was clearly established in

2004 that inmates had the right to a diet consistent with their religious beliefs, see Kahane

v. Carlson,

, 495‐96 (2d Cir. 1975) (holding orthodox Jewish inmate was

entitled to kosher meals); Bass v. Coughlin,

(2d Cir. 1992) (per curiam), it ‐ 5 ‐

was not unreasonable for Southport officials to deny Barnes kosher meals because he

was registered as Hebrew Israelite in accordance with the prison policy limiting kosher

meals to Jewish inmates. Nor was it unreasonable for the prison officials to rely on

Barnesʹs registered religious designation in making its initial kosher meal

determination.2 See Jackson‐Bey v. Hanslmaier,

(2d Cir. 1997) (holding

that DOCS may place reasonable limitations on an inmateʹs right to the free exercise of

religion, including a requirement that the inmate register his religious affiliation). Once

the Central Office determined that the policy should be changed, the Southport officials

granted Barnes kosher meals. Therefore, even assuming Barnesʹs rights were being

violated in 2004, under the circumstances defendants did not act unreasonably.

B. Confiscation of Religious Head Covering

To prevail on a First Amendment claim, a plaintiff must show that he has

a sincerely held religious belief, that it was substantially burdened, and that defendantsʹ

conduct was not reasonably related to some legitimate penological interest. See Holland

v. Goord,

, 220‐23 (2d Cir. 2014); Ford, 352 F.3d at 588‐94.3 Defendants may

assert a defense of qualified immunity to such a claim, but they must show that their

conduct ʺdoes not violate clearly established statutory or constitutional rights of which

2 We note that, at various times, Barnes was registered as Muslim, Hebrew Israelite, Jewish, Rastafarian, Protestant, and Nation of Islam. 3 We have not decided whether the substantial burden test remains viable in our Circuit following Employment Division v. Smith,

(1990), but we need not decide the issue here because defendants have not contested that Barnes satisfies this element, see Holland,

. ‐ 6 ‐

a reasonable person would have known.ʺ Zahrey v. Coffey,

(2d Cir.

2000) (quoting Harlow v. Fitzgerald,

(1982)).

Defendants confiscated Barnesʹs head covering because he was registered

as ʺJewishʺ and DOCS officials had determined that the appropriate head covering for

Jews was a yarmulke, based on advice from their ʺreligious advisors, the New York

State Board of Rabbis.ʺ Appelleesʹ Br. at 12‐13. Barnes contended that a Tsalot‐Kob was

more appropriate than a yarmulke because it fit over his extensive dreadlocks. At the

time, Tsalot‐Kobs were ʺonly authorized for members of the Rastafarian faith.ʺ

Appelleesʹ Add. at 6. Among the five permitted religious head coverings, the Tsalot‐

Kob was the only religious headwear limited to just one religious faith.

All others ‐‐

yarmulkes, kufis, fezzes, and khimars ‐‐ were permitted to be worn by any inmate,

regardless of religious registration, so long as they were being worn for religious

purposes.

DOCS has since changed its policy to remove the limitation that Tsalot‐

Kobs be worn by Rastafarians only. Id. at 11 (ʺIn an effort to ensure compliance with

RLUIPA, inmates will no longer be required to pick faith specific items for individual

worship only.ʺ).

Defendants do not dispute that the confiscation of Barnesʹs Tsalot‐Kob

religious head covering was unlawful and instead argue that they are entitled to

qualified immunity because there is no clearly established law permitting inmates to

wear ʺhead coverings of their choice.ʺ Appelleesʹ Br. at 31, 37. To determine whether a

right was clearly established, we consider ʺwhether the right in question was defined ‐ 7 ‐

with reasonable specificity,ʺ ʺwhether the decisional law of the Supreme Court and the

applicable circuit court support the existence of the right in question,ʺ and ʺwhether

under preexisting law a reasonable defendant official would have understood that his

or her acts were unlawful.ʺ Dean v. Blumenthal,

(2d Cir. 2009) (per

curiam) (internal quotation marks omitted).

The district court erred in holding that defendants are entitled to qualified

immunity as a matter of law. Although we have never held that prison officials are

obligated to provide an inmate with ʺhead coverings of their choice,ʺ it has nonetheless

been well established that prisoners ʺretain some measure of the constitutional

protections afforded by the First Amendmentʹs Free Exercise Clause.ʺ Ford,

(citing Pell v. Procunier,

(1974)). Prisonersʹ free exercise claims are

necessarily balanced against the interests of prison officials administering the prison

system.

In light of that concern, it has been clearly established that burdens on

prisonersʹ free exercise rights must be justified by a legitimate penological interest. See

at 594‐95; Salahuddin v. Goord,

, 275‐76 (2d Cir. 2006) (denying qualified

immunity for prison officials not separating Sunni and Shiʹite Ramadan services

because ʺit was clearly established at the time of the alleged violations that prison

officials may not substantially burden inmatesʹ rights to religious exercise without some

justificationʺ).

It was also clearly established before 2007 that prison officials could not

rely solely on the opinions of the New York Board of Rabbis in assessing the sincerity of ‐ 8 ‐

Barnesʹs religious belief. See Ford,

, 597‐98; Jackson v. Mann,

,

320‐21 (2d Cir. 1999) (holding that prison official could not deny inmate kosher meals

based on rabbiʹs determination that inmate was not Jewish under Judaic law); Jolly v.

Coughlin,

(2d Cir. 1996) (concluding that prison officials cannot impinge

on sincere religious belief simply by showing that ʺas an objective matter, the plaintiffʹs

belief is not accurate or logicalʺ). Therefore, it was well established by 2007 that the test

for whether a prisoner’s beliefs are entitled to free exercise protection turns on whether

they are ʺsincerely held,ʺ not the ecclesiastical question of the propriety of Jews wearing

head coverings other than yarmulkes.

Taken together, our earlier decisions have clearly established that prison

officials may not prohibit a sincere religious practice without some legitimate

penological interest. The only legitimate penological objectives defendants point to are

related to the requirement that inmates register their religious affiliation with prison

officials and the Department of Corrections, and that prison officials rely to some extent

on that designation. Defendants do not, however, provide any legitimate penological

reasons behind prison officialsʹ and chaplainsʹ former adherence to a policy that limited

Jewish inmatesʹ head coverings to yarmulkes only. Nor do the defendants offer a

legitimate penological reason for deferring to the New York State Board of Rabbis

where the sincerity of Barnesʹs belief was apparently uncontested. As the district court

noted, ʺʹthere is no legitimate reason for DOCS to afford members of only one religious

denomination the opportunity to adhere to a sincerely held religious beliefʹ relative to ‐ 9 ‐

grooming or headwear.ʺ Barnes v. Fedele, No. 07‐CV‐6197 (W.D.N.Y. Feb. 12, 2014)

(quoting Amaker v. Goord, No. 06‐CV‐490A(SR),

, at *12 (W.D.N.Y. Mar.

25, 2010)).

Even so, there remains the question of whether ʺʹreasonable persons in

[defendantsʹ] position would not have understood that their conduct was within the

scope of the established prohibition.ʹʺ LaBounty v. Coughlin,

(2d Cir.

1998) (quoting In re State Police Litig.,

(2d Cir. 1996)). For qualified

immunity to apply on this basis, defendants must demonstrate that ʺno rational jury

could fail to concludeʺ that it was reasonable for them to believe that their conduct did

not violate the prisonerʹs constitutional rights. Id. at 74. When officials follow an

established prison policy, as defendants did here, their entitlement to qualified

immunity depends on ʺwhether a reasonable officer might have believed that the

challenged order was lawful in light of legitimate penological interests supportingʺ the

directive. Holland,

; Salahuddin,

(ʺ[O]nce a prisoner shows

that a prison regulation impinges on a protected right, prison officials must show that

the disputed official conduct was motivated by a legitimate penological interest.ʺ).

While the individual corrections officers who confiscated Barnesʹs Tsalot‐Kob may very

well have been acting reasonably when following DOCS policy, a different analysis may

apply to those responsible for the policy. On this record, it is not apparent whether

there was a legitimate penological reason to limit only Tsalot‐Kobs to inmates registered

as Rastafarian. ‐ 10 ‐

Therefore, we cannot say as a matter of law that it was objectively

reasonable for those defendants to believe that denying a Tsalot‐Kob to an inmate

registered as Jewish was constitutional. Moreover, because defendants have not

identified any penological interests supporting the policy, we cannot assess the

reasonableness of their actions. See Salahuddin,

(holding that where

prison officials did not ʺpoint[] to anything in the record to show that they relied on

legitimate penological justifications,ʺ court could not ʺmanufacture facts out of thin

airʺ). Accordingly, we remand to the district court for further proceedings and

development of the record.

3. Injunctive and Declaratory Relief

We affirm the district courtʹs holding that Barnesʹs requests for injunctive

and declaratory relief are moot. While an inmateʹs transfer ʺgenerally moots claims for

declaratory and injunctive relief against officials of that facility,ʺ but not claims against

higher‐ranking officials, Salahuddin,

, Barnesʹs claims are nonetheless

moot because he has since changed his religious designation to Protestant and no longer

has dreadlocks.

We have considered all of Barnesʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM in part, VACATE in part, and REMAND

for proceedings consistent with this decision.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk ‐ 11 ‐