Derrick Neely-Beytarik-El v. Daniel Conley , 912 F.3d 989 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2980
DERRICK D. NEELY-BEY TARIK-EL,
Plaintiff-Appellant,
v.
DANIEL L. CONLEY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cv-01522-WTL-DML — William T. Lawrence, Judge.
____________________
ARGUED SEPTEMBER 7, 2018 — DECIDED JANUARY 2, 2019
____________________
Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.
RIPPLE, Circuit Judge. Derrick D. Neely-Bey Tarik-El filed
this action against various officials at the Correctional Indus-
trial Facility (“CIF”) in Pendleton, Indiana, and at the Indi-
ana Department of Corrections (“IDOC”). He alleged that
the defendants had prevented him from participating fully
in the worship services of the Moorish Science Temple of
America (“MSTA”) held at the CIF, in violation of the Free
Exercise and Establishment Clauses of the First Amendment.
2 No. 17-2980
The district court screened the complaint under 28 U.S.C.
§ 1915A. It dismissed claims against Commissioner Bruce
Lemmon and Superintendent Wendy Knight on Eleventh
Amendment grounds and against Officer David Liebel on
the ground that he had not participated personally in any of
the actions against Mr. Neely-Bey. The district court allowed
the damages claims against the remaining defendants to go
forward. Following discovery, the remaining defendants
moved for summary judgment on qualified immunity
grounds. The district court granted the motion.
Before us, Mr. Neely-Bey contends that the district court
failed to recognize that his complaint sought both damages
and injunctive relief. He maintains that his injunctive relief
claims must be reinstated because they are unaffected by
sovereign or qualified immunity. Moreover, he contends
that the district court erred in granting qualified immunity
to the defendants on his damages claims.
We conclude that the defendants are entitled to qualified
immunity on Mr. Neely-Bey’s claims for damages under the
Free Exercise Clause and the Establishment Clause and,
therefore, affirm the district court’s judgment with respect to
those claims. We agree with Mr. Neely-Bey that the district
court misread his complaint and that it clearly seeks injunc-
tive relief as well as damages against the defendants. More-
over, the district court should have read Mr. Neely-Bey’s pro
se free exercise claim as seeking injunctive relief under the
Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc et seq. (“RLUIPA”). Consequently, we must
remand so that the district court may consider whether in-
junctive relief should be granted on the free exercise claim.
In addressing this matter, the district court first must deter-
No. 17-2980 3
mine whether the free exercise claim and RLUIPA claims are
moot. If it determines that the claims are not moot, it should
consider whether injunctive relief is warranted. As a matter
of law, there is no basis for injunctive relief on the estab-
lishment clause claims, and we therefore direct the district
court to enter judgment in favor of the defendants on those
claims.
I
BACKGROUND
A.
Until recently, Mr. Neely-Bey was incarcerated at CIF,
where he was an active member of the MSTA congregation.
The MSTA is a national religious organization founded by
Prophet Noble Drew Ali. 1 Its most important group worship
meeting is held on Fridays and includes recitation of the
Moorish American Prayer, during which each adherent
“stands, [and] faces the East.” 2 After the prayer, a group
leader reads the Divine Constitution, Bylaws, and verses
from the Koran. Following the readings, the leader invites
other participants to comment upon the readings. Finally,
services conclude with the “Warning from the Holy Proph-
et” followed by another recitation of the Moorish American
Prayer.3 The MSTA also holds “Sunday School.” 4 During
1 R.81 at 97.
2 Id. at 98.
3 Id.
4It appears that, at some point, the MSTA group at CIF began meeting
on Mondays instead of Sundays. See id. at 78 (Memo from Chaplain
(continued … )
4 No. 17-2980
2013 and 2014, Mr. Neely-Bey attended Friday Holy Day
services and Sunday school. The records of the MSTA reflect
that Mr. Neely-Bey regularly spoke at these meetings. 5
In January 2013, Mr. Neely-Bey submitted an affidavit to
IDOC Commissioner Lemmon. The cover letter stated that
Mr. Neely-Bey was providing the affidavit to Commission-
er Lemmon “so that we may come to an understanding
[that] this affidavit is [b]inding on you and you[r] office.” 6 It
asserted that Mr. Neely-Bey was a “Sovereign Moorish Na-
tional”; that he was not subject to the enactments of the
United States Congress because he considered it to be a for-
eign power; and that he “squarely challenge[d] the fraudu-
lent, usurping entanglement of JURISDICTION” over him. 7
The affidavit requested a hearing to establish the IDOC’s au-
thority over Mr. Neely-Bey. As a result of the affidavit, the
IDOC classified Mr. Neely-Bey as a “Sovereign Citizen,”
which was designated as a “Security Threat Group.” 8
( … continued)
Smith setting forth how Mr. Neely-Bey may participate in “Monday
meetings”).
5 See R.40; R.41; R.42.
6 R.70-3 at 2.
7 See id. at 3–4 (internal quotation marks omitted).
8 In his brief, Mr. Neely-Bey claims that “the record does not support
that he subscribed to such ‘sovereign citizen’ beliefs or that he intended
to associate himself with such beliefs by identifying himself as a ‘Sover-
eign Moorish National.’” Appellant’s Br. 9. However, there is no evi-
dence in the record that Mr. Neely-Bey contested or grieved this designa-
tion. Mr. Neely-Bey also does not maintain that sovereign citizens should
not be considered a Security Threat Group. Thus, neither
(continued … )
No. 17-2980 5
Mr. Neely-Bey’s affidavit made its way to Brother M.
Doles Bey, 9 the MSTA minister who led the services at the
CIF.10 On April 6, 2014, Brother Doles Bey sent a memoran-
dum on MSTA letterhead to, among others, David Liebel,
Director of Religious and Volunteer Services Chaplains at
the CIF; Brother V. Jones-Bey, Minister of Institutional Mis-
sion Affairs for the MSTA; and Mr. Neely-Bey. In his memo-
randum, Brother Doles Bey explained that sovereign citizens
could not be participating members of the MSTA. The memo
related that, at another institution, the MSTA had allowed an
inmate with a “Security Group Threat” designation to facili-
tate a service, and as a result, the institution’s MSTA group
“was shut down.” 11 Brother Doles Bey stated that
( … continued)
Mr. Neely-Bey’s classification as a sovereign citizen, his designation as a
member of a Security Threat Group, nor the restrictions placed on Secu-
rity Threat Groups are at issue in this appeal.
9 In his brief, Mr. Neely-Bey repeatedly addresses Brother Doles Bey as a
“volunteer minister,” suggesting that all of his ministry work is volun-
tary and that he is not an official representative of the MSTA. The record
does not bear this out. In his complaint, Mr. Neely-Bey identifies Brother
Doles Bey as “the Minister & I.D.O.C. volunteer of the Moorish Science
Temple of America.” R.1 at 4 (emphasis added). Moreover, according to
IDOC policies, a volunteer like Brother Doles Bey must be “recognized
by a religious body.” R.81 at 37.
10 Mr. Neely-Bey alleges in his complaint that IDOC Commissioner
Lemmon forwarded the affidavit to the Director of Religious Services,
David Liebel. R.1 at 3. Mr. Liebel presumably then passed it on to Broth-
er Doles Bey, although there is not an allegation in the complaint to that
effect. Neither party identifies any evidence in the record that establishes
how the affidavit reached Brother Doles Bey.
11 R.81 at 71.
6 No. 17-2980
Mr. Neely-Bey could attend services as a “guest,” but that he
could not teach or serve as a facilitator. 12
On March 23, 2015, the Chaplain at the CIF, David Smith,
sent a memo to Mr. Neely-Bey in which he stated that he
had “received [Mr. Neely-Bey’s] request to be added to the
MST of A Religious Services group” and that he needed
Mr. Neely-Bey “to understand that by returning to this
group you agree to fully cooperate with and follow the April
6, 2014 sanctions placed on you by MST of A, Inc.” 13 Specifi-
cally, Mr. Neely-Bey was forbidden from standing, speaking
at, or facilitating any of the Friday services. He was allowed
to speak when called upon during their Monday meetings;
however, he could “not debate, instruct, dominate or speak
against the teaching of the Prophet, the MST of A, Inc., or the
U.S. Constitution.” 14
In late summer 2015, Chaplain Smith filed a “Report of
Conduct” regarding Mr. Neely-Bey’s actions during an
MSTA meeting. Chaplain Smith stated that he had witnessed
Mr. Neely-Bey “speak and openly participate during the
Friday MSTA Holy Day meeting” and that these actions
were in violation of the direct order that he had given to
Mr. Neely-Bey, orally and in writing. 15 Chaplain Smith con-
cluded that Mr. Neely-Bey’s “actions … demonstrated his
12 Id. at 72.
13Id. at 78. The parties do not explain why Mr. Neely-Bey, who had been
an active member of the MSTA in 2013 and 2014, had to request to be
added to the group in 2015.
14 Id.
15 Id. at 73.
No. 17-2980 7
intention to interfere and disrupt MSTA services on Holy
Days.” 16
Officer Daniel Conley “screened” the conduct report,17
and a hearing was held at Mr. Neely-Bey’s request. At the
hearing, chaired by Officer Richard Sidwell, it was deter-
mined that Mr. Neely-Bey had ignored an order by Chaplain
Smith. Mr. Neely-Bey was given twenty hours of extra work
to be completed in the next month. Although the determina-
tion makes no mention of it, Mr. Neely-Bey testified at his
deposition, and the defendants conceded for purposes of
summary judgment, that Mr. Neely-Bey “was suspended
from [MSTA] meetings for one year.”18
Mr. Neely-Bey appealed to CIF Superintendent, Wendy
Knight. He argued that the sanction merely enforced the
MSTA’s ban on his participation in its services. Consequent-
ly, because “the State cannot get [in]volved in M.S.T. of A.
affairs,” 19 the order could not be enforced. Mr. Neely-Bey’s
appeal was denied. In her explanation, Superintendent
Knight stated:
16 Id.
17 Again, the parties do not direct us to any place in the record contain-
ing a description of the screening function. In admissions produced in
response to Mr. Neely-Bey’s requests, Officer Conley stated that he “had
reservation[s] about the conduct report.” Id. at 22. Neither in the admis-
sion, nor in any other place in the record, does Officer Conley explain the
nature of his reservations.
18 R.71 at 1.
19 R.81 at 76.
8 No. 17-2980
You were charged with code 347 “Refusing to
obey an order from staff” and you were found
guilty by the DHB chairman.
I find the Report of Conduct to be descriptive
and credible, and the statement provided by
staff within the body of the report did support
the finding. When any staff member gives you
an order, you need to follow it. After you have
followed the staff member’s order, if you do
not agree with that order or any order from
staff, then you have a right to follow the de-
partment’s grievance procedures. I find no er-
rors in your case and the Report of Conduct is
clear. You have provided me with no state-
ments or evidence to cause me to change the
decision of the Disciplinary Hearing Officer,
therefore: your appeal is denied.[ 20]
B.
Mr. Neely-Bey filed this action in the district court
against Commissioner Lemmon, Superintendent Knight, Di-
rector of Religious Services David Liebel, Chaplain Smith,
Officer Conley, and Officer Sidwell. He alleged that he had
been subjected to religious persecution when his affidavit
was forwarded to the MSTA, that the CIF had become en-
tangled in a religious dispute by enforcing the memorandum
of Brother Doles Bey, and that the CIF defendants had vio-
lated his First Amendment right to free exercise when Broth-
er Doles Bey’s memo was enforced. As a remedy,
20 Id. at 77.
No. 17-2980 9
Mr. Neely-Bey requested “that [he] receive $750,000 dollars”
and that the defendants “cease all action against [him].” 21
The district court screened Mr. Neely-Bey’s complaint
under 28 U.S.C. § 1915A. 22 The court determined that any
claims for damages against Commissioner Lemmon and Su-
perintendent Knight in their official capacities were barred
by the Eleventh Amendment and therefore dismissed those
claims. It also dismissed the claims against Mr. Liebel be-
cause he was not involved personally in the alleged depriva-
tion. The court therefore instructed the clerk “to remove
Bruce Lemmon, Wendy Knight, and David Liebel from the
docket.” 23 The court allowed the damages claims against
Chaplain Smith, Officer Conley, and Officer Sidwell to pro-
ceed. The court’s screening order was silent with respect to
Mr. Neely-Bey’s claims for injunctive relief.
Mr. Neely-Bey filed a motion to reconsider. 24 He argued
that the Eleventh Amendment did not bar his claims against
Commissioner Lemmon and Superintendent Knight because
the claims were brought against the defendants in both their
21 R.1 at 6.
22 The district court initially dismissed Mr. Neely-Bey’s complaint, be-
lieving that it was duplicative of another action that Mr. Neely-Bey had
filed. See R.8. Mr. Neely-Bey filed a motion to reconsider, pointing out
that the disciplinary action on which the present action is based is differ-
ent from the ones at issue in the earlier action. See R.10. The court grant-
ed the motion to reconsider and conducted a merits screening under 28
U.S.C. § 1915A. See R.13.
23 R.13 at 3.
24 See R.17.
10 No. 17-2980
official capacities and their personal capacities.25
Mr. Neely-Bey did not argue, however, that the district court
should reinstate his claims for injunctive relief because sov-
ereign immunity did not operate as a bar to injunctive relief.
The district court denied reconsideration “[f]or the reasons
set forth in the screening entry.”26
After discovery, the remaining defendants moved for
summary judgment. Relying on Boy Scouts of America v. Dale,
530 U.S. 640 (2000), the defendants submitted that it was
clearly established that the MSTA had a First Amendment
right to choose its membership, and the sanction against
Mr. Neely-Bey simply implemented that right. According to
the defendants, “failure to enforce the MST of A memoran-
dum would be the equivalent of forcing the MST of A to as-
sociate with Neely-Bey as a member in violation of MST of
A’s First Amendment rights.” 27 Moreover, once the MSTA
determined that Mr. Neely-Bey could not participate in its
services, IDOC was “prohibited from reviewing or question-
ing [its] religious decisions.” 28
The defendants also asserted that, if they had violated
Mr. Neely-Bey’s rights, they were entitled to qualified im-
munity. They noted that a “diligent search of Seventh Circuit
and United States Supreme Court cases ha[d] yielded no
25He also argued that his claim against Mr. Liebel should be reinstated.
See id. at 2.
26 R.19.
27 R.71 at 8.
28Id. at 7 (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
EEOC, 565 U.S. 171, 186 (2012)).
No. 17-2980 11
cases with closely analogous facts that would establish that
Plaintiffs’ [sic] rights have been violated in this case.” 29
Therefore, Mr. Neely-Bey had not met his burden of defeat-
ing the qualified immunity defense.
In response, Mr. Neely-Bey maintained that IDOC’s en-
forcement of the limitations set forth in MSTA’s memoran-
dum violated the Establishment Clause and violated IDOC’s
own policies. 30 Regarding the defendants’ claim that they
were enforcing MSTA’s associational rights, Mr. Neely-Bey
believed that Dale was distinguishable because he was not
asking to be appointed a leader of the MSTA, but only to
participate fully in the services.
Turning to the issue of qualified immunity,
Mr. Neely-Bey asserted that it was clearly established that
IDOC could not restrict his right to practice his religion ex-
cept when required by penological interests. Mr. Neely-Bey
explained that participating in the Friday services was a key
element of the MSTA faith, that Chaplain Smith understood
this, and that disciplining him for participating in the Friday
services constituted an unreasonable burden on his free ex-
ercise rights. He also claimed that the defendants had no le-
gitimate penological interests in preventing his participation
in Friday services. Turning specifically to Officers Conley
and Sidwell, Mr. Neely-Bey noted that Officer Conley admit-
29 Id. at 11.
30 Mr. Neely-Bey specifically identified the policy providing that “[t]he
Department does not endorse or recognize any particular denomination,
sect, or faction as the ‘correct’ manner to practice a particular religion.”
See R.81 at 6.
12 No. 17-2980
ted that he had reservations about Chaplain Smith’s conduct
report, but nevertheless screened the conduct report. As for
Officer Sidwell, Mr. Neely-Bey asserted that, at the time of
the disciplinary hearing, Officer Sidwell was aware that the
dispute was of a religious as opposed to disciplinary nature.
Mr. Neely-Bey did not argue that, even if the doctrine of
qualified immunity protected the defendants from liability
for damages, his claims for injunctive relief nevertheless
could proceed.
The district court granted summary judgment to the re-
maining defendants on the basis of qualified immunity. The
court explained that, although “[t]he general principles of
First Amendment law prohibiting officials from placing a
substantial burden on the free exercise of religion by inmates
are clearly established, … the qualified immunity defense
turns on whether the application of those principles to the
circumstances faced by the defendants was clear at the
time.” 31 “Here,” the court explained, Mr. Neely-Bey could
not “prevail in his effort to overcome qualified immunity by
relying on general principles of First Amendment right[s]”
because “[t]he Supreme Court has directed that ‘“clearly es-
tablished” law is not to be defined at a high level of generali-
ty.’” 32 The court therefore entered judgment for the defend-
ants.
31 R.84 at 7.
32 Id. (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)).
No. 17-2980 13
II
DISCUSSION
A. Free Exercise
1. Claim for Damages
Mr. Neely-Bey first submits that the district court erred
in concluding that the defendants were entitled to qualified
immunity for damages related to his free exercise claim. The
principles governing this question are well-settled. Qualified
immunity shields government officials from civil “liability
‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable per-
son would have known.’” Purvis v. Oest, 614 F.3d 713, 720
(7th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). A qualified immunity determination comprises two
inquiries; we must determine (1) “whether the plaintiff’s al-
legations make out a deprivation of a constitutional right,”
and (2) “whether the right was clearly established at the time
of defendant’s alleged misconduct.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010). We are permitted to skip the
first inquiry and proceed directly to the question whether a
particular right was clearly established. See, e.g., Whitlock v.
Brown, 596 F.3d 406, 408 (7th Cir. 2010) (citing Pearson v. Cal-
lahan, 555 U.S. 223 (2009)). This is the approach that the dis-
trict court took, and the defendants urge that we affirm the
district court’s judgment on this basis.
As we frequently have explained, a clearly established
right is one that “is sufficiently clear that any reasonable of-
ficial would understand that his or her actions violate that
right, meaning that existing precedent must have placed the
statutory or constitutional question beyond debate.” Zim-
14 No. 17-2980
merman v. Doran, 807 F.3d 178, 182 (7th Cir. 2015) (citing
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “[A] case directly
on point,” however, is not required. Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011). “The dispositive question is ‘whether
the violative nature of particular conduct is clearly estab-
lished … .’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563
U.S. at 742). “This inquiry ‘“must be undertaken in light of the
specific context of the case, not as a broad general proposition.”’”
Id. (emphasis added) (quoting Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (per curiam)).
Here, the district court observed that there was no gov-
erning law “directly establishing that the defendants’ con-
duct in this case, where state officials enforced a ban from
participating in religious activities that was put in place by
the religious entity itself, violated Mr. [Neely-Bey’s] rights
under the First Amendment.” 33 Mr. Neely-Bey believes,
however, that the law “provided ‘fair warning’ to the de-
fendants ‘that their alleged [conduct] was unconstitution-
al.’” 34 According to Mr. Neely-Bey, the law was clearly es-
tablished that a prison official cannot deny a prisoner’s free
exercise rights based on the official’s understanding of the
tenets of a particular faith. He relies principally on Grayson
v. Schuler, 666 F.3d 450 (7th Cir. 2012), and Vinning-El v. Ev-
ans, 657 F.3d 591 (7th Cir. 2011), for this proposition.
In Grayson, an inmate-adherent of the African Hebrew Is-
raelites of Jerusalem was forced to cut off his dreadlocks “on
33 R.84 at 7–8.
34 Appellant’s Br. 35–36 (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam)).
No. 17-2980 15
the ground that they posed a security risk.” 666 F.3d at 451.
Grayson claimed that not cutting his hair was an element of
his faith; specifically, he informed prison officials that he had
taken “the Nazarite vow of separation,” which required him
to refrain from cutting his hair. Id. at 454. The prison chap-
lain denied Grayson’s request to grow out his hair because
wearing dreadlocks was not a required element of the Afri-
can Hebrew Israelites of Jerusalem. The chaplain acknowl-
edged that Rastafarians were allowed to have dreadlocks,
but distinguished their situation because having dreadlocks
was a requirement of their faith. On appeal, we observed
that Grayson’s act of not cutting his hair could have been a
legitimate aspect of his personal faith. We explained that
“[p]rison authorities are always entitled to balance security
concerns against religious practices, and the need to do so
may be greater with regard to optional than to mandatory
practices.” Id. at 455. Nevertheless,
[p]rison chaplains may not determine which
religious observances are permissible because
orthodox. … No more can the prison permit
Rastafarians to wear long hair and without jus-
tification forbid a sincere African Hebrew Isra-
elite of Jerusalem to do so, even if he is more
zealous in his religious observances than his
religion requires him to be.
Id.
We reached a similar result in Vinning-El. Vinning-El in-
volved an MSTA inmate who asked for a vegan diet as a re-
ligious accommodation. The chaplain denied the request,
“observing that the tenets of [the MSTA] require a non-pork
diet,” not a vegan one. 657 F.3d at 592. Vinning-El sued, and
16 No. 17-2980
the district court denied the chaplain qualified immunity.
On appeal, we observed that the district court had not made
any findings concerning the chaplain’s motivations in deny-
ing Vinning-El’s request. The chaplain could have denied
the request because he did not believe that a vegan diet was
a tenet of the MSTA faith, or he could have denied it because
he did not believe that the request was being made on reli-
gious grounds. If the former, the chaplain was not entitled to
qualified immunity because it was clearly established at the
time of the denial that “[a] personal religious faith is entitled
to as much protection as one espoused by an organized
group.” Id. at 593. However, if the latter, then the chaplain
had not violated the inmate’s rights because mere dietary
preferences, unrelated to religious observances, need not be
accommodated. Absent a determination as to the chaplain’s
reasoning, we could not resolve the qualified immunity
question and therefore remanded the case to the district
court. See id. at 595.
Neither Grayson nor Vinning-El speak to the circumstanc-
es before us today. In both cases, the individual inmate re-
quested that his religious belief be accommodated even
though that belief was arguably personal to him and more
demanding than the ones generally followed by adherents of
the religion with which he professed to be affiliated.
Mr. Neely-Bey presents a very different situation. He does
not ask the CIF to accommodate a personal belief not re-
quired of MSTA adherents. Rather, he asks that the CIF re-
quire the MSTA to accept him as a full member even though
his belief system as a declared sovereign citizen differs sub-
stantially from that of the MSTA and MSTA liturgical prac-
tices require that its adherents share their religious beliefs in
the course of their worship services. The MSTA consequent-
No. 17-2980 17
ly believes that admitting Mr. Neely-Bey as a member would
challenge its teachings and, possibly, jeopardize its status.
This is the crux of the defendants’ position: They main-
tain that, had they required the MSTA to allow Mr. Neely-
Bey to participate as a full member in Friday services, they
would have violated MSTA’s associational rights. See Boy
Scouts of America v. Dale, 530 U.S. 640 (2000).
In Dale, a former Eagle Scout “applied for adult member-
ship in the Boy Scouts” as an assistant scoutmaster. Id. at
644. The BSA initially approved the application, but later re-
voked his membership after discovering that Dale was ho-
mosexual and had taken public stances in favor of gay
rights. According to the BSA, being a homosexual was anti-
thetical to its mission. Dale then instituted a state-court ac-
tion claiming that the BSA’s revocation of his membership
violated New Jersey’s law prohibiting discrimination in pub-
lic accommodations. The New Jersey Supreme Court agreed
with Dale and further held that requiring BSA to accept Dale
as a scout leader did not violate BSA’s right to association
under the First Amendment.
The Supreme Court reversed. It observed that “[t]he
forced inclusion of an unwanted person in a group infringes
the group’s freedom of expressive association if the presence
of that person affects in a significant way the group’s ability
to advocate public or private viewpoints.” Id. at 648. In as-
sessing whether this was the case, the Court explained that
deference is owed to the group’s formulation of its “goals
and philosophy,” as well as its “view of what would impair
its expression.” Id. at 651, 653. Because the BSA believed that
its principles precluded the practice of homosexuality and
because “Dale’s presence in the [BSA] would … force the or-
18 No. 17-2980
ganization to send a message … that [it] accepts homosexual
conduct as a legitimate form of behavior,” “the forced inclu-
sion of Dale would significantly affect its expression.” Id. at
653, 656.
Mr. Neely-Bey believes that the defendants’ reliance on
Dale is misplaced. Dale, he contends, was in a leadership
role, whereas he only was asking to participate as a member
of the MSTA. The Court in Dale, however, did not limit its
discussion to leaders of organizations, but instead asked
whether “[t]he forced inclusion of an unwanted person in a
group infringes the group’s freedom of expressive associa-
tion.” Id. at 648. Although the relative position of the indi-
vidual in a group may bear on whether the group’s inclusion
of the individual “affects in a significant way the group’s
ability to advocate public or private viewpoints,” id., the
Court spoke in terms of “membership” as well as leadership,
see id. at 654–56. Moreover, the record reflects that, as a full
member of the MSTA, Mr. Neely-Bey would be speaking to
other members of the congregation and commenting on the
words of the Prophet and passages of the Koran. Requiring
the MSTA to allow an individual to speak at its worship ser-
vices when that person holds beliefs antithetical to its own
would significantly affect its ability to preserve and pass on
its message.
Here, Chaplain Smith and the enforcement officers were
required to balance the religious practices of one adherent
against the rights of other inmates to exercise their religious
beliefs in accordance with MSTA teaching. Neither Grayson
nor Vinning-El offers guidance for correctional officers who
find themselves in this dilemma. Indeed, there do not appear
to be any cases that instruct prison officials on how they
No. 17-2980 19
should strike the appropriate balance between these compet-
ing interests. 35 As we have explained previously, “[p]ublic
officials can be held liable for violating clearly established
law, but not for choosing sides on a debatable issue.” O’Keefe
v. Chisholm, 769 F.3d 936, 942 (7th Cir. 2014). The district
court, therefore, did not err in granting the defendants quali-
fied immunity on Mr. Neely-Bey’s damages claims under
the Free Exercise Clause. 36
2. Claim for Injunctive Relief
Mr. Neely-Bey next submits that, even if the district court
correctly granted qualified immunity to the defendants on
his claim for damages, it failed to recognize that his com-
plaint also stated a claim for injunctive relief under both the
Free Exercise Clause and under RLUIPA. Moreover,
Mr. Neely-Bey continues, qualified immunity does not pro-
tect the defendants from a claim for injunctive relief. See
Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 758 (7th
Cir. 2012). Consequently, he contends, a remand is necessary
35 Indeed, Mr. Neely-Bey notes that “Defendants have cited no decision
suggesting the government can rely on a group’s associational interests
to limit an individual’s participation in religious services, based solely on
his expression of allegedly unorthodox beliefs.” Appellant’s Br. 31. That
courts have not had to grapple with this difficult issue would seem to
counsel the application of qualified immunity.
36 Notably, the defendants make only a passing reference to whether
allowing Mr. Neely-Bey to participate as a full member of the religion
would jeopardize the security or rehabilitative concerns of the institu-
tion. For reasons not at all clear to us, with the exception of this single,
oblique reference in its appellate brief, this contention, which may well
have merit, is never developed.
20 No. 17-2980
for the district court to consider the merits of his claim for
injunctive relief.
Mr. Neely-Bey’s complaint, among other relief, asks that
the defendants “cease all action against [him].” 37 When the
district court screened Mr. Neely-Bey’s complaint under 28
U.S.C. § 1915A, it nevertheless acknowledged only that he
was “seek[ing] monetary relief”; the court made no mention
of Mr. Neely-Bey’s prayer for injunctive relief. 38 Proceeding
on the assumption that Mr. Neely-Bey’s claims were for
monetary relief alone, the court dismissed the claims against
Commissioner Lemmon and Superintendent Knight in their
official capacities as barred by the Eleventh Amendment and
directed that these defendants be removed from the docket.
The court allowed only the damages claims against Chaplain
Smith and Officers Conley and Sidwell to go forward.
Mr. Neely-Bey moved for reconsideration of the screening
order, but not on the ground that the district court had mis-
read his complaint to include only claims for damages.
a.
Before us, the defendants at least tacitly acknowledge
that Mr. Neely-Bey’s complaint requested injunctive relief. 39
They assert, however, that Mr. Neely-Bey abandoned his
claim for injunctive relief by not raising the issue in his mo-
37 R.1 at 6.
38 R.13 at 2.
39 See Appellees’ Br. 28 (noting that the district court believed that
Mr. Neely-Bey was seeking only damages and acknowledging that “this
assumption may have been a mistake”).
No. 17-2980 21
tion to reconsider or in his response to the motion for sum-
mary judgment.
It is the general rule that a litigant does not abandon an
argument by failing to raise it in a motion to reconsider.
Hamer v. Neighborhood Hous. Servs. of Chi., 897 F.3d 835, 838
(7th Cir. 2018) (“And it is never necessary to remonstrate
with a judge after an order has been entered. Motions for re-
consideration are discretionary, not obligatory.”). The de-
fendants nevertheless submit that, “where a plaintiff is seek-
ing relief from judgment that is most appropriately awarded
by a trial court on a Rule 60 motion, such as where the plain-
tiff is claiming oversight, mistake or clerical error, the plain-
tiff may waive his right to present that type of argument on
appeal if he did not make the appropriate Rule 60 motion
below.” Denius v. Dunlap, 209 F.3d 944, 958–59 (7th Cir.
2000). Here, they contend, the district court seems simply to
have misread or overlooked the full extent of
Mr. Neely-Bey’s claims, and such an oversight falls neatly
within the coverage of Rule 60(b)(1). 40 Consequently, the de-
fendants submit that, because Mr. Neely-Bey failed to raise
the district court’s oversight in a Rule 60(b) motion, he can-
not now pursue his claim for injunctive relief.
We do not believe that Denius compels this result. First,
the language on which the defendants rely was not part of
our holding. After discussing what might be the effect of De-
40 Federal Rule of Civil Procedure 60(b)(1) provides: “(b) Grounds for
Relief from a Final Judgment, Order, or Proceeding. On motion and just
terms, the court may relieve a party or its legal representative from a fi-
nal judgment, order, or proceeding for the following reasons: (1) mis-
take, inadvertence, surprise, or excusable neglect[] ….”
22 No. 17-2980
nius’s failure to file a Rule 60(b) motion if the court had over-
looked his claim for injunctive relief, we explained that this,
in fact, had not occurred: “This is not a case where the dis-
trict court completely overlooked plaintiff’s claims for equi-
table relief.” Id. at 959. Rather, we observed, the district court
very clearly had disposed of both “Denius’s claims for mon-
etary and equitable relief through its summary judgment
opinion.” Id. Thus, we did not have to decide whether Deni-
us’s actions constituted waiver (or abandonment) because
the nature of the district court’s error did not fall within the
language of Rule 60(b).
Additionally, our discussion in Denius focused on the ef-
fect of failing to bring a Rule 60(b) motion. Rule 60(b), how-
ever, governs motions that seek to “‘relieve a party or its le-
gal representative from a final judgment, order, or proceed-
ing’ for the enumerated reasons.” Mintz v. Caterpillar Inc.,
788 F.3d 673, 679 (7th Cir. 2015) (quoting Fed. R. Civ. P.
60(b)). The operative order here, however, was the district
court’s screening order, which was interlocutory. See DaSilva
v. Rymarkiewicz, 888 F.3d 321, 323 (7th Cir. 2018). It was in
that order that the court narrowed the scope of the action to
include only claims for damages. When the defendants later
moved for summary judgment, they reasonably focused
their motion on the claims for damages—the only ones still
before the court. Mr. Neely-Bey’s response, as well, was di-
rected to the claims for damages. There was no obvious way
for Mr. Neely-Bey to revisit the dismissed claims in the brief-
ing on the summary-judgment motion. Moreover, it was the
district court’s summary-judgment ruling that immediately
preceded its entry of final judgment, the triggering event for
a Rule 60(b) motion. Under these circumstances,
Mr. Neely-Bey was not required to seek relief under Rule
No. 17-2980 23
60(b) for the district court’s sua sponte dismissal of his claims
for injunctive relief. Consequently, Mr. Neely-Bey has not
waived, or otherwise abandoned, his claim for injunctive re-
lief under the Free Exercise Clause. 41
41 Mr. Neely-Bey’s situation is readily distinguishable from the other
cases on which the defendants rely. See Heiar v. Crawford Cnty, 746 F.2d
1190, 1196 (7th Cir. 1984); Peterson v. Bell Helicopter Textron, Inc., 806 F.3d
335 (5th Cir. 2015). In Heiar, we held that the defendants had waived
their statute-of-limitations defense because, although included in the
answer, they never again raised it—in a dispositive, pretrial motion, as
an item in the pretrial order, or in a motion for judgment at trial. See 746
F.2d at 1196. Here, however, the district court eliminated the claim for
injunctive relief sua sponte, and there was no clear opportunity for
Mr. Neely-Bey to raise the issue again with the district court before the
entry of final judgment. In Peterson, the plaintiff’s complaint had includ-
ed a prayer for “[a]ny further legal and equitable relief to which Peterson
may be justly entitled.” 806 F.3d at 339 (alteration in original). However,
Peterson did not request specific injunctive relief until after a jury verdict
in his favor. The district court granted the injunction, but the Fifth Cir-
cuit reversed and vacated the injunction. The Fifth Circuit explained that
the defendant had been prejudiced by Peterson’s inaction because, had it
known that injunctive relief was at issue, it would have called additional
witnesses and presented evidence specifically directed to that claim for
relief. However, it had been deprived of that opportunity by the plain-
tiff’s failure to raise the issue earlier. Here, the defendants include boil-
erplate language that allowing Mr. Neely-Bey to renew his claim for in-
junctive relief “would prejudice the defendants by inhibiting their ability
to defend against Neely-Bey’s claims and substantially increase the de-
fendants’ potential liability.” Appellees’ Br. 32. However, the defendants
do not explain how or why this is the case. Unlike the defendant in Peter-
son, they have not lost their ability to present evidence in opposition to
this claim, and they do not explain how revival of Mr. Neely-Bey’s claim
for injunctive relief might substantially increase their potential liability.
24 No. 17-2980
b.
Waiver and abandonment are the only bases that the de-
fendants have offered for affirming the district court’s dis-
missal of Mr. Neely-Bey’s claim for injunctive relief. Alt-
hough “[w]e may affirm a district court’s dismissal order on
any basis supported by the record,” Craig v. Rich Twp. High
Sch. Dist. 227, 736 F.3d 1110, 1118 (7th Cir. 2013), we cannot
conclude, on this limited record, that judgment in favor of
the defendants is warranted.
To establish a free exercise claim, Mr. Neely-Bey “had to
submit evidence from which a jury could reasonably find
that the defendants personally and unjustifiably placed a
substantial burden on his religious practices.” Thompson v.
Holm, 809 F.3d 376, 379 (7th Cir. 2016) (citing Hernandez v.
C.I.R., 490 U.S. 680, 699 (1989)). The Supreme Court has ex-
plained that a substantial burden is one that “put[s] substan-
tial pressure on an adherent to modify his behavior and to
violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718
(1981). In the prison context, such a burden is justified if it is
“reasonably related to a legitimate penological interest.”
Thompson, 809 F.3d at 380 (citing Turner v. Safley, 482 U.S. 78,
89–91 (1987)).
Here, Mr. Neely-Bey asserts, and the defendants do not
contest, that participation in Friday services, including
standing to pray and discussing the words of the Prophet,
are central practices of the MSTA faith. The ban enforced by
the CIF prevents Mr. Neely-Bey from fully participating in
the Friday services. The question therefore is whether the
ban is reasonably related to a legitimate penological interest.
No. 17-2980 25
Mr. Neely-Bey maintains that “the sole reason offered by
Defendants for these restrictions was enforcement of a
memorandum from an outside MSTA volunteer minister.” 42
According to Mr. Neely-Bey, “[i]t was, purely and simply, a
reaction to perceived religious heresy,” and the defendants’
enforcement of religious orthodoxy “is not a legitimate peno-
logical interest.” 43
As we already have discussed, however, this statement
does not fairly characterize the situation. Brother Doles Bey’s
memo simply does not request that the prison enforce any
religious doctrine. It does not ask the CIF, for instance, to
serve MSTA adherents only porkless meals (a requirement
of the faith) and to enforce that abstinence through disci-
pline. Instead, the memo simply requested that the CIF al-
low the MSTA to choose those who may speak authoritative-
ly on matters of faith. Therefore, contrary to Mr. Neely-Bey’s
assertion, there is evidence in the record to establish that the
CIF’s actions were motivated by a desire to protect the rights
of other MSTA adherents at the CIF. The memorandum from
Brother Doles Bey clearly articulates a concern that, if
Mr. Neely-Bey, a professed sovereign citizen, were allowed
to speak at MSTA services, the congregation of worshippers
might be disbanded. It also refers to the need for the MSTA
to conduct the Friday prayer services in accordance with the
requirements of its tradition. 44
42 Appellant’s Br. 28.
43 Id. at 28–29.
44
See R.81 at 72 (“The Acting Chairman presides over the[] meetings and
makes sure that the meeting is opened and closed according to the laws
(continued … )
26 No. 17-2980
Although the term “penological interests” is most typi-
cally articulated in terms of a penal institution’s interest in
security and financial stability, it is well-established that the
term also encompasses far wider concerns of just governance
in the penal setting. See, e.g., Beard v. Banks, 548 U.S. 521, 530–
32 (2006) (plurality opinion) (holding that encouraging pro-
gress toward rehabilitation serves legitimate penological ob-
jectives); Jones v. Brown, 461 F.3d 353, 364 (3d Cir. 2006) (not-
ing that “the health and safety of inmates … are legitimate
penological interests”); Goodwin v. Turner, 908 F.2d 1395,
1399–1400 (8th Cir. 1990) (holding that treating male and fe-
male inmates equally furthered a legitimate penological in-
terest). We have no doubt that the term also involves the
protection of the constitutional rights of other prisoners. In-
deed, prison officials are under a constitutional duty to pro-
tect those rights. We therefore have no doubt that the prison
officials are on solid ground in maintaining that they have a
right, and indeed an obligation, to protect the right of other
prisoners who adhere to the MSTA faith to worship in a
congregational manner to the extent that such a practice is
consistent with other penal objectives.
Of course, in asserting such an objective and in choosing
a means to achieve such an objective, Turner v. Safley, 482
U.S. 78, 89–90 (1987), teaches that prison officials cannot rely
on the mere incantation of a penal interest but must come
forward with record evidence that substantiates that the in-
( … continued)
and Customs of the Moorish Science Temple of America, Inc. and sets
the tone for services to flow smoothly and without [sic] from the
body/membership; and guests.”).
No. 17-2980 27
terest is truly at risk and that prison officials have chosen an
appropriate manner to assert that interest. Before us, the de-
fendants justify their actions only in terms of the MSTA’s
rights without any reference to the possible impact on the
security, operations, or finances of the CIF. Under such cir-
cumstances, we cannot conclude that the defendants have
articulated a legitimate “penological” reason for denying
Mr. Neely-Bey full participation in MSTA’s Friday services. 45
The merits of Mr. Neely-Bey’s claim for injunctive relief
therefore remain an open question. In considering this ques-
tion, the district court should not only determine the propri-
ety of injunctive relief under the Free Exercise Clause, but
possible relief under RLUIPA. We have observed that, when
a pro se prisoner asserts a claim under the Free Exercise
Clause, the district court should interpret that constitutional
claim to include a statutory claim under RLUIPA. Grayson,
666 F.3d at 451.46 RLUIPA prohibits prison officials from
45 In writing the Report of Conduct, Chaplain Smith interpreted
Mr. Neely-Bey’s actions as intending to interfere with and disrupt MSTA
services on Holy Days. See R.81 at 73. Avoiding disruption of, and inter-
ference with, the meetings of authorized groups at the CIF is a legitimate
penological interest. However, as already discussed, the defendants have
not argued that this was a consideration in the action they took against
Mr. Neely-Bey.
46 Although damages are not available under RLUIPA, injunctive relief
is. See Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012). Thus, because
sovereign immunity and qualified immunity protect government offi-
cials only from damages suits, those doctrines cannot protect officials
from claims for injunctive relief brought under RLUIPA. See Sorrentino v.
Godinez, 777 F.3d 410, 415 (7th Cir. 2015) (“Sovereign immunity normally
does not bar suits for injunctive relief in federal court alleging that a state
official violated the federal constitution or laws.”); Hannemann v. S. Door
(continued … )
28 No. 17-2980
“impos[ing] a substantial burden on the religious exercise”
of an inmate “unless the government demonstrates that im-
position of the burden on that person … is the least restric-
tive means of furthering [a] compelling governmental inter-
est.” 42 U.S.C. § 2000cc-1(a). Because RLUIPA “confers
greater religious rights on prisoners than the free exercise
clause has been interpreted to do,” Grayson, 666 F.3d at 451,
it is possible that Mr. Neely-Bey is entitled to statutory in-
junctive relief even if he cannot establish a right to relief un-
der the Free Exercise Clause.
A word of caution. On remand, the district court first
should consider whether subsequent events have rendered
Mr. Neely-Bey’s claims for injunctive relief moot. Prior to
oral argument, the defendants notified us that
Mr. Neely-Bey had been transferred from the CIF to the
Westville Correctional Facility. At oral argument, counsel for
the defendants suggested that the transfer rendered
Mr. Neely-Bey’s claims for injunctive relief moot. However,
there is no evidence in the record regarding how
Mr. Neely-Bey’s transfer will affect his ability to participate
in MSTA worship. Moreover, we do not know the likelihood
of Mr. Neely-Bey being transferred back to the CIF. See
Young v. Lane, 922 F.2d 370, 373–74 (7th Cir. 1991) (noting
that the likelihood of being transferred back to an institution
is a factual determination for the district court). We leave it,
therefore, to the district court to determine on a more devel-
( … continued)
Cnty. Sch. Dist., 673 F.3d 746, 758 (7th Cir. 2012) (“[T]he defense of quali-
fied immunity does not protect defendants from an action for injunctive
relief.”).
No. 17-2980 29
oped record the effect of Mr. Neely-Bey’s transfer on his
claims for injunctive relief under the Free Exercise Clause
and RLUIPA.
In sum, we agree with the district court that the defend-
ants are entitled to summary judgment on Mr. Neely-Bey’s
claims for damages under the Free Exercise Clause. Howev-
er, the district court failed to consider Mr. Neely-Bey’s
claims for injunctive relief under either the Free Exercise
Clause or under RLUIPA. We therefore remand to the dis-
trict court for further consideration of these claims in the
first instance, including the effect of any subsequent events
on Mr. Neely-Bey’s claims for injunctive relief.
B. Establishment Clause
Mr. Neely-Bey also maintains that the district court erred
in failing to address his Establishment Clause claim. He fur-
ther asserts that, had the district court considered the claim,
it would have concluded that the defendants violated the
Establishment Clause in enforcing Brother Doles Bey’s pro-
hibition against his full participation in MSTA meetings.
Mr. Neely-Bey is correct that the district court’s order
granting the defendants’ motion for summary judgment did
not explicitly mention the Establishment Clause. However, it
did speak more broadly of whether the defendants’ actions
had violated Mr. Neely-Bey’s “rights under the First
Amendment.” 47 It concluded that there was no controlling
authority “directly establishing that the defendants’ conduct
in this case, where state officials enforced a ban from partici-
47 R.84 at 8.
30 No. 17-2980
pating in religious activities that was put in place by the re-
ligious entity itself, violated Mr. [Neely-Bey’s] rights under
the First Amendment.” 48 It therefore granted qualified im-
munity to the defendants. We turn, therefore, to the question
whether the defendants are entitled to qualified immunity
on Mr. Neely-Bey’s claim under the Establishment Clause.
1.
Mr. Neely-Bey submits that, at the time Chaplain Smith
limited his participation in MSTA meetings, it was clear that
such action violated the Establishment Clause. He begins by
noting that then, as now, “[a] government policy or practice
violates the Establishment Clause if (1) it has no secular pur-
pose, (2) its primary effect advances or inhibits religion, or
(3) it fosters an excessive entanglement with religion.” Kauf-
man v. McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005) (citing
Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)). According to
Mr. Neely-Bey, the defendants’ actions violated all three
prongs.
First, he claims that there is no secular purpose for ban-
ning him from participating in MSTA Holy Day services. In-
stead, he contends, the defendants’ “only reason for impos-
ing this restriction is a desire to enforce the religious di-
rective of an outside volunteer minister, a directive that is
based entirely on religious orthodoxy.”49 We cannot accept
this submission. In determining whether a government ac-
tion has a secular purpose, “a government’s characterization
of its purpose is entitled to deference, although courts must
48 Id. at 7–8.
49 Appellant’s Br. 41.
No. 17-2980 31
ensure that the government’s characterization is sincere.”
Vision Church v. Vill. of Long Grove, 468 F.3d 975, 992 (7th Cir.
2006) (internal quotation marks omitted). Fairly read, the de-
fendants have stated that their reason for giving effect to
Brother Doles Bey’s memo was to protect the associational
rights of the MSTA to choose, in the context of a religious
worship ceremony, participants and leaders of the ob-
servance. Chaplain Smith’s directive to Mr. Neely-Bey
makes this objective crystal clear. The directive explicitly
recognizes Mr. Neely-Bey “as a guest of MST of A,” who
could “listen,” but not instruct at MSTA meetings. 50 In pro-
tecting the rights of the other prisoners, as was their obliga-
tion, the defendants may have reinforced incidentally the
tenets of that faith. There is no evidence in the record, how-
ever, their actions were designed to produce such an effect. 51
Mr. Neely-Bey also maintains that the primary effect of
the action is to advance the orthodoxy of the MSTA. He be-
lieves that his situation mirrors the “pernicious fusion” of
church and state that the Court condemned in Larkin v.
Grendel’s Den, Inc., 459 U.S. 116 (1982), and Board of Education
50 R.81 at 78.
51 Mr. Neely-Bey also maintains that he is being singled out because of
his religious beliefs. “The restriction imposed by Defendants,”
Mr. Neely-Bey explains, “which prohibits [him] from speaking or stand-
ing during Friday Holy Day services while others do so[,] is not based on
any neutral or generally applicable rules about conduct or even member-
ship in religious groups or participation in religious services.” Appel-
lant’s Br. 42. It is, however, based on a neutral rule—that religious asso-
ciations should be able to control their own leadership and membership.
32 No. 17-2980
of Kiryas Joel Village School District v. Grumet, 512 U.S. 687
(1994). 52
In Larkin, a Massachusetts state law provided that estab-
lishments “located within a radius of five hundred feet of a
church or school shall not be licensed for the sale of alcoholic
beverages if the governing body of such church or school
file[d] [a] written objection” to the license. 459 U.S. at 117 (in-
ternal quotation marks omitted). The Court determined that
the statute resulted in an unconstitutional cessation of gov-
ernmental authority to a religious institution:
Section 16C gives churches the right to deter-
mine whether a particular applicant will be
granted a liquor license, or even which one of
several competing applicants will receive a li-
cense.
The churches’ power under the statute is
standardless, calling for no reasons, findings,
or reasoned conclusions. That power may
therefore be used by churches to promote goals
beyond insulating the church from undesirable
neighbors; it could be employed for explicitly
religious goals, for example, favoring liquor li-
censes for members of that congregation or
adherents of that faith.
Id. at 125. It therefore did “not strain” the Court’s “prior
holdings to say that the statute can be seen as having a ‘pri-
mary’ and ‘principal’ effect of advancing religion.” Id. at 126.
52 Id. at 44.
No. 17-2980 33
Similarly, in Kiryas Joel Village School District, a special
state law had created a school district, the lines of which
were the same as the lines of property owned by a Hasidic
Jewish congregation. The result was that the provision of
public educational services within a district had been
awarded based on religious views and was completely con-
trolled by a religious body. The Court observed that the Free
Exercise and Establishment Clauses “‘compel[] the State to
pursue a course of “neutrality” toward religion,’ favoring
neither one religion over others nor religious adherents col-
lectively over nonadherents.” Bd. of Educ. of Kiryas Joel Vill.
Sch. Dist., 512 U.S. at 696 (quoting Comm. for Pub. Ed. & Reli-
gious Liberty v. Nyquist, 413 U.S. 756, 792–93 (1973)). The
statute at issue, the Court explained, “depart[ed] from this
constitutional command by delegating the State’s discretion-
ary authority over public schools to a group defined by its
character as a religious community, in a legal and historical
context that gives no assurance that governmental power
has been or will be exercised neutrally.” Id.
In both Larken and Kiryas Joel Village School District, there-
fore, a formal enactment ceded a discretionary function of
governance to a religious body. The CIF, however, has not
ceded disciplinary authority to the MSTA. The CIF has not
given the MSTA the power to discipline an MSTA member
if, for instance, the member fails to attend Friday services.
Instead, the MSTA asked the CIF defendants to protect its
right to control the religious content of the MSTA’s own
meetings by determining who may or may not teach its con-
gregants. Here, a religious entity has not been given carte
blanche to administer a government program or bestow a
government benefit as it sees fit.
34 No. 17-2980
Finally, Mr. Neely-Bey submits that the CIF’s enforce-
ment of Brother Doles Bey’s memo violates the entangle-
ment prong of the Lemon test. To establish excessive entan-
glement with religion, Mr. Neely-Bey has to “demonstrate
‘sponsorship, financial support, and active involvement of
the sovereign in religious activity.’” Vision Church, 468 F.3d
at 995 (quoting Jimmy Swaggart Ministries v. Bd. of Equaliza-
tion of California, 493 U.S. 378, 393 (1990)). “The general rule
is that, to constitute excessive entanglement, the government
action must involve ‘intrusive government participation in,
supervision of, or inquiry into religious affairs.’” Id. (quoting
United States v. Indianapolis Baptist Temple, 224 F.3d 627, 631
(7th Cir. 2000)).
Mr. Neely-Bey does not address these standards or sug-
gest how the evidence in the record establishes the level of
intrusiveness required for entanglement. Instead, he submits
that Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009), necessitates
such a finding of entanglement.
In Nelson, an Illinois inmate had requested a meatless di-
et on Fridays as an act of penance in accordance with his
Catholic faith. The correctional facility’s chaplain, Miller, re-
viewed the request, “cross-checking the inmate’s declared
religious affiliation to determine if a religious diet was re-
quired”; specifically, he “looked for confirmation of the reli-
gious dietary tenet ‘on paper’—that is, he looked for confir-
mation of the requirement in some ‘church document’—as
opposed to inquiring regarding the spiritual goals of the in-
mate.” Id. at 872. The prison chaplain denied the request,
and, in his denial, he “cited several Bible passages purport-
edly contradicting Nelson’s beliefs regarding penance.” Id. at
No. 17-2980 35
881. Eventually, at the direction of the warden, Nelson re-
ceived a vegan diet.
Nelson filed an action against Miller and several other
administrators at the correctional facility, alleging, among
other claims, a violation of the Establishment Clause. Specif-
ically, Nelson alleged that Miller had “favored Muslim and
African Hebrew Israelite prisoners by approving vegan diets
for those prisoners without obtaining written verification
that such diets were required by their religions.” Id. at 880–
81. The district court, however, “found that Nelson had not
proven a violation of the establishment clause because there
were valid neutral reasons for Miller’s actions in this re-
gard.” Id. at 881. On appeal, we agreed with the district
court. We explained that the correctional facility’s regula-
tions
provided that prisoners could abstain from
“any foods the consumption of which violates
their required religious tenets” and the district
court concluded that Miller had required doc-
umentation because he was unfamiliar with
any Catholic “required religious tenet” which
necessitated a non-meat diet. Under the district
court’s reasoning, Miller did not ask Muslim
and African Hebrew Israelite prisoners to
submit verification because he understood
from his experience that a limited diet was part
of many of these prisoners’ religious practice.
Id.
Nevertheless, we observed, Miller’s denial, which “cited
several Bible passages purportedly contradicting Nelson’s
36 No. 17-2980
beliefs regarding penance, improperly entangled [Miller] in
matters of religious interpretation. It simply [wa]s not ap-
propriate for a prison official to argue with a prisoner re-
garding the objective truth of a prisoner’s religious belief.”
Id.
We fail to see Nelson’s application to the circumstances
here. Chaplain Smith did not undertake his own review of
MSTA doctrine. Rather, he was told by the MSTA minister at
the CIF, Brother Doles Bey, 53 that Mr. Neely-Bey’s profession
of sovereign citizenship 54 precluded him from full member-
ship and participation in the MSTA. This tension between
the tenets of the MSTA and the sovereign-citizen movement
is well documented in our case law. See Bey v. State, 847 F.3d
559, 560–61 (7th Cir. 2017). Chaplain Smith accepted the
statement of the MSTA representative; he made no commen-
tary at all concerning the “objective truth” of
Mr. Neely-Bey’s beliefs. He simply forbade him from dis-
rupting the MSTA service.
In sum, at the very least, Chaplain Smith did not act in a
manner inconsistent with existing precedent. See al-Kidd, 563
U.S. at 741. Consequently, we affirm the district court’s
judgment granting qualified immunity to the defendants on
Mr. Neely-Bey’s claims for damages under the Establish-
ment Clause.
53 Again, there is no question that Brother Doles Bey is the designated
representative of the MSTA at the CIF. See supra note 9.
54As noted previously, see supra note 8, Mr. Neely-Bey’s profession of
sovereign-citizen beliefs is not at issue here.
No. 17-2980 37
2.
As we already have noted, qualified immunity protects
the defendants only against claims for damages; it does not
protect the defendants against claims for injunctive relief. See
Hannemann, 673 F.3d at 758. The district court failed to rec-
ognize Mr. Neely-Bey’s claims for injunctive relief and,
therefore, never addressed the merits of those claims. On
appeal, the defendants, as well, have failed to address the
merits of Mr. Neely-Bey’s claims for injunctive relief under
the Establishment Clause. They simply maintain that
Mr. Neely-Bey has waived or abandoned any claims for in-
junctive relief—a contention we already have rejected.
If the record contained any evidence that might support
the granting of injunctive relief, we would vacate the district
court’s judgment in this respect and remand for further pro-
ceedings. However, as our earlier discussion of
Mr. Neely-Bey’s Establishment Clause argument demon-
strates, the record is entirely devoid of any evidence that
might form the basis for such a claim. Consequently, the dis-
trict court need not revisit the matter of injunctive relief on
remand.
Conclusion
For the foregoing reasons, we affirm the district court’s
judgment regarding Mr. Neely-Bey’s claims for damages
under the Free Exercise and Establishment Clauses. We also
direct the district court to enter judgment for the defendants
on Mr. Neely-Bey’s claims for injunctive relief under the Es-
tablishment Clause. However, we remand the case to the
district court for it to consider, in the first instance,
Mr. Neely-Bey’s claims for injunctive relief under the Free
38 No. 17-2980
Exercise Clause and under RLUIPA. In undertaking this
task, the district court first should ensure that the controver-
sy has not become moot.
The parties shall bear their own costs of this appeal.
AFFIRMED in part; REMANDED in part