Hall v. Ekpe ( 2010 )

09-4492-pr
Hall v. Ekpe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of October, two thousand ten.
PRESENT: ROBERT D. SACK,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
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DARRYL HALL,
Plaintiff-Appellant,
v. No. 09-4492-pr
EKPE D. EKPE, Superintendent, Riverview Correctional
Facility, JOHN CROWLEY, Deputy Superintendent for
Programs, Riverview Correctional Facility; MARK LALONDE,
Senior Coordinating Chaplain, Riverview Correctional Facility,
B. BAKER, Mailroom Supervisor, Riverview Correctional
Facility, MARK CHALOM, Medical Doctor, Riverview
Correctional Facility,
Defendants-Appellees.
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FOR APPELLANT: Darryl Hall, pro se, Brooklyn, New York.
FOR APPELLEES: Andrew B. Ayers, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General,
Denise A. Hartman, Assistant Solicitor General,
on the brief) for Andrew M. Cuomo, Attorney
General of the State of New York, Office of the
Attorney General, Albany, New York.
Appeal from a judgment of the United States District Court for the Northern District
of New York (Thomas J. McAvoy, Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on September 28, 2009, is
AFFIRMED in part, and decision is RESERVED in part pending the Supreme Court’s
decision in Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009), cert. granted, 130 S. Ct. 3319(U.S. May 24, 2010) (No. 08-1438).
Pro se plaintiff Darryl Hall appeals from an award of summary judgment in favor of
defendants on his First Amendment claims, brought pursuant to 42 U.S.C. § 1983, for
violation of his rights to free speech and free exercise of religion while a New York State
prisoner, and his claims for violation of § 3 of the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1. We review an award of summary
judgment de novo. See Jova v. Smith, 582 F.3d 410, 414 (2d Cir. 2009); Havey v.
Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008). While we will not uphold the
challenged judgment if the record evidence is sufficient to permit a reasonable jury to find
for Hall, he must point to more than just a trace of evidence in support of such a finding. See
Havey v. Homebound Mortg., Inc., 547 F.3d at 163; see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). In applying these principles, we assume the parties’
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familiarity with the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision.
1. First Amedment: Free Speech
Hall contends that the district court erred in concluding that he failed to adduce
sufficient evidence that defendants regularly and unjustifiably interfered with his privileged
medical and legal mail in violation of his First Amendment right to free speech.1 See
Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006) (recognizing prisoners’ First
Amendment right to “the free flow of incoming and outgoing mail” (internal quotation marks
omitted)); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (requiring inmate to show that
prison officials “regularly and unjustifiably interfered with the incoming legal mail” to state
a First Amendment claim (internal quotation marks omitted)). We disagree. The district
court correctly determined that only three of the six mail openings alleged by Hall supported
his claim: the May 2006 opening of medical mail and the June and September 2007 openings
1
As Hall does not maintain on appeal that defendants’ interference with his mail
violated his right of either access to the courts or privacy in his medical history, we deem
these claims forfeited. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995).
In any event, they fail on the merits as Hall does not allege any interference with a pending
legal proceeding, see Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); see also Lewis v.
Casey, 518 U.S. 343, 351 (1996), and evidence that a prison official disparaged him as a “nut
case” is insufficient by itself to permit a reasonable trier of fact to find disclosure of any
medical information, see Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) (describing
contours of prisoner’s right to maintain confidentiality of previously undisclosed medical
information).
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of legal mail.2 In accordance with New York Department of Correctional Services
(“DOCS”) policy to identify and track inadvertent errors in handling privileged mail, all three
pieces of Hall’s mail were properly marked as “opened in error” before being delivered to
him. These circumstances are insufficient to permit a reasonable trier of fact to conclude that
defendants “regularly and unjustifiably interfered” with Hall’s incoming mail. Accordingly,
we affirm the award of summary judgment with respect to Hall’s free-speech claim.
2. First Amendment: Free Exercise of Religion
Hall submits that the district court erred in concluding that his exclusion from formal
prison Ramadan activities in September 2006 failed to support a First Amendment free-
exercise claim. It is undisputed that Hall was excluded pursuant to a prison policy that
limited participation in formal Ramadan activities to observant Muslims as identified by the
prison’s Islamic chaplain. The Islamic chaplain determined that to qualify as an observant
Muslim, and therefore to participate in prison Ramadan activities, a prisoner was required
to have attended at least three of the four Friday Jumu’ah prayer services immediately
preceding Ramadan. It is further undisputed that Hall did not satisfy this criteria.
The law is well established that “a generally applicable policy will not be held to
violate a [prisoner’s] right to free exercise of religion if that policy ‘is reasonably related to
2
Of the other three pieces of privileged medical mail at issue, two were improperly
addressed to Hall, and had therefore been forwarded to Riverview’s medical unit for
processing. The envelope of the remaining piece of medical mail was affixed with tape, but
Hall produced no evidence that it had, in fact, been improperly opened.
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legitimate penological interests.’” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010)
(quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)); see also Turner v. Safley,
482 U.S. 78, 89 (1987). “This approach ensures the ability of corrections officials to
anticipate security problems and to adopt innovative solutions to the intractable problems of
prison administration, and avoids unnecessary intrusion of the judiciary into problems
particularly ill suited to resolution by decree.” O’Lone v. Estate of Shabazz, 482 U.S. at
349-50 (internal citation and quotation marks omitted). Thus, a prisoner mounting a free-
exercise challenge “must show at the threshold that the disputed conduct substantially
burdens his sincerely held religious beliefs.” Salahuddin v. Goord, 467 F.3d 263, 274-75
(2d. Cir. 2006). “The defendants then bear the relatively limited burden of identifying the
legitimate penological interests that justify the impinging conduct.” Id. at 275. Once
defendants carry this burden of production, “the burden remains with the prisoner to show
that these articulated concerns were irrational.” Id. (internal quotation marks and
modifications omitted); see also Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (observing
that burden “is not on the State to prove the validity of prison regulations but on the prisoner
to disprove it”).
Hall’s free-exercise claim fails at the third step of analysis, i.e., he cannot show that
“the logical connection between the regulation and the asserted goal is so remote as to render
the policy arbitrary or irrational.” Turner v. Safley, 482 U.S. at 89-90. Defendants carried
their burden of production by pointing to two valid penological interests that warranted
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limiting Ramadan privileges to observant Muslim prisoners: (1) security by, inter alia,
reducing unnecessary inmate movement; and (2) economy by minimizing unnecessary
expenses associated with providing Ramadan privileges. Whatever questions might be raised
as to the precision of the Islamic chaplain’s particular test for identifying observant Muslims,
Hall has not – indeed, cannot – show that either the test, or the prison decision to limit
Ramadan privileges to observant Muslims, is so remote from the identified penological
interests as to render the challenged policy arbitrary or irrational. That conclusion is only
reinforced by evidence that defendants did not prohibit Hall from observing Ramadan by
fasting and praying on his own and that, after Hall resumed regularly attending Jumu’ah
services, he was again permitted to participate in formal prison Islamic activities, including
the post-Ramadan fast of Shawwal.
Accordingly, we affirm the award of summary judgment with respect to Hall’s First
Amendment free-exercise claim.3
3. RLUIPA
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To the extent Hall sues defendants in their individual capacities, defendants would,
in any event, be entitled to summary judgment on the ground of qualified immunity because,
although it was clearly established at the time of the alleged violation that prison officials
may not substantially burden the right of free exercise “without some justification,”
Salahuddin v. Goord, 467 F.3d at 276, it was not clearly established that security and
financial concerns could not provide that justification for prisoners who had not
demonstrated observance of their professed religion in a manner identified by the prison
chaplain for that religion, see Redd v. Wright, 597 F.3d at 536. See generally Pearson v.
Callahan, 129 S. Ct. 808, 815 (2009).
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Hall further faults the district court’s determination that defendants satisfied their
“more rigorous” burden under RLUIPA of demonstrating that the “substantial burden” placed
on his exercise of religion furthered “a compelling governmental interest” by the “least
restrictive means.” See 42 U.S.C. § 2000cc-1(a) & 2(b); Redd v. Wright, 597 F.3d at 537
n.3; Jova v. Smith, 582 F.3d at 415. Because the only relief Hall seeks is money damages,
we reserve decision on this part of Hall’s appeal pending the Supreme Court’s resolution of
the question of whether an individual may sue a state or a state official in his official capacity
for money damages under RLUIPA. See Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009),
cert. granted, 130 S. Ct. 3319 (U.S. May 24, 2010) (No. 08-1438). Indeed, because
resolution of that question may also shed light on Hall’s ability to sue defendants in their
individual capacities for money damages under RLUIPA, see 42 U.S.C. § 2000cc-2(a) (“A
person may assert a violation of this chapter as a claim or defense in a judicial proceeding
and obtain appropriate relief against a government.”); Nelson v. Miller, 570 F.3d 868, 889
(7th Cir. 2009) (declining to read Congress’s permission to seek “appropriate relief against
a government” in § 2000cc-2(a) as permitting damages claims under RLUIPA against prison
officials in their individual capacities); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir.
2009) (same); Sossamon v. Texas, 560 F.3d at 329 (same); Smith v. Allen, 502 F.3d 1255,
1275 (11th Cir. 2007) (same), as well as defendants’ ability to claim qualified immunity
under RLUIPA, see Redd v. Wright, 597 F.3d at 538 (affirming grant of qualified immunity
under RLUIPA as well as First Amendment), we reserve decision on Hall’s challenge to the
award of summary judgment on his RLUIPA claim in its entirety.
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4. Conclusion
For the foregoing reasons, the September 28, 2009 judgment is AFFIRMED with
respect to Hall’s First Amendment free-speech and free-exercise claims, and decision is
RESERVED with respect to Hall’s appeal from an award of summary judgment on his
RLUIPA claim.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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