Opinion
1:22-CV-00166-SPB-RAL
08-23-2023
AGRON HASBAJRAMI, Plaintiff v. LT. BLANKENSHIP, Defendant
SUSAN PARADISE BAXTER United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS ECF NO. 11
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendant's Motion to Dismiss the Complaint be GRANTED.
II. Report
Plaintiff Agron Hasbajrami, an inmate in the custody of the Federal Bureau of Prisons (“BOP”), initiated this pro se action against BOP Lieutenant Kelly Blankenship. Hasbajrami alleges that during his incarceration at the Federal Correctional Institution at McKean (FCI-McKean), Blankenship violated his rights under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, et seq. (“RFRA”), when she forbade him from wearing hemmed sweatpants in accordance with his Islamic religious beliefs. See ECF Nos. 6; 6-1. The Court has federal question subject matter jurisdiction under 28 U.S.C. § 1331. See ECF No. 6.
Hasbajrami's Complaint attaches a narrative supplementing its allegations. See ECF No. 6, pp. 1-2. Hasbajrami also attached to the Complaint an Administrative Remedy Request and related documents (ECF No. 6-1, pp. 4-13) and a 06.12.2015 Change Notice for Program Statement 5460.09 (ECF No. 6-1, pp. 14-15).
Blankenship has moved to dismiss the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 11. Hasbajrami has filed a brief in opposition to Blakenship's motion and appended an excerpt of a religious text to the brief. ECF Nos. 15, 15-1. Blankenship's motion is ripe for decision.
A. Factual Background
Hasbajrami is Muslim and wears his pants shortened to above his ankles in observance of his religious practice. On the evening of March 30, 2021, Hasbajrami was heading towards the dining hall at FCI-McKean in hemmed sweatpants when Lt. Blankenship pulled him aside. She said, “They are altered. If I see it again, I will confiscate them. You can have the khaki pants hemmed but not the sweatpant [sic].” ECF No. 6-1, ¶ 1.
The next day, Hasbajrami related his interaction with Blankenship to “Assistant Warden (AW) Washington, Supervisory Chaplin Glogau and 3 SIS LT's.” Id., ¶ 2. “[A]ll agree[d] that the sweatpant [sic] were hemmed in compliance with [his] Islamic religious requirement and ... BOP Policy ...” ECF No. 6-1, p. 15. The prison officials represented to Hasbajrami that they would address the incident with Blankenship. That evening, Hasbajrami conveyed the gist of this conversation to Blankenship. “As retaliation, she had [his] unit officer J. Boneto search [his] cell and threw [sic] everything on the floor.” Id., ¶ 3.
Four days later, on April 4, 2021, Assistant Warden Washington directed Chaplin Glogau to “address[] this issue” with Blankenship. Id., ¶ 4. After they spoke, Glogau told Hasbajrami that “[he] was ok to wear the sweatpants.” Id. The next day, Hasbajrami put on his hemmed sweatpants to get dinner at the dining hall. Blankenship again intercepted and reprimand him for his pants. This time, she brought him to her office and confiscated his sweatpants, “even though [Hasbajrami] informed” Blankenship of the “Chaplin's confirmation to wear it.” Id., ¶ 5.
Hasbajrami discussed this incident with Acting Captain Lt. Thompson two days later. Thompson “agreed that the sweatpants [we]re in compliance with BOP policy and told [him] to take the pants from Lt. Blankenship.” Id., ¶ 6. That evening, Blankenship summoned Hasbajrami to her office to meet with her and Lt. Soto. After he arrived, Soto said to him, “I served in IRAQ 1 year and there is no such thing that hemmed pants are required in your religion. You can have the sweatpants but you cant [sic] wear them outside the unit. Wear khaki pants when you come to dining hall after 4 pm count.” Id., ¶ 7. Blankenship remained silent and “[e]ventually, [Hasbajrami] took the sweatpants.” Id.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Expounding on the Twombly!Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121,130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Hasbajrami is proceeding pro se, his complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief can be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Analysis
1. The Complaint fails to state a claim under RFRA.
Hasbajrami avers that “Lt. Blankenship knowingly, intentionally, and maliciously violated AW Washington's orders, BOP Policy 5360.09 CN-1,” and his “religious right to practice [his] religion, RFRA.” ECF No. 6-1, ¶ 8 (minor alterations added). Blankenship counters that Hasbajrami's claim fails under RFRA because the facts alleged in his complaint do not support that he experienced a substantial burden on his religious beliefs. Alternatively, Blankenship argues that she is entitled to qualified immunity. The Court will address these arguments in turn.
a. Blankenship's conduct does not amount to a substantial burden on Hasbajrami's exercise of religion.
Under the RFRA, the federal “government shall not substantially burden a person's exercise of religion” unless “application of the burden ... is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that... interest.” 42 U.S.C. § 2000bb-1 (b)(l-2). The RFRA authorizes a cause of action and the recovery of money damages against government officials who violate its proscription. Tanzin v. Tanvir, 141 S.Ct. 486, 489-93 (2020). Once a plaintiff demonstrates that he has a sincere religious belief and that government action has substantially burdened the plaintiffs religious exercise, the burden shifts to the government official to demonstrate that “application of the burden” to the plaintiff “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l(a), (b). The RFRA directs that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.” 42 U.S.C. § 2000cc-3(g). Furthermore, “burdens on religious exercise need not be intentional, only substantial,” to be actionable under the RFRA. Mack v. Warden Loretto FCI, 839 F.3d 286, 305.
“Whether a burden is ‘substantial' under RFRA is a question of law, not a question of fact.” Real Alternatives, Inc. v. Sec'y Dep't of Health & Hum. Servs., 867 F.3d 338, 356 (3d Cir. 2017) (citation omitted). “The RFRA does not explain what constitutes a ‘substantial burden' on the exercise of religion.” Norwood v. Strada, 249 Fed.Appx. 269, 271 (3d Cir. 2007). For guidance, courts have examined the identical statutory language in the context of cases interpreting the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).Under that analogous statute, courts have recognized a “substantial burden” when:
RLUIPA does not apply to the actions of employees of federal prisons. Instead, it covers state governments or entities, their officials, or persons acting under color of state law. See Garraway v. Lappin, 490 Fed.Appx. 440, 443 n.2 (3d Cir. 2012) (per curiam) (citations omitted); Rogers v. United States, 696 F.Supp.2d 472, 486 (W.D. Pa. 2010) (citing 42 U.S.C. § 2000cc-5(4)) (other citations omitted).
1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007). See also Abdulhaseeb v. Calbone, 600 F.3d 1301,1315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burdened... when a government.. .prevents participation in conduct motivated by a sincerely held religious belief'). Given the identical language used in the RLUIPA and the RFRA and the similar objectives of those statutes, courts have applied the judicial definition of “substantial burden” under the RLUIPA in cases interpreting the RFRA. Mack, 839 F.3d at 304 n.103 (holding that the definitions of “substantial burden” in RFRA and RLUIPA are “analogous”).
Under the RLUIPA, “Congress defined ‘religious exercise' capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'” Holt v. Hobbs, 574 U.S. 352, 358 (2015) (quoting § 2000cc-5(7)(A)). Indeed, the “RLUIPA bars inquiry into whether a particular belief or practice is ‘central' to a prisoner's religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). Still, the RLUIPA's scope is not endless because the statute's text commands that not any or all burdens on religion are covered, only “substantial” ones. Washington, 497 F.3d at 281 (citing Civil Liberties for Urb. Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (noting that “[a]pplication of the substantial burden provision to a regulation inhibiting or constraining any religious exercise.. .would render meaningless the word ‘substantial'”)). The inmate “bears the burden to show that a prison institution's policy or official practice has substantially burdened the practice of that inmate's religion.” Id. at 277-78.
Under RLUIPA it is error to conclude that the government has not substantially burdened a prisoner's religion because of “the availability of alternative means of practicing religion.” Holt, 574 U.S. at 361-62. “RLUIPA's ‘substantial burden' inquiry asks whether the government has substantially burdened religious exercise..., not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Id.
Hasbajrami argues that Blankenship's conduct “substantially burdened [his] sincerely held religious beliefs ... that one should not walk on this Earth with his garments below his ankles lest he be walking in the depths of hell,” which “is a sincerely held belief of all adherents of the Islamic faith.” ECF No. 15, ¶ 1. See ECF Nos. 6-1, ¶ 2. Hasbajrami alleges that after Blankenship reprimanded him for having hemmed sweatpants, he “liv[ed] in psychological fear and had to wear khaki pants” until Chaplin Glogau told him five days later that he was “okay to wear the sweatpants.” ECF No. 6-1, ¶ 4. When Hasbajrami attempted to wear his sweatpants the next day, Blankenship confiscated them despite allegedly having been told by Chaplain Glogau, several superior officers, and Hasbajrami that the hemmed sweatpants complied with BOP policy. Hasbajrami retrieved his sweatpants two days later and presumedly began wearing them without issue, as he does not allege any further restriction on doing so.
Several courts have recognized the wearing of shortened pants as an Islamic practice. See e.g, Ealy v. Bechtold, 2021 WL 858834, at *6 (M.D. Pa. Mar. 8, 2021) (“Some Muslim communities prescribe rolling one's pants above the ankles during prayer.”); Garraway v. Lappin, 2012 WL 959422, at *16 (M.D. Pa. Mar. 21,2012), affd, 490 Fed.Appx. 440 (3d Cir. 2012) (recognizing hemmed pants as a part of Islamic religious dress, but upholding BOP policy prohibiting Muslim inmates from wearing hemmed pants because there is “a legitimate rational connection between the prison regulation and the governmental interest.”); Harnett v. Barr, 538 F.Supp.2d 511, 520 (N.D.N.Y. 2008) (substantial burden where Muslim Plaintiff was denied “requested permission to hem his pants above his ankles ... in accordance with his religious beliefs.”); Williams v. Leonard, 2013 WL 5467192, at *5 (N.D.N.Y. Mar. 15, 2013), report and recommendation adopted in part, rejected in part, 2013 WL 5466191 (N.D.N.Y. Sept. 30, 2013) (adopted on relevant grounds) (“Imam Eimi... stated: The religion of Islam commands that Muslims should not wear their garments below the ankle bone.”).
Blankenship argues that her conduct did not amount to a substantial burden because “[Hasbajrami] did not wear the hemmed sweatpants for, at most, a few days and, presumably, during that time was still able to wear hemmed khakis (just not hemmed sweatpants).” ECF No. 12, p. 6. In fact, the Complaint acknowledges that Blankenship prohibited only hemmed sweatpants and that Hasbajrami was permitted to wear other hemmed pants, including khakis. ECF No. 6-1, ¶ 4. Thus, Blankenship's prohibition was directed at the type of pants Hasbajrami was wearing, not the fact that they were hemmed in accordance with his religious practice. Indeed, Hasbajrami's own submissions show that his inability to wear hemmed sweatpants for seven days did not pressure him “to significantly modify his religious behavior and significantly violate[] his religious beliefs.” Washington, 497 F.3d at 279 n.5 (citing Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004)). He acknowledges that Blankenship expressly permitted Hasbajrami to wear hemmed khakis and that he did so throughout the time Blankenship prohibited hemmed sweatpants. Thus, Hasbajrami was never prohibited from wearing other readily available types of hemmed pants as part of his religious practice. Because Blankenship's prohibition was limited to sweatpants and permitted Hasbajrami to practice his religion by wearing other hemmed pants, Blankenship's actions imposed little or no burden on his religious practice. See e.g, Ealy v. Bechtold, 2021 WL 858834, at *6,10 (M.D. Pa. Mar. 8,2021) (no substantial burden on Muslim inmate's sincerely held religious belief where “(ijnmates are permitted to roll up their pant legs during Muslim services at the Chapel, but are not allowed to do so at other times because rolled clothing can be used to smuggle contraband and signal gang affiliation.”); Riley v. Muhammad, 2016 WL 2848994, at *2 (W.D. Pa. Apr. 4, 2016) (no substantial burden where inmate could wear hemmed pants but could not wear pants he merely rolled); Nunez v. Wertz, 2017 WL 3868524, at *6 (M.D. Pa. Sept. 5, 2017) (“DOC's policy of prohibiting Mr. Nunez from wearing his hem above his ankles at all times, not just during religious services, unduly burdens Plaintiffs ability to freely exercise his religion insofar as it prevents him from altering the length of his trousers for religious purposes.”) (emphasis added).And any impact of Blankenship's conduct upon Hasbajrami's religious practice was de minimus given the short duration of her prohibition on sweatpants and the availability of other hemmed pants. See, e.g., Norwood v. Strada, 249 Fed.Appx. 269, 272 (3d Cir. 2007) (finding that “a short [seven-day] denial of a [religious] diet during an emergency lock-down” was a “mere de minimis intrusion” and not a “substantial burden”; stating that “it is incredible that in such a short time period Norwood would have been forced to abandon one of the precepts of his religion, or that he would have felt substantial pressure to modify his beliefs”); Ford v. McGinnis, 352 F.3d 582, 594 n. 12 (2d Cir. 2003) (observing that courts generally find “the mere inability to provide a small number of meals commensurate with a prisoner's religious dietary restrictions ... to be a de minimis burden”); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (“the unavailability of a non-pork tray for Mr. Rapier at 3 meals out of 810 does not constitute more than a de minimis burden on Mr. Rapier's free exercise of religion”).
Analogous RFRA and First Amendment caselaw regarding inmates' right to religious dietary restrictions further undermines the viability of Hasbajrami's claims. Akin to Hasbajrami's asserted right to wear the religious clothing of his choosing are inmate claims asserting the right to eat the food of their choosing. But the Third Circuit “has repeatedly recognized that, in a prison setting, an inmate's First Amendment rights do not include an absolute right to a diet which meets his specific dietary preference,” and “has also acknowledged the ability of prison officials to impose some reasonable limitations on religious dietary observances, provided that those limitations do not create a substantial burden on the exercise of faith.” Njos v. Carney, 2017 WL 3224816, at *10 (M.D. Pa. June 21, 2017), report and recommendation adopted, 2017 WL 3217690 (M.D. Pa. July 28, 2017). See also Garraway v. Lappin, 490 Fed. Annx. 440. 442 (3d Cir. 2012) cert, denied, 133 S.Ct. 876 (U.S. 2013).
Hasbajrami also appears to argue that Blankenship's conduct forced him to forego his religious beliefs to receive the benefit of wearing “soft, comfortable sweatpants during his ‘leisure' time, such as when he goes to the gymnasium to participate in sports or just to relax.” ECF No. 15, ¶ 1. He adds that “[participation in any sporting event would be ‘inconvenient' in khaki pants.” ECF No. 15, ¶ 1. Yet, Blankenship did not prohibit Hasbajrami from participating in any activity or compel him to forego wearing hemmed pants in order to participate in activities. Although Blankenship's restriction may have made it less comfortable or convenient for him to engage in certain recreational or leisure activities, this discomfort in no way limited his religious exercise as he remained able to dress in accordance with his religious beliefs. See Morris v. Scheuer, 2023 WL 2088169, at *9 (W.D. Pa. Feb. 17, 2023) (inmate's religious belief was substantially burdened by having to choose between adhering to prison official's directive or receive a disciplinary infraction); Richardson v. Clarke, 52 F.4th 614, 624 (4th Cir. 2022) (Plaintiffs “sincere religious belief that he wear his kufi, a religious head covering, in all areas of Deerfield” was substantially burdened by state DOC policy “requir[ing] Richardson to either violate his religious beliefs-by refraining from wearing a head covering at all times-or risk discipline at Deerfield for violating the policy.”); Couch v. Jabe, 679 F.3d 197, 200-01 (2012) (“[R]emoving privileges in [an] effort to compel compliance, despite not physically forcing [an] inmate to cut his hair, qualifies as [a] substantial burden.”) (citing Warsoldier v. Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005)). Thus, Hasbajrami's allegations fail to demonstrate a violation of his rights under the RFRA.
b. Blankenship is also entitled to qualified immunity.
Blankenship argues in the alternative that she is entitled to qualified immunity on Hasbajrami's RFRA claim. She is correct. “[G]ovemment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See Mack v. Yost, 63 F.4th211, 227 (3d Cir. 2023) (holding as a matter of first impression that qualified immunity may be raised by a public official as an affirmative defense to federal statutory claims under the RFRA). The availability of the qualified immunity affirmative defense turns on two separate but related issues: (1) whether the plaintiff has alleged sufficient facts to “make out a violation of a constitutional [or statutory] right,” and (2) “whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). “[T]he party asserting the affirmative defense of qualified immunity” bears the burden of persuasion on both prongs. Mack, 63 F.4th at 227 (quoting Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014)). Because the facts alleged in the Complaint do not support a finding that Blankenship violated Hasbajrami's rights under RFRA, she is entitled to qualified immunity based on the first prong of the analysis., See e.g., Michaels v. New Jersey, 222 F.3d 118,123 (3d Cir. 2000) (“The district court did not err in concluding that Michaels did not demonstrate a violation of her constitutional rights,” and thus, that “all of the defendants are entitled to qualified immunity for those acts.”); Marshall v. Corbett, 2022 WL 875609, at *14 (M.D. Pa. Mar. 23, 2022) (“Furthermore, Defendants are entitled to qualified immunity because no violation of Plaintiffs constitutional rights occurred.”).
Furthermore, even if the facts alleged in the Complaint had supported that Hasbajrami had a right to wear hemmed sweatpants (as a preference over other types of hemmed pants) as part of his religious exercise and that the temporary prohibition of sweatpants substantially burdened his religious exercise, Blankenship would still be entitled to qualified immunity under the second prong of the analysis. “A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘ [t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would [have understood] that what he is doing violates that right.'"Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.'” Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 8 (2021) (emphasis supplied) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)) (internal quotation marks omitted). Thus, in this case, the Court may not define the right in broad terms, such as “a right not to have one's religious exercise substantially burdened.” “Rather, the right at issue must be framed ‘in a more particularized, and hence more relevant, sense.” Estep v. Mackey, 639 Fed.Appx. 870, 873 (3d Cir. 2016) (quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)); Wilson v. Layne, 526 U.S. 603, 615 (1999) (the court must first identify the right “at the appropriate level of specificity”). In other words, the right must be defined based on the facts and circumstances faced by the government official as alleged by the plaintiff. See Rivas-Villegas, 142 S.Ct. at 8; al-Kidd, 563 U.S. at 742; Estep, 639Fed. Appx. at873.
Once the court has identified the asserted right at the appropriate level of specificity, it then looks first to Supreme Court decisions to determine whether the right was clearly established at the time of the conduct at issue. See Mammaro v. N.J. Div. of Child Protection and Permanency, 814 F.3d 164, 169 (3d Cir. 2016). Absent factually similar Supreme Court precedent, a court may rely on a ‘“robust consensus of cases of persuasive authority' in the Court[s] of Appeals.” Taylor v. Barkes, 575 U.S. 822, 826 (2015) (per curiam). Because district court decisions are “not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case,” they are generally insufficient to support a clearly established right in the qualified immunity context. Camreta v. Greene, 563 U.S. 692, 708 n.7 (2011) (quoting 18 J. Moore et al., Moore's Federal Practice § 134.02(1] [d], p. 134-26 (3d ed.2011)); Boofer v. SC Dep't of Corr., 855 F.3d 533, 538 n.l (4th Cir. 2017).
Here, no Supreme Court precedent or consensus of federal appellate authority involving a claim factually similar to Hasbajrami's claim exists such that the right asserted by him could be considered to have been clearly established at the time of Blankenship's actions. See e.g., Blalock v. Smith, 2016 WL 11004718, at *6 (N.D.N.Y. Aug. 24, 2016), report and recommendation adopted, 2018 WL 1399339 (N.D.N.Y. Mar. 19, 2018) (“neither the Supreme Court nor the Second Circuit has ever ruled that a prisoner's right to free exercise encompasses the right to wear pants at any particular length.”). Accordingly, Blankenship is entitled to qualified immunity on Hasbajrami's RFRA claim.
2. The Complaint fails to allege a retaliation claim against Lt. Blankenship.
Hasbajrami additionally avers that “[a]s retaliation [Blankenship] had [his] unit officer J. Boneto search [his] cell and threw [sic] everything on the floor.” ECF No. 6-1, ¶ 3. Hasbajrami does not expressly assert a cause of action against Blankenship for her alleged retaliatory conduct. Nevertheless, given Hasbajrami's pro se status, the Court will construe the Complaint liberally and determine whether its factual allegations support a First Amendment retaliation claim. See Haines, 404 U.S. at 520-521; Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, 695 (7th Cir. 1999) (a pro se litigant “does not necessarily have to point to the proper statute in order to state a cause of action to which he is entitled relief”). To state a retaliation claim, Hasbajrami must plausibly allege facts to support that (1) he engaged in protected activity; (2).officials took an adverse action against him; and (3) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). See also Golden v. Perrin, 2022 WL 2791186, at *4-5 (W.D. Pa. July 15, 2022).
Here, Hasbajrami alleges that Blankenship directed another officer to search his cell and throw “everything” on the ground as retaliation for expressing his concerns to her superiors. But Hasbajrami's allegations of Blankenship's retaliatory conduct do not amount to an adverse action as contemplated by the First Amendment. An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). “Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at 224 (internal quotation marks and citation omitted). Nevertheless, “Third Circuit precedent is clear: ‘the search of a cell is not a sufficient adverse action for purposes of a [First Amendment] retaliation claim, irrelevant of whether it is' done in response to a plaintiffs constitutionally protected conduct.” Beale v. Overtone, 2017 WL 4276747, at *2 (W.D. Pa. Sept. 27, 2017) (quoting Banks v. Rozum, 2015 WL 1186224, at *7 (W.D. Pa. Mar. 13, 2015), affd, 639 Fed.Appx. 778 (3d Cir. 2016). See also Kokinda v. Pennsylvania Dep't of Corr., 2016 WL 7029385, at *1 (W.D. Pa. Oct. 31, 2016), report and recommendation adopted, 2016 WL 7031778 (W.D. Pa. Dec. 1, 2016) (Plaintiffs allegations that two prison officials “ordered that [his] cell be ‘searched and trashed' by two unknown DOC officers ... did not constitute adverse action for purposes of a First Amendment retaliation claim.”); Curtician v. Kessler, 2010 WL 6557099, at *7 (W.D. Pa. Nov. 29, 2010), report and recommendation adopted, 2011 WL 1542682 (W.D. Pa. Apr. 25, 2011) (“courts have consistently held that a cell search is not an “adverse action” for retaliation purposes.”). Because Blankenship's alleged retaliatory conduct falls well short of constituting an adverse action, Hasbajrami's Complaint fails to state a retaliation claim.
D. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, it would be futile to allow Hasbajrami to amend his RFRA claim against Blankenship. The facts alleged in the Complaint demonstrate that Hasbajrami cannot demonstrate a substantial burden on his religious exercise and, even if he could, Blankenship would be shielded by qualified immunity. Likewise, the facts alleged in the Complaint demonstrate that no amendment could cure the deficiencies in the First Amendment retaliation claim against Blankenship based on the alleged search of Hasbajrami's cell. Accordingly, his RFRA and retaliation claims against Blankenship should be dismissed with prejudice.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Blankenship's motion to dismiss be GRANTED.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed. R Civ. P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187,194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).