Opinion
1:20-cv-00084
12-02-2021
AGRON HASBAJRAMI Plaintiff v. RICH GLOGAU Defendant
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ECF NO. 30
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Defendant's Motion to Dismiss at ECF No. 30 be GRANTED.
II. Report
A. Introduction
Plaintiff Agron Hasbajrami (Hasbajrami), representing himself, commenced this civil rights action against Rich Glogau (Glogau), the supervisory chaplain at the Federal Correctional Institution at McKean (FCI-McKean), where Hasbajrami is incarcerated. See ECF No. 2. Hasbajrami claims Glogau violated his rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq., when Glogau failed to open the prison chapel to allow him to attend a group religious service on Eid-ul-Adha, a Muslim religious holiday. ECF No. 4.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.
Glogau has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Hasbajrami's Complaint for failure to state a claim and filed a supporting brief. ECF Nos. 31, 32. Hasbajrami filed a brief in opposition. ECF No. 33. Glogau filed a reply brief. ECF No. 35. The motion is ripe for disposition.
B. Allegations of the Complaint
The Court accepts the following factual allegations of Hasbajrami's Complaint as true for purposes of the Defendant's motion to dismiss. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). Hasbajrami is a practicing Muslim. ECF No. 4-1, ¶ 3. Glogau is an employee of the Bureau of Prisons (BOP) and responsible for “chaplaincy operations” at FCI-McKean. Id., ¶ 1. At the beginning of 2019, he posted a bulletin for prisoners' information called, “Religious Holy days of Work Proscription, Public Fast, & Ceremonial Meals.” Id., ¶ 2; ECF No. 4-3. This bulletin listed Eid-ul-Adha with a work proscription date of August 11, 2019. In Februaiy or March of 2019, Hasbajrami completed a sign-up sheet to participate in multiple Muslim religious holidays, including Eid-ul-Adha. ECF No. 4-1, ¶¶ 5-6. Eid-ul-Adha, according to Hasbajrami, signifies the end of the religious pilgrimage (also called the “haj” or “hajj”) to Mecca, a holy site of Islam. Id., ¶ 7. Muslims perform the “Eid Prayer” on this day. Id. If the prayer does not occur “in the morning, ” it is “invalid.” Id. Eid Prayer must also occur in a congregate setting. ECF No. 4-2, ¶ 10.
On each Friday night, a call-out sheet is posted in the prison unit listing various scheduled events or other reasons for inmates to leave their cells over the weekend. ECF No. 4-1, ¶ 8. On Friday, August 9, 2019, Hasbajrami was listed on the call-out sheet for Sunday, August 11, 2019 for the Eid-ul-Adha holiday. ECF No. 4-2, ¶ 9. But Glogau did not show up to open the chapel that Sunday morning, and Hasbajrami discovered the chapel closed when he arrived. Id., ¶ 10. Asa result, Hasbajrami could not participate in congregate Eid Prayer. Id. FCI-McKean was not in lockdown status or facing a staff shortage. Id., ¶ 11.
Hasbajrami's brief in opposition to the motion to dismiss states that he and other prisoners were also denied participation in communal Eid-ul-Adha prayer on July 31, 2020, but this assertion is not properly before the Court „ because “ [i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss. Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal marks and citation omitted); Bracken v. Cty. of Allegheny, 2017 WL 5593451, at *2 (W.D. Pa. Nov. 21, 2017) (“A pleading may not be amended by a brief in opposition to a motion to dismiss.”).
Glogau does not work Sundays, but he had ample time to arrange for another staff member to accommodate Eid Prayer and, as supervisory chaplain, he was responsible for doing so. Id., ¶¶ 12-14. Hasbajrami contends that Glogau's “failure.. .to show up or make any arrangement for Eid Prayer, clearly exhibits that he intentionally and maliciously violated [his] religious rights.” Id., ¶ 15. Hasbajrami seeks punitive damages, an order that Glogau be retrained, and a prospective injunction that no BOP official retaliate against him. ECF No. 4, p. 3.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, 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 Ashcroft v. Iqbal, 556 U.S. 662 (2009). 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 (1957)). In making this determination, 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. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. 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 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. Twombly, 550 U.S. at 555. See also 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. MilbergFactors, 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.
While the foregoing principles apply to all complaints in federal court, pro se complaints, “however inartfully pleaded, ” are 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 complaint to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
D. Analysis
1. The Religious Freedom Restoration Act
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-l(b)(l-2). The RFRA authorizes a cause of action and the recovery of money damages against government officials who violate its proscription. See Tanzin v. Tanvir, __ U.S. __, 141 S.Ct. 486, 489-93 (2020). Once a plaintiff demonstrates that he has a sincere religious belief that government action has substantially burdened, 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 (3d Cir. 2016).
The RFRA does not explain what constitutes a “substantial burden” on the exercise of religion. 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 that a “substantial burden” “exists where: 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). Given the identity of language used in the RLUIPA and the RFRA and the similar objectives of those statutes, the judicial definition of substantial burden under the RLUIPA has consistently been applied in cases interpreting the RFRA. See Mack, 839 F.3d at 304 n.l 03 (holding that the definitions of “substantial burden” in RFRA and RLUIPA are “analogous”).
RLUIPA does not apply to 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 m2 (3d Cm 2012) (per curiam) (citations omitted); Rogers v. United States, 696 F.Supp.2d 472, 486 (W.D. Pa. 2010) (citing U.S.C. § 2000cc-5(4)) (other citations omitted).
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 (3d Cir. 2007) (citing Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (stating, in the land use context, that “[application 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.” Washington, 497 F.3d at 277-78.
Under RLUIPA it is error to conclude the government has not substantially burdened a.prisoner s religionbec
Glogau argues that Hasbajrami “has not plausibly alleged that being unable to access the chapel on just one occasion amounts to a ‘substantial burden' on the free exercise of his religion.” ECF No. 31, p. 1 (emphasis in original). In the alternative, Glogau contends that he is entitled to qualified immunity. Id. Each of Glogau's arguments has merit. Because each point raised by Glogau is properly considered within the qualified immunity analysis, the Court will address them in that context.
2. The Defense of Qualified Immunity Applies to RFRA Claims
“[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). While qualified immunity is more commonly addressed as an affirmative defense to constitutional claims, it is also properly raised as a defense to federal statutory claims under the RFRA. See Pauley on behalf of Asatru/Odinist Faith Cmty. v. Samuels, 2019 WL 4600195, at *10-11 (W.D. Pa. Sept. 23, 2019), appeal filed, No. 19-3666 (3d Cir. Nov. 15, 2019); Lebron v. Rumsfeld, 670 F.3d 540, 557 (4th Cir. 2012); Weinberger v. Grimes, 2009 WL 331632, at *5 (6th Cir. Feb. 10, 2009) (slip copy); Padilla v. Yoo, 678 F.3d 748, 757, 768-69 (9th Cir. 2012); Davila v. Gladden, 777 F.3d 1198, 1209-12 (11th Cir. 2015), cert, denied sub nom. Davila v. Haynes, 557 U.S. 820 (2015); Walden v. Ctrs for Disease Control and Prevention, 669 F.3d 1277, 1285 (11th Cir. 2012) (“The defense of qualified immunity applies not only to constitutional claims, but also to claims brought for alleged violations of RFRA.”); Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (per curiam) (holding, in the alternative, that federal officials were entitled to qualified immunity against claims brought for violations of RFRA); see also Tanzin, 141 S.Ct. at 492 n.* (noting in dicta, “Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA.”). Accordingly, the Court will examine whether qualified immunity shields Glogau from liability based on the allegations of the Complaint in this case.
3. Qualified Immunity Standard
“Qualified immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). This doctrine protects public officials “from undue interference with their duties and from potentially disabling threats of liability.” Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). 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). When conducting this two-part inquiry, a court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis” to address first “in light of the circumstances of the particular case at hand.” Pearson, 555 U.S. at 236. If a court finds that a claimed right was not clearly established at the time of the events alleged, it need not definitively decide whether a constitutional violation occurred. Id.
In cases presenting a “rather nuanced constitutional claim, ” it is often prudent to first decide the second prong of the analysis-i. e., whether the right at issue was clearly established. Rogers v. United States, 696 F.Supp.2d 472, 502 (W.D. Pa. 2010) (citing Pearson, 555 U.S. at 236-37). But here, the pleadings favor that the Court should first decide whether the facts alleged in the Complaint state a claim under the RFRA. If they do not, the Court must determine whether the deficiencies are due to a lack of factual specificity such that they may possibly be cured by amendment. Only when the Court is confident that it has been presented with the plaintiff's fully articulated constitutional or statutory claim can it properly apply the “clearly-established law” prong and definitively rule whether qualified immunity shields the defendant from suit. This is particularly true in a case like this one where the plaintiff is proceeding pro se on his original complaint.
a. Sufficiency of Allegations to State a RFRA Claim
Here, the Complaint alleges that Glogau did not open the prison chapel on a single occasion and, in failing to do so, he denied Hasbajrami the ability to participate in the Eid-ul-Adha ceremony. In evaluating whether Hasbajrami's allegations state a RFRA claim, the question is not whether Islam requires participation in the Eid-ul-Adha ceremony. See Banks v. Sec 'y Pa. Dep't of Corr., 601 Fed.Appx. 101, 105 (3d Cir. 2015) (holding that “District Court erred in rejecting [plaintiff s] RLUIPA claim on the basis that Islam did not require participation in a feast meal”). The Court accepts, as it must, Hasbajrami's allegations that Eid-ul-Adha signifies the end of the religious pilgrimage (or hajj) to Mecca, that Muslims perform the “Eid Prayer” on this day, and that the prayer is valid only if performed in the morning and in congregation. ECF No. 4-1, ¶ 7; ECF No. 4-2, ¶ 10. There is no question that the Complaint is sufficient to support that Hasbajrami's adherence to the Eid-ul-Adha ceremony represented a sincerely held religious belief within the meaning of the RFRA. The dispositive issue is whether his allegations are adequate to demonstrate that Glogau's conduct imposed a “substantial burden” upon Hasbajrami's exercise of his religion. Based upon analogous cases, the Court should hold that they do not.
In Rogers v. United States, this Court held that the plaintiffs had not shown a substantial burden on their religious free exercise when-as a part of their celebration of Eid-they were denied halal beef on one occasion. 696 F.Supp.2d 472, 487-88 (W.D. Pa. 2010). In Rogers, the plaintiffs alleged and submitted affidavits attesting that the defendants had refused to provide Halal beef and had attempted “to coerce and force Plaintiffs and others into rescheduling the Eid and into accepting food” not appropriate for “the Eid-ul-Adha.” Id. at 487 (record citation omitted). The plaintiffs further attested that the Eid-ul-Adha “is the holiest event in the Islamic faith” and consists of three components: “1) the community Salat (prayer), 2) the Khutab (sermon), and 3) the sacrifice or eating of camel, lamb, or beef.” Id. (record citation omitted). The plaintiffs further explained that “if anyone of those components that make up Eid-ul-Adha is missing then the Eid-ul-Adha is incomplete... [and] for that event you also miss the blessings that come with performing those obligations which you can never again gain in life.” Id. (record citation omitted). Even so, this Court held that these facts did not support the existence of a substantial burden on the plaintiffs' religious exercise, explaining:
[T]he denial of a single meal has been held to not constitute a substantial burden on the exercise of one's religion. Pratt v. Corrections Corp, of America, 267 Fed.Appx. 482, 483 (8th Cir.2008) (RFRA claim fails “because he did not show that defendants placed a ‘substantial burden' on his ability to practice his religion by failing to provide him with Halal meat” instead of a vegetarian diet). See also Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 810-12 andn. 8 (8th Cir.2008) (prison's meal plan regulations did not substantially burden Muslim inmate s free exercise rights where inmate had access to only vegetarian entrees, and some of those entrees he had to pay for himself); Abdul-Malik v. Goord, 1997 WL 83402, at *5-7 (S.D.N.Y.1997) (holding that the failure to provide Muslim inmates with Halal meat several times per week did not substantially burden their exercise of religion under RFRA).
Thus, Plaintiffs have failed to establish a prima facie RFRA claim regarding the denial of Halal beef for the observance of the January 2006 Eid-ul-Adha and summary judgment should be granted in favor of Defendants with regard to this claim.Id. at 487-88.
Likewise, in Jefferson v. Betti, the U.S. District Court for the Middle District of Pennsylvania held that a Muslim inmate did not experience a substantial burden on his religious exercise when no group prayer services were available for a two-and-a-half-week period. Jefferson v. Betti, 2021 WL 4316953, at *7-8 (M.D. Pa. Aug. 31, 2021), report and recommendation adopted, 2021 WL 4306132 (M.D. Pa. Sept. 22, 2021). The court wrote,
I construe this as an argument that Defendants are entitled to summary judgment because the unavailability of an Imam and group prayer services for the first two weeks Plaintiff was housed at Lackawanna County Prison is not a “substantial” burden on Plaintiffs exercise of religion. I agree that a two-week period where there was no Imam or group worship services at the prison does not pose a substantial burden on Plaintiffs exercise of religion. See e.g. Gibson v. Heary, 2021 WL 854736 at *6 (W.D. N.Y. Mar. 5, 2021) (noting that the periodic denial
of religious meals to a state inmate was not a substantial burden on the exercise of religion as required under the First Amendment and RLUIPA).
Because this two and one-half week period where no Imam came to the facility did not pose a substantial burden, Defendants are entitled to summary judgment as to this claim.Id. See also Chila v. Camden Cty. Corr. Facility, 2018 WL 1726260, at *1, *7 (D.N.J. Apr. 10, 2018) (plaintiff failed to state a claim under RLUIPA because Plaintiff experienced no substantial burden when the defendants confiscated her head covering and hijab and denied her access to a Quran); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (holding unavailability of pork-free meals on three out of 810 occasions constituted only a de minimis burden on prisoner's religion and was not a violation of Free Exercise Clause), Omar v. Casterline, 414 F.Supp.2d 582, 593 (W.D. La. 2006) (holding that “the refusal to hold three meals because of Ramadan states only a de minimis imposition on ... free exercise rights”).
The Third Circuit's unpublished opinion in Banks does not undermine the holdings in Rodgers and Jefferson. In Banks, the Court of Appeals addressed policies and practices under which the Pennsylvania Department of Corrections refused to provide “special foods and diets to indigent Muslim inmates for the celebration of major religious holidays. Banks, 601 Fed.Appx. at 104. Thus, the Court of Appeals in Banks was confronted with an ongoing and systemic practice that reasonably could be found to substantially burden the affected inmates exercise of their religion. Id. See also Lovelace v. Lee, 472 F.3d 174, 187-89 (4th Cir. 2006) (concluding that a prisoner's religious exercise rights were substantially burdened when a disciplinary policy excluded him from special Ramadan meals during nearly the entire holy month and, during twenty-four of the thirty days of Ramadan, excluded him from participating in daily group prayers). In contrast, in Rodgers, Jefferson, and the present case, the plaintiffs faced a single or short-lived failure to accommodate a religious ceremony or practice.
The Court acknowledges that certain aspects of the Court of Appeals' decision in Norwood v. Strada, 249 Fed.Appx. 269 (3d Cir. 2007) (per curiam) may be read to support the granting of Glogau's motion to dismiss while others may be read to support denying the motion. In Norwood, the Court of Appeals held that the deprivation of seven religiously certified (halal) meals over three days was a de minimis intrusion on religious rights, not a substantial burden. 249 Fed.Appx. at 270-72. In so holding, however, the Court of Appeals distinguished Ford v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003), in which the Court of Appeals for the Second Circuit indicated that a prisoner's religious beliefs were substantially burdened by not being served one meal for the Eid ul Fitr feast. In Ford, the Second Circuit noted that the feast is sufficiently unique in its importance within Islam to distinguish the present case from those in which the mere inability to provide a small number of meals commensurate with a prisoner s religious dietary restrictions was found to be a de minimis burden.” Id. at 594 n.12.
Thus, the case law is not entirely definitive concerning whether the failure to accommodate a religious ceremony or practice on a single occasion may be found to substantially burden an inmate's exercise of religion. However, the weight of authority in this Circuit answers this question in the negative. Accordingly, it is recommended that the Court grant Glogau's motion to dismiss Hasbajrami's Complaint.
Although the current weight of authority favors dismissal of Hasbajrami's RFRA claim, the Court of Appeals unpublished decision in Norwood, specifically its citation to the Second Circuit's decision in Ford, may be construed as recognizing that a ceremony or practice may be of sufficient religious significance to the plaintiff that even a single deprivation of that ceremony or practice will constitute a significant burden upon the exercise of his religion. See Norwood, 249 Fed.Appx. at 72 (citing Ford, 352 F.3d 582, 593-94). Here, however, Hasbajrami's Complaint does not allege sufficient facts regarding the religious significance of the Eid-ul-Adha ceremony to him and, in any event, as discussed below, dismissal is required based on the absence of clearly established law to place Glogau on notice that his conduct was illegal.
b. Clearly Established Law
As the foregoing discussion illustrates, Hasbajrami's RFRA claim for money damages is also subject to dismissal based on qualified immunity because the right upon which Hasbajrami bases his claim was not clearly established on August 11, 2019. A right is considered clearly established if it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). See also Mullenix v. Luna 577 U.S. 7, 11-12 (2015). Courts “must define the right allegedly violated at the appropriate level of specificity.'” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citations omitted). Courts must resist the temptation to define “clearly established law at a high level of generality.” Id. “Rather, the right at issue must be framed ‘in a more particularized, and hence more relevant, sense, in light of the case's specific context, not as a broad general proposition.'” 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)).
Based on the allegations of the Complaint, the right asserted by Hasbajrami is whether a prison official's knowing failure to make a worship location available on a single occasion to accommodate a prisoner's communal religious ceremony or practice places a substantial burden on the inmate's exercise of his religion. “To determine if a right is clearly established, we first look for Supreme Court precedent.” Mammaro v. N.J. Div. of Child Protection and Permanency, 814 F.3d 164, 169 (3d Cir. 2016). While the Supreme Court has spoken on the meaning of a “substantial burden” upon religion, see Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 691 (2014), and addressed aspects of the RFRA, see Gonzalez v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), and the RLUIPA, see Holt v. Hobbs, 574 U.S. 352 (2015), it has not addressed a right analogous to the one presented in this case or articulated principles that otherwise constitute clearly established law concerning such a right.
In the absence of on-point 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). The Supreme Court has recently indicated, however, that decisions of the federal Courts of Appeals may not be sufficient to create clearly established law for purposes of qualified immunity. See Rivas-Villegas v. Cortesluna, No. 20-1539, 2021 WL 4822662, at *2 (Oct. 18, 2021) (per curiam) (“Even assuming that controlling Circuit precedent clearly establishes law for purposes of § 1983...”). In any event, no robust consensus has emerged among decisions of the Courts of Appeals such that the right Hasbajrami asserts here can be recognized as clearly established.
No precedential decision of the Court of Appeals for the Third Circuit addresses the right asserted in this case. While the Court of Appeals' decisions in Norwood and Banks address issues of “substantial burden” upon inmates' religious exercises, neither is sufficiently on point to provide definitive guidance in this case. Furthermore, these “unpublished cases ... are not binding [and] cannot establish a right.” El v. City of Pittsburgh, 975 F.3d 327, 340-41 (3d Cir. 2020) (citations omitted).
Decisions from other federal Courts of Appeals reveal a divide over whether a failure to accommodate a single religious ceremony or practice amounts to a substantial burden on the exercise of religion. For example, in the context of a First Amendment “free exercise” claim, the Second Circuit held that a material issue of fact existed concerning whether an inmate denied the “Eid ul Fitr” feast on a single occasion experienced a “substantial burden” on his religious exercise. See Ford, 352 F.3d at 592-94. The court in Ford denied qualified immunity, relying on Second Circuit precedent that “clearly established that a prisoner has a right to a diet consistent with his or her religious scruples, ” and that it was “well established that a prisoner's free exercise right to participate in religious services is not extinguished by his or her confinement in special housing or keeplock.” Id. at 597 (citations omitted). See also Shakur v. Selsky, 391 F.3d 106, 110, 120 (2d Cir. 2004) (missing the religious feast of Eid ul Fitr once amounted to a substantial burden under RLUIPA and Free Exercise Clause).
In contrast, the Fifth Circuit has held that “[a] prisoner's constitutional right to freedom of religion is not violated by the occasional inability to attend services.” Williams v. Bragg, 537 Fed.Appx. 468, 468-69 (5th Cir. 2013) (per curiam) (cancellation of “weekly Muslim congregational prayer services on May 20, 2011, and on several other occasions” was not a “substantial burden” under RFRA) (citations omitted). See also Green v. McKaskle, 788 F.2d 1116, 1126 (5th Cir. 1986) (occasionally preventing an inmate from attending Baptist services, including the deprivation of an additional service on the same day, did not violate the First Amendment); White v. Labrado, 51 Fed.Appx. 929, 929 (5th Cir. 2002) (per curiam) (no substantial burden under RFRA to deny two weeks of Jewish religious services). Decisions from other federal circuit courts of appeals have also found that denying a communal religious service on a single occasion presents no substantial burden. See Saddiq v. Ryan, 703 Fed.Appx. 570, 571 (9th Cir. 2017) (Mem.) (no substantial burden to deny a Muslim prisoner no cost religiousholiday meal or require that he follow a policy requiring thirty-days' notice to participate in congregational prayer for Eid-ul-Adha, affirming dismissal). Cf. Camacho v. Shields, 368 Fed.Appx. 834, 835 (9th Cir. 2010) (per curiam) (single interruption of inmate's prayers not a substantial burden under RLUPIA and defendants were entitled to qualified immunity because “no clearly established right...was violated”); Kramer v. Pollard, 497 Fed.Appx. 639, 643 (7th Cir. 2012) (“permitting prison administrators to deny group worship where no volunteer or chaplain is readily available to lead services, a reasonable government official would not have known the official was violating clearly established law”).
As the foregoing cases demonstrate, no Supreme Court precedent or robust consensus among the Courts of Appeals placed Glogau on notice that his one-time failure to open the prison chapel for the Eid-ul-Adha holiday was unlawful. See Hope, 536 U.S. at 739 (emphasizing that “qualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful”). See also Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”). Accordingly, Glogau is entitled to qualified immunity on the facts alleged in this Complaint.
4. The Complaint Fails to State Other Federal Constitutional or Statutory Claims.
Hasbajrami also argued in his brief in opposition that his First Amendment rights were violated. See ECF No. 33, p. 3. The Supreme Court recognized an implied right of action for damages against federal officials who violated Fourth Amendment rights in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Since Bivens, however, the Supreme Court has extended its implied right of action to few other constitutional violations. See Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment gender discrimination claim by fired federal employee); and Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment claim based on failure to provide needed medical care to federal prisoner). The Supreme Court has said that further “expanding the Bivens remedy is now a ‘disfavored' judicial activity, ” instructing federal courts to exercise caution before extending the remedy to claims that are meaningfully different than “the three Bivens claims the Court has approved in the past....” See Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 s 1860 (2017). Relevant here, no Bivens action exists for First Amendment Free Exercise claims because the Court of Appeals for the Third Circuit has held that RFRA provides an alternative, comprehensive remedial scheme for substantial burdens on religious exercise. See Mack v. Warden Loretto FCI, 839 F.3d 286, 304-05 (3d Cir. 2016). Thus, Hasbajrami has no First Amendment cause of action under Bivens. Likewise, he has no claim under RLUIPA. See supra, n.3.
5. Leave to Amend
When a civil rights complaint is subject to dismissal, the Court must determine whether further amendment could cure pleading defects or whether this would be futile. The district court “must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 246 (3d. Cir. 2008); see also Dickson v. Ennis, 2021 WL 2322403, at *6 (W.D. Pa. June 7, 2021) (slip copy) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). Where, as in this case, the Court cannot rule out the possibility that amendment may support the violation of a clearly established right sufficient to defeat the qualified immunity defense, leave to amend should be provided. See Croft v. Donegal Twp., 2021 WL 1146285, at *6 (W.D. Pa. Mar. 25, 2021) (“because the Court is not aware of precedent from the Third Circuit permitting denial of leave to amend where a complaint plausibly states a claim but falls short of alleging a violation of a clearly established right, out of an abundance of caution, the Court will grant Plaintiffs leave to file a third amended complaint to attempt to cure the deficiencies identified above with respect to Count I.”). Accordingly, out of an abundance of caution, the Court should grant Hasbajrami leave to file an amended complaint.
6. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court grant Defendant's motion at ECF No. 30 to dismiss Plaintiffs complaint.
III. Notice
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiff s failure to file timely objections will constitute a waiver of his appellate rights.
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seof “the availability of alternative means of practicing religion.” Holt, 574 U.S. at 361-62. RLUIPA s substan 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.