UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6871

DEVION GENTRY,

Plaintiff – Appellant,

v.

A. DAVID ROBINSON, Individually and in his official capacity; HENRY J. PONTON, Individually and in his official capacity; MAJOR BATEMAN; CAPTAIN D. H. ANDERSON; LT. WILLIAMS, Individually and in his official capacity; LT. WARD, Individually and in his official capacity; SGT. BOYD, Individually and in his official capacity; SGT. SWANN, Individually and in his official capacity; JOHN DOE, Individually and in his official capacity,

Defendants – Appellees,

and

VIRGINIA DEPARTMENT OF CORRECTIONS; NOTTOWAY CORRECTIONAL CENTER,

Defendants.

--------------------------------------------------

PROFESSORS AND PRACTITIONERS OF PSYCHIATRY, PSYCHOLOGY, AND MEDICINE; DICK MORGAN, Former Corrections Official; DAN PACHOLKE, Former Corrections Official; PHIL STANLEY, Former Corrections Official; ELDON VAIL, Former Corrections Official; MUSLIM ADVOCATES,

Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia at Alexandria. Liam O’Grady, Senior District Judge. (1:17-cv-00766-LO-IDD)

Argued: October 29, 2020 Decided: December 7, 2020 Amended: December 8, 2020

Before WILKINSON, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Harris wrote the opinion, in which Judge Wilkinson and Judge Richardson joined.

ARGUED: Stephen Richard Shaw, GOODWIN PROCTER LLP, Washington, D.C., for Appellant. Laura Haeberle Cahill, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Kevin P. Martin, Boston, Massachusetts, Jaime A. Santos, GOODWIN PROCTER LLP, Washington, D.C.; Tony Balkissoon, Washington, D.C., Daniel M. Greenfield, RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois, for Appellant. Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Toby J. Heytens, Solicitor General, Martine E. Cicconi, Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Jessica Merry Samuels, Assistant Solicitor General, Zachary R. Glubiak, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Elizabeth Hagerty, William Burgess, Claudia Pare, Washington, D.C., Allen P. Pegg, HOGAN LOVELLS US LLP, Miami, Florida, for Amici Former Corrections Officials Dan Pacholke, Phil Stanley, Dick Morgan, and Eldon Vail. Matthew W. Callahan, MUSLIM ADVOCATES, Washington, D.C., for Amicus Muslim Advocates. Michael P. Doss, SIDLEY AUSTIN LLP, Chicago, Illinois, for Amici Professors and Practitioners of Psychiatry, Psychology, and Medicine.

Unpublished opinions are not binding precedent in this circuit.

2 PAMELA HARRIS, Circuit Judge:

Consistent with his religious beliefs, Devion Gentry, an observant Sunni Muslim,

wishes to grow and maintain a beard while in the custody of the Virginia Department of

Corrections. Upon intake, however, prison officials forcibly trimmed Gentry’s beard,

consistent with the Department’s grooming policy. And for the next three years, as a

condition of growing a beard, Gentry was required to live in a special unit with significant

restrictions on his daily activities.

Gentry filed a pro se complaint challenging the Department’s grooming policy. At

issue on appeal are three of Gentry’s claims. Gentry first alleged that the grooming policy

impermissibly burdened his right to religious practice under both the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”) and the First Amendment’s Free Exercise

Clause. Gentry also alleged that the grooming policy was discriminatorily enforced against

religious objectors, in violation of the Fourteenth Amendment’s Equal Protection Clause.

The district court granted summary judgment to the defendant prison officials on all

counts. We now affirm in part and vacate in part the district court’s judgment. As

explained below, Gentry’s RLUIPA and equal protection claims require further analysis,

best undertaken by the district court in the first instance. Gentry’s claim for damages under

the Free Exercise Clause, however, is barred by qualified immunity, and so we affirm the

district court’s judgment for the defendants in that respect.

3 I.

A.

Devion Gentry is incarcerated in the custody of the Virginia Department of

Corrections (the “Department” or “VDOC”). An observant Sunni Muslim, Gentry is

compelled by his faith to maintain a beard, and views trimming his beard to the length

permitted by VDOC’s grooming policy – at various times, ¼ or ½ inch – as a violation of

his religious duty. Accordingly, when he was taken into VDOC custody in July 2016,

Gentry informed officials at the Nottoway Correctional Center (“Nottoway”) that “it was

against [his] religion to shave [his] beard.” J.A. 11.

At the time, VDOC’s grooming policy, Operating Procedure 864.1, required that,

on the day of intake, “every offender . . . receive a haircut and a shave or trim to ¼ inch

beard.” J.A. 76. The policy authorized the use of “reasonable force or restraints” to shave

a non-compliant offender, id., and made no exception for religious objectors. Consistent

with that policy, and over Gentry’s stated religious objection, prison officials forcibly

shaved his beard. Department officials then placed Gentry temporarily into a segregated

housing unit, as a sanction for refusing to shave.

Several months later, Gentry was transferred to VDOC’s special segregated unit for

prisoners out of compliance with the grooming policy: the Grooming Standards Violator

Housing Unit (“VHU”) at Wallens Ridge State Prison. That unit housed, among others,

those who refused for religious reasons to trim their beards to the ¼ inch – or, later, ½ inch

– permitted by VDOC. There is no question, as our court has noted already, that this

restrictive placement penalized individuals, including religious objectors like Gentry, for

4 their non-compliance with the grooming policy. See Greenhill v. Clarke,

(4th Cir. 2019). The stated purpose of the VHU was to “[m]otivate offenders to

comply[,]” in part by “ensuring there [we]re consequences for willfully disobeying” the

grooming policy. J.A. 84. Those consequences included significant limits on the time

prisoners could spend outside their cells and the visitors they could see.

When Gentry filed suit in 2017, he was living in the VHU, put to “the choice

between staying in restrictive housing or violating his faith by shaving his beard.” See

Greenhill,

. But after the district court ruled on Gentry’s case, VDOC in

2019 introduced a new grooming policy that eliminated both the “across-the-board”

prohibition on “beards beyond a specified length” and the VHU.

. Now,

individuals in VDOC custody are “permitted freedom in personal grooming,” so long as

their hair and beards do not promote gang identification or pose a health hazard and have

not been used to hide contraband or disguise their identities. Operating Procedure 864.1,

Va. Dep’t of Corr. at 4, https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-

op-864-1.pdf (last visited Nov. 19, 2020). Consistent with that new policy, Gentry has

been transferred to the Buckingham Correctional Center, where, according to VDOC, he

now is “permitted to grow out his beard to his desired length” without penalty. Appellees’

Br. 12–13.

B.

In July of 2017, Gentry filed a verified pro se complaint under

and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§

2000cc et seq., challenging VDOC’s grooming policy and its application to him. The

5 defendants who remain in the case are the Nottoway correctional officers involved in the

forcible trimming of Gentry’s beard, Nottoway Warden Henry Ponton, Jr., and Chief of

Corrections Operations for VDOC A. David Robinson. 1 In his complaint, Gentry alleged

that the grooming policy impermissibly burdened his right to religious practice, in violation

of RLUIPA and the Free Exercise Clause of the First Amendment. He also alleged that

the defendants had discriminatorily enforced the grooming policy, applying it forcibly only

against those who raised religious objections to shaving their beards, in violation of the

Equal Protection Clause of the Fourteenth Amendment. 2

Gentry sought monetary damages, as well as declaratory and injunctive relief. With

respect to injunctive relief, Gentry asked that the court “order[] VDOC to send [him] to

where [he] can practice [his] religion fully and grow [his] beard.” J.A. 23. He specifically

requested that VDOC be directed to transfer him to an out-of-state prison system or “open

up a hair unit” in a lower-security prison in Virginia. J.A. 23–24. Gentry also requested

“[a]ny additional relief” the court deemed “just, proper, and equitable.” J.A. 24.

After the defendants moved for summary judgment, Gentry asked the district court

to appoint him counsel. The district court denied that request, instead treating Gentry’s

1 In a preliminary ruling, the district court dismissed the other defendants – VDOC and Nottoway – from the case, and Gentry has not appealed that decision. 2 Gentry’s comprehensive complaint also challenged his forced shaving under the Fourth and Eighth Amendments and the Due Process Clause, and alleged that the grooming policy’s different treatment of male and female prisoners violated the Equal Protection Clause. The district court granted summary judgment to the defendants on those claims, and Gentry does not pursue them on appeal.

6 verified pro se complaint as “the equivalent of an opposing affidavit for summary judgment

purposes.” Gentry v. Va. Dep’t of Corr., No. 1:17cv766 (LO/IDD),

, at

*1 n.1 (E.D. Va. May 28, 2019) (quoting Williams v. Griffin,

(4th Cir.

1991)). The district court then granted the defendants’ motion for summary judgment.

The court began by disposing of Gentry’s RLUIPA claim without reaching its

merits. As the district court explained, under RLUIPA, Gentry could seek only injunctive

relief, not monetary damages. To the extent Gentry’s requested injunction would order his

transfer out of VDOC custody, the court held, it could not be granted. And because Gentry

was at that point in the VHU, where he was “able to fully grow his beard,” his request that

he be allowed to practice his religion fully and grow his beard was moot. Id. at *4.

The district court next granted summary judgment to the defendants on Gentry’s

Free Exercise Clause claim, this time on the merits. Applying the four-factor standard laid

out in Turner v. Safley,

(1987), it found that VDOC’s policy of forcibly shaving

non-compliant offenders on intake was “reasonably related to legitimate penological

interests” as a matter of law.

at *4–5. Finally, the district court turned to Gentry’s equal

protection claim, which alleged that the grooming policy was discriminatorily enforced

because only “religious people” were subjected to forcible shaving or haircuts. Id. at *8.

Here, the district court held that Gentry failed to state a claim because he alleged that

similarly situated individuals – religious objectors to the grooming policy – were treated

as he was and forced to cut their hair. Id.

Gentry filed a timely notice of appeal.

7 II.

Now represented by counsel, Gentry argues on appeal that the district court erred in

its disposition of his claims under RLUIPA, the Free Exercise Clause, and the Equal

Protection Clause. We review a summary judgment ruling de novo, “using the same

standard applied by the district court.” Brooks v. Johnson,

(4th Cir.

2019) (citation omitted). Under that standard, “a court should grant summary judgment

only if, taking the facts in the best light for the nonmoving party, no material facts are

disputed and the moving party is entitled to judgment as a matter of law.”

(citation

omitted).

This is a complicated case, arising from a pro se complaint raising multiple claims

against various aspects of a prison grooming policy that has changed significantly over

time. We appreciate the work of the district court in sifting through those claims, devoting

substantial attention to many that are finally resolved and no longer at issue on appeal. But

with the benefit of Gentry’s able appellate counsel, we conclude that important aspects of

Gentry’s RLUIPA and equal protection claims require further attention. Accordingly, we

vacate and remand in part so that the district court may fully evaluate those claims in the

first instance. We agree with the defendants, however, that Gentry’s request for damages

under the Free Exercise Clause is barred by qualified immunity, making it unnecessary to

further consider the free exercise claim.

8 A.

We begin, like the district court, with RLUIPA. Section 3 of RLUIPA provides that

governments – including state entities and officials, see 42 U.S.C. § 2000cc-5(4)(A) – may

not:

impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that the imposition of the burden on that person –

(1) is in furtherance of a compelling government interest; and

(2) is the least restrictive means of furthering that compelling government interest.

Id. § 2000cc-1(a). To make out a RLUIPA claim, “the inmate bears the initial burden of

establishing that a prison policy substantially burdens his or her ability to practice in

accordance with a sincerely held religious belief.” Greenhill,

. After that

initial showing, “the burden shifts to the government to show that the prison policy is the

least restrictive means of furthering a compelling governmental interest.”

Because

Gentry has pled no facts alleging that the defendants’ actions affected interstate commerce,

we presume these restrictions apply to VDOC – “a state agency that receives federal

financial assistance” – and its officials by virtue of Congress’s Spending Clause authority.

Madison v. Virginia,

(4th Cir. 2006); see also 42 U.S.C. § 2000cc-

1(b)(1). As the district court explained, when RLUIPA is invoked in this context, plaintiffs

may not pursue claims for money damages against state officials, and instead are limited

to equitable relief. See Sossamon v. Texas,

, 288 (2011) (holding damages

unavailable for official-capacity claims); Rendelman v. Rouse,

(4th Cir.

9 2009) (same for individual-capacity claims); Wall v. Wade,

, 496 n.5 (4th Cir.

2014).

Given this constraint, the district court rejected Gentry’s RLUIPA claim on the

ground that the requested injunctive relief either was unavailable or, alternatively, already

had been provided. On the first point, there is no dispute between the parties, and we agree:

To the extent Gentry sought an injunction ordering the defendants to transfer him out of

VDOC custody and to “Delaware State Prisons, North Carolina State Prisons, or [to federal

custody],” J.A. 23, that relief was unavailable. Gentry, presumably “in custody pursuant

to a Virginia state court conviction,” could not be “transferred out of VDOC custody as

requested.” Gentry,

, at *4.

The second point is more complicated. To the extent Gentry sought an order

directing that he be housed within VDOC in a place where he could “fully grow his beard,”

the district court held that request was moot because Gentry was in the VHU, where he

already could grow a beard.

A case is moot under Article III, depriving a federal court

of jurisdiction, when there is no concrete case or controversy, and court action would not

actually “affect the matter in issue.” See Williams v. Ozmint,

(4th Cir.

2013) (citation omitted). So if, as the district court assumed, Gentry’s placement in the

VHU already had provided the relief sought, then his request for injunctive relief indeed

would be moot.

But as Gentry argues on appeal, it is not clear that his request for relief was limited

to what he was given in the VHU: the right to grow a beard so long as he “stay[ed] in

restrictive housing” and forfeited “the privilege of returning to a general population

10 environment.” Greenhill,

. Instead, Gentry contends, what he was seeking

was an injunction directing that he be permitted to grow a beard, consistent with his

religious obligations and free of penalty for violating the grooming policy.

Because Gentry filed his complaint pro se, we construe it liberally. See, e.g., Brown

v. N.C. Dep’t of Corr.,

(4th Cir. 2010). So viewed, there is some support

for Gentry’s reading. Gentry filed his complaint while he was in the VHU, alleging that

he was “still [a]ffected by” VDOC’s grooming policy. J.A. 18. In his prayer for relief, he

suggested as one alternative that the district court order VDOC to “open up a hair unit” at

a lower-security prison, J.A. 24 – presumably, a place within VDOC where prisoners could

grow beards without being subject to heightened security measures. And Gentry’s prayer

for “[a]ny additional relief” deemed “just, proper, and equitable,” J.A. 24, likewise could

support a more generous reading of the requested injunction. See Wall,

n.6 (reading similar general language to support a pro se plaintiff’s request for injunctive

relief). On remand, the district court may consider whether Gentry’s complaint, liberally

construed, sought relief beyond placement in the VHU and thus presented a live

controversy.

On appeal, the defendants focus on a different mootness issue: Even assuming that

Gentry’s requested injunction was not moot when the district court ruled, they argue it is

moot now – because, under VDOC’s new policy, the VHU has been eliminated and Gentry

is free to grow his beard without penalty and while housed in the general population. It is

true, as the defendants explain, that principles of mootness apply “to all stages of a federal

case,” so that a “change in factual circumstances can moot a case on appeal, such as when

11 the plaintiff receives the relief sought in his or her claim.” Williams, 716 F.3d at 808–09.

And that rule at least is implicated here, where the 2019 change in VDOC’s grooming

policy appears to have given Gentry all that he sought in the most generous reading of his

complaint: a transfer out of the VHU to a place where he could grow a beard consistent

with his religious beliefs and without suffering any penalty as a result.

In response, Gentry invokes the voluntary cessation exception to the mootness

doctrine. “It is well established that a defendant’s ‘voluntary cessation of a challenged

practice’ moots an action only if ‘subsequent events made it absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur.’” Wall,

(quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs., Inc.,

(2000)). The “heavy burden” of showing that a challenged prison policy will not be

reinstated falls on the prison defendants,

(citation omitted), and Gentry insists they

cannot meet that burden here. VDOC’s grooming policy is not final but instead in constant

flux, Gentry argues; amended several times already during his incarceration, the policy by

its own terms requires periodic updates and rewrites. See Porter v. Clarke,

(4th Cir. 2017) (applying voluntary cessation exception to prison policy that is

reviewed annually and rewritten every three years). And, he notes, not all of VDOC’s

changes have been in the direction of greater religious accommodation: Starting in late

2016, VDOC exempted religious objectors from its policy of forcible shavings at intake,

but its latest policy eliminates that exemption at the same time that it does away with the

VHU. An injunction remains necessary, Gentry concludes, to limit the defendants’

12 discretion to return to their prior policy, or some similar policy that once again would

penalize him for growing a beard.

The defendants counter that there is no reason to believe they will reinstate the

policy under which Gentry was confined to the VHU. Gentry was transferred out of the

VHU under a system-wide policy change, they argue, not as a “manipulative” response to

litigation that will be undone once the case is over. See Porter,

(explaining

that voluntary cessation doctrine “seeks to prevent a manipulative litigant immunizing

itself from suit indefinitely”) (citation and internal quotation marks omitted). And while

prison officials in cases like Porter refused to commit to keeping revised policies in place,

see

, the defendants’ counsel here assured us at oral argument that VDOC “will

not return to the 2016 policy” under which Gentry was held at the VHU, at least “as it

existed” then. Oral Arg. at 43:37–43:48.

We think it best that the district court consider this mootness issue in the first

instance. Because all the prior litigation here was conducted before VDOC changed its

grooming policy in 2019, the district court has had no opportunity to address this issue or

any related factual questions. See Grimm v. Gloucester Cnty. Sch. Bd.,

, 290–

91 (4th Cir. 2017) (remanding so that district court may consider in first instance whether

case has become moot on appeal). And while we of course have no reason to doubt the

defendants’ statement at oral argument, we have held before that appellate assurances are

not a substitute for actual “evidence establishing that the practice . . . has been terminated

once and for all.” Wall,

. The district court is better positioned than we are

to determine the precise scope of the defendants’ commitment. Under these circumstances,

13 it is most prudent to “adhere . . . to the principle that the district court should have the first

opportunity to perform the applicable analysis.” Fusaro v. Cogan,

(4th

Cir. 2019).

B.

Gentry also challenged VDOC’s grooming policy under the Free Exercise Clause.

Critically, the Free Exercise Clause provides prisoners like Gentry with less protection than

RLUIPA does. See Holt v. Hobbs,

, 859–60 (2015); Greenhill,

. Under the Free Exercise Clause, prison officials must “reasonably accommodate an

inmate’s exercise of sincerely held religious beliefs.” Greenhill,

. But

because prison officials are entitled to significant deference in their “judgments concerning

institutional operations,” Turner,

(citation omitted), even a prison regulation

that “substantially burdens a practice of sincerely held religious beliefs ‘is valid if it is

reasonably related to legitimate penological interests,’” Greenhill,

(quoting Turner,

). When it comes to injunctive relief, in other words, the

Free Exercise Clause offers Gentry nothing he cannot more readily obtain under RLUIPA.

What his free exercise claim does offer Gentry is a chance to recover monetary

damages: While RLUIPA provides only for equitable relief in this context, a successful

§ 1983 claim based on the Free Exercise Clause brings with it the prospect of damages.

See Wall,

n.5, 498 (considering claim for damages under Free Exercise

Clause but not RLUIPA). We agree with the defendants, however, that no damages are

available here. We may assume – contrary to the reasoned holding of the district court, see

Gentry,

, at *4–5, and for purposes of this appeal only – that there are

14 genuine issues of material fact that would preclude granting summary judgment to the

defendants on Gentry’s free exercise claim. Even so, as the defendants argue, the recovery

of damages would be precluded by the doctrine of qualified immunity. See Pearson v.

Callahan,

(2009) (holding that courts may apply qualified immunity

doctrine without first deciding whether there has been a constitutional violation).

“Qualified immunity shields federal and state officials from monetary damages”

unless a plaintiff can show both the violation of a constitutional right and “that the right

was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd,

, 735 (2011) (citation and internal quotation marks omitted). “To be clearly

established, a right must be sufficiently clear that every reasonable official would [have

understood] that what he is doing violates that right.” Reichle v. Howards,

(2012) (alteration in original) (citation and internal quotation marks omitted). While

“[w]e do not require a case directly on point, . . . existing precedent must have placed the

statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741; see Crouse

v. Town of Moncks Corner,

(4th Cir. 2017).

Under the “clearly established” standard, this is not a particularly close case. Gentry

has pointed to no precedent, and we have identified none, that would have put a reasonable

prison official on notice, at the time of the relevant events, that VDOC’s grooming policy

violated the Free Exercise Clause. If anything, the precedent that existed at the time

pointed in the opposite direction. In Hines v. South Carolina Department of Corrections,

(4th Cir. 1998), for instance, our court had rejected a very similar Free

Exercise Clause challenge to a prison policy that required short hair and shaved faces,

15 finding that the policy was “an eminently rational means” of achieving legitimate

penological interests. And several district courts had found that past iterations of the

VDOC grooming policy at issue here passed muster under the First Amendment. See, e.g.,

Faver v. Clarke, No. 7:16-cv-00287,

, at *4–5 (W.D. Va. Sept. 29, 2017)

(concluding, after considering Turner factors, that plaintiff had not met his burden in

challenge to grooming policy); McClelland v. Sheriff’s Deputy, No. 2:00-CV-807,

, at *3 (E.D. Va. Mar. 19, 2001) (rejecting Rastafarian plaintiff’s free

exercise challenge to forcible grooming). Indeed, after the defendants argued for qualified

immunity in their brief to this court, Gentry effectively conceded the “clearly established”

point, arguing in his reply brief only for the merits of his free exercise claim.

Because no law or precedent at the time of the challenged conduct “clearly

established” that VDOC’s grooming policy violated the constitutional rights of religious

objectors like Gentry, the defendants are entitled to qualified immunity on this claim. For

that reason, we affirm the district court’s grant of summary judgment under the Free

Exercise Clause. 3

3 There is no need to remand for consideration of whether Gentry can be understood to have sought equitable as well as monetary relief under the Free Exercise Clause. Any injunctive remedy Gentry could request under the Free Exercise Clause would be coextensive with what he seeks under RLUIPA. If the district court determines that it has before it a live request for injunctive relief, then it will review the merits of Gentry’s claim under RLUIPA – giving Gentry the benefit of that statute’s strict-scrutiny standard, which is more plaintiff-friendly than the Turner standard for prisoners’ free exercise claims. See Wall,

n.10.

16 C.

Finally, we turn to Gentry’s equal protection claim. According to Gentry, the

defendants violated the Equal Protection Clause by discriminatorily enforcing the

grooming policy provision for forcible shaving at intake, applying it only against those

who objected for religious reasons.

There is no dispute as to the standard that applies here. To make out a

discriminatory enforcement claim under the Equal Protection Clause, Gentry must show

(1) “that he has been treated differently from others with whom he is similarly situated[,]”

and (2) “that the unequal treatment was the result of intentional or purposeful

discrimination.” Morrison v. Garraghty,

(4th Cir. 2001). Only then

will courts consider, in the prison context, whether a classification was “reasonably related

to legitimate penological interests.”

at 655 (quoting Turner,

).

The district court held that Gentry’s allegations failed to state a claim under the first

prong of this standard. 4 The court acknowledged Gentry’s allegation that “he was treated

differently from non-religious inmates,” and in particular from “inmates from the Virgin

Islands” whose hair was not cut on intake. Gentry,

, at *8; see also J.A.

17, 23 (allegations). But Gentry had “pled himself out of stating a . . . claim,” the district

court concluded, because he alleged that the prisoners who were similarly situated to him

4 Because it considered only the allegations in Gentry’s complaint, the court, though nominally granting summary judgment, effectively entered judgment on the pleadings. See Willey v. Kirkpatrick,

(2d Cir. 2015); Johnson v. Pelker,

, 139 n.2 (7th Cir. 1989).

17 – which the court described as those who objected to the grooming policy on religious

grounds – were treated the same as he was, and forcibly shaved or trimmed. Gentry,

, at *8. 5

This analysis will not suffice to dispose of Gentry’s claim on the pleadings. The

“similarly situated” prisoners, for purposes of Gentry’s discriminatory enforcement claim,

are not other religious objectors who were forcibly shaved, but non-religious objectors who

were not forcibly shaved. And construed liberally, see Brown,

, Gentry’s

pro se complaint could be read to allege precisely that: that a specific, similarly situated

reference group – individuals transferred from the Virgin Islands and “housed in the VHU”

– did not “ha[ve] their hair cut during initial intake,” J.A. 17. Whether that allegation is

enough under the first prong of the analysis – in particular, whether it may be inferred from

Gentry’s complaint, construed generously, that the Virgin Islands prisoners in question

should have been subject to forcible trims because of the length of their hair – is a question

we leave for the district court on remand.

On appeal, the defendants focus primarily on the second prong of the discriminatory

enforcement standard, arguing that even if Gentry adequately alleged differential

treatment, he entirely failed to allege “intentional or purposeful discrimination,” see

Morrison,

, and, “[m]aking matters worse, . . . did not tie his allegation to

5 In its conclusion, the district court referred to Gentry’s failure to state a “due process claim,” rather than the equal protection claim it described in the immediately preceding paragraphs. See Gentry,

, at *8. Any confusion regarding the district court’s holding can be clarified on remand.

18 any particular defendant.” Appellees’ Br. 43. But the defendants have overlooked a crucial

paragraph of Gentry’s complaint, in which he ties his discriminatory enforcement claim

directly to defendant “A. David Robinson,” VDOC’s Chief of Corrections Operations, and

alleges that Robinson was “fully aware” that Muslim men grow beards “but authorized the

use of force to cut [their] hair to punish them.” J.A. 20. Again, we leave to the district

court on remand a full evaluation of Gentry’s complaint to determine whether it adequately

states an equal protection claim for discriminatory enforcement, keeping in mind the “well-

settled rule that courts should construe pro se complaints liberally.” See Covey v. Assessor

of Ohio Cnty.,

(4th Cir. 2015).

III.

For the foregoing reasons, we affirm the district court’s grant of summary judgment

to the defendants on Gentry’s free exercise claim, vacate the grant of summary judgment

on Gentry’s RLUIPA and equal protection claims, and remand for further proceedings

consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

19