In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1876 MOHAMED SALAH MOHAMED A EMAD, Plaintiff-Appellant, v.

DODGE COUNTY, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:19-cv-598 — Lynn Adelman, Judge. ____________________

ARGUED APRIL 12, 2023 — DECIDED JUNE 26, 2023 ____________________

Before SCUDDER, KIRSCH, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Mohamed Salah Mohamed A Emad is a devout Muslim who alleges that various officials at the Dodge County Detention Facility in Wisconsin violated his rights under the First and Fourteenth Amendments by al- lowing Christian inmates to engage in certain forms of prayer but affirmatively prohibiting him (and other Muslims) from doing the same. The district court entered summary judgment in the defendants’ favor. We reverse. 2 No. 22-1876

This case is complex on many levels and the record leaves many important questions unanswered. This became crystal clear during oral argument, as it seemed the parties were dis- cussing two separate cases with different factual records. All we can say with confidence is that Emad’s allegations of reli- gious discrimination leave us unsettled. But that observation does not take us very far because it is essential to know with precision how Emad may have experienced discrimination and what role, if any, each named defendant played in favor- ing Christian prayer over Muslim prayer. Without a more de- veloped factual record on those points, the only responsible resolution of this appeal is to return the case to the district court for a more refined evaluation of Emad’s three claims. I A Drawing on the summary judgment record, we present the facts—as best as we can discern them—in the light most favorable to Emad. Emad has been an active member of Milwaukee’s Islamic community for 25 years. He practices Salah, one of the five Pillars of Islam, by praying five times each day in a state of physical purity. Emad has also long participated every Friday afternoon in a form of congregational prayer known as Jumu’ah. Although most often led by an imam at a mosque, Jumu’ah can be held in other locations so long as the prayer occurs in a group setting. From March 2018 to May 2019, Emad was an immigration detainee at the Dodge County Detention Facility. He was one of 175 Muslim detainees admitted to the jail during that time. Throughout his detention, Emad remained committed to No. 22-1876 3

daily prayer (Salah) and group prayer (Jumu’ah) but encoun- tered certain policies and practices within the Dodge County jail that he contends limited his ability to pray. During the relevant period, the Dodge County jail had a written policy providing that “[p]ersonal worship may be done in your cell or beside your bunk. It is not permitted in the dayroom areas.” This policy proved problematic for Emad because his cell contained a toilet, leaving him unable to pray in a clean environment in accordance with Salah. The jail also prohibited all “[g]roup activities led by inmates.” This limita- tion kept Emad from participating in Jumu’ah, owing perhaps in large part to jail officials being unable to find a volunteer imam to come to the facility to lead Friday afternoon prayer gatherings. Emad says that what troubles him most is that, despite these policies, the jail has long permitted Christian inmates to pray quite freely within the facility. This freedom, according to Emad, includes gathering in the dayroom and library for Bible studies and other forms of group prayer. In April 2019 Emad invoked 42 U.S.C. § 1983 and brought this suit in federal court in Milwaukee. He alleged that the jail’s restrictions on Muslim personal prayer and group prayer violated the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause. In terms of relief, Emad sought only money damages from six individuals he named as defendants in their personal capaci- ties: Dale Schmidt (Dodge County Sheriff and head of jail), Anthony Brugger (lead jail administrator), Matthew Marvin, Jeffrey Schlegel, Chris Meyers, and Scott Buckner (all pro- gram officers). Emad’s complaint also named Dodge County itself as a defendant but only on a claim under Wisconsin law 4 No. 22-1876

for indemnity. Emad did not bring any other claims against the County, such as relief under Monell v. Department of Social Services, 436 U.S. 658 (1978). B Once discovery concluded the six named defendants moved for summary judgment. The district court granted their motion. Personal Prayer Free Exercise Claim. The district court un- derstood this claim as challenging whether the jail’s prohibi- tion on personal prayer in the dayroom, which forced Emad to pray in his cell next to a toilet, violated the Free Exercise Clause. The defendants responded by insisting that “various legitimate penological interests, including maintenance of se- curity, institutional order, and staff safety” justified the pro- hibition. But, the district court emphasized, the defendants never went further and explained why allowing Muslim in- mates to pray privately at appropriate times in the dayroom would present unmanageable security risks. The failure to do so meant that the defendants had not carried their threshold burden under the four-factor test established by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). From there, how- ever, the district court pivoted and concluded that all defend- ants were entitled to qualified immunity because Emad failed to identify a case holding that jail officials violate the Free Ex- ercise Clause “by prohibiting worship in the dayroom or lim- iting personal worship to a room with a toilet.” Group Prayer Free Exercise Claim. When it came to Emad’s claim regarding Jumu’ah group prayer, the district court be- gan by acknowledging Emad’s failure to specify “which de- fendants he brings this claim against.” As the district court No. 22-1876 5

saw it, Sheriff Dale Schmidt and lead jail administrator An- thony Brugger were “the only defendants who conceivably could be found liable for a violation caused by the policy” be- cause of their managerial roles. The district court then under- scored that Emad rooted his group prayer claim in a conten- tion of discrimination—that the jail allowed Christian inmates but not Muslim inmates to congregate in the dayroom or li- brary for prayer. But Emad’s claim failed, the district court concluded, because the evidence fell short of showing that ei- ther Schmidt or Brugger had awareness of any discriminatory enforcement of jail policy. Regardless, the district court con- cluded that all defendants were entitled to qualified immun- ity on the group prayer claim because Emad had “not identi- fied a Seventh Circuit or Supreme Court case establishing an inmate’s right to congregational services or inmate-led ser- vices.” Equal Protection Claim. The district court next determined that Emad’s Equal Protection claim failed on the merits be- cause he had not identified evidence that any defendant pur- posely discriminated against Muslim detainees in favor of Christian detainees when it came to religious programming generally or the jail’s policies on personal or group prayer. The district court again focused primarily on Schmidt and Brugger, concluding that the record showed no awareness on either defendant’s part of discriminatory enforcement of ei- ther jail policy against Muslims. Even more specifically, the district court saw no evidence that Schmidt knew that the pol- icy prohibited more Muslim prayer than prayer by other faith traditions. State Law Indemnity Claim Against Dodge County. In closing, the district court concluded that the Wisconsin indemnity 6 No. 22-1876

claim against Dodge County necessarily failed because Emad no longer had a viable claim against any individual defend- ant. In short, there was no liability for the County to indem- nify. Emad now appeals. II Essential to resolving this appeal is recognizing four dis- tinct yet interrelated dimensions of Emad’s claims and their proper adjudication. We need to know with some certainty what happened as a factual matter within the Dodge County facility. We then need to know what role each individual de- fendant played in any constitutional violation. From there we need to evaluate how the Turner factors apply to what may have transpired. And, finally, we need to assess whether qual- ified immunity shields any defendant from liability. Mindful of how these inquiries interrelate and having taken our own fresh look at the case—the way the parties lit- igated Emad’s claims, the evidence developed in discovery, and the district court’s reasons for entering summary judg- ment across the board for the defendants—a few observations stand out. First, despite having immersed ourselves in the summary judgment record and briefing (filed both in our court and the district court), we lack any confident understanding of what transpired at the Dodge County jail during the relevant pe- riod. We know the harms Emad has alleged. But it is exceed- ingly difficult to discern with any reliability what the institu- tion allowed and disallowed when it came to individual and group prayer, especially when trying to compare Muslim and Christian detainees. A few examples illustrate the point: No. 22-1876 7

• When it comes to individual prayer, we cannot discern whether or how, despite its policy limit- ing private prayer to cells, the institution re- stricted private prayer in the dayroom, library, or other communal locations. The point matters because Emad very much suggests that Chris- tian detainees enjoyed more flexibility than Muslims when it came to praying privately out- side their cells. • At a more detailed level with individual prayer, we remain unsure whether jail officials viewed Emad’s request to pray outside his cell, includ- ing by using a prayer mat, as something beyond a request to engage in personal prayer. All we mean by this observation is that the record in places suggests that the jail’s concern with Emad’s personal prayer request had more to do with his desire to use a mat rather than his de- sire to pray in a location other than his cell. • Nor can we tell what types of group prayer the institution allowed and disallowed in the day- room, library, or other locations. For his part, as the non-moving party at summary judgment, Emad has pointed to evidence permitting a finding that the jail allowed some forms of Christian congregational prayer. The record, for example, contains a declaration from a Buddhist inmate who “witnessed Christian detainees hold their own Bible study in the day room without a volunteer religious leader present.” This inmate further observed that “[g]uards 8 No. 22-1876

witnessed the Bible study sessions, but did nothing to stop them.” A Christian inmate sub- mitted a similar declaration stating that “Bible study [was] held by Christian detainees in the day room without a volunteer religious leader present” about “2 or 3 times a week” in groups of “4 [to] 6 people participating” each time. Against this evidence, Emad insists that the in- stitution disallowed any form of Muslim group prayer, whether led by detainees and inmates or by an outside imam. Viewing the evidence in the light most favorable to Emad, it certainly seems like the jail allowed some forms of Chris- tian group prayer but disallowed parallel Mus- lim group prayer. But the state of the record leaves us with little confidence in the nuances and completeness of these observations. Second, this factual uncertainty leaves us unable to reach reliable legal conclusions as to the individual defendants. Our concern is even more pressing given the relief sought. Re- member that Emad is not seeking equitable relief and instead only brought claims for money damages against six individ- ual defendants. That reality makes it necessary for us to focus on the personal involvement of each defendant in any partic- ular violation. See Taylor v. Ways, 999 F.3d 478, 494 (7th Cir. 2021) (discussing the legal standard for supervisors to be per- sonally involved and thus liable under § 1983). On this score the case presents another knot we cannot untangle on appeal. Both sides briefed the case without much focus on the per- sonal responsibility of the named defendants. This explains why every member of the panel spent considerable time at No. 22-1876 9

oral argument attempting to ascertain what the summary judgment record showed as to the involvement of each indi- vidual defendant in conjunction with Emad’s personal and group prayer claims. Our confusion only grew when it be- came clear that the parties themselves could not agree on which defendants were part of each claim. The oral argument left us figuratively throwing our hands in the air, at a loss to know with any confidence what exactly was before us on ap- peal. Rarely do we find ourselves in this situation. Third, the defendants, for their part, sought to prevail on summary judgment by invoking security concerns as a justi- fication for any prayer restrictions. Their strategy worked, at least in part, as the district court agreed that the jail policy limiting group prayer “serves the interests of security, insti- tutional order, and staff safety,” thereby satisfying the first factor of the Turner test. Although true that security interests often can justify limitations on group gatherings in the prison context, a policy that operates to discriminate against Muslim detainees cannot satisfy Turner as a matter of law. The Su- preme Court has emphasized that any penal interest “must be a legitimate and neutral one,” which means the policy must “operate[ ] in a neutral fashion, without regard to the content of the expression.” Turner, 482 U.S. at 90 (emphasis added). Emad has pointed to evidence—at least as the case presently comes to us—raising a serious question whether the Dodge County facility applied its group prayer policies inconsist- ently between Muslims and Christians. As for personal prayer, we share the district court’s con- cern that the evidence the defendants offered in support of their purported security concerns fell far short of satisfying Turner. Indeed, the defendants did no more than offer 10 No. 22-1876

“reflexive, rote assertions” of security concerns. Nigl v. Litscher, 940 F.3d 329, 334 (7th Cir. 2019). We have cautioned prison officials that they “cannot rely on the mere incantation of a penal interest but must come forward with record evi- dence that substantiates that the interest is truly at risk.” Neely-Bey Tarik-El v. Conley, 912 F.3d 989, 1004 (7th Cir. 2019). The defendants have not heeded that instruction. III At this point it is important to return to where the district court ended its analysis of Emad’s personal and group prayer claims under the Free Exercise Clause—with awards of qual- ified immunity to all defendants. We cannot bring ourselves to agree in the circumstances before us. Start by recognizing what an award of qualified immunity is. It is a legal determination that, on particular facts, a party com- mitted either no legal violation at all or at least not one clearly established in the law at the time of the challenged conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (establishing a two-pronged inquiry for an award of qualified immunity); Johnson v. Jones, 515 U.S. 304, 313 (1995) (reiterating the same two-pronged test in a case concerning appellate jurisdiction over a district court’s denial of qualified immunity). At summary judgment, these determinations—whether we start at prong one or prong two—must be made by taking the facts in the light most favorable to the plaintiff, here Emad. See Tolan v. Cotton, 572 U.S. 650, 655–56 (2014). But the legal determination is not possible when facts material to the plain- tiff’s claim remain so imprecise. See Pearson v. Callahan, 555 U.S. 223, 238–39 (2009) (explaining the difficulty of awarding qualified immunity when “the precise factual basis for the No. 22-1876 11

plaintiff’s claim” is “hard to identify”); Smith v. Finkley, 10 F.4th 725, 750 (7th Cir. 2021) (explaining that “[t]he existence of material factual disputes ‘precludes a ruling on qualified immunity’” (quoting Strand v. Minchuk, 910 F.3d 909, 918 (7th Cir. 2018)). We find ourselves in just that situation here. We see unre- solved questions of fact—the ones we have highlighted—on points central to resolving Emad’s personal and group prayer claims under the Free Exercise Clause. This means that we cannot resolve qualified immunity on prong one. With so lit- tle confidence in knowing what even happened within the Dodge County facility, we are not even sure how we would describe the conduct receiving immunity. The district court, for its part, was willing to confer im- munity to the defendants on prong two—concluding Emad failed to show any violation of clearly established law by any defendant while accepting his core version of events. We see that conclusion as a bridge too far given the gravity of Emad’s contentions and the robust legal protection that attends to the right of free exercise and, relatedly, the right to worship free of discrimination based on one’s choice of faith. See, e.g., Ken- nedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022); Mas- terpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018); Church of the Lukumi Babalu Aye, Inc. v. City of Hi- aleah, 508 U.S. 520, 532 (1993); Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., con- curring) (“[T]he [Constitution’s] Religion Clauses—the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as ap- plied to religion—all speak with one voice on this point: 12 No. 22-1876

Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.”). Doubtless the district court was correct in its observation that there are few, if any, cases expressly saying that the Free Exercise Clause prohibits affording certain private and group prayer allowances to Christian but not Muslim detainees and inmates. And doubtless, too, the district court was right to un- derscore the Supreme Court’s repeated admonition that prong two of a proper qualified immunity inquiry requires identifying the pertinent body of clearly established law at a high level of specificity. But those observations, right though they may be as a general legal matter, do not afford us enough confidence to affirm the awards of qualified immunity on Emad’s personal and group prayer claims under the Free Ex- ercise Clause. If free exercise in jail means anything, it means that jailers, absent some extraordinary justifications, cannot treat inmates differently based on religion. See Masterpiece Cakeshop, 138 S. Ct. at 1731 (“The Free Exercise Clause bars even subtle depar- tures from neutrality on matters of religion.” (internal quota- tion omitted)); Church of the Lukumi, 508 U.S. at 532 (“At a min- imum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious be- liefs or regulates or prohibits conduct because it is undertaken for religious reasons.”); Grayson v. Schuler, 666 F.3d 450, 455 (7th Cir. 2012) (explaining how a prison’s unequal treatment of different religions “could not reasonably be thought consti- tutional”). Indeed, that neutrality precept is the cornerstone of the protections conferred by the Free Exercise Clause. At bottom, Emad has invoked his rights under the First and Fourteenth Amendments to be treated like his fellow No. 22-1876 13

Christian detainees—to be allowed to pray as they are al- lowed to pray. We have no trouble concluding that Emad’s claims fall in the heartland of these constitutional protections such that qualified immunity cannot be awarded in the cir- cumstances before us here. IV We owe a brief word on Emad’s claim under the Equal Protection Clause as well. Here, too, we return to the factual uncertainty that has permeated our reasoning and our con- clusion that further proceedings are necessary in the district court, as that uncertainty bars proper adjudication of this claim on appeal. But we also acknowledge that the legal framework defining how the Equal Protection Clause applies to contentions of religious discrimination—including prayer in prisons—is surprisingly underdeveloped in the case law. See generally Johnson v. California, 543 U.S. 499, 509–11 (2005) (discussing the applicability of Turner versus strict scrutiny in the context of a prison discriminating based on race). The par- ties and district court would do well to focus on the point on remand. At the very least, and in close keeping with other claims rooted in the Equal Protection Clause, Emad has to show that a named defendant intentionally treated him, a Muslim detainee, differently than Christian detainees. See Taylor, 999 F.3d at 494 (“[P]ersonal involvement in the equal protection context requires specific intent to discriminate.”). Perhaps this will prove too difficult to establish. All we know is that the present record, viewed in the light most favorable to Emad, does not allow us to reach any reliable conclusion. 14 No. 22-1876

* * * We leave the structure of the proceedings on remand to the district court’s sound discretion. It may be that the district court determines that a trial is in order to allow essential fact finding. Or perhaps the district court will invite a new round of refined and targeted summary judgment motions on the present record or after additional discovery designed to de- velop the record with more clarity. We take no position on the next steps. At the very least, we trust the parties will meet and confer in an effort to streamline the litigation as much as pos- sible for the district court. With these closing observations, we REVERSE and REMAND for proceedings consistent with this opinion.