Boles v. Neet

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

May 24, 2007

UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker

Clerk of Court

TENTH CIRCUIT

RU SSELL M . BO LES,

Plaintiff-Appellee,

v. No. 05-1570

GA RY D. NEET,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT

FOR T HE DISTRICT OF COLORADO

(D.C. No. 03-cv-557-PSF-O ES)

Submitted on the briefs: *

John W . Suthers, A ttorney General, James X . Quinn, Assistant Attorney General,

Office of the Colorado Attorney General, Denver, Colorado, for

Defendant-Appellant.

Sheldon E. Friedman, Isaacson Rosenbaum P.C., Denver, Colorado, for

Plaintiff-Appellee.

Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.

*

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

EBEL, Circuit Judge.

Plaintiff Russell M . Boles is an Orthodox Jew serving time at the Freemont

C orrectional Facility in C añon City, Colorado. He sued the warden, Gary D.

Neet, under 42 U.S.C. § 1983 and the First Amendment after W arden Neet denied

his request to wear certain religious garments while being transported to a

hospital. W arden Neet moved for summary judgment based on qualified

immunity, but the district court denied the motion, and he now appeals that

determination. W e exercise jurisdiction over this interlocutory appeal under

28 U.S.C. § 1291 and the Cohen 1 collateral order doctrine and AFFIRM .

I.

The relevant facts are not disputed. In M arch 2001, while he was

incarcerated at FCF, Boles was scheduled to have eye surgery at an off-site

hospital. On the day of his scheduled surgery, however, prison officials told him

that prison regulations prohibited him from leaving the facility wearing his

yarmulke and tallit katan. 2 He refused to remove the garments and forwent

1

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See

Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 515 (10th Cir. 1998) (“[T]he

denial of a motion to dismiss based on qualified or absolute immunity is

immediately appealable under the Cohen collateral order doctrine.”).

2

Tallit katan, a hebrew expression referring to an undergarment bearing

fringes or “tzitzit,” is worn by some of the Jewish faith to fulfill the

(continued...)

-2-

having the surgery. On April 17, 2001, Boles sent a letter to W arden Neet

requesting permission to wear his religious garments during transport to the

hospital. W arden Neet responded by letter dated A pril 30, 2001, denying Boles’s

request based on the prison’s transport regulation, AR 300-37 RD. That

regulation provides that inmates classified “medium custody and above are [to be]

transported in orange jumpsuits and transport shoes when being transported to a

non-secure area, i.e. hospital.” Aplt. App. at 179. Referring to this regulation,

W arden Neet told Boles, “[a]lthough your religion may require you to wear

certain items, those items w ill not be allowed during transport out of this

facility.” Id. at 163. Nonetheless, Boles remained steadfast in refusing to take

off his yarmulke and tallit katan. As a result, his eye surgery was delayed until

November 2002, by which point the prison regulations had been amended

specifically to allow Jewish inmates to wear those items during transport.

Proceeding pro se in the district court, Boles sued W arden Neet under

42 U.S.C. § 1983 claiming that his actions violated Boles’s First Amendment

right to freely exercise his religion. 3 W arden N eet filed a motion to dismiss

2

(...continued)

comm andment appearing in the Bible at the book of Numbers, ch. 15, verse 37.

Boles alleges that under the Kitzer Shulchan Arukh, a code of Jewish law , he is

forbidden to walk a distance of four cubits (between 12 and 16 feet) during

daylight hours w ith his head uncovered and not wearing tzitzit.

3

Boles also brought claims under the Religious Land Use and

Institutionalized Persons Act and the Eighth and Fourteenth Amendments, but

(continued...)

-3-

follow ed by a motion for summary judgment, arguing that Boles’s First

Amendment claim was barred by W arden Neet’s qualified immunity from civil

damages liability. By order dated November 30, 2005, the district court denied

both motions, concluding that there was a material issue of fact concerning

whether W arden Neet’s conduct “was a reasonable restriction on plaintiff’s free

exercise of his religious practices.” Aplt. App. at 248. M ore specifically, the

court held that regulation AR 300-37 RD did not justify W arden Neet’s actions.

[N]othing in the policy prohibits the inmate from also wearing a head

covering, such as a yarmulke, or an undergarment, such as a tallit

katan. If there is a security issue associated with such garments, it is

not apparent from the regulations.

Id. Also central to the court’s decision was its broad interpretation of the

constitutional right involved, which the court framed as the free exercise of

religion. The court concluded that whether W arden Neet violated that right could

not be decided on summary judgment.

W hile a defendant charged with a constitutional violation receives

qualified immunity when the right asserted is not clearly established,

the right that has been established does not have to [be] so fact

specific that it is identical to what is alleged in the case at issue, as

defendant appears to argue here. To overcome a motion to dismiss

the plaintiff must articulate a constitutional right which the defendant

violated. To unreasonably limit plaintiff’s free exercise of religion is

a violation.

3

(...continued)

those claims have been dismissed, and the propriety of their dismissal is not

before us.

-4-

Id. at 245 (quotation omitted). On appeal, W arden Neet argues that in framing

the constitutional right so broadly, the district court impermissibly removed the

defense of qualified immunity. He also argues that prison inmates like plaintiff

enjoy no clearly established constitutional right to wear religious garments either

on the prison grounds or in transport outside of the facility. Accordingly, he

contends that he is entitled to qualified immunity with respect to plaintiff’s First

Amendment claim.

II.

The doctrine of qualified immunity shields government officials performing

discretionary functions from liability for 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). W hen the district court denies a motion asserting the qualified immunity

defense, we review its decision de novo. Tonkovich v. Kan. Bd. of Regents, 159

F.3d 504, 516 (10th Cir. 1998). Our review is guided by the Supreme Court’s

instructions concerning the proper sequence in which to analyze the requisites of

a qualified immunity defense. Saucier v. Katz, 533 U.S. 194, 200 (2001). First,

we must consider whether the plaintiff’s factual allegations show that the

official’s conduct violated a constitutional right. See id. at 201. If the assumed

facts do not establish a constitutional violation, the defendant is entitled to

-5-

summary judgment. If, on the other hand, a violation can be shown, “the next,

sequential step is to ask whether the right was clearly established.” Id.

A. Did Boles Allege a Constitutional Violation?

In taking the first step of the Saucier analysis, we are mindful of the

delicate balance that has been recognized between prisoners’ constitutional

guarantees and the legitimate concerns of prison administrators. In O’Lone v.

Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court acknowledged that

although “[l]awful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights,” id. at 348 (quotation omitted),

convicted prisoners nonetheless “retain protections afforded by the First

Amendment, including its directive that no law shall prohibit the free exercise of

religion,” id. (citation omitted). The Court emphasized, however, that in

evaluating a challenged prison regulation, appropriate deference must be afforded

to prison administrators “who are actually charged with and trained in the running

of the particular institution under examination.” Id. at 349 (quotation omitted).

Accordingly, the Court distinguished prison regulations from other laws alleged

to violate fundamental constitutional rights, holding that the former must be

judged under a less restrictive reasonableness test: “‘[W ]hen a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.’” Id. (quoting Turner v.

Safley, 482 U.S. 78, 89 (1987)).

-6-

The same year it decided O’Lone, the Court decided Turner, which, in part,

struck down as unreasonable a prison regulation banning inmate marriages. It

was clear after Turner that the question of whether a prison regulation reasonably

curtails constitutional rights requires close examination of the facts of each case,

the specific regulation under review, and the alleged justifications for it. To

assist the low er courts in making the reasonableness determination, the C ourt

identified the follow ing factors: 4

(1) whether a rational connection exists between the prison policy

regulation and a legitimate governmental interest advanced as its

justification; (2) whether alternative means of exercising the right are

available notwithstanding the policy or regulation; (3) what effect

accommodating the exercise of the right would have on guards, other

prisoners, and prison resources generally; and (4) whether ready,

easy-to-implement alternatives exist that would accommodate the

prisoner’s rights.

Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing Turner,

482 U.S. at 89-91). As other courts have pointed out, the first Turner factor is

actually more of an “element” than a factor in the sense that it “is not simply a

consideration to be weighed but rather an essential requirement.” Salahuddin v.

Goord, 467 F.3d 263, 274 (2d Cir. 2006); see also Sutton v. Rasheed, 323 F.3d

4

Although plaintiff is not challenging a prison regulation per se, but rather

W arden Neet’s individual actions, Turner is no less applicable. As the Second

Circuit usefully recognized in Salahuddin v. Goord, 467 F.3d 263, 274 n.4

(2d Cir. 2006), “[a]n individualized decision to deny a prisoner the ability to

engage in religious exercise is analyzed in the same w ay as a prison regulation

denying such exercise.”

-7-

236, 253 (3d Cir. 2003) (“The first factor is foremost in the sense that a rational

connection is a threshold requirement . . . .”) (quotation omitted). To satisfy the

first Turner factor, “the prison administration is required to make a minimal

showing that a rational relationship exists between its policy and stated goals.”

Beerheide, 286 F.3d at 1186.

This framew ork established in Turner and O’Lone, which seeks to balance

prisoners’ constitutional rights against the valid concerns of prison

administrators, is sharply at odds w ith the test formulated three years later in

Employment Division, Departm ent of Human Resources v. Smith, 494 U.S. 872

(1990). There the Supreme Court held that the free exercise clause does not

exempt an individual from complying with “a valid and neutral law of general

applicability” even if the law impinges on that individual’s religious practices.

Id. at 879. Smith was not a prison case and it did not purport to limit or overrule

Turner and O’Lone, but many courts have questioned its effect, if any, on the

standard for evaluating prisoner free exercise claims articulated in those cases.

Some courts that have addressed the issue have concluded that “the proper

standard to apply in prisoner cases challenging restrictions on the free exercise of

religion is supplied by the Supreme Court’s decision in Turner, not by [Smith].”

Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001); see also Ward v. Walsh,

1 F.3d 873, 877 (9th Cir. 1993) (seeing no reason to depart from Turner); Salaam

v. Lockhart, 905 F.2d 1168, 1171 n.7 (8th Cir. 1990) (holding that Smith did not

-8-

affect analysis). Other courts have recognized the possible implications of Smith

in the prison context, but have gone on to utilize the Turner/O’Lone balancing

framew ork because the defendant did not argue for Sm ith’s applicability. Levitan

v. Ashcroft, 281 F.3d 1313, 1318-19 (D.C. Cir. 2002) (collecting cases);

Salahuddin, 467 F.3d at 274 n.3; Hakim v. Hicks, 223 F.3d 1244, 1247 n.13 (11th

Cir. 2000). W e are aware of only one case in which the court analyzed a

prisoner’s free exercise claim under Smith, and even in that case, the court also

held that the challenged regulation passed scrutiny under O’Lone. See Hines v.

S.C. Dep’t of Corrs., 148 F.3d 353, 357 (4th Cir. 1998). This court has yet to

address the issue squarely, but like our sister circuits we have continued to

employ the Turner/O’Lone balancing framew ork in prison cases even after Smith.

See Beerheide, 286 F.3d at 1184-86; Kikumura v. Hurley, 242 F.3d 950 (10th Cir.

2001). In this case, both parties appear to agree that the Turner/O’Lone standard

governs as neither of them has argued for Smith’s application. Accordingly,

without deciding the issue, we will apply the Turner/O’Lone balancing framew ork

to Boles’s First Amendment claim.

W ith this backdrop we return to the first Saucier question: has plaintiff

alleged facts showing the violation of a constitutional right? To meet his burden

at this stage, Boles had to show that W arden Neet’s conduct substantially

burdened his sincerely-held religious beliefs. Salahuddin, 467 F.3d at 274-75.

If so, W arden Neet then bore “the relatively limited burden of identifying the

-9-

legitimate penological interests that justif[ied] the impinging conduct.” Id. at

275. W e think Boles made the requisite showing at step one. His Amended

Complaint alleged that according to the code of Jewish Law , “Jewish males are

required to wear a head covering at all times,” Aplt. App. at 44, and that

“observant Jews may not walk even as much as four cubits (approximately six

feet) without wearing [the Tallit Katan],” id. He further alleged that the

observance of these commandments is of “cosmic or life and death importance,”

id., and does not interfere with prison security, see id. at 45.

Therefore, the burden shifted to W arden Neet to identify the legitimate

penological interests served by his decision to forbid Boles from wearing his

religious garments. W arden Neet has identified nothing, however, and we could

find no evidence in the record of any penological objectives served by his

actions. 5 On appeal, W arden N eet cites several cases upholding against

constitutional challenges prison regulations restricting the use of religious

clothing out of concern that the clothing could be used to smuggle contraband.

See Muhammad v. Lynaugh, 966 F.2d 901, 902-03 (5th Cir. 1992) (upholding

5

A lthough Warden N eet submitted an unredacted version of regulation AR

300-37RD to the district court, all but a sliver of it was returned in response to his

motion to seal the document and was not included in the record on appeal.

Perhaps the full regulation sets forth legitimate security or other concerns

underlying the prison’s religious garment and transport regulations. Since

W arden Neet did not include it in the appellate record, however, we have no way

of knowing.

-10-

regulation restricting M uslim inmates’ wearing of K ufi caps); Young v. Lane,

922 F.2d 370, 376 (7th Cir. 1991) (yarmulkes); Benjamin v. Coughlin, 905 F.2d

571, 579 (2d Cir. 1990) (Rastafarian crowns); Butler-Bey v. Frey, 811 F.2d 449,

451 (8th Cir. 1987) (fezes); Rogers v. Scurr, 676 F.2d 1211, 1216 (8th Cir. 1982)

(prayer caps and robes). But in each of those cases, the court made its decision

based on the prison’s evidence that its regulation responded to valid security

concerns. In M uhammad, for example, the Fifth Circuit upheld a regulation

restricting the use of Kufi caps only after “a lengthy evidentiary hearing,”

966 F.2d at 901, at w hich senior corrections officers testified that prison security

was the impetus behind the challenged regulation. “They testified that weapons,

such as shanks and razor blades, could easily be secreted inside a Kufi cap.” Id.

at 902. The court was “persuaded that the evidence introduced at the hearing

established that the regulations restricting the use of K ufi caps . . . bear a

reasonable relationship to the legitimate penological interest of prison security.”

Id. Likewise, in Butler-Bey, the Eighth Circuit noted with approval the testimony

of prison officials that smuggling contraband was a problem at the prison and that

religious headgear could be used for smuggling. 811 F.2d at 451.

W arden Neet cannot base his entitlement to qualified immunity purely on

the outcome of these other cases. W hile his actions may have been motivated by

a legitimate concern that Boles’s religious garments could be used to smuggle

contraband into and out of the prison, he points to nothing in the record to that

-11-

effect, and our own review of the record failed to reveal such evidence. As the

Salahuddin court noted when faced with similar circumstances, “[n]either the

district court nor this court can manufacture facts out of thin air.” 467 F.3d at

275. W ithout record support, we cannot conclude that W arden Neet’s actions

were justified by security concerns or any other valid penological objectives. W e

recognize that W arden Neet may adduce additional facts in support of a later

summary judgment motion or at trial. At this stage of the litigation, however, the

uncontroverted factual allegations viewed in the light most favorable to Boles

show that W arden Neet placed substantial burdens on Boles’s free exercise rights

with no valid penological justification. Boles therefore met his burden at the first

step of the Saucier analysis.

B. Was the Constitutional Right Clearly Established?

Turning to step two, W arden Neet argues that even if Boles alleged a

constitutional violation, he is entitled to qualified immunity because an inmate’s

unrestricted right to wear religious garments was not clearly established at the

time of the alleged violation. Boles counters that the proper focus should be on

whether it was clearly established that inmates retain the constitutional right of

free exercise, not on the right’s narrow application to religious garments.

The parties’ disagreement about how broadly to define the constitutional

right is understandable. A s w e have previously noted, striking the right balance is

crucial to the qualified immunity analysis. See M elton v. City of Okla. City, 879

-12-

F.2d 706, 729 n.37 (10th Cir. 1989), vacated in part en banc, 928 F.2d 920 (10th

Cir. 1991). “Too general a formulation would ‘convert the rule of qualified

immunity that our cases plainly establish into a rule of virtually unqualified

liability simply by alleging violation of extremely abstract rights.’” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 639 (1987)). On the other hand, defining

the constitutional right too narrowly “would render the defense available to all

public officials except in those rare cases in which a precedential case existed

which was on all fours factually with the case at bar.” Id. (quotations omitted).

In sum, “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson,

483 U.S. at 640.

Our task is to evaluate W arden Neet’s assertion of qualified immunity in

the context of the circumstances that he faced without being too constrained by

the particular facts of the case. See Melton, 879 F.2d at 729. Fortunately, the

analysis in this case is uncomplicated. In support of his summary judgment

motion, W arden Neet argued that his decision to deny Boles’s request to wear

religious garments during transport was based solely on prison regulations in

effect at the time.

21. . . . I uniformly applied the religion and transport regulations

as they existed at the time.

22. I did not discriminate against inmate Russell Boles based on

his religion. I applied existing regulations to Boles and all

offenders uniformly.

-13-

Neet Aff., Aplt. App. at 159. W e appreciate W arden Neet’s position that he did

not intend to violate Boles’s constitutional rights, but he is not immune from

liability simply because he acted in accordance with prison regulations. 6 The

Supreme Court clearly established in Turner that prison regulations cannot

arbitrarily and capriciously impinge on inmates’ constitutional rights. To be

valid, a regulation must be “reasonably related to legitimate penological

interests.” 482 U.S. at 89. Therefore, W arden Neet’s actions w ere reasonable

and he is entitled to qualified immunity only if the regulation that he relied on

was reasonably related to a legitimate penological interest. Since, as we have

already held, there is nothing in the record to indicate as much, he has not

established the defense of qualified immunity.

The district court’s order is AFFIRMED.

6

W e recognize that one of the relevant factors in evaluating the

reasonableness of W arden Neet’s actions is whether he relied on a regulation or

official policy that explicitly sanctioned his conduct. See Roska v. Peterson,

328 F.3d 1230, 1251 (10th Cir. 2003). But the regulation at issue here, AR 300-

37 RD, at most only implicitly sanctioned his conduct. It states that inmates are

to be transported in orange jumpsuits and transport shoes. In our view , whether it

implicitly forbids the wearing of other items depends on the purpose behind the

regulation. If its purpose is to easily identify escaped convicts and prohibit them

from moving quickly on foot, reading into the regulation a prohibition against

yarmulkes and religious undergarments makes no sense. On the other hand, if the

purpose is preventing the smuggling of contraband, the implicit prohibition

against wearing religious garments may make sense. W arden Neet failed to make

a showing either way.

-14-