PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

               ______________________

                    No. 21-3162
              _______________________

                 BRIAN A. DAVIS;
             FREDRICKA K. BECKFORD,
                      Appellants

                           v.

GEORGE C. WIGEN, Former Warden, Moshannon Valley
                Correctional Center;
            THE GEO GROUP, INC.;
DONNA MELLENDICK, Former Administrator, Bureau of
                      Prisons
        Privatization Management Branch;
DAVID O’NEILL, Assistant Field Director, Department of
                Homeland Security
           _______________________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
            District Court No. 3-16-cv-00026
     District Judge: The Honorable Kim R. Gibson
             __________________________
                Argued December 13, 2022

        Before: RESTREPO, McKEE, and SMITH,
                    Circuit Judges

                  (Filed: August 4, 2023)


Stephen A. Fogdall [ARGUED]
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
              Counsel for Appellants

Dino L. LaVerghetta
Sidley Austin
1501 K Street, N.W.
Washington, DC 20005
              Counsel for Amicus Appellants

Morgan M.J. Randle
Teresa O. Sirianni
Marshall Dennehey Warner Coleman & Goggin
501 Grant Street
Union Trust Building, Suite 700
Pittsburgh, PA 15219

Thomas A. Specht [ARGUED]

                             2
Marshall Dennehy Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
             Counsel for Appellees George C. Wigen and
             GEO Group, Inc.

Jacqueline C. Brown
Adam N. Hallowell [ARGUED]
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
              Counsel for Appellees Donna Mellendick
              and David O’Neill

              __________________________

                OPINION OF THE COURT
              __________________________

SMITH, Circuit Judge.

       Plaintiff-Appellants are a former federal inmate, Brian
Davis, and his fiancée, Fredricka Beckford. Davis served four
years of his sentence at Moshannon Valley Correctional
Center, a private prison that primarily houses alien inmates.
During that time, he submitted a request to the prison that he
be permitted to marry Beckford. Moshannon Valley officials
denied the request despite Davis’s contention that he met all
                              3
requirements under the prison’s marriage policy. Plaintiffs
filed suit and now appeal the dismissal of three claims: (1) a
claim under the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb-1; (2) a claim under 

; and (3) a claim for intentional infliction of emotional
distress. We conclude that Plaintiffs have stated a RFRA claim,
but that their other two claims fail. Accordingly, we will vacate
the District Court’s dismissal of Plaintiffs’ RFRA claim and
affirm the remainder of the Court’s order.

I. Factual Background

       We draw the following facts from averments in the
Second Amended Complaint (SAC), which we accept as true
for purposes of this appeal. Brian Davis and his fiancée
Fredricka Beckford met when they were children. The two
maintained a lifelong friendship, one that became a romantic
relationship that lasted throughout Davis’s extensive period of
incarceration. Davis and Beckford are both of Jamaican
descent, and while Beckford is a U.S. citizen, Davis is not.

       In 1993, Davis was sentenced to life in prison for non-
violent drug trafficking convictions. Despite the restrictiveness
of Davis’s life sentence, he and Beckford remained close
throughout Davis’s incarceration. Beckford wished to marry
him, but Davis feared that he would never be able to support
her because he expected to spend the remainder of his life in
prison. But when his prison sentence was reduced to 30 years
in 2008, Davis changed his mind about marriage. Because he
could then foresee an eventual release, Davis agreed to marry
Beckford.

                               4
       Davis and Beckford are both devout Christians. They
allege that their desire to marry had “profound religious
significance for them” and that they “viewed their marriage as
an expression of that faith.” JA 100.

       Davis’s reduced sentence qualified him for a transfer to
a lower security prison. Accordingly, in 2012, he was moved
from Federal Correctional Institute McKean to Moshannon
Valley Correctional Center (Moshannon Valley). Moshannon
Valley is a private prison that houses low-security alien
inmates. The facility is operated by The GEO Group, Inc.
(GEO Group), which contracts with the U.S. Bureau of Prisons
(BOP) to house federal inmates. At least 98 percent of the
inmate population at Moshannon Valley are noncitizens who
are “faced with an impending immigration matter or have been
ordered deported from the United States.” JA 94.

       Davis maintained the hope that, after his transfer, he and
Beckford could be married. He sought to comply, then, with all
of Moshannon Valley’s marriage policy requirements. The
written policy then in effect required that inmates be housed in
general population and demonstrate good living skills,
program participation, “clear conduct” for six months, and
acceptable work performance. JA 110. If an inmate met those
requirements, the prison psychologist and other prison officials
were to indicate whether they approved or disapproved the
request to marry. Plaintiffs allege that Moshannon Valley’s
policy “goes beyond” what BOP requires. JA 93.

       Plaintiffs allege that Davis met each of these
qualifications when he submitted his marriage request.
Nevertheless, Moshannon Valley administrative personnel
                               5
denied his request. Beckford also contacted the prison’s
officials and sought permission to marry Davis. Moshannon
Valley denied her request as well.

       Davis challenged the denial of his marriage request
through the prison’s administrative appeal process. When his
appeal was denied, Davis contacted the Administrator of the
BOP Privatization Management Branch, Donna Mellendick,
seeking her intervention. Her office informed Davis in writing
that the grant or denial of inmate marriage requests remained
exclusively within the province of Moshannon Valley officials.

        Davis eventually learned from discussions with the
prison chaplain, as well as several Moshannon Valley
employees and at least 20 other inmates, that Moshannon
Valley had not approved a single inmate’s request to marry
since GEO Group began its contractual relationship with BOP.
Plaintiffs accordingly allege that despite Moshannon Valley’s
official policy, its actual practice was to deny all marriage
requests.

       In 2015, Davis’s sentence was again reduced, this time
to 27 years. The sentence reduction was a mixed blessing. He
was deported after his release the following year. Although
Plaintiffs concede that their marriage would not have allowed
Davis to challenge his deportation, they allege that marriage to
a U.S. citizen could provide a basis for other inmates at
Moshannon Valley to challenge their orders of removal.1


       1
        Under 

(h)(1)(B), the Attorney General
may in his discretion waive an alien’s inadmissibility due to a
                               6
       Plaintiffs allege that BOP and DHS officials directed
Moshannon Valley officials to deny all inmate marriage
requests to ensure that marriage to a U.S. citizen would not
interfere with deportation proceedings. Based on research and
information they obtained from Moshannon Valley employees,
Plaintiffs allege that those BOP and DHS officials are
Defendants Donna Mellendick, the Administrator of the BOP
Privatization Branch, and David O’Neill, the Assistant
Director of the Philadelphia Field Office of U.S. Immigration
and Customs Enforcement (collectively, Federal Defendants).

       Plaintiffs also allege that GEO Group and George
Wigen, the former warden of Moshannon Valley (collectively,
GEO Defendants), have a financial incentive to prevent
noncitizen inmates from marrying U.S. citizens because BOP’s
payments to Moshannon Valley are based on the number of
inmates it houses. If noncitizen inmates were able to marry




conviction for a crime of moral turpitude if the alien is married
to a U.S. citizen or lawful permanent resident and can show
that “denial of admission would cause extreme hardship to the
citizen or lawful[] resident.” The Attorney General may not
grant such a waiver if (1) the alien was convicted of “murder
or criminal acts involving torture, or an attempt or conspiracy
to commit murder or a criminal act involving torture”; or (2) if
the alien had been admitted as a permanent resident but was
later convicted of an aggravated felony or had not resided
continuously in the United States for seven years before
initiation of the removal proceedings. 

(h)(2).
                               7
U.S. citizens, some might request a transfer out of Moshannon
Valley, thereby lowering GEO Group’s headcount.

        Beckford further alleges that her inability to marry
Davis caused her to suffer serious emotional distress. She
contends that because she was not Davis’s spouse, prison
officials were not obligated to inform her of matters such as his
transfer to another prison or his deportation. Beckford worried
about Davis’s safety in prison, and she claims that this lack of
information compounded her concern. Plaintiffs allege that
Beckford’s emotional distress led to serious health
consequences requiring hospitalization.

II. Procedural Background

        In January 2016, Plaintiffs filed a pro se complaint
against the director of the BOP, the BOP, the administrator of
the BOP Privatization Management Branch, Wigen, the current
warden of Moshannon Valley, and GEO Group. Plaintiffs
asserted an intentional infliction of emotional distress claim
and several civil rights claims, principally under § 1983,
Bivens,2 and the Equal Protection Clause. Plaintiffs alleged that
by refusing to allow them to marry, these Defendants
discriminated against them based on their race and national
origin. Plaintiffs sought both declaratory and monetary relief.

       Soon thereafter, and while still proceeding pro se,
Plaintiffs filed an amended complaint adding a § 1985(3)
claim. More than a year later, the District Court dismissed the

       2
        Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 

 (1971).
                               8
case in its entirety for failure to prosecute because Plaintiffs
had yet to serve the complaint on any of the Defendants.
Plaintiffs successfully moved to reopen and then served all
Defendants except the Federal Defendants.

       The Defendants that had been served moved to dismiss
the amended complaint under Federal Rule of Civil
Procedure 12(b)(6). The District Court granted their motion
and dismissed the case. It concluded that: the Bivens claims
against GEO Defendants failed because those Defendants were
not federal actors; the § 1985(3) claims failed because
conspiracies under § 1985(3) involving private actors are
limited to violations of the right to be free from involuntary
servitude and the right to travel; the § 1983 claim failed for
lack of state action; and the claims against the Federal
Defendants failed for lack of prosecution.

        Plaintiffs appealed and secured counsel in June 2020,
prior to oral argument before this Court. We reversed in part.
Davis v. Samuels, 

 (3d Cir. 2020). We held that
private parties engaging in “the federal equivalent of ‘state
action,’” like the private prison here, may be subject to Bivens
liability. 

. Yet we affirmed the dismissal of the Bivens
claim because “a remedy for the infringement of the right to
marry” presented a new Bivens context and we declined to
extend the reach of Bivens. 

 at 112–13 (citing Ziglar v.
Abbasi, 

 (2017)).

      As to the § 1985(3) claim, we explained that the
Supreme Court has limited purely private § 1985(3)
conspiracies to violations of the right to be free from
involuntary servitude and the right to travel. But because
                                9
Plaintiffs alleged a conspiracy between the private prison and
the federal government, those limitations did not apply. Id.
at 113–14. We also held that § 1985(3) claims are available
against those acting under color of federal law in addition to
those acting under color of state law. Id. at 115. Taking no
position on the merits of Plaintiffs’ § 1985 claim, we vacated
the District Court’s dismissal of that claim. Id. at 114.

        We also reversed the dismissal of the claims against the
Federal Defendants for failure to prosecute. We concluded that
the District Court had abused its discretion by failing to
consider whether there was good cause to extend the deadline
for Plaintiffs to serve the Federal Defendants under Rule 4(m).
Id. at 116.

       On remand, Plaintiffs filed their Second Amended
Complaint—now the operative complaint—and served the
Federal Defendants. In the SAC, Plaintiffs again asserted
claims under §§ 1983 and 1985(3) and added a RFRA claim.
Beckford also reasserted a claim for intentional infliction of
emotional distress (IIED). Both sets of Defendants filed
motions to dismiss. The District Court granted the motions and
dismissed all claims.

         Plaintiffs’ § 1985(3) claim alleges conspiracy to
discriminate based on race, national origin, and alienage. The
District Court dismissed Plaintiffs’ § 1985(3) race and national
origin claims because the inmates at Moshannon Valley are not
all of the same race or national origin. The District Court
dismissed the § 1985(3) alienage claim because Plaintiffs
allege that 98 percent of the inmates were non-citizens, as
opposed to the entire prison population. That, the District Court
                               10
reasoned, made it implausible that Defendants discriminated
based on alienage. The District Court also noted that even
if 100 percent of inmates were non-citizens, Plaintiffs’
§ 1985(3) claim would still fail because alienage is a mutable
characteristic and therefore not a protected class under
§ 1985(3).

        As for the RFRA claim, the District Court first
concluded, per our Court’s prior opinion, that the GEO
Defendants were federal actors subject to RFRA. Yet the Court
dismissed the RFRA claim against all Defendants because
Plaintiffs did not allege a substantial burden on their religious
exercise. Citing this Court’s opinion in Washington v.
Klem, 

 (3d Cir. 2007), the District Court
concluded that Plaintiffs’ inability to marry did not cause
Plaintiffs to violate their religious beliefs and therefore did not
rise to a substantial burden under RFRA.

       Turning to Beckford’s IIED claim, the District Court
held that because the Federal Defendants acted within the
scope of employment when they denied Davis’s marriage
request, the Liability Reform Act required that the United
States stand in place of the Federal Defendants. See 

(d)(1). The District Court then concluded that Beckford
failed to exhaust her administrative remedies under the
Liability Reform Act and dismissed the IIED claim against the
United States. See 

 § 2675(a). As for the IIED claim against
the GEO Defendants, the District Court concluded that
Beckford failed to allege a physical manifestation of her
emotional distress and failed to support that allegation with
competent medical evidence as Pennsylvania law requires. The

                                11
District Court therefore dismissed Beckford’s IIED claim
against the GEO Defendants. Finally, the District Court
dismissed Plaintiffs’ § 1983 claim because all Defendants were
acting under color of federal law rather than state law.

        This appeal followed. Plaintiffs challenge the dismissal
of their § 1985(3) claim based on alienage, their RFRA claim,
and Beckford’s IIED claim against the GEO Defendants.

III. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 

, 1343, and 1367. We have jurisdiction under 

. “We exercise plenary review over a district
court’s grant of a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Talley v. Wetzel, 

,
286 n.7 (3d Cir. 2021).

IV. Discussion

       A. RFRA

       The District Court dismissed Plaintiffs’ RFRA claim
because they failed to allege that Defendants pressured
Plaintiffs to either refrain from conduct that their faith
prescribed or participate in conduct that their faith prohibited.
JA 27. The District Court drew these requirements from this
Court’s construction of “substantial burden” under the
Religious Land Use and Institutionalized Persons Act
(RLUIPA) originally laid out in Washington v. Klem, 497



                               

 (3d Cir. 2007).3 Plaintiffs contend, however, that the
District Court’s reasoning cannot be correct because RFRA
protects religious exercise whether or not it is “compelled by,
or central to, a system of religious belief.” See 42 U.S.C.
§ 2000cc-5(7)(A). Although the District Court’s read of Klem
is not unreasonable, we take this opportunity to clarify that a
substantial burden under RFRA extends to non-mandatory
religious conduct and expression, i.e. conduct or expression not
“compelled by, or central to, a system of religious belief.”
Plaintiffs’ marriage, as we discuss below, falls within that
category.

              1. Whether Plaintiffs State a RFRA Claim

       RFRA provides that the government “shall not
substantially burden a person’s exercise of religion.” 42 U.S.C.
§ 2000bb-1(a). The statute defines “exercise of religion” as the
term is defined in the RLUIPA.4 Id. § 2000bb-2(4). RLUIPA


       3
         We later extended our construction of “substantial
burden” under RLUIPA to RFRA. Mack v. Warden Loretto
FCI, 

, 304 n.103 (3d Cir. 2016).
       4
         Congress enacted RFRA in the wake of the Supreme
Court’s decision in Employment Division, Department of
Human Resources of Oregon v. Smith, 

 (1990).
See 42 U.S.C. § 2000bb. As originally enacted, RFRA applied
to both the state and federal government. City of Boerne v.
Flores, 

 (1997). After the Supreme Court
held in City of Boerne that Congress had exceeded its authority
by extending RFRA to the states, Congress enacted RLUIPA,
which applies only to state land use regulation and state
                              13
defines “religious exercise” as including “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” 

 § 2000cc-5(7)(A). Finally, these
statutes must be “construed in favor of a broad protection of
religious exercise, to the maximum extent permitted by the
terms of this chapter and the Constitution.” Id. § 2000cc-3(g);
Hobby Lobby v. Burwell, 

, 696 & n.5 (2014)
(explaining that this rule of construction applies to both
RLUIPA and RFRA).

        To state a prima facie RFRA claim, a plaintiff “must
allege that the government (1) substantially burdened (2) a
sincere (3) religious exercise.” Mack v. Warden Loretto
FCI, 

 (3d Cir. 2016) (citing Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 

 (2006)). At the pleadings stage, a court asks only whether
the plaintiff has plausibly alleged each element of his prima
facie case. See Castleberry v. STI Grp., 

 (3d
Cir. 2017) (explaining that a claim of employment
discrimination, which is subject to burden-shifting,
“necessarily survives a motion to dismiss so long as the
requisite prima facie elements have been established”). On a
summary judgment motion or at trial, if the plaintiff makes an
initial showing that the defendant substantially burdened his
sincere religious exercise, then the burden shifts to the
defendant to show that the offending policy is the least


prisons. 42 U.S.C. §§ 2000cc, 2000cc-1; Holt v. Hobbs, 

, 357 (2015). RLUIPA also amended RFRA’s
definition of “exercise of religion.” See 42 U.S.C. § 2000bb-
2(4).
                              14
restrictive means of achieving a compelling government
interest. 42 U.S.C. § 2000bb-1(b); Holt v. Hobbs, 

, 363 (2015).

       As noted, we first construed the phrase “substantial
burden” under RLUIPA in Washington v. Klem, 

. Taking direction from a joint statement by RLUIPA’s
principal sponsors, we primarily looked to the Supreme
Court’s pre-Smith Free Exercise jurisprudence in formulating
a definition.5 See 

 at 278 (citing 146 Cong. Rec. S7774, 7776
(statement of Sens. Hatch and Kennedy)). We settled on a
“disjunctive test that couples the holdings of Sherbert and
Thomas”6 and noted that although other circuits had adopted
similar tests with different wording, it remained an open
question whether the semantic variations resulted in “any
meaningful differences in application.” 

 at 279–80. For our
formulation of the test, we held that a “substantial burden” on
religious exercise occurs when:

       1) a follower is forced to choose between
       following the precepts of his religion and
       forfeiting benefits otherwise generally available
       to other inmates versus abandoning one of the


       5
          We note, however, that the Supreme Court later
rejected the idea that “RFRA did no more than codify this
Court’s pre-Smith Free Exercise Clause precedents.” Burwell
v. Hobby Lobby Stores, Inc., 

, 713–16 (2014).
       6
         Sherbert v. Verner, 

 (1963), and Thomas
v. Review Board of the Indiana Employment Security
Division, 

 (1981).
                              15
       precepts of his religion in order to receive a
       benefit; OR 2) the government puts substantial
       pressure on an adherent to substantially modify
       his behavior and to violate his beliefs.

Id. at 280. We later extended that construction to RFRA.
Mack, 

 n.103.

        Plaintiffs here raise a question that we have not
previously addressed: whether an individual suffers a
substantial burden on religious exercise when the particular
religious exercise is not mandatory. Defendants contend the
answer is no because under Klem, a burden is only
“substantial” if it causes Plaintiffs to violate the precepts of
their religion or mandatory religious beliefs. See Klem, 467
F.3d at 280. Because neither Christian tradition nor doctrine
requires adherents to marry, Defendants argue that the denial
of Plaintiffs’ marriage request did not cause them to violate any
religious precept or belief. Although such a read of our Klem
opinion is not unreasonable, we cannot agree that Klem’s reach
is so limited.

        First, we acknowledged in Klem that “RLUIPA does not
permit a court to determine whether the belief or practice in
question is ‘compelled by, or central to, a system of religious
belief.’” Id. at 277 (quoting 42 U.S.C. § 2000cc-5(7)(A)).
Indeed, RLUIPA and RFRA define “religious exercise” as
“any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000cc-
5(7)(A); id. § 2000bb-2(4). Given that the breadth of this
definition appears in a section of RLUIPA to which our Klem
opinion expressly referred, it can hardly be gainsaid that we
                               16
would not have taken that language into account when
construing “substantial burden.”

       Second, as noted above, we explained in Klem that
“semantic differences” between varying articulations of the
Sherbert/Thomas test may not make a practical “difference in
application.” 497 F.3d at 279–80. Accordingly, in light of the
statutory text, our use of the phrase “violate his beliefs” in
prong two of Klem does not exclude non-mandatory religious
conduct or beliefs.

        Here, Plaintiffs desired to marry because marriage “had
profound religious significance for them” and because they
“viewed their marriage as an expression of” their Christian
faith. JA 100. Although marriage may not be required of every
Christian, Plaintiffs allege that their desire to marry has
significant religious meaning for them. They contend that
marriage is an expression of their faith. By denying Plaintiffs’
marriage request, Defendants caused them to refrain from such
religious expression and thereby “violate their beliefs.” See
Klem, 

.

        There can hardly be a more substantial burden on a
religious practice or exercise than its outright prohibition. See
Haight v. Thompson, 

 (6th Cir. 2014) (“The
greater restriction (barring access to the practice) includes the
lesser one (substantially burdening the practice).”). While not
every government-imposed hurdle to the practice of sincere
faith-based conduct will be a substantial burden, the more
proximate the government action is to an outright bar, the more
likely it is a substantial burden. We conclude, therefore, that

                               17
Plaintiffs have adequately alleged a substantial burden on their
religious beliefs.

       Defendants raise several additional arguments that are
not appropriate for resolution at this stage of the litigation. The
GEO Defendants contend that even if RFRA protects
Plaintiffs’ desire to marry, Moshannon Valley’s marriage
policy imposed no substantial pressure because it conditioned
approval of a prisoner’s request to marry only on whether the
prisoner met certain behavioral requirements. This argument
disputes factual allegations in the complaint. Plaintiffs allege
that despite Moshannon Valley’s official policy, its actual
practice was to routinely deny all marriage requests regardless
of whether the inmate had met the prison’s requirements of
good behavior. JA 93–94. Plaintiffs also allege that Davis met
those requirements. JA 92. Accepting those allegations as true,
Moshannon Valley prohibited Plaintiffs from marrying
throughout Davis’s four years at the prison. This prohibition,
as explained above, satisfies the substantial burden prong of a
RFRA claim. See Haight, 

.

       Next, the GEO Defendants argue that even if Plaintiffs
state a prima facie RFRA claim, we should still affirm the
dismissal of that claim because Defendants have shown that
the no-marriage policy was narrowly tailored to a compelling
government interest. This is not the time to resolve that issue,
nor are we presented with a record that would allow us to do
so. Whether Moshannon Valley’s practice of denying marriage
requests is supported by a compelling interest (such as
penological concerns, safety concerns, or something else), and
whether it is narrowly tailored to that interest are questions that

                                18
necessarily require us to look beyond the mere allegations of a
complaint. See Castleberry, 

.

        Finally, the Federal Defendants challenge the sincerity
of Plaintiffs’ beliefs and argue that Plaintiffs did not actually
want to marry for religious reasons. But at the pleadings stage,
we must accept Plaintiffs’ plausible allegations as true and
draw all inferences in their favor. If Defendants wish to
challenge Plaintiffs’ sincerity, they may do so at a later stage
in the proceedings. See Cutter v. Wilkinson, 

, 725
n.13 (2005) (noting that the defendants may challenge the
alleged sincerity of the plaintiff’s religious belief, but not in
response to a motion to dismiss).

              2.   Whether RFRA Applies to the GEO
                   Defendants

       Finally, the GEO Defendants argue that even if
Plaintiffs state a RFRA claim, the GEO Defendants are not
subject to RFRA because they do not meet RFRA’s definition
of “government.” RFRA prohibits the “government” from
substantially burdening religious exercise without a
compelling interest. 42 U.S.C. § 2000bb-1(a). RFRA defines
“government” as “a branch, department, agency,
instrumentality, and official (or other person acting under color
of law) of the United States, or of a covered entity.” Id.
§ 2000bb-2.

       Though GEO Group is a private corporation, it contracts
with the Bureau of Prisons to house low-security alien inmates.
Wigen served as warden of Moshannon Valley during Davis’s
time there. By operating a prison containing federal inmates,
                               19
GEO Group and Wigen acted as “instrumentalities” of the
federal government.

        Moreover, this Court already held in Plaintiffs’ previous
appeal that the GEO Defendants were federal actors for
purposes of Plaintiffs’ Bivens claim. Davis, 

.
Defendants have identified no meaningful distinction between
the state action doctrine and RFRA’s definition of
“government” such that the GEO Defendants could be subject
to liability pursuant to Bivens but not for a RFRA claim. We
conclude that RFRA applies to the GEO Defendants.

              3. Qualified Immunity

       The Federal Defendants argue that they are entitled to
qualified immunity as to Plaintiffs’ RFRA claim because the
law was not clearly established when Moshannon Valley
denied Davis’s marriage request. As we have acknowledged,
Defendants’ and the District Court’s read of Klem was not
unreasonable. So, in light of our articulation of the test in Klem,
we cannot conclude that it was clearly established that a prison
imposes a substantial burden on its inmates by prohibiting
participation in non-mandatory religious conduct. The Federal
Defendants are therefore entitled to qualified immunity as to
Plaintiffs’ RFRA claim. Harlow v. Fitzgerald, 

 (1982) (holding that qualified immunity protects
government officials performing discretionary functions
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known”). Accordingly, we need not address
Mellendick’s argument that she was not timely served.

                                20
       B. Section 1985(3)

      Plaintiffs also appeal the dismissal of their § 1985(3)
claim based only on alienage.7 To state a claim under
§ 1985(3), the plaintiff must allege:

       (1) a conspiracy; (2) for the purpose of
       depriving, either directly or indirectly, any
       person or class of persons of the equal protection
       of the laws, or of equal privileges and immunities
       under the laws; and (3) an act in furtherance of
       the conspiracy; (4) whereby a person is either
       injured in his person or property or deprived of
       any right or privilege of a citizen of the United
       States.

United Bhd. of Carpenters & Joiners of Am. v. Scott, 

, 828–29 (1983). To allege that the defendant deprived
a class of persons of equal protection of the laws, the plaintiff
must allege “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’
action.” Griffin v. Breckenridge, 

 (1971).

       As a threshold matter, we note that while Plaintiffs
appeal the dismissal of their § 1985(3) claim based on alienage,
Beckford is a citizen. She cannot, therefore, state a § 1985(3)
claim based on alienage.



       7
        Plaintiffs do not appeal the dismissal of their § 1985(3)
claim based on race and national origin.
                               21
        As for Davis, he alleges that the GEO and Federal
Defendants “conspired to deprive, either directly or indirectly,
MVCC alien inmates of the equal protection of the laws” in
violation of § 1985(3). JA 98. Davis therefore asks us to
recognize alienage as a protected class under § 1985(3). But
we need not reach that question because Davis fails to plausibly
allege that Defendants deprived Moshannon Valley inmates of
the right to marry because of their status as noncitizens.

       In Bray v. Alexandria Women’s Health Clinic, the
Supreme Court held that a plaintiff asserting a § 1985(3) claim
must allege “that the decisionmaker . . . selected or reaffirmed
a particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable
group.” 

, 272–73 (1993) (quoting Pers. Adm’r of
Mass. v. Feeney, 

 (1979)). The Supreme
Court later elaborated on that same standard in Ashcroft v.
Iqbal, holding that to plausibly allege discrimination “because
of” a protected characteristic, the plaintiff “must plead
sufficient factual matter” to show that the defendants took the
challenged action “not for a neutral . . . reason but for the
purpose of discriminating on account” of the protected
characteristic. 

 (2009).

        Davis has not alleged sufficient facts to make it
plausible that Moshannon Valley’s practice of denying inmate
marriage requests was motivated by Defendants’ intent to
discriminate against aliens. True, Davis alleges that nearly all
Moshannon Valley inmates are aliens. JA 94. And some of
those inmates may be able to challenge their deportation orders
after marrying a U.S. citizen. 

 But the simple fact that the

                              22
challenged conduct applies to a group that happens to share a
protected characteristic does not, by itself, mean that the
conduct was taken because of the group’s protected
characteristic.

        Bray offers an illustration of this principle. In Bray,
certain abortion clinics sought to enjoin individuals from
conducting demonstrations in opposition to abortion. 

. The clinics asserted a § 1985(3) claim on the theory that
the demonstrators had conspired to discriminate against two
alternative classes: “women seeking abortion” or “women”
more generally. Id. at 269–70. The Supreme Court rejected
both theories. As to the second theory, the Supreme Court held
that it need not decide whether § 1985(3) protects women as a
class because the defendants’ opposition to abortion did not
amount to invidious animus against women. Id. at 269. The
Court explained that the plaintiffs failed to show that the
demonstrations were motivated by animus against women “by
reason of their sex.” Id. And the fact that the plaintiffs alleged
that only persons of one sex sought abortions did not mean that
“disfavoring of abortion” is “ipso facto sex discrimination.” Id.
at 272–73. Instead, the Court believed that opposition to
abortion could be viewed as a “value judgment” unmotivated
by animus against one sex. Id. at 272–74.

       Here, similarly, even if § 1985(3) were construed to
protect alienage, an alleged discriminatory policy that applies
to a prison population comprised almost exclusively of aliens
does not alone give rise to the plausible inference that



                               23
Defendants harbored animus toward aliens.8 As in Bray, Davis
has not alleged additional facts showing that Defendants
implemented the no-marriage policy because of Moshannon
Valley inmates’ alien status. For example, an allegation that
Defendants used more favorable marriage policies in prisons
holding citizen inmates could elevate Davis’s allegations of
animus from the merely possible to the realm of the plausible.
But here, we have only an allegation that the government
instructed a private contractor to restrict the ability of
incarcerated individuals to marry. So, the bare allegation that
Moshannon Valley denies all marriage requests at the Federal
Defendants’ direction, without more, fails to show animus
toward Moshannon Valley inmates because of their alien
status. See also Dean v. Warren, 

, 1257–64 (11th
Cir. 2021) (extensively analyzing Bray and rejecting the
plaintiff’s § 1985(3) claim because it did not “clear the high
bar established in Bray for alleging invidious discriminatory
animus against” the alleged class).

       Moreover, some of Davis’s allegations counsel against
drawing an inference of animus. Davis alleges that for most
inmates, including himself, marriage to a U.S. citizen would
not allow an effective challenge to deportation, JA 94, and
Moshannon Valley’s documented marriage policy

       8
         To be clear, we do not subscribe to the District Court’s
reasoning that Plaintiffs’ § 1985(3) claim fails because they
allege that only 98 percent of Moshannon Valley inmates, as
opposed to 100 percent, are aliens. The fact that Moshannon
Valley may house a small percentage of citizen inmates does
not alone undermine Plaintiffs’ § 1985(3) claim.
                               24
acknowledges as much, JA 113 (“The majority of the inmates
serving their sentences at MVCC are foreign nationals and will
be advised that the marriages will not have any effect on their
citizenship status or their pending deportation proceedings.”).
This belies Davis’s assertion that Moshannon Valley’s
marriage policy is part of a conspiracy to prevent noncitizens
from marrying U.S. citizens.

       We conclude, therefore, that Davis has failed to state a
§ 1985(3) claim. We leave for another day the important
question of whether § 1985(3) protects alienage.

       C. Intentional Infliction of Emotional Distress

        Beckford asserts a state law claim of intentional
infliction of emotional distress (IIED) based on alleged psychic
injuries stemming from her inability to marry Davis. Beckford
does not appeal the dismissal of her IIED claim against the
Federal Defendants. As for the GEO Defendants, Beckford
challenges the District Court’s conclusion that she has not
alleged any physical manifestation of her emotional distress
and has not “alluded to any competent medical evidence of any
physical or emotional harm.” JA 34.

        We will affirm the dismissal of Beckford’s IIED claim,
but for a different reason than that stated by the District Court.
To state a claim for IIED under Pennsylvania law, the plaintiff
must allege “intentional outrageous or extreme conduct by the
defendant, which causes severe emotional distress to the
plaintiff” and “some type of resulting physical harm due to the
defendant’s conduct.” Swisher v. Pitz, 

, 1230

                               25
(Pa. Super. 2005) (quoting Reeves v. Middletown Athletic
Ass’n, 

 (Pa. Super. 2004)).

       Beckford’s IIED claim fails because the GEO
Defendants’ conduct is not the sort of behavior that is “so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.” Hoy v.
Angelone, 

 (Pa. 1998) (quoting Buczek v.
First Nat’l Bank of Mifflintown, 

 (Pa.
Super. Ct. 1987)). Liability attaches “for only the most clearly
desperate and ultra extreme conduct.” Id. at 754. The GEO
Defendants’ decision to deny Plaintiffs’ marriage request
simply does not rise to that level. We will therefore affirm the
dismissal of Beckford’s IIED claim.

V. Conclusion

       We will vacate in part and affirm in part. We will vacate
the dismissal of Plaintiffs’ RFRA claim, affirm the dismissal
of Plaintiffs’ § 1985(3) claim and the dismissal of Beckford’s
IIED claim, and remand to the District Court for further
proceedings consistent with the foregoing opinion.




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