20-18-pr Green Haven Prison Preparative Meeting v. New York State Dept. of Corrections

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2020

Argued: October 30, 2020 Decided: October 18, 2021

Docket No. 20-18-pr

GREEN HAVEN PRISON PREPARATIVE MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS, AN UNINCORPORATED ASSOCIATION, YOHANNES JOHNSON, INDIVIDUALLY, AND AS CLERK OF GREEN HAVEN PRISON PREPARATIVE MEETING, GREGORY THOMPSON, INDIVIDUALLY, AND AS MEMBER OF GREEN HAVEN PRISON PREPARATIVE MEETING, NINE PARTNERS QUARTERLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS, AN UNINCORPORATED ASSOCIATION, DONALD BADGLEY, INDIVIDUALLY, AND AS CO-CLERK OF NINE PARTNERS QUARTERLY MEETING , EMILY BOARDMAN , INDIVIDUALLY AND AS CO-CLERK OF NINE PARTNERS QUARTERLY MEETING , BULLS HEAD-OSWEGO MONTHLY MEETING, AN UNINCORPORATED ASSOCIATION, CAROLE YVONNE NEW , INDIVIDUALLY AND AS CLERK OF BULLS HEAD-OSWEGO MONTHLY MEETING, DAVID LEIF ANDERSON, INDIVIDUALLY AND AS TREASURER OF BULLS HEAD-OSWEGO MONTHLY MEETING, POUGHKEEPSIE MONTHLY MEETING, AN UNINCORPORATED ASSOCIATION , FREDERICK DONEIT, SR., AS TREASURER OF POUGHKEEPSIE MONTHLY MEETING, JULIA GIORDANO, MARGARET L. SEELY, SOLANGE MULLER, NEW YORK YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDS, INC.,

Plaintiffs-Appellants,

— v. —

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ANTHONY ANNUCCI, IN HIS CAPACITY AS ACTING COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, JEFF MCKOY, IN HIS CAPACITY AS THE DEPUTY COMMISSIONER FOR PROGRAM SERVICES OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ALICIA SMITH-ROBERTS, IN HER CAPACITY AS THE DIRECTOR OF MINISTERIAL, FAMILY AND VOLUNTEER SERVICES OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, JAMIE LAMANNA, IN HIS CAPACITY AS SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, JAIFA COLLADO, IN HER CAPACITY AS DEPUTY SUPERINTENDENT OF PROGRAMS AT GREEN HAVEN CORRECTIONAL FACILITY, MARLYN KOPP, IN HER CAPACITY AS DEPUTY SUPERINTENDENT OF PROGRAM SERVICES AT GREEN HAVEN CORRECTIONAL FACILITY

Defendants-Appellees.*

B e f o r e:

LIVINGSTON, Chief Judge, CABRANES, and LYNCH, Circuit Judges.

Several unincorporated associations and individual members of the Religious Society of Friends (widely referred to as “Quakers”) appeal from an order of the United States District Court for the Southern District of New York (Karas, J.) denying their motion for a preliminary injunction directing defendant officials of the New York State Department of Corrections and Community Supervision to rescind changes in the scheduling of certain regularly-held Quaker religious gatherings at Green Haven Correctional Facility. We agree with the district court that a preliminary injunction is not warranted because Plaintiffs- Appellants are unable to demonstrate a likelihood of success on the merits of their claims. The order of the district court is thus AFFIRMED.

* The Clerk of the Court is respectfully directed to amend the caption as set forth above.

1 FREDERICK R. DETTMER, Law Office of Frederick R. Dettmer, New Rochelle, NY, on the brief, for Plaintiffs-Appellants.

MARK S. GRUBE, Assistant Solicitor General, State of New York, New York, NY (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, on the brief), for Defendants- Appellees.

________________

GERARD E. LYNCH, Circuit Judge:

This case arises from scheduling changes made by the New York State

Department of Corrections and Community Supervision (“DOCCS”) to certain

regularly-held religious gatherings of the Religious Society of Friends, generally

known as “Quakers,” at Green Haven Correctional Facility (“Green Haven”).

DOCCS’s measures affected the scheduling of two types of Quaker religious

gatherings. The first type, called Quarterly Meetings, are held four times a year

and involve neighboring Quaker communities gathering at Green Haven to

worship with inmates. The second type, referred to as “meetings for worship

with a concern for business” (“MFWCBs”), are weekly meetings where inmates

at Green Haven who participate in Quaker activities discuss the group’s business

concerns. The scheduling changes generally prevented inmates from holding

2 these meetings on their preferred days of the week. Plaintiffs-Appellants, who

include both Quaker prisoners Yohannes Johnson and Gregory Thompson (the

“Incarcerated Plaintiffs”) and outside Quaker individuals and organizations who

participate in communal worship with the Incarcerated Plaintiffs (“the Non-

Incarcerated Plaintiffs”) (together, “Plaintiffs”) brought this action in the United

States District Court for the Southern District of New York challenging the

scheduling changes, and moved for a preliminary injunction. Plaintiffs sought to

direct Defendants-Appellees, who include DOCCS and several DOCCS and

Green Haven officials (collectively, "Defendants"), to reinstate the meetings at

their previously scheduled times.

The district court (Kenneth M. Karas, J.) concluded that the Incarcerated

Plaintiffs were unable to demonstrate a likelihood of success on the merits of

their claims, in part because they failed to comply with the Prison Litigation

Reform Act’s (“PLRA’s”) requirement to exhaust administrative remedies and

failed to demonstrate that they qualified for an exception to the exhaustion

mandate. The court further concluded that all Plaintiffs failed to show that the

scheduling changes imposed a substantial burden on their religious exercise. We

conclude that the district court did not err in denying the preliminary injunction.

3 BACKGROUND

I. Quaker Meetings

Adherents of the Quaker faith, formally referred to as “Friends,” believe

that a person can convene directly with God without a mediator (such as a priest,

minister, or other member of the clergy) and that a group of individuals form a

congregation when they worship together and submit their independent

religious revelations and insights to collective discernment at periodic meetings

for worship.1 Friends who meet and worship together regularly as a congregation

may organize themselves into a formal group known as a “Monthly Meeting.” A

Monthly Meeting is responsible for local matters of business, including

organizing worship services, managing membership applications and lists,

approving and overseeing marriages, and providing pastoral care. A Monthly

Meeting conducts institutional business at specially-convened gatherings called

“meetings for worship with a concern for business.”

A Monthly Meeting may include multiple congregations which regularly

hold their own separate worship services. Such constituent congregations may be

1 Here and throughout this opinion, we base our understanding of Quaker belief and practice on materials submitted in the record by Plaintiffs.

4 organized as “Worship Groups” called “Preparative Meetings.”1 Two or more

Monthly Meetings and Worship Groups in the same region may form a Quarterly

Meeting, which meets four times a year, and two or more Quarterly Meetings in a

larger area may unite to form a Yearly Meeting, which meets annually. Friends

form Quarterly and Yearly Meetings to “gather for the spiritual enrichment

available from a larger body and to conduct business together.” Appellants’ Br. at

7. In pursuit of meaning and truth through collective deliberation and consensus,

Friends use these larger meetings to test and discuss with a broader group

insights from their smaller local Meetings.

II. Quaker Meetings at Green Haven

Green Haven is a maximum security correctional facility that houses

approximately 1900 inmates with diverse religious affiliations. Formed in 1976,

Plaintiff Green Haven Prison Preparative Meeting (“Green Haven Meeting”) is

the organized Quaker Worship Group at Green Haven; its approximately eight

members, including the Incarcerated Plaintiffs, are all prisoners there. Before the

implementation of the changes at issue in this appeal, the group met three times a

1 Unlike a Monthly Meeting, a Preparative Meeting “does not have final authority to receive, transfer, or dismiss members, or to perform marriages.” J. App’x at 138.

5 week: Thursday evenings in a study group from 6:00 p.m. to 8:30 p.m. in

Building 12 led by a civilian volunteer, Friday evenings for worship from 6:00

p.m. to 8:30 p.m. in the J School led by a civilian volunteer, and Saturdays from

12:30 p.m. until about 2:00 p.m. for MFWCBs in the J School led by Incarcerated

Plaintiff Johnson, who was the designated inmate facilitator.2 Green Haven

Meeting also held Quarterly Meetings four times a year on Saturdays for

approximately six hours, starting in the morning and ending in the mid-

afternoon.

Green Haven Meeting, Poughkeepsie Monthly Meeting, Bulls Head-

Oswego Monthly Meeting and other Quaker meetings in the region belong to

Nine Partners Quarterly Meeting (“Nine Partners Quarter”). Poughkeepsie

Monthly Meeting, Bulls Head-Oswego Monthly Meeting, and Nine Partners

Quarter are not-for-profit unincorporated associations and are Non-Incarcerated

Plaintiffs. New York Yearly Meeting, a not-for-profit corporation and also a Non-

Incarcerated Plaintiff, is an umbrella organization for all Meetings and worship

groups throughout New York and parts of Connecticut and New Jersey. New

2 A facilitator is an inmate designated by DOCCS to serve as the representative of the faith group in the absence of a competent chaplain.

6 York Yearly Meeting, the unincorporated associations of non-incarcerated

Quakers, and eight individual members of those associations join the

Incarcerated Plaintiffs in appealing the district court’s order denying the

preliminary injunction.

III. Regulatory Framework

DOCCS Directive 4202, titled “Religious Programs and Practices,” sets

forth DOCCS’s policy for the promotion of religious experiences of persons

under its supervision. “[I]n recognition of the First Amendment right of ‘religious

liberty,’” the policy aims “to provide as many opportunities as feasible for the

practice of [inmates’] chosen faiths, consistent with the safe and secure operations

of the DOCCS correctional facilities.” J. App’x 573. Directive 4202 § VI(B)(2)

discusses two types of regularly scheduled religious gatherings: worship services

and educational gatherings. Additional special religious holy days, celebrations,

or observances are governed by § VII and the Religious Holy Day Calendar,

which is distributed annually. Directive 4202 § VI(B)(2) allows faiths with six to

ten requesting adherents to hold religious gatherings such as classes or study

groups twice a month subject to the availability of space and staffing. The

Superintendent may also approve additional gatherings “if the accommodation

7 can be made without incurring any additional costs/resources.” J. App’x at 576.

Pursuant to Directive 4750, titled “Volunteer Services Program,” civilian religious

volunteers must be registered in order to be permitted into correctional facilities

to assist in programs.

Plaintiffs do not challenge the reasonableness of these system-wide

regulations. Rather, their complaint concerns the specific implementation of the

regulations at Green Haven with respect to Quaker gatherings at the prison,

starting in 2015.

IV. Policy Changes

In the fall of 2014, following a spate of security breaches involving visitors

smuggling in weapons, cash, and contraband, and in at least one instance a

corrections officer taking a bribe to smuggle a pound of marijuana to Green

Haven inmates, the Acting Commissioner of DOCCS, Defendant Anthony

Annucci, installed new Green Haven administrators, including a new

Superintendent and several new Deputy Superintendents, including Defendant

Jaifa Collado (“Collado”) who was Deputy Superintendent for Program Services

at Green Haven and responsible for scheduling religious and other activities. The

8 security concerns prompted the new administration to reevaluate special events

and other gatherings held in the facility.

A. Quarterly Meetings

For 35 years, from 1980 to 2015, Green Haven Meeting hosted Friends from

Nine Partners Quarter at Green Haven for full-day Quarterly Meetings. Those

meetings, which typically took place over six or more hours on Saturdays and

included lunch, allowed Quaker inmates and non-incarcerated Friends in the

region to worship together and exchange beliefs, practices and concerns.

Quarterly Meetings also provided inmates who were not members of the Green

Haven Meeting an opportunity to participate in and be introduced to the Quaker

religion. Plaintiffs contend that holding these Quarterly Meetings on Saturdays,

as opposed to any other day of the week, is “critical to their success” because on

Saturdays non-incarcerated Friends are less limited by work schedules, parental

obligations, evening travel, and other workweek commitments. J. App'x at 216.

Special events – including Quaker Quarterly Meetings – typically require

the presence of extra security staff to protect the non-incarcerated visitors and

volunteers who may attend the events and to maintain safety for the general

prison population. In light of ongoing security concerns raised by the security

9 breaches in the fall of 2014, the new prison administration sought to reduce the

size and number of special events at Green Haven, and special events held on

weekends in particular, since the staff on weekend duty is smaller and the prison

would have to pay overtime to adequately staff events. Special events also

increase “out counts,” the number of inmates away from their cells when a count

of inmates occurs. Prison administration sought to reduce the out count since the

absence of inmates from the count carries security risks associated with tracking

inmate movement. As a result, in 2015, Green Haven administration moved

Quarterly Meetings from Saturdays to Friday evenings after 5:30 p.m.

In 2014, Green Haven Meeting hosted Saturday Quarterly Meetings –

which were scheduled on the special events calendar – on March 29, June 7,

September 13 and December 27 from 8:30 a.m. to 2:30 p.m. Visitors were

prohibited from bringing food, beverages, packages, or gifts into the facility.

Green Haven provided food for the Quarterly Meetings in the form of “offline

meals,” which are meals from the mess hall’s regular menu. All registered

Quaker inmates, who numbered from six to nine at the relevant times, were

allowed but not required to attend these Quarterly Meetings. Green Haven also

allowed 15 registered civilian volunteers to attend the March, June and

10 September Quarterly Meetings. After noticing that only a few of the volunteers

actually attended the Quarterly Meetings, and in light of ongoing security

concerns about events including a large number of civilians, prison

administration limited the maximum number of guests at the December 27, 2014

Quarterly Meeting to any four from the list of registered volunteers.

Thaddeus Davis (“Davis”), the designated facilitator for Quaker inmates at

Green Haven before Plaintiff Johnson took over that role, corresponded with

prison administration about, inter alia, his four proposed dates for the 2015

Quarterly Meetings, which were all Saturdays. In one of her responses, Collado

requested an explanation for Davis’s request for four Quarterly Meetings per

year since, according to the approved special events calendar, the Quakers had

no special holy days in 2014 other than the common Christian holidays of Easter

and Christmas. In a response memo, Davis explained Quaker practices and the

religious significance of Quarterly Meetings, but he did not identify any

particular significance to holding the Quarterly Meetings on Saturdays.

Green Haven officials determined that it was not possible to implement the

preferred schedules for all religious denominations in the community given

“security concerns” and “logistical considerations” at the prison. J. App’x at 540.

11 Thus, prison administration moved the Quarterly Meetings to Friday evenings,

after 5:30 p.m., and distributed the 2015 special events calendar with Quarterly

Meetings scheduled for March 20, June 5, September 11, and December 11. Green

Haven Meeting objected to the move, in part, because it already held worship

services from 6:00 p.m. to 8:30 p.m. on Friday evenings. Prison administration

offered to move the Quarterly Meetings to another weekday evening, but Green

Haven Meeting declined the offer. As a result, the Quarterly Meetings were

removed from the special events calendar in the years following 2015. Since then,

DOCCS and Green Haven Meeting have negotiated about the Quarterly

Meetings, which has resulted in DOCCS offering to schedule one of the Quarterly

Meetings as a special event, with an out count that would permit a longer

meeting along with a meal paid for by the Quakers.

B. MFWCBs

Green Haven also made changes that affected MFWCBs. Green Haven

Meeting would typically hold MFWCBs on Saturdays from 12:30 p.m. to about

2:00 p.m. in the J School. Incarcerated Plaintiff Johnson facilitated these meetings,

which were attended by inmates who had to “call out,” or in other words, receive

permission in advance to be away from their cells in order to attend. Correctional

12 officers must accompany an inmate who has called out from his cell to the

location of the event, where one or more other correctional officers must stay to

monitor the inmate throughout the event.

Defendant Marlyn Kopp (“Kopp”) succeeded Collado as Deputy

Superintendent for Program Services at Green Haven in March 2017. By January

2018, Kopp and other administrators identified overcrowding as an issue in the J

School building, where some Quaker activities were held. The overcrowding

stemmed in part from too many call outs by non-Quaker inmates, including

several maximum security inmates, attending call-out gatherings such as Green

Haven Meeting’s MFWCBs. On January 6, 2018, for instance, 21 inmates attended

the MFWCB, 9 of whom were registered Quakers and 12 of whom were not

registered Quakers. The unusually high ratio of non-Quakers to Quakers

prompted Kopp to take action to reduce what officials perceived to be excessive

call outs, which she deemed were more likely to be subject to abuse since no

chaplain or community volunteer was present.3

3 Section VI(B)(3) of Directive 4202 limits inmates to attending up to three services or classes per year of religions other than the one for which they are registered in order to “learn more about the religious practices of another faith” (hereinafter, the “Three Times Rule”).

13 On February 9, 2018, Johnson corresponded with Green Haven

administration in response to an inquiry about the purpose of the MFWCB and

irregularities in the attendance of non-adherents. Kopp responded by informing

Johnson of her decision to revoke permission for MFWCBs. She wrote, in part,

“The Quakers, just like any other religion, are already approved to have worship

services and study classes. They have Friday Worship and Thursday [b]ook

study. The Saturday call-out does not appear to be a study group or a worship

service and therefore does not appear necessary. With a congregation of a total of

8 inmates, having a Thursday study group and Friday worship service appears to

be sufficient.” J. App’x at 560.

C. The Holy Day Calendar

Separate from the regular weekly religious activities, DOCCS prepares and

distributes a Religious Holy Day Calendar applicable to all of its correctional

facilities, which identifies dates of religious significance throughout the year. The

administration of an individual correctional facility, however, may schedule

additional religious activities for the various faith groups within each facility.

Plaintiffs object to the DOCCS Calendar’s identification of the Society of Friends

as “Protestant” and the designation of Pentecost as the “Family Event” day for

14 the Society of Friends, along with other groups characterized as Protestant. A

Family Event Day enables outside family and friends to join inmates of their faith

for worship and celebration. Plaintiffs argue that Quakers do not celebrate

Pentecost and that DOCCS is unjustified in its refusal to revise the Calendar to

add Quarterly Meetings.

V. District Court Proceedings

The Incarcerated Plaintiffs did not file administrative grievances about any

of the rule changes concerning the various Quaker meetings at Green Haven.

Instead, Plaintiffs filed the present complaint in September 2018, bringing claims

under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42

U.S.C. § 2000cc et seq., the Free Exercise Clause of the First Amendment, the

Establishment Clause of the First Amendment, the Equal Protection Clause of the

Fourteenth Amendment, the freedom of religion guarantees in the New York

State Constitution, art. I, § 3, and New York Correction Law § 610(1), which

guarantees to inmates “the free exercise and enjoyment of religious profession

and worship, without discrimination or preference.”

In particular, as concerning their RLUIPA claim, the Incarcerated Plaintiffs

allege that Defendants’ termination of and refusal to reinstate Quarterly Meetings

15 and MFWCBs imposes a substantial burden on their exercise of religion and is

neither in furtherance of a compelling government interest nor the least

restrictive means of furthering any such interest. They also asserted claims under

the Free Exercise Clause of the First Amendment (and corresponding claims

under Section 610 of the New York Correction Law), alleging, in relevant part,

that Defendants’ cancellation of Quarterly Meetings and MFWCBs imposes a

substantial burden on their sincerely held religious beliefs and religious exercise

and is not reasonably related to legitimate penological interests. Finally, they

alleged that Defendants' actions – including their designation of Quakers as

"Protestants" and celebrants of Pentecost – violate the Establishment Clause.4

The Non-Incarcerated Plaintiffs asserted claims under the Free Exercise

Clause of the First Amendment, alleging that Defendants’ cancellation of

Quarterly Meetings deprived them of their ability to exercise their religion, a

deprivation not reasonably related to legitimate penological interests.

All plaintiffs also asserted corresponding claims under the Free Exercise

Clause of the New York State Constitution. Finally, all plaintiffs asserted a claim

4 The Incarcerated Plaintiffs also raised separate claims for “retaliation,” alleging that Defendants' decision to terminate the MFWCBs were retaliatory and were intended to deter the Incarcerated Plaintiffs from “vindicating” their rights. J. App'x 317.

16 under the Equal Protection Clause of the Fourteenth Amendment, alleging that

DOCCS allows other unspecified faith groups to hold religious events that “are

the equivalent of” Quarterly Meetings and MFWCBs. J. App’x at 314. Plaintiffs

sought an order directing Defendants to reinstate MFWCBs and Saturday

meeting times for Quarterly Meetings at Green Haven Correctional Facility.

Plaintiffs moved for a preliminary injunction on March 29, 2019. The

district court heard oral argument on October 30, 2019 and denied the motion

orally at the conclusion of the hearing. The district court concluded that the

deprivation of religious rights alleged by Plaintiffs was sufficient to establish

irreparable harm but Plaintiffs were unable to show a likelihood of success on the

merits. First, the district court held that the Incarcerated Plaintiffs’ claims were

unlikely to succeed because those plaintiffs had failed to exhaust their

administrative remedies. Further, the court determined that none of the plaintiffs

had shown that the actions of prison administration placed a “substantial

burden” on their religious rights. J. App’x at 907. A written order denying the

motion was filed the same day. Plaintiffs moved for reconsideration, which was

denied on December 3, 2019.

17 DISCUSSION

I. Standards of Review

We review a district court’s denial of a preliminary injunction for abuse of

discretion, examining the legal conclusions underpinning the decision de novo

and the factual conclusions for clear error. County of Nassau v. Leavitt,

(2d Cir. 2008); Charette v. Town of Oyster Bay,

(2d Cir.

1998). We review de novo whether a plaintiff has exhausted administrative

remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).

Amador v. Andrews,

(2d Cir. 2011).

A plaintiff “seeking a preliminary injunction must ordinarily establish (1)

irreparable harm; (2) either (a) a likelihood of success on the merits, or (b)

sufficiently serious questions going to the merits of its claims to make them fair

ground for litigation, plus a balance of the hardships tipping decidedly in favor

of the moving party; and (3) that a preliminary injunction is in the public

interest.” New York ex rel. Schneiderman v. Actavis PLC,

(2d Cir.

2015) (internal quotation marks omitted), citing Oneida Nation of N.Y. v. Cuomo,

(2d Cir. 2011). The PLRA requires that any preliminary

injunctive relief concerning prison conditions “be narrowly drawn, extend no

18 further than necessary to correct the harm the court finds requires preliminary

relief, and be the least intrusive means necessary to correct that harm.”

(a)(2). In weighing a request for preliminary injunctive relief, “[t]he court

shall give substantial weight to any adverse impact on public safety or the

operation of a criminal justice system caused by the preliminary relief.”

II. Standing

Before turning to the merits of the appeal, we address the threshold issue

of standing. Because the question of standing goes to the constitutional

limitations on the “judicial Power of the United States,” which is limited to

resolving “Cases” or “Controversies,” U.S. Const. art. III, we”are entitled at any

time sua sponte to delve into the issue” of standing even if defendants do not raise

the issue. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace

Young Inc.,

(2d Cir. 1997).

A. Non-Incarcerated Plaintiffs’ Standing

Plaintiffs assert that the Non-Incarcerated Plaintiffs have constitutional

rights in the prison setting which were infringed upon by Green Haven’s policy

changes and that the organizational Non-Incarcerated Plaintiffs have standing to

represent the constitutional rights of their parishioner-members. We agree.

19 At the preliminary injunction stage, “a plaintiff’s burden to demonstrate

standing will normally be no less than that required on a motion for summary

judgment. Accordingly, to establish standing for a preliminary injunction, a

plaintiff cannot rest on . . . mere allegations . . . but must set forth by affidavit or

other evidence specific facts” that establish the “three familiar elements of

standing: injury in fact, causation, and redressability.” Cacchillo v. Insmed, Inc.,

(2d Cir. 2011) (internal quotation marks and citation omitted).

Here, the Non-Incarcerated Plaintiffs allege injury on the ground that the

prison administration’s scheduling changes and treatment of the Society of

Friends in the Religious Holy Day Calendar, which they characterize as the

“eliminat[ion]” of “entire programs of a church,” adversely impact their First

Amendment rights. Appellants’ Br. at 22. Defendants do not challenge the

sufficiency of these harms to establish standing. In the prison context, the

Supreme Court has recognized the rights of non-incarcerated individuals under

other provisions of the First Amendment. See Thornburgh v. Abbott,

(1989) (“[T]here is no question that publishers who wish to communicate

with those who, through subscription, willingly seek their point of view have a

legitimate First Amendment interest in access to prisoners.”).

20 Not all of the changes in Green Haven’s practices that are challenged in

this case affect the Non-Incarcerated Plaintiffs, however. As far as the record

reflects, the weekly Saturday MFWCBs have never been attended by outsiders

and involve only Green Haven inmates. While the Non-Incarcerated Plaintiffs are

understandably distressed by restrictions on their incarcerated co-religionists’

opportunities to conduct MFWCBs and by the Green Haven administrators’

arguably brusque and incurious response to the Quaker inmates’ effort to explain

the religious function of these meetings, the Non-Incarcerated Plaintiffs

themselves are not directly affected by any changes in the frequency of religious

services that they do not attend and claim no right to attend.

The Quarterly Meetings, on the other hand, are a different matter. The

well-pleaded allegations of the complaint allege that Quarterly Meetings at which

members of affiliated regional Preparative or Monthly Meetings gather play a

significant role in Quaker religious practice, and the Green Haven authorities

have for many years allowed non-incarcerated visitors to attend. The different

injuries alleged flow directly from the challenged policy changes, and could be

redressed by an injunction reversing those changes. Accordingly, we are satisfied

that the Non-Incarcerated Plaintiffs have alleged injuries to their constitutional

21 rights sufficient to confer Article III standing to challenge the scheduling changes

with respect to the Quarterly Meetings.

B. Green Haven Meeting Standing

Plaintiffs further argue that Green Haven Meeting has associational

standing to pursue both constitutional and statutory claims as an unincorporated

association. Defendants “do not contest Green Haven Preparative Meeting’s

standing to sue based on the alleged injuries to its members.” Appellees’ Br. 25 n.

9. “It is common ground that . . . organizations can assert the standing of their

members.” Summers v. Earth Island Inst.,

(2009). However,

Defendants argue that Green Haven Meeting lacks standing as an institution,

independent of its members’ standing, to challenge the changed Green Haven

policies because it is not a “person residing in or confined to an institution”

under RLUIPA. 42 USC § 2000cc-1(a). That argument is really a merits question

about the scope of RLUIPA’s protections, which we address below.

We conclude that the Non-Incarcerated Plaintiffs have Article III standing

to challenge the policy changes relating to the Quarterly Meetings, and Green

Haven Meeting has Article III standing to challenge all the policy changes. And

of course, in any event, the individual Incarcerated Plaintiffs unquestionably

22 have Article III standing to challenge all of the policy changes at issue.

Accordingly, we have jurisdiction to address the merits of Plaintiffs’ claims, and

we thus turn to the merits of the appeal.

III. Irreparable Harm to Plaintiffs

In order to obtain a preliminary injunction, Plaintiffs must show that they

are likely to suffer irreparable harm in the absence of injunctive relief. The district

court correctly found that there is “no question” that the injury alleged by

Plaintiffs satisfies the irreparable harm requirement. Sp. App’x at 11. “The loss of

First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Elrod v. Burns,

(1976) (plurality

opinion). We thus conclude that, at least insofar as they challenge substantive

restrictions on their ability to conduct religious services and meetings in

accordance with their beliefs, Plaintiffs have established that any violation of

their religious liberties would satisfy the irreparable injury standard.5

IV. Likelihood of Success on the Merits

5 To the extent that Plaintiffs seek to challenge portions of DOCCS's Holy Day Calendar, Plaintiffs have waived any such challenge because their request for injunctive relief below did not specifically seek an order that DOCCS alter the calendar. See Anderson Grp., LLC v. City of Saratoga Springs,

(2d Cir. 2015).

23 We consider next whether Plaintiffs are likely to succeed on the merits of

their claims, a prerequisite for obtaining a preliminary injunction and the basis of

the district court’s denial of Plaintiffs’ injunction. First, we consider whether,

pursuant to the PLRA, the Incarcerated Plaintiffs exhausted their administrative

remedies prior to seeking relief in the district court. Next, we consider whether

Plaintiffs have otherwise shown a likelihood of success on the merits of their

claims. Plaintiffs principally challenge the policy changes under the Free Exercise

clause of the First Amendment and RLUIPA.6

A. Legal Framework

6 Plaintiffs allege claims under the Establishment Clause of the First Amendment, the Equal Protection Clause of Fourteenth Amendment, and state law. However, although they recite the applicable legal standards for assessing the constitutionality of state actions under the constitutional provisions, they make no argument applying those standards to the facts of this case that are separate from or independent of their arguments under the Free Exercise Clause and RLUIPA, and do not explain why they are entitled to a preliminary injunction on those claims. Appellants’ Br. 31-34. Moreover, they make no attempt to address their claims under New York state law. Accordingly, those arguments have been waived for purposes of this appeal, and we do not consider them in addressing Plaintiffs’ entitlement to a preliminary injunction.

24 Under the PLRA, “a prisoner confined in any jail, prison, or other

correctional facility” may not bring an action “with respect to prison conditions

. . . until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). Under RLUIPA, “[n]o government shall impose a substantial burden

on the religious exercise of a person residing in or confined to an institution . . .

unless the government demonstrates that imposition of the burden on that

person—(1) is in furtherance of a compelling governmental interest; and (2) is the

least restrictive means of furthering that compelling governmental interest.”42

U.S.C. § 2000cc-1(a). The Free Exercise Clause of the First Amendment, which is

applicable to the States through the Fourteenth Amendment, prohibits the

government from making a law “prohibiting the free exercise” of religion. Cruz v.

Beto,

(1972).

B. The Incarcerated Plaintiffs: Exhaustion of Administrative Remedies

The Incarcerated Plaintiffs, as “prisoner[s] confined in any . . . correctional

facility,” 42 U.S.C. § 1997e(a), are subject to the exhaustion requirements of the

PLRA. The PLRA requires “proper exhaustion” of administrative remedies,

meaning exhaustion in “compliance with an agency’s deadlines and other critical

procedural rules,” Woodford v. Ngo,

(2006), “using all steps that the

25 agency holds out, and doing so properly.” Amador,

(internal

quotation marks omitted). The PLRA requires the exhaustion of remedies only

insofar as such remedies are “available to the inmate.” Hubbs v. Suffolk County

Sheriff’s Dep’t,

(2d Cir. 2015) (internal quotation marks omitted).

“An administrative procedure is unavailable when (1) it operates as a simple

dead end – with officers unable or consistently unwilling to provide any relief to

aggrieved inmates; (2) the scheme is so opaque that it becomes, practically

speaking, incapable of use, meaning that some mechanism exists to provide

relief, but no ordinary prisoner can discern or navigate it; or (3) when prison

administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Hayes v. Dahlke,

(2d Cir. 2020) (internal quotation marks omitted).

DOCCS regulations establish a three-step Inmate Grievance Program

(“IGP”) consisting of: (1) a complaint to the Inmate Grievance Resolution

Committee (the “IGRC”) at the individual correctional facility; (2) an appeal to

the facility’s superintendent; and (3) a further appeal to the Department's Central

Office Review Committee (“CORC”). See N.Y. Comp. Codes R. & Regs.

(“N.Y.C.R.R.”) tit. 7, §§ 701.1(c), 701.5(a)-(d). The parties agree that the

26 Incarcerated Plaintiffs failed to take any of these steps. Indeed, neither Johnson

nor Thompson nor anyone else from Green Haven Meeting filed a complaint

with the IGP clerk regarding the availability of religious gatherings, much less

pursued such grievance through the final level of review provided by DOCCS’s

IGP. At issue here is whether they should be required to do so. We hold that they

are.

Plaintiffs argue, based on language in DOCCS’s IGP (Directive 4040)

§701.3(d) that excludes claims brought on behalf of a class of prisoners, that the

administrative procedures were not available to them because DOCCS’s

grievance process does not apply to a matter which affects a class of inmates. The

district court was unpersuaded by that argument. See Sp. App’x at 13-14. We

similarly find it unavailing.

Directive 4040 states that individuals “personally affected by a matter

which affects a class of inmates may only file a grievance on their own behalf.”

N.Y.C.R.R. tit. 7, § 701.3(d). As the district court correctly found, this language

makes clear that an individual prisoner may still file a grievance on his own

behalf, even if other prisoners could benefit from the outcome. That inmates may

not pursue actions formally designated as class actions does not mean that they

27 may not pursue grievances “on their own behalf,”even if their success could

benefit others; to the contrary, the regulations specifically provide that they may.

And if, under the DOCCS regulations, they may, then, under the PLRA, they

must. See Ngo,

(noting that the PLRA "strengthened" the exhaustion

requirement and that exhaustion of remedies is "mandatory").

Plaintiffs also appear to make a futility argument, claiming that the

grievance process was “a dead end” such that they were not required to exhaust

administrative remedies. Appellants’ Br. at 52-53. The bar for the availability of

remedies, however, is low. To constitute an “available” remedy, a process

requires only “the possibility of some relief.” Ross v. Blake,

(2016) (emphasis added) (quotation marks omitted). Here, the Incarcerated

Plaintiffs provide no evidence that a grievance asserting that a prisoner’s

religious liberty has been violated by a limitation on the number or timing of

religious services or celebrations could not lead to a change in the challenged

prison policies. Plaintiffs are thus unable to avoid the exhaustion requirement,

and the Incarcerated Plaintiffs’ RLUIPA claims fail.

Nor can the Incarcerated Plaintiffs avoid the exhaustion requirement by

suing under the banner of Green Haven Meeting, of which they are members.

28 Plaintiffs argue that Green Haven Meeting is an institutional entity distinct from

its individual members, and that, under RLUIPA, it is a “person” whose religious

exercise cannot be substantially burdened absent a compelling government

interest. But they also contend that at the same time, Green Haven Meeting is not

a “prisoner” within the meaning of the PLRA and thus is not bound by the

exhaustion mandate. Plaintiffs rely on Burwell v. Hobby Lobby Stores, Inc.,

(2014), in support of their argument. However, while Burwell held that a

for-profit corporation had standing to assert religious rights, it did not involve

either a prison setting or an unincorporated association of individuals, and did

not discuss an organization’s obligations to exhaust administrative remedies

under the PLRA. It is thus of little utility in answering the question before us.

The problem with Plaintiffs’ attempt to avoid the PLRA’s exhaustion

requirement is that it attempts to whipsaw the relevant statutes (RLUIPA and the

PLRA) in a manner that vitiates the PLRA’s requirements. Moreover, their

argument ignores the full context of the word “person” in RLUIPA. We can

readily agree that Green Haven Meeting is a “person” within the meaning of

RLUIPA; the Dictionary Act,

, provides that “[i]n determining the

meaning of any Act of Congress, unless the context indicates otherwise[,] . . . the

29 word[ ] “person” . . . include[s] . . . associations . . . as well as individuals.” But

the relevant portion of RLUIPA does not grant rights to all “persons.” Rather, it

applies to “person[s] residing in or confined to an institution.” 42 U.S.C. § 2000cc-

1(a). To the extent that Green Haven Meeting can be, for statutory purposes, a

“person,” it plainly is not the kind of person that can “resid[e] in or [be] confined

to an institution.” Id. An incorporeal entity cannot be imprisoned, even if all of its

human members are prisoners. To whatever extent one might metaphorically

consider an association composed entirely of prisoners to reside, in some sense,

in prison, it derives that status entirely from the status of its members. The action

brought by Green Haven Meeting is brought to vindicate the rights of its

members, and those members, as prisoners, are bound by the requirements of the

PLRA. In short, the Incarcerated Plaintiffs may not avoid the exhaustion

requirement simply by forming an organization and then suing in the name of

that organization.

Accordingly, the claims of Green Haven Meeting, as well as those of the

Incarcerated Plaintiffs suing in their own names, must be dismissed for failure to

exhaust administrative remedies. We thus turn to the claims of the Non-

Incarcerated Plaintiffs.

30 C. The Non-Incarcerated Plaintiffs

As discussed above, the Non-Incarcerated Plaintiffs make no claims under

RLUIPA, nor can they, not being “person[s] residing in or confined to an

institution.” 42 U.S.C. § 2000cc-1(a). Moreover, they lack standing to raise claims

on any theory relating to the limitation of the MFWCBs, which they have not

attended and which they claim no right to attend, and they have not pressed on

appeal their claims under the Establishment Clause, the Equal Protection Clause,

or state law. Accordingly, we confine our discussion to their claims that the

changes in the times of the Quarterly Meetings, and the eventual cancellation of

those meetings, infringed their rights under the Free Exercise Clause of the First

Amendment.

In their briefs on appeal, Plaintiffs do not clearly distinguish between the

Free Exercise claims of the Incarcerated and Non-Incarcerated Plaintiffs, arguing

generally that the undifferentiated “Plaintiffs [s]uffered a ‘[s]ubstantial [b]urden’”

on their religious practice. Appellants’ Br. at 40 (emphasis added). But while the

law applicable to prisoners’ religious rights is well developed, Plaintiffs cite no

authority addressing a prison regulation that affects the religious liberty of non-

31 prisoners who wish to attend religious services with prisoners, relying for the

most part on the law applicable to prisoners.

That law must take account of both the rights of prisoners to religious

liberty and the security needs inherent in prison administration. Precisely

because prisoners’ lives are (and for the most part must be) closely controlled in

ways that non-inmates’ lives are not, courts must take care to ensure that

prisoners’ ability to exercise their religions is not unnecessarily impeded.

“Although we recognize that great deference should be accorded to prison

officials as they undertake the difficult responsibility of maintaining order in

prisons, we have long held that prisoners should be afforded every reasonable

opportunity to attend religious services, whenever possible.” Young v. Coughlin,

(2d Cir. 1989). “A prisoner’s first amendment right to the free

exercise of his religious beliefs may only be infringed to the extent that such

infringement is reasonably related to legitimate penological interests.”

(internal quotation marks omitted), citing O’Lone v. Estate of Shabazz,

(1987). We afford deference to prison administrators and judge prison

regulations alleged to infringe constitutional rights under a “reasonableness test

less restrictive than that ordinarily applied” to claims of violations of

32 constitutional rights outside the prison setting. O’Lone,

(internal

quotation marks omitted).

Courts have had fewer occasions to address prison regulations alleged to

infringe the religious liberty of non-prisoners. In principle, it could be argued

that different considerations apply in such cases. Unlike sentenced prisoners, the

Non-Incarcerated Plaintiffs are free citizens who have committed no crime

justifying restrictions on their liberty. At the same time, however, prison officials

exercise no direct control over the religious observance of persons residing

outside prison, as they do over prisoners. In this case, for example, Quakers not

confined at Green Haven are free to schedule the number, location, and timing of

their meetings, both for worship and for the conduct of business, at their own

discretion and as suits their interest and convenience. Still, as the Supreme Court

has noted in cases involving marriage and mail censorship, regulations limiting

association of prisoners with outsiders do not affect inmates alone, but can

“work[] a consequential restriction on the [constitutional] rights of those who are

not prisoners.” Procunier v. Martinez,

(1974), overruled on other

grounds by Thornburgh,

.

33 Here, the Non-Incarcerated Plaintiffs claim a right to associate with

incarcerated persons for purposes of collective worship and religious discussion.

Like non-incarcerated persons who claim a First Amendment right to associate

with prisoners for other protected purposes, such as family relationships and

political or artistic expression, they seek to enter the domain of the prison itself,

where security concerns are pressing. After earlier suggesting that prison rules

affecting the rights of non-prisoners may be subject to more searching scrutiny

than regulations affecting only prisoners, see Procunier,

, the

Supreme Court ultimately concluded that even where prison regulations affect

the First Amendment rights of non-prisoners, the “proper inquiry” remains the

standard, derived from Turner v. Safley,

(1987), that asks “whether the

regulations are ‘reasonably related to legitimate penological interests,’”

Thornburgh,

, quoting Turner,

. We think that the same

considerations apply to Free Exercise claims, such that the Non-Incarcerated

Prisoners cannot claim a right to more searching review of prison regulations

affecting religious liberty than the reasonableness standard applied to their

incarcerated co-religionists.

34 “Courts must evaluate four factors in making the reasonableness

determination: whether the challenged regulation or official action has a valid,

rational connection to a legitimate governmental objective; whether prisoners

have alternative means of exercising the burdened right; the impact on guards,

inmates, and prison resources of accommodating the right; and the existence of

alternative means of facilitating exercise of the right that have only a de minimis

adverse effect on valid penological interests.” Salahuddin v. Goord,

(2d Cir. 2006) (footnote omitted). “The prisoner must show at the threshold

that the disputed conduct substantially burdens his sincerely held religious

beliefs.”

at 274–75. “The defendants then bear the relatively limited burden of

identifying the legitimate penological interests that justify the impinging

conduct; the burden remains with the prisoner to show that these articulated

concerns were irrational.”

(internal quotation marks, alteration, and

citation omitted).

Plaintiffs argue that moving Quarterly Meetings from Saturdays to

weekdays “means that some Friends cannot attend because of work

commitments, parental obligations, transportation limitations and age.” Id. at 40.

In support of their position, Plaintiffs point out that “[s]pending extended time

35 together is a basic element of Quaker religious practice because that is how Jesus

taught his disciples to be a loving community.” Appellants’ Br. at 30. Plaintiffs

accordingly contend that DOCCS should modify the Religious Holy Day

Calendar to restore Quarterly Meetings scheduled on Saturdays.

Defendants respond that Plaintiffs have failed to clearly establish that

Defendants’ actions concerning Quarterly Meetings substantially burden

Plaintiffs’ exercise of religion since Defendants rescheduled the meetings for

Friday evenings and did not terminate them. Defendants argue that Plaintiffs’

desire to hold Quarterly Meetings on Saturdays is driven by convenience rather

than religious significance and is therefore insufficient to show a substantial

burden. Moreover, Defendants point out that they sought to accommodate Green

Haven Meeting’s concerns about meeting length by offering to hold at least one

of the four Quarterly Meetings as a special event.

We conclude that Defendants have the better argument. In finding that

Plaintiffs “ha[d] not established a clear likelihood of success in proving that the

restrictions create a substantial burden on their free exercise rights,” the district

court noted that Plaintiffs themselves “describe[d] the moving of the meetings as

an inconvenience.” Sp. App’x at 18. The district court properly cautioned that it

36 was “not making light of the inconvenience.” Id. at 19. Plaintiffs noted that the

scheduling change, inter alia, “restricted the number of participants” at Quarterly

Meetings, “converted a full day (6 hours) religious gathering to 2 hours,” and

“eliminated food from the event.” Appellants' Br. at 41-42. While these are

genuine burdens, particularly in light of the 35-year history of Saturday

Quarterly Meetings in Green Haven without adverse incident, we conclude that

these burdens do not rise to the level of “substantial” burdens on Plaintiffs’

religious exercise, at least in the constitutional sense. Like the district court, we

find it significant that nowhere in the record do Plaintiffs claim that Saturdays

have religious significance in the Quaker community. The point is not that only

restrictions on practices mandated by a prisoner’s religion can be a substantial

burden. To the contrary, we have noted that “[n]either the Supreme Court nor we

. . . have ever held that a burdened practice must be mandated in order to sustain

a prisoner’s free exercise claim.” Ford v. McGinnis,

(2d Cir.

2003). Rather , the point here is that Plaintiffs have failed to establish that

scheduling the Quarterly Meetings on Saturdays (as opposed to any other day)

bears any religious significance whatsoever; the inconveniences they suffer as a

37 result of Defendants' decision, therefore, cannot constitute substantial burdens on

their religious exercise.

The scheduling shift proposed by the Green Haven administration did not

forbid Quarterly Meetings between incarcerated and non-incarcerated Quakers

for communal religious services.7 Unquestionably, holding the services on

weekday evenings rather than Saturdays would inconvenience some of the Non-

Incarcerated Plaintiffs, even to the point that it might be impossible for some of

them to attend. But the particular Non-Incarcerated Plaintiffs have no

constitutional right to have services at Green Haven scheduled to suit their

convenience. Nor does any inconvenience to particular individuals defeat the

ability of inmates and non-inmates to conduct joint services, as other non-

incarcerated Quakers might find a weekday event easier to attend. Thus, the

various rescheduling proposals provided alternative means for Quaker prisoners

and their non-incarcerated brethren to fulfill the religious goal of communal

7 Although Plaintiffs argue that the issue here is the cancellation of the Quarterly Meetings, the record does not support their claim that the issue should be so conceived. It is true that after the Incarcerated Plaintiffs rejected the rescheduled meetings proffered by the administration, the result was that no Quarterly Meetings at all were scheduled. But that outcome appears to have resulted as much from Plaintiffs’ intransigence as from any decision of Defendants. There is no indication that Defendants ever rescinded their various proposals for rescheduled Quarterly Meetings, and Defendants even offered to hold one of those meetings as a “special event” with extended hours.

38 discussion and worship services, in ways that imposed lessened security risks

and a lesser burden on prison staff than the risks and burden posed by Plaintiffs’

preferred schedule.

Moreover, the record reinforces the district court’s conclusion that

Defendants’ rescheduling decision was supported by legitimate concerns –

specifically, that there were irregularities in attendance at Quarterly Meetings,

excessive call-outs, and overcrowding in the meeting space. Thus, even if we find

that the scheduling changes do create a substantial burden, we conclude that

Defendants have met their “burden of identifying the legitimate penological

interests that justify the impinging conduct.” Salahuddin,

. Here,

the Quarterly Meetings create additional security concerns and disrupt equitable

allocation of scarce staffing and resources, since special events involving outside

visitors require extra security to protect civilian visitors and to maintain safety in

the facility – a burden that is heightened on weekends, when fewer staff

members are on duty. Defendants thus have a legitimate penological interest in

limiting Saturday gatherings. It is possible that other accommodations or

solutions could be imagined that would serve that interest while preserving at

least some Saturday meetings involving non-incarcerated Friends. But as the

39 Supreme Court reminds us, “the realities of running a penal institution are

complex and difficult,” such that “wide-ranging deference [must] be accorded

[to] the decisions of prison administrators.” Jones v. N. C. Prisoners' Lab. Union,

Inc.,

(1977). Whatever the result may be once the record is fully

developed in this case, at this stage of the proceedings, we cannot say that

Plaintiffs have established a likelihood of success on the merits.

V. Balance of Equities and the Public Interest

The final consideration in the preliminary injunction analysis concerns

whether the balance of equities tips in favor of granting the injunction and

whether that injunction is in the public interest. Defendants suggest that they

have an important interest in maintaining “institutional order and security” and

proper “allocation of prison resources.” O’Lone, 482 U.S. at 350, 352. While there

is no doubt that Plaintiffs have a strong interest in their religious freedoms, in the

prison setting, we think that on balance, the equities tip on favor of Defendants,

particularly where, as here, Defendants have offered to hold Quarterly Meetings

on any weekday that Plaintiffs choose and continue to support and allocate

resources to the Quaker inmates.

40 Thus, Plaintiffs have not met their burden of showing that a preliminary

injunction is warranted in this case.

CONCLUSION

For the reasons stated above, we agree with the district court that a

preliminary injunction is not warranted. The order of the district court is

therefore AFFIRMED.

41