Harnage

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

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JAMES A. HARNAGE, MARCELINO B. LASALLE, :

and JAMES DAVENPORT-HERNANDEZ, :

:

Plaintiffs, :

:

v. : 3:24-CV-1858 (SFR)

:

JESUS GUADARRAMA, et al, :

:

Defendants. :

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RULING ON DEFENDANTS’ MOTION TO DISMISS

Plaintiffs James Harnage, Marcelino LaSalle, and James Davenport-Hernandez are

serving sentences of incarceration in the custody of the Connecticut Department of Correction

(“DOC”). Plaintiffs are observant Jews; they challenge a DOC policy that prohibits male

prisoners from purchasing a certain hair removal product. This Opinion resolves Defendants’

Motion to Dismiss, ECF No. 51. For the reasons stated below, the Motion to Dismiss is denied.

I. BACKGROUND

A. Factual Background

The following facts from the Complaint are accepted as true for purposes of this

Opinion.

Plaintiffs are men who practice, and are registered as adherents to, the Jewish faith.

Compl. ¶¶ 14-15, ECF No. 1. Consistent with their faith, Plaintiffs “are supposed to be

restricted from placing a razor to their face and neckline.” Id. ¶ 38.

At the time they filed the Complaint, Plaintiffs were all housed at MacDougall, a male

correctional facility. Id. ¶¶ 1-3. All nine Defendants are allegedly involved in making products

available to the inmate population. Id. ¶ 16. Plaintiffs have all purchased items at the

commissary. Id. ¶ 17. As men in the custody of the DOC, they are subject to restrictions on

their commissary purchases of scented soap, shampoos, vent or styling hairbrushes, shower

caps, foam rollers, hair dryers, body wash, and hair removal products. Id. ¶¶ 18-19, 26.

Plaintiffs allege that the restrictions are unreasonable and based solely on consideration of their

gender. Id. ¶ 18.

Women in the custody of DOC are not subject to the same commissary restrictions. Id.

¶ 20. Plaintiffs complain that they are restricted from purchasing Nair Hair Remover Cream

(“Nair”). Id. ¶ 21. Pursuant to the commissary list, male inmates are limited to purchasing

Magic Shave, which is a hair removal product that is harsher on the skin than Nair. Id. ¶ 22.

Many incarcerated individuals with lighter skin tones have reported severe skin irritation

resulting from their use of Magic Shave. Id. ¶ 23. According to the Complaint, Magic Shave

“causes severe burning and irritation that persists for days, and even weeks.” Id. ¶ 40. The

Complaint contends that Defendants’ policy of denying hair remover cream “effectively forces

[Plaintiffs] to give up their religious freedoms or endure the needless pain and suffering of the

Magic Shave’s [e]ffects on their skin.” Id. ¶ 41. Nonetheless, Defendants refuse without any

legitimate or reasonable penological reason to permit Plaintiffs to purchase the same hair

removal product that is available to female inmates. Id. ¶ 24.

B. Procedural History

Plaintiffs initiated the present action by filing a Complaint on November 4, 2024.

Compl., ECF No. 1. On November 26, 2024, the Court afforded each Plaintiff leave to proceed

in forma pauperis. ECF Nos. 13-15.

On May 7, 2025, I issued an Initial Review Order under 28 U.S.C. § 1915A. Initial

Review Order (“IRO”), ECF No. 17. I determined that Plaintiffs alleged sufficient facts to

proceed on their section 1983 claims of Fourteenth Amendment Equal Protection Clause

violation for gender discrimination and First Amendment Free Exercise Clause violation

against all Defendants in their official and individual capacities. I also permitted Plaintiffs to

proceed on their claim under the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc-1, against all Defendants in their official capacities only. Id.

I declined to exercise supplemental jurisdiction over Plaintiffs’ Connecticut constitutional

claims. Id.

On November 10, 2025, Defendants filed a motion to dismiss the Complaint in its

entirety under Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss, ECF No. 51; Mem.

in Supp. of Mot. to Dismiss (“Defs.’ Mem.”), ECF No. 51-1. Plaintiffs filed an objection to

the motion to dismiss on December 16, 2025. Pls.’ Mem. of L. in Opp. to Mot. to Dismiss

(“Pls.’ Mem.”), ECF No. 60.1

Moreover, on May 20, 2026, I granted Plaintiffs’ Motion to Appoint Counsel. ECF No.

149.

II. LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6), a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although

1 The parties have continued to engage in discovery during the pendency of the Motion to Dismiss.

Although I do not recount these details here, I note that there has been significant discovery-related

motions practice.

this “plausibility” requirement is “not akin to a probability requirement,” it “asks for more than

a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. I must “draw

all reasonable inferences in [the plaintiff’s] favor, assume all well-pleaded factual allegations

to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v.

Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). However, I am not bound to accept

“conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v.

Henneman, 517 F.3d 140, 149 (2d Cir. 2008).

III. DISCUSSION

As noted, Plaintiffs are proceeding in this case for violations of their rights under the

Fourteenth Amendment Equal Protection Clause and the First Amendment Free Exercise

Clause against Defendants in their individual and official capacities, and under RLUIPA

against Defendants in their official capacities. See IRO, ECF No. 17.

Defendants seek dismissal of the Complaint in its entirety and primarily argue that all

Defendants are entitled to qualified immunity. See Defs.’ Mem. 9-10. Within their discussion

of qualified immunity, Defendants posit: “The personal involvement requirements inform

whether plaintiffs even stated a claim against the supervisory defendants.” Id. at 9.

Defendants’ Motion fails to address Plaintiffs’ claims for official capacity relief under

42 U.S.C. § 1983 and RLUIPA. Thus, I address only whether Plaintiffs’ individual capacity

claims under 42 U.S.C. § 1983 survive the motion to dismiss.2

2 Claims for official capacity relief do not require a showing of a defendant’s personal involvement.

See Smith v. Muccino, 223 F. Supp. 2d 396, 403 (D. Conn. 2002) (“[P]ersonal involvement is not

a prerequisite to injunctive relief, and such relief may be had against officers in their official

capacity.”). Nor does qualified immunity apply as a defense for a claim against a defendant in his

or her official capacity. See Rossy v. City of Buffalo, No. 23-CV-7296, 2025 WL 816301, *5 (2d

A. Personal Involvement

I briefly review the standards for Plaintiffs’ constitutional claims. Plaintiffs seek

monetary damages from Defendants and must, therefore, plead facts sufficient to suggest that

“each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting

Iqbal, 556 U.S. at 67). The personal involvement of a supervisor may be established by direct

participation in a constitutional violation or by showing that the official-defendant “created a

policy or custom under which the violation occurred.” Saratoga Black Lives Matter, Inc. v.

City of Saratoga Springs, No. 1:24-CV-00865 (AMN/PJE), 2026 WL 710089, at *6 (N.D.N.Y.

Mar. 13, 2026) (citation omitted); see also Sanchez v. Nassau Cnty., 662 F. Supp. 3d 369, 416

(E.D.N.Y. 2023) (“Post-Tangreti, district courts in the Circuit have determined that personal

involvement still may be established for a supervisory defendant if he or she ‘created a policy

or custom under which unconstitutional practices occurred, or allowed the continuance of such

a policy or custom.’”).

1. Fourteenth Amendment Equal Protection Violation

“The Equal Protection Clause . . . commands that no State shall ‘deny to any person

within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all

persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439(1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To state an equal

protection claim predicated on improper discrimination, Plaintiffs must allege facts showing

Cir. Mar. 14, 2025) (“In short, ‘with respect to an official-capacity claim, qualified immunity is

simply not a defense.’”) (quoting Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012)).

that: (1) they have been treated differently from similarly situated individuals and (2) that the

discriminatory or different treatment was based on “‘impermissible considerations such as

race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or

bad faith intent to injure a person.’” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.

2000) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)); accord Hu v. City

of New York, 927 F.3d 81, 91 (2d Cir. 2019).3 When the government discriminates on the basis

of sex or gender, “[t]he disparity in treatment must survive the appropriate level of judicial

scrutiny which, in the context of a prison, is that the difference in treatment was not reasonably

related to any legitimate penological interests.” Reynolds v. Quiros, 990 F.3d 286, 300 (2d Cir.

2021) (internal quotation marks omitted).

Plaintiffs allege that Defendants “each play a role in making products available,

including . . . personal care items . . . to the inmate population within the department,” but

“have placed unreasonable limitations on the availability of commissary items to the plaintiffs

. . . based solely on a consideration of their gender as male inmates.” Compl. ¶¶ 16, 18.

Plaintiffs allege further that the “female commissary list” grants female inmates access to a

variety of personal hygiene products that are not available to male inmates. See id. ¶¶ 18-22.

Plaintiffs complain that female prisoners may purchase the hair removal cream Nair, but male

prisoners have only the option to purchase a harsher hair removal product, Magic Shave, which

causes severe skin irritation for lighter-skinned people. Id. ¶¶ 19-23. Plaintiffs explain that

3 Although not implicated here, a plaintiff may also assert a class of one claim under the Equal

Protection Clause by pleading “she has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000) (per curiam).

“defendants fail and refuse to allow the plaintiffs to purchase the same hair remover made

available to the female inmate population, without any justifiable or reasonable penological

purpose” and have failed to make “any reasonable attempts to provide alternatives for this

disparity in treatment.” Id. ¶¶ 25.

In considering Defendants’ Motion to Dismiss, I must construe the Complaint liberally,

as drafted by self-represented litigants, and I am bound to credit Plaintiffs’ allegations as true.

At the pleading stage, a complaint may “contain general allegations as to a defendant’s

knowledge . . . because a plaintiff realistically cannot be expected to plead a defendant’s actual

state of mind.” Kaplan v. Lebanese Canadian Bank, SAL, 999 F.3d 842, 864 (2d Cir. 2021).

Plaintiffs are, however, “required to include allegations of the facts or events they claim give

rise to an inference of knowledge.” Id.

Upon review, I decline to depart from the holding in the IRO that the Complaint states

a claim under the Equal Protection Clause. In particular, I conclude that Plaintiffs sufficiently

allege that all Defendants acted intentionally to impose disparate commissary restrictions on

male and female prisoners without legitimate penological interest. See Dupigny v. Hannah,

No. 3:20-CV-00836 (JAM), 2021 WL 151043, at *3 (D. Conn. Jan. 18, 2021) (holding that

incarcerated plaintiff stated a plausible equal protection claim based on DOC policy restriction

barring him from having a hair dryer).

2. First Amendment Free Exercise Violation

“Inmates clearly retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz,

482 U.S. 342, 348 (1987) (citation omitted). And, in the prison context, alleged violations of

the right to free exercise are “judged under a ‘reasonableness’ test less restrictive than that

ordinarily applied to alleged infringements of fundamental constitutional rights.” Id. at 349.

Thus, in analyzing Plaintiffs’ claim under the Free Exercise Clause of the First Amendment,,

“a court must determine (1) whether the practice asserted is religious in the person’s scheme

of beliefs, and whether the belief is sincerely held; (2) whether the challenged practice of the

prison officials infringes upon the religious belief; and (3) whether the challenged practice of

the prison officials furthers . . . legitimate penological objective[s].” Kravitz v. Purcell, 87

F.4th 111, 128 (2d Cir. 2023) (citing Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988)). So

long as a restriction on an incarcerated person’s religious practice “is reasonably related to

legitimate penological interests,” that restriction does not violate the First Amendment. Turner

v. Safely, 482 U.S. 78, 89 (1987). The Second Circuit has confirmed that a defendant’s

“isolated acts of negligence” do not violate an incarcerated person’s free exercise of religion,

and that an incarcerated plaintiff must adduce evidence sufficient to raise an inference that a

defendant acted with at least deliberate indifference in depriving the plaintiff of the ability to

engage in a religious practice. Wiggins v. Griffin, 86 F.4th 987, 997 (2d Cir. 2023); see also

Kravitz, 87 F.4th at 129 (“In the context of the Free Exercise Clause, we have explained that

liability depends on an officer-defendant acting with at least deliberate indifference in

depriving an inmate of the ability to engage in a religious practice.”).

In addition to their other allegations about Defendants’ imposition of disparate

commissary limitations, Plaintiffs allege the commissary restriction on male inmate hair

removal products “effectively forces them to give up their religious freedoms or endure the

needless pain and suffering of the Magic Shave’s [e]ffects on their skin, to remove facial and

body hair.” Compl. ¶¶ 41-42. Plaintiffs state Defendants “knew or should have known that

their acts and omissions herein alleged would violate the plaintiffs’ rights, causing harm and

injury to plaintiffs.” Id. ¶ 45.

These allegations plausibly support the inference that each Defendant acted

intentionally or with indifference to burden Plaintiffs’ exercise of their religious practice to

remove their facial hair without a razor. See Dupigny, 2021 WL 151043, at *4.

Accordingly, I deny the Motion to Dismiss on the grounds that Plaintiffs’ Complaint

fails to allege plausible claims of Fourteenth and First Amendment violations against

Defendants in their individual capacities.

B. Qualified Immunity

Qualified immunity may be successfully asserted on a motion to dismiss the complaint,

but the defense “faces a formidable hurdle” at the pleading stage. Horn v. Stephenson, 11 F.4th

163, 169-70 (2d Cir. 2021) (citation and internal quotation marks omitted).

Because qualified immunity is an affirmative defense that a defendant has the burden

of pleading in the answer, the complaint “need not plead facts showing the absence of such a

defense.” Castro v. United States, 34 F.3d 106, 111 (2d Cir. 1994). Moreover, on a motion to

dismiss premised on qualified immunity, a “plaintiff is entitled to all reasonable inferences

from the facts alleged, not only those that support his claim, but also those that defeat the

immunity defense.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). For these reasons,

“advancing qualified immunity as grounds for a motion to dismiss is almost always a

procedural mismatch.” Chamberlain Est. of Chamberlain v. City of White Plains, 960 F.3d

100, 111 (2d Cir. 2020), abrogated on other grounds by Case v. Montana, 146 S. Ct. 500

(2026).

“Qualified immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ricciuti

v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735

(2011)). “‘Even if the right was clearly established,’ a court can still find a suit blocked by

qualified immunity where ‘it was objectively reasonable for the officer to believe the conduct

at issue was lawful.’” Steele-Warrick v. Microgenics Corp., 671 F. Supp. 3d 229, 246

(E.D.N.Y. 2023) (quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)).

Defendants argue that clearly established law did not “put the defendants on notice”

that their conduct could violate the Constitution. Defs.’ Mem. 9. I disagree. Here, as discussed

above, Plaintiffs invoke two clearly established rights under the United States Constitution:

(1) their rights under the Fourteenth Amendment Equal Protection Clause to be free of

disparate treatment based on their gender absent a legitimate penological interest; and (2) their

rights under the First Amendment Free Exercise Clause to engage in their religious practice

without governmental burden that does not serve a legitimate penological objective. See, e.g.,

Wiggins v. Griffin, 86 F.4th 987, 995 (2d Cir. 2023) (holding that it is clearly established that

“incarcerated individuals have the right to engage in religious exercise absent a legitimate

penological justification for the denial”); Reynolds v. Quiros, 990 F.3d 286, 300 (2d Cir. 2021)

(describing equal protection rights of incarcerated people). Defendants make no effort to

distinguish these authorities, nor does their briefing offer any analysis of the relevant

constitutional provisions. See Gonzalez v. Morris, No. 914CV1438GLSDEP, 2018 WL

1353101, at *7 (N.D.N.Y. Mar. 15, 2018), aff’d, 824 F. App’x 72 (2d Cir. 2020).

The Complaint alleges that Plaintiffs seek to comply with their Jewish faith by

removing facial hair without a razor, and that this religious practice is burdened by Defendants’

practice of restricting male prisoners from purchasing a product otherwise available to women

prisoners. At this stage, I can identify no legitimate penological justification for limiting

Plaintiffs’ commissary access to one hair removal product that can cause severe skin irritation.

See Baltas v. Chapdelaine, 153 F.4th 328, 341 (2d Cir. 2025) (ruling that qualified immunity

did not apply where prison official defendants “advanced no penological justification” for

denying plaintiff access to Native American religious sweat lodge services or congregate

smudging). I therefore cannot resolve from this record whether Defendants are entitled to

qualified immunity. The Motion to Dismiss is accordingly denied.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED. Defendants

shall file an Answer on or before July 10, 2026. In light of the recent appointment of counsel

for Plaintiffs, the parties are hereby referred to United States Magistrate Judge Garcia to

conduct a scheduling conference to set new deadlines for discovery and the filing of dispositive

motions.

SO ORDERED.

New Haven, Connecticut

June 15, 2026

/s/Sarah F. Russell

SARAH F. RUSSELL

United States District Judge