Derrick Neely-Beytarik-El v. Daniel Conley

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2980

DERRICK D. NEELY-BEY TARIK-EL,

Plaintiff-Appellant,

v.

DANIEL L. CONLEY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:15-cv-01522-WTL-DML — William T. Lawrence, Judge.

____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED JANUARY 2, 2019

____________________

Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.

RIPPLE, Circuit Judge. Derrick D. Neely-Bey Tarik-El filed

this action against various officials at the Correctional Indus-

trial Facility (“CIF”) in Pendleton, Indiana, and at the Indi-

ana Department of Corrections (“IDOC”). He alleged that

the defendants had prevented him from participating fully

in the worship services of the Moorish Science Temple of

America (“MSTA”) held at the CIF, in violation of the Free

Exercise and Establishment Clauses of the First Amendment.

2 No. 17-2980

The district court screened the complaint under 28 U.S.C.

§ 1915A. It dismissed claims against Commissioner Bruce

Lemmon and Superintendent Wendy Knight on Eleventh

Amendment grounds and against Officer David Liebel on

the ground that he had not participated personally in any of

the actions against Mr. Neely-Bey. The district court allowed

the damages claims against the remaining defendants to go

forward. Following discovery, the remaining defendants

moved for summary judgment on qualified immunity

grounds. The district court granted the motion.

Before us, Mr. Neely-Bey contends that the district court

failed to recognize that his complaint sought both damages

and injunctive relief. He maintains that his injunctive relief

claims must be reinstated because they are unaffected by

sovereign or qualified immunity. Moreover, he contends

that the district court erred in granting qualified immunity

to the defendants on his damages claims.

We conclude that the defendants are entitled to qualified

immunity on Mr. Neely-Bey’s claims for damages under the

Free Exercise Clause and the Establishment Clause and,

therefore, affirm the district court’s judgment with respect to

those claims. We agree with Mr. Neely-Bey that the district

court misread his complaint and that it clearly seeks injunc-

tive relief as well as damages against the defendants. More-

over, the district court should have read Mr. Neely-Bey’s pro

se free exercise claim as seeking injunctive relief under the

Religious Land Use and Institutionalized Persons Act, 42

U.S.C. § 2000cc et seq. (“RLUIPA”). Consequently, we must

remand so that the district court may consider whether in-

junctive relief should be granted on the free exercise claim.

In addressing this matter, the district court first must deter-

No. 17-2980 3

mine whether the free exercise claim and RLUIPA claims are

moot. If it determines that the claims are not moot, it should

consider whether injunctive relief is warranted. As a matter

of law, there is no basis for injunctive relief on the estab-

lishment clause claims, and we therefore direct the district

court to enter judgment in favor of the defendants on those

claims.

I

BACKGROUND

A.

Until recently, Mr. Neely-Bey was incarcerated at CIF,

where he was an active member of the MSTA congregation.

The MSTA is a national religious organization founded by

Prophet Noble Drew Ali. 1 Its most important group worship

meeting is held on Fridays and includes recitation of the

Moorish American Prayer, during which each adherent

“stands, [and] faces the East.” 2 After the prayer, a group

leader reads the Divine Constitution, Bylaws, and verses

from the Koran. Following the readings, the leader invites

other participants to comment upon the readings. Finally,

services conclude with the “Warning from the Holy Proph-

et” followed by another recitation of the Moorish American

Prayer.3 The MSTA also holds “Sunday School.” 4 During

1 R.81 at 97.

2 Id. at 98.

3 Id.

4It appears that, at some point, the MSTA group at CIF began meeting

on Mondays instead of Sundays. See id. at 78 (Memo from Chaplain

(continued … )

4 No. 17-2980

2013 and 2014, Mr. Neely-Bey attended Friday Holy Day

services and Sunday school. The records of the MSTA reflect

that Mr. Neely-Bey regularly spoke at these meetings. 5

In January 2013, Mr. Neely-Bey submitted an affidavit to

IDOC Commissioner Lemmon. The cover letter stated that

Mr. Neely-Bey was providing the affidavit to Commission-

er Lemmon “so that we may come to an understanding

[that] this affidavit is [b]inding on you and you[r] office.” 6 It

asserted that Mr. Neely-Bey was a “Sovereign Moorish Na-

tional”; that he was not subject to the enactments of the

United States Congress because he considered it to be a for-

eign power; and that he “squarely challenge[d] the fraudu-

lent, usurping entanglement of JURISDICTION” over him. 7

The affidavit requested a hearing to establish the IDOC’s au-

thority over Mr. Neely-Bey. As a result of the affidavit, the

IDOC classified Mr. Neely-Bey as a “Sovereign Citizen,”

which was designated as a “Security Threat Group.” 8

( … continued)

Smith setting forth how Mr. Neely-Bey may participate in “Monday

meetings”).

5 See R.40; R.41; R.42.

6 R.70-3 at 2.

7 See id. at 3–4 (internal quotation marks omitted).

8 In his brief, Mr. Neely-Bey claims that “the record does not support

that he subscribed to such ‘sovereign citizen’ beliefs or that he intended

to associate himself with such beliefs by identifying himself as a ‘Sover-

eign Moorish National.’” Appellant’s Br. 9. However, there is no evi-

dence in the record that Mr. Neely-Bey contested or grieved this designa-

tion. Mr. Neely-Bey also does not maintain that sovereign citizens should

not be considered a Security Threat Group. Thus, neither

(continued … )

No. 17-2980 5

Mr. Neely-Bey’s affidavit made its way to Brother M.

Doles Bey, 9 the MSTA minister who led the services at the

CIF.10 On April 6, 2014, Brother Doles Bey sent a memoran-

dum on MSTA letterhead to, among others, David Liebel,

Director of Religious and Volunteer Services Chaplains at

the CIF; Brother V. Jones-Bey, Minister of Institutional Mis-

sion Affairs for the MSTA; and Mr. Neely-Bey. In his memo-

randum, Brother Doles Bey explained that sovereign citizens

could not be participating members of the MSTA. The memo

related that, at another institution, the MSTA had allowed an

inmate with a “Security Group Threat” designation to facili-

tate a service, and as a result, the institution’s MSTA group

“was shut down.” 11 Brother Doles Bey stated that

( … continued)

Mr. Neely-Bey’s classification as a sovereign citizen, his designation as a

member of a Security Threat Group, nor the restrictions placed on Secu-

rity Threat Groups are at issue in this appeal.

9 In his brief, Mr. Neely-Bey repeatedly addresses Brother Doles Bey as a

“volunteer minister,” suggesting that all of his ministry work is volun-

tary and that he is not an official representative of the MSTA. The record

does not bear this out. In his complaint, Mr. Neely-Bey identifies Brother

Doles Bey as “the Minister & I.D.O.C. volunteer of the Moorish Science

Temple of America.” R.1 at 4 (emphasis added). Moreover, according to

IDOC policies, a volunteer like Brother Doles Bey must be “recognized

by a religious body.” R.81 at 37.

10 Mr. Neely-Bey alleges in his complaint that IDOC Commissioner

Lemmon forwarded the affidavit to the Director of Religious Services,

David Liebel. R.1 at 3. Mr. Liebel presumably then passed it on to Broth-

er Doles Bey, although there is not an allegation in the complaint to that

effect. Neither party identifies any evidence in the record that establishes

how the affidavit reached Brother Doles Bey.

11 R.81 at 71.

6 No. 17-2980

Mr. Neely-Bey could attend services as a “guest,” but that he

could not teach or serve as a facilitator. 12

On March 23, 2015, the Chaplain at the CIF, David Smith,

sent a memo to Mr. Neely-Bey in which he stated that he

had “received [Mr. Neely-Bey’s] request to be added to the

MST of A Religious Services group” and that he needed

Mr. Neely-Bey “to understand that by returning to this

group you agree to fully cooperate with and follow the April

6, 2014 sanctions placed on you by MST of A, Inc.” 13 Specifi-

cally, Mr. Neely-Bey was forbidden from standing, speaking

at, or facilitating any of the Friday services. He was allowed

to speak when called upon during their Monday meetings;

however, he could “not debate, instruct, dominate or speak

against the teaching of the Prophet, the MST of A, Inc., or the

U.S. Constitution.” 14

In late summer 2015, Chaplain Smith filed a “Report of

Conduct” regarding Mr. Neely-Bey’s actions during an

MSTA meeting. Chaplain Smith stated that he had witnessed

Mr. Neely-Bey “speak and openly participate during the

Friday MSTA Holy Day meeting” and that these actions

were in violation of the direct order that he had given to

Mr. Neely-Bey, orally and in writing. 15 Chaplain Smith con-

cluded that Mr. Neely-Bey’s “actions … demonstrated his

12 Id. at 72.

13Id. at 78. The parties do not explain why Mr. Neely-Bey, who had been

an active member of the MSTA in 2013 and 2014, had to request to be

added to the group in 2015.

14 Id.

15 Id. at 73.

No. 17-2980 7

intention to interfere and disrupt MSTA services on Holy

Days.” 16

Officer Daniel Conley “screened” the conduct report,17

and a hearing was held at Mr. Neely-Bey’s request. At the

hearing, chaired by Officer Richard Sidwell, it was deter-

mined that Mr. Neely-Bey had ignored an order by Chaplain

Smith. Mr. Neely-Bey was given twenty hours of extra work

to be completed in the next month. Although the determina-

tion makes no mention of it, Mr. Neely-Bey testified at his

deposition, and the defendants conceded for purposes of

summary judgment, that Mr. Neely-Bey “was suspended

from [MSTA] meetings for one year.”18

Mr. Neely-Bey appealed to CIF Superintendent, Wendy

Knight. He argued that the sanction merely enforced the

MSTA’s ban on his participation in its services. Consequent-

ly, because “the State cannot get [in]volved in M.S.T. of A.

affairs,” 19 the order could not be enforced. Mr. Neely-Bey’s

appeal was denied. In her explanation, Superintendent

Knight stated:

16 Id.

17 Again, the parties do not direct us to any place in the record contain-

ing a description of the screening function. In admissions produced in

response to Mr. Neely-Bey’s requests, Officer Conley stated that he “had

reservation[s] about the conduct report.” Id. at 22. Neither in the admis-

sion, nor in any other place in the record, does Officer Conley explain the

nature of his reservations.

18 R.71 at 1.

19 R.81 at 76.

8 No. 17-2980

You were charged with code 347 “Refusing to

obey an order from staff” and you were found

guilty by the DHB chairman.

I find the Report of Conduct to be descriptive

and credible, and the statement provided by

staff within the body of the report did support

the finding. When any staff member gives you

an order, you need to follow it. After you have

followed the staff member’s order, if you do

not agree with that order or any order from

staff, then you have a right to follow the de-

partment’s grievance procedures. I find no er-

rors in your case and the Report of Conduct is

clear. You have provided me with no state-

ments or evidence to cause me to change the

decision of the Disciplinary Hearing Officer,

therefore: your appeal is denied.[ 20]

B.

Mr. Neely-Bey filed this action in the district court

against Commissioner Lemmon, Superintendent Knight, Di-

rector of Religious Services David Liebel, Chaplain Smith,

Officer Conley, and Officer Sidwell. He alleged that he had

been subjected to religious persecution when his affidavit

was forwarded to the MSTA, that the CIF had become en-

tangled in a religious dispute by enforcing the memorandum

of Brother Doles Bey, and that the CIF defendants had vio-

lated his First Amendment right to free exercise when Broth-

er Doles Bey’s memo was enforced. As a remedy,

20 Id. at 77.

No. 17-2980 9

Mr. Neely-Bey requested “that [he] receive $750,000 dollars”

and that the defendants “cease all action against [him].” 21

The district court screened Mr. Neely-Bey’s complaint

under 28 U.S.C. § 1915A. 22 The court determined that any

claims for damages against Commissioner Lemmon and Su-

perintendent Knight in their official capacities were barred

by the Eleventh Amendment and therefore dismissed those

claims. It also dismissed the claims against Mr. Liebel be-

cause he was not involved personally in the alleged depriva-

tion. The court therefore instructed the clerk “to remove

Bruce Lemmon, Wendy Knight, and David Liebel from the

docket.” 23 The court allowed the damages claims against

Chaplain Smith, Officer Conley, and Officer Sidwell to pro-

ceed. The court’s screening order was silent with respect to

Mr. Neely-Bey’s claims for injunctive relief.

Mr. Neely-Bey filed a motion to reconsider. 24 He argued

that the Eleventh Amendment did not bar his claims against

Commissioner Lemmon and Superintendent Knight because

the claims were brought against the defendants in both their

21 R.1 at 6.

22 The district court initially dismissed Mr. Neely-Bey’s complaint, be-

lieving that it was duplicative of another action that Mr. Neely-Bey had

filed. See R.8. Mr. Neely-Bey filed a motion to reconsider, pointing out

that the disciplinary action on which the present action is based is differ-

ent from the ones at issue in the earlier action. See R.10. The court grant-

ed the motion to reconsider and conducted a merits screening under 28

U.S.C. § 1915A. See R.13.

23 R.13 at 3.

24 See R.17.

10 No. 17-2980

official capacities and their personal capacities.25

Mr. Neely-Bey did not argue, however, that the district court

should reinstate his claims for injunctive relief because sov-

ereign immunity did not operate as a bar to injunctive relief.

The district court denied reconsideration “[f]or the reasons

set forth in the screening entry.”26

After discovery, the remaining defendants moved for

summary judgment. Relying on Boy Scouts of America v. Dale,

530 U.S. 640 (2000), the defendants submitted that it was

clearly established that the MSTA had a First Amendment

right to choose its membership, and the sanction against

Mr. Neely-Bey simply implemented that right. According to

the defendants, “failure to enforce the MST of A memoran-

dum would be the equivalent of forcing the MST of A to as-

sociate with Neely-Bey as a member in violation of MST of

A’s First Amendment rights.” 27 Moreover, once the MSTA

determined that Mr. Neely-Bey could not participate in its

services, IDOC was “prohibited from reviewing or question-

ing [its] religious decisions.” 28

The defendants also asserted that, if they had violated

Mr. Neely-Bey’s rights, they were entitled to qualified im-

munity. They noted that a “diligent search of Seventh Circuit

and United States Supreme Court cases ha[d] yielded no

25He also argued that his claim against Mr. Liebel should be reinstated.

See id. at 2.

26 R.19.

27 R.71 at 8.

28Id. at 7 (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v.

EEOC, 565 U.S. 171, 186 (2012)).

No. 17-2980 11

cases with closely analogous facts that would establish that

Plaintiffs’ [sic] rights have been violated in this case.” 29

Therefore, Mr. Neely-Bey had not met his burden of defeat-

ing the qualified immunity defense.

In response, Mr. Neely-Bey maintained that IDOC’s en-

forcement of the limitations set forth in MSTA’s memoran-

dum violated the Establishment Clause and violated IDOC’s

own policies. 30 Regarding the defendants’ claim that they

were enforcing MSTA’s associational rights, Mr. Neely-Bey

believed that Dale was distinguishable because he was not

asking to be appointed a leader of the MSTA, but only to

participate fully in the services.

Turning to the issue of qualified immunity,

Mr. Neely-Bey asserted that it was clearly established that

IDOC could not restrict his right to practice his religion ex-

cept when required by penological interests. Mr. Neely-Bey

explained that participating in the Friday services was a key

element of the MSTA faith, that Chaplain Smith understood

this, and that disciplining him for participating in the Friday

services constituted an unreasonable burden on his free ex-

ercise rights. He also claimed that the defendants had no le-

gitimate penological interests in preventing his participation

in Friday services. Turning specifically to Officers Conley

and Sidwell, Mr. Neely-Bey noted that Officer Conley admit-

29 Id. at 11.

30 Mr. Neely-Bey specifically identified the policy providing that “[t]he

Department does not endorse or recognize any particular denomination,

sect, or faction as the ‘correct’ manner to practice a particular religion.”

See R.81 at 6.

12 No. 17-2980

ted that he had reservations about Chaplain Smith’s conduct

report, but nevertheless screened the conduct report. As for

Officer Sidwell, Mr. Neely-Bey asserted that, at the time of

the disciplinary hearing, Officer Sidwell was aware that the

dispute was of a religious as opposed to disciplinary nature.

Mr. Neely-Bey did not argue that, even if the doctrine of

qualified immunity protected the defendants from liability

for damages, his claims for injunctive relief nevertheless

could proceed.

The district court granted summary judgment to the re-

maining defendants on the basis of qualified immunity. The

court explained that, although “[t]he general principles of

First Amendment law prohibiting officials from placing a

substantial burden on the free exercise of religion by inmates

are clearly established, … the qualified immunity defense

turns on whether the application of those principles to the

circumstances faced by the defendants was clear at the

time.” 31 “Here,” the court explained, Mr. Neely-Bey could

not “prevail in his effort to overcome qualified immunity by

relying on general principles of First Amendment right[s]”

because “[t]he Supreme Court has directed that ‘“clearly es-

tablished” law is not to be defined at a high level of generali-

ty.’” 32 The court therefore entered judgment for the defend-

ants.

31 R.84 at 7.

32 Id. (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)).

No. 17-2980 13

II

DISCUSSION

A. Free Exercise

1. Claim for Damages

Mr. Neely-Bey first submits that the district court erred

in concluding that the defendants were entitled to qualified

immunity for damages related to his free exercise claim. The

principles governing this question are well-settled. Qualified

immunity shields government officials from civil “liability

‘insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable per-

son would have known.’” Purvis v. Oest, 614 F.3d 713, 720

(7th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). A qualified immunity determination comprises two

inquiries; we must determine (1) “whether the plaintiff’s al-

legations make out a deprivation of a constitutional right,”

and (2) “whether the right was clearly established at the time

of defendant’s alleged misconduct.” McAllister v. Price, 615

F.3d 877, 881 (7th Cir. 2010). We are permitted to skip the

first inquiry and proceed directly to the question whether a

particular right was clearly established. See, e.g., Whitlock v.

Brown, 596 F.3d 406, 408 (7th Cir. 2010) (citing Pearson v. Cal-

lahan, 555 U.S. 223 (2009)). This is the approach that the dis-

trict court took, and the defendants urge that we affirm the

district court’s judgment on this basis.

As we frequently have explained, a clearly established

right is one that “is sufficiently clear that any reasonable of-

ficial would understand that his or her actions violate that

right, meaning that existing precedent must have placed the

statutory or constitutional question beyond debate.” Zim-

14 No. 17-2980

merman v. Doran, 807 F.3d 178, 182 (7th Cir. 2015) (citing

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “[A] case directly

on point,” however, is not required. Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). “The dispositive question is ‘whether

the violative nature of particular conduct is clearly estab-

lished … .’” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563

U.S. at 742). “This inquiry ‘“must be undertaken in light of the

specific context of the case, not as a broad general proposition.”’”

Id. (emphasis added) (quoting Brosseau v. Haugen, 543 U.S.

194, 198 (2004) (per curiam)).

Here, the district court observed that there was no gov-

erning law “directly establishing that the defendants’ con-

duct in this case, where state officials enforced a ban from

participating in religious activities that was put in place by

the religious entity itself, violated Mr. [Neely-Bey’s] rights

under the First Amendment.” 33 Mr. Neely-Bey believes,

however, that the law “provided ‘fair warning’ to the de-

fendants ‘that their alleged [conduct] was unconstitution-

al.’” 34 According to Mr. Neely-Bey, the law was clearly es-

tablished that a prison official cannot deny a prisoner’s free

exercise rights based on the official’s understanding of the

tenets of a particular faith. He relies principally on Grayson

v. Schuler, 666 F.3d 450 (7th Cir. 2012), and Vinning-El v. Ev-

ans, 657 F.3d 591 (7th Cir. 2011), for this proposition.

In Grayson, an inmate-adherent of the African Hebrew Is-

raelites of Jerusalem was forced to cut off his dreadlocks “on

33 R.84 at 7–8.

34 Appellant’s Br. 35–36 (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (per curiam)).

No. 17-2980 15

the ground that they posed a security risk.” 666 F.3d at 451.

Grayson claimed that not cutting his hair was an element of

his faith; specifically, he informed prison officials that he had

taken “the Nazarite vow of separation,” which required him

to refrain from cutting his hair. Id. at 454. The prison chap-

lain denied Grayson’s request to grow out his hair because

wearing dreadlocks was not a required element of the Afri-

can Hebrew Israelites of Jerusalem. The chaplain acknowl-

edged that Rastafarians were allowed to have dreadlocks,

but distinguished their situation because having dreadlocks

was a requirement of their faith. On appeal, we observed

that Grayson’s act of not cutting his hair could have been a

legitimate aspect of his personal faith. We explained that

“[p]rison authorities are always entitled to balance security

concerns against religious practices, and the need to do so

may be greater with regard to optional than to mandatory

practices.” Id. at 455. Nevertheless,

[p]rison chaplains may not determine which

religious observances are permissible because

orthodox. … No more can the prison permit

Rastafarians to wear long hair and without jus-

tification forbid a sincere African Hebrew Isra-

elite of Jerusalem to do so, even if he is more

zealous in his religious observances than his

religion requires him to be.

Id.

We reached a similar result in Vinning-El. Vinning-El in-

volved an MSTA inmate who asked for a vegan diet as a re-

ligious accommodation. The chaplain denied the request,

“observing that the tenets of [the MSTA] require a non-pork

diet,” not a vegan one. 657 F.3d at 592. Vinning-El sued, and

16 No. 17-2980

the district court denied the chaplain qualified immunity.

On appeal, we observed that the district court had not made

any findings concerning the chaplain’s motivations in deny-

ing Vinning-El’s request. The chaplain could have denied

the request because he did not believe that a vegan diet was

a tenet of the MSTA faith, or he could have denied it because

he did not believe that the request was being made on reli-

gious grounds. If the former, the chaplain was not entitled to

qualified immunity because it was clearly established at the

time of the denial that “[a] personal religious faith is entitled

to as much protection as one espoused by an organized

group.” Id. at 593. However, if the latter, then the chaplain

had not violated the inmate’s rights because mere dietary

preferences, unrelated to religious observances, need not be

accommodated. Absent a determination as to the chaplain’s

reasoning, we could not resolve the qualified immunity

question and therefore remanded the case to the district

court. See id. at 595.

Neither Grayson nor Vinning-El speak to the circumstanc-

es before us today. In both cases, the individual inmate re-

quested that his religious belief be accommodated even

though that belief was arguably personal to him and more

demanding than the ones generally followed by adherents of

the religion with which he professed to be affiliated.

Mr. Neely-Bey presents a very different situation. He does

not ask the CIF to accommodate a personal belief not re-

quired of MSTA adherents. Rather, he asks that the CIF re-

quire the MSTA to accept him as a full member even though

his belief system as a declared sovereign citizen differs sub-

stantially from that of the MSTA and MSTA liturgical prac-

tices require that its adherents share their religious beliefs in

the course of their worship services. The MSTA consequent-

No. 17-2980 17

ly believes that admitting Mr. Neely-Bey as a member would

challenge its teachings and, possibly, jeopardize its status.

This is the crux of the defendants’ position: They main-

tain that, had they required the MSTA to allow Mr. Neely-

Bey to participate as a full member in Friday services, they

would have violated MSTA’s associational rights. See Boy

Scouts of America v. Dale, 530 U.S. 640 (2000).

In Dale, a former Eagle Scout “applied for adult member-

ship in the Boy Scouts” as an assistant scoutmaster. Id. at

644. The BSA initially approved the application, but later re-

voked his membership after discovering that Dale was ho-

mosexual and had taken public stances in favor of gay

rights. According to the BSA, being a homosexual was anti-

thetical to its mission. Dale then instituted a state-court ac-

tion claiming that the BSA’s revocation of his membership

violated New Jersey’s law prohibiting discrimination in pub-

lic accommodations. The New Jersey Supreme Court agreed

with Dale and further held that requiring BSA to accept Dale

as a scout leader did not violate BSA’s right to association

under the First Amendment.

The Supreme Court reversed. It observed that “[t]he

forced inclusion of an unwanted person in a group infringes

the group’s freedom of expressive association if the presence

of that person affects in a significant way the group’s ability

to advocate public or private viewpoints.” Id. at 648. In as-

sessing whether this was the case, the Court explained that

deference is owed to the group’s formulation of its “goals

and philosophy,” as well as its “view of what would impair

its expression.” Id. at 651, 653. Because the BSA believed that

its principles precluded the practice of homosexuality and

because “Dale’s presence in the [BSA] would … force the or-

18 No. 17-2980

ganization to send a message … that [it] accepts homosexual

conduct as a legitimate form of behavior,” “the forced inclu-

sion of Dale would significantly affect its expression.” Id. at

653, 656.

Mr. Neely-Bey believes that the defendants’ reliance on

Dale is misplaced. Dale, he contends, was in a leadership

role, whereas he only was asking to participate as a member

of the MSTA. The Court in Dale, however, did not limit its

discussion to leaders of organizations, but instead asked

whether “[t]he forced inclusion of an unwanted person in a

group infringes the group’s freedom of expressive associa-

tion.” Id. at 648. Although the relative position of the indi-

vidual in a group may bear on whether the group’s inclusion

of the individual “affects in a significant way the group’s

ability to advocate public or private viewpoints,” id., the

Court spoke in terms of “membership” as well as leadership,

see id. at 654–56. Moreover, the record reflects that, as a full

member of the MSTA, Mr. Neely-Bey would be speaking to

other members of the congregation and commenting on the

words of the Prophet and passages of the Koran. Requiring

the MSTA to allow an individual to speak at its worship ser-

vices when that person holds beliefs antithetical to its own

would significantly affect its ability to preserve and pass on

its message.

Here, Chaplain Smith and the enforcement officers were

required to balance the religious practices of one adherent

against the rights of other inmates to exercise their religious

beliefs in accordance with MSTA teaching. Neither Grayson

nor Vinning-El offers guidance for correctional officers who

find themselves in this dilemma. Indeed, there do not appear

to be any cases that instruct prison officials on how they

No. 17-2980 19

should strike the appropriate balance between these compet-

ing interests. 35 As we have explained previously, “[p]ublic

officials can be held liable for violating clearly established

law, but not for choosing sides on a debatable issue.” O’Keefe

v. Chisholm, 769 F.3d 936, 942 (7th Cir. 2014). The district

court, therefore, did not err in granting the defendants quali-

fied immunity on Mr. Neely-Bey’s damages claims under

the Free Exercise Clause. 36

2. Claim for Injunctive Relief

Mr. Neely-Bey next submits that, even if the district court

correctly granted qualified immunity to the defendants on

his claim for damages, it failed to recognize that his com-

plaint also stated a claim for injunctive relief under both the

Free Exercise Clause and under RLUIPA. Moreover,

Mr. Neely-Bey continues, qualified immunity does not pro-

tect the defendants from a claim for injunctive relief. See

Hannemann v. S. Door Cnty. Sch. Dist., 673 F.3d 746, 758 (7th

Cir. 2012). Consequently, he contends, a remand is necessary

35 Indeed, Mr. Neely-Bey notes that “Defendants have cited no decision

suggesting the government can rely on a group’s associational interests

to limit an individual’s participation in religious services, based solely on

his expression of allegedly unorthodox beliefs.” Appellant’s Br. 31. That

courts have not had to grapple with this difficult issue would seem to

counsel the application of qualified immunity.

36 Notably, the defendants make only a passing reference to whether

allowing Mr. Neely-Bey to participate as a full member of the religion

would jeopardize the security or rehabilitative concerns of the institu-

tion. For reasons not at all clear to us, with the exception of this single,

oblique reference in its appellate brief, this contention, which may well

have merit, is never developed.

20 No. 17-2980

for the district court to consider the merits of his claim for

injunctive relief.

Mr. Neely-Bey’s complaint, among other relief, asks that

the defendants “cease all action against [him].” 37 When the

district court screened Mr. Neely-Bey’s complaint under 28

U.S.C. § 1915A, it nevertheless acknowledged only that he

was “seek[ing] monetary relief”; the court made no mention

of Mr. Neely-Bey’s prayer for injunctive relief. 38 Proceeding

on the assumption that Mr. Neely-Bey’s claims were for

monetary relief alone, the court dismissed the claims against

Commissioner Lemmon and Superintendent Knight in their

official capacities as barred by the Eleventh Amendment and

directed that these defendants be removed from the docket.

The court allowed only the damages claims against Chaplain

Smith and Officers Conley and Sidwell to go forward.

Mr. Neely-Bey moved for reconsideration of the screening

order, but not on the ground that the district court had mis-

read his complaint to include only claims for damages.

a.

Before us, the defendants at least tacitly acknowledge

that Mr. Neely-Bey’s complaint requested injunctive relief. 39

They assert, however, that Mr. Neely-Bey abandoned his

claim for injunctive relief by not raising the issue in his mo-

37 R.1 at 6.

38 R.13 at 2.

39 See Appellees’ Br. 28 (noting that the district court believed that

Mr. Neely-Bey was seeking only damages and acknowledging that “this

assumption may have been a mistake”).

No. 17-2980 21

tion to reconsider or in his response to the motion for sum-

mary judgment.

It is the general rule that a litigant does not abandon an

argument by failing to raise it in a motion to reconsider.

Hamer v. Neighborhood Hous. Servs. of Chi., 897 F.3d 835, 838

(7th Cir. 2018) (“And it is never necessary to remonstrate

with a judge after an order has been entered. Motions for re-

consideration are discretionary, not obligatory.”). The de-

fendants nevertheless submit that, “where a plaintiff is seek-

ing relief from judgment that is most appropriately awarded

by a trial court on a Rule 60 motion, such as where the plain-

tiff is claiming oversight, mistake or clerical error, the plain-

tiff may waive his right to present that type of argument on

appeal if he did not make the appropriate Rule 60 motion

below.” Denius v. Dunlap, 209 F.3d 944, 958–59 (7th Cir.

2000). Here, they contend, the district court seems simply to

have misread or overlooked the full extent of

Mr. Neely-Bey’s claims, and such an oversight falls neatly

within the coverage of Rule 60(b)(1). 40 Consequently, the de-

fendants submit that, because Mr. Neely-Bey failed to raise

the district court’s oversight in a Rule 60(b) motion, he can-

not now pursue his claim for injunctive relief.

We do not believe that Denius compels this result. First,

the language on which the defendants rely was not part of

our holding. After discussing what might be the effect of De-

40 Federal Rule of Civil Procedure 60(b)(1) provides: “(b) Grounds for

Relief from a Final Judgment, Order, or Proceeding. On motion and just

terms, the court may relieve a party or its legal representative from a fi-

nal judgment, order, or proceeding for the following reasons: (1) mis-

take, inadvertence, surprise, or excusable neglect[] ….”

22 No. 17-2980

nius’s failure to file a Rule 60(b) motion if the court had over-

looked his claim for injunctive relief, we explained that this,

in fact, had not occurred: “This is not a case where the dis-

trict court completely overlooked plaintiff’s claims for equi-

table relief.” Id. at 959. Rather, we observed, the district court

very clearly had disposed of both “Denius’s claims for mon-

etary and equitable relief through its summary judgment

opinion.” Id. Thus, we did not have to decide whether Deni-

us’s actions constituted waiver (or abandonment) because

the nature of the district court’s error did not fall within the

language of Rule 60(b).

Additionally, our discussion in Denius focused on the ef-

fect of failing to bring a Rule 60(b) motion. Rule 60(b), how-

ever, governs motions that seek to “‘relieve a party or its le-

gal representative from a final judgment, order, or proceed-

ing’ for the enumerated reasons.” Mintz v. Caterpillar Inc.,

788 F.3d 673, 679 (7th Cir. 2015) (quoting Fed. R. Civ. P.

60(b)). The operative order here, however, was the district

court’s screening order, which was interlocutory. See DaSilva

v. Rymarkiewicz, 888 F.3d 321, 323 (7th Cir. 2018). It was in

that order that the court narrowed the scope of the action to

include only claims for damages. When the defendants later

moved for summary judgment, they reasonably focused

their motion on the claims for damages—the only ones still

before the court. Mr. Neely-Bey’s response, as well, was di-

rected to the claims for damages. There was no obvious way

for Mr. Neely-Bey to revisit the dismissed claims in the brief-

ing on the summary-judgment motion. Moreover, it was the

district court’s summary-judgment ruling that immediately

preceded its entry of final judgment, the triggering event for

a Rule 60(b) motion. Under these circumstances,

Mr. Neely-Bey was not required to seek relief under Rule

No. 17-2980 23

60(b) for the district court’s sua sponte dismissal of his claims

for injunctive relief. Consequently, Mr. Neely-Bey has not

waived, or otherwise abandoned, his claim for injunctive re-

lief under the Free Exercise Clause. 41

41 Mr. Neely-Bey’s situation is readily distinguishable from the other

cases on which the defendants rely. See Heiar v. Crawford Cnty, 746 F.2d

1190, 1196 (7th Cir. 1984); Peterson v. Bell Helicopter Textron, Inc., 806 F.3d

335 (5th Cir. 2015). In Heiar, we held that the defendants had waived

their statute-of-limitations defense because, although included in the

answer, they never again raised it—in a dispositive, pretrial motion, as

an item in the pretrial order, or in a motion for judgment at trial. See 746

F.2d at 1196. Here, however, the district court eliminated the claim for

injunctive relief sua sponte, and there was no clear opportunity for

Mr. Neely-Bey to raise the issue again with the district court before the

entry of final judgment. In Peterson, the plaintiff’s complaint had includ-

ed a prayer for “[a]ny further legal and equitable relief to which Peterson

may be justly entitled.” 806 F.3d at 339 (alteration in original). However,

Peterson did not request specific injunctive relief until after a jury verdict

in his favor. The district court granted the injunction, but the Fifth Cir-

cuit reversed and vacated the injunction. The Fifth Circuit explained that

the defendant had been prejudiced by Peterson’s inaction because, had it

known that injunctive relief was at issue, it would have called additional

witnesses and presented evidence specifically directed to that claim for

relief. However, it had been deprived of that opportunity by the plain-

tiff’s failure to raise the issue earlier. Here, the defendants include boil-

erplate language that allowing Mr. Neely-Bey to renew his claim for in-

junctive relief “would prejudice the defendants by inhibiting their ability

to defend against Neely-Bey’s claims and substantially increase the de-

fendants’ potential liability.” Appellees’ Br. 32. However, the defendants

do not explain how or why this is the case. Unlike the defendant in Peter-

son, they have not lost their ability to present evidence in opposition to

this claim, and they do not explain how revival of Mr. Neely-Bey’s claim

for injunctive relief might substantially increase their potential liability.

24 No. 17-2980

b.

Waiver and abandonment are the only bases that the de-

fendants have offered for affirming the district court’s dis-

missal of Mr. Neely-Bey’s claim for injunctive relief. Alt-

hough “[w]e may affirm a district court’s dismissal order on

any basis supported by the record,” Craig v. Rich Twp. High

Sch. Dist. 227, 736 F.3d 1110, 1118 (7th Cir. 2013), we cannot

conclude, on this limited record, that judgment in favor of

the defendants is warranted.

To establish a free exercise claim, Mr. Neely-Bey “had to

submit evidence from which a jury could reasonably find

that the defendants personally and unjustifiably placed a

substantial burden on his religious practices.” Thompson v.

Holm, 809 F.3d 376, 379 (7th Cir. 2016) (citing Hernandez v.

C.I.R., 490 U.S. 680, 699 (1989)). The Supreme Court has ex-

plained that a substantial burden is one that “put[s] substan-

tial pressure on an adherent to modify his behavior and to

violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718

(1981). In the prison context, such a burden is justified if it is

“reasonably related to a legitimate penological interest.”

Thompson, 809 F.3d at 380 (citing Turner v. Safley, 482 U.S. 78,

89–91 (1987)).

Here, Mr. Neely-Bey asserts, and the defendants do not

contest, that participation in Friday services, including

standing to pray and discussing the words of the Prophet,

are central practices of the MSTA faith. The ban enforced by

the CIF prevents Mr. Neely-Bey from fully participating in

the Friday services. The question therefore is whether the

ban is reasonably related to a legitimate penological interest.

No. 17-2980 25

Mr. Neely-Bey maintains that “the sole reason offered by

Defendants for these restrictions was enforcement of a

memorandum from an outside MSTA volunteer minister.” 42

According to Mr. Neely-Bey, “[i]t was, purely and simply, a

reaction to perceived religious heresy,” and the defendants’

enforcement of religious orthodoxy “is not a legitimate peno-

logical interest.” 43

As we already have discussed, however, this statement

does not fairly characterize the situation. Brother Doles Bey’s

memo simply does not request that the prison enforce any

religious doctrine. It does not ask the CIF, for instance, to

serve MSTA adherents only porkless meals (a requirement

of the faith) and to enforce that abstinence through disci-

pline. Instead, the memo simply requested that the CIF al-

low the MSTA to choose those who may speak authoritative-

ly on matters of faith. Therefore, contrary to Mr. Neely-Bey’s

assertion, there is evidence in the record to establish that the

CIF’s actions were motivated by a desire to protect the rights

of other MSTA adherents at the CIF. The memorandum from

Brother Doles Bey clearly articulates a concern that, if

Mr. Neely-Bey, a professed sovereign citizen, were allowed

to speak at MSTA services, the congregation of worshippers

might be disbanded. It also refers to the need for the MSTA

to conduct the Friday prayer services in accordance with the

requirements of its tradition. 44

42 Appellant’s Br. 28.

43 Id. at 28–29.

44

See R.81 at 72 (“The Acting Chairman presides over the[] meetings and

makes sure that the meeting is opened and closed according to the laws

(continued … )

26 No. 17-2980

Although the term “penological interests” is most typi-

cally articulated in terms of a penal institution’s interest in

security and financial stability, it is well-established that the

term also encompasses far wider concerns of just governance

in the penal setting. See, e.g., Beard v. Banks, 548 U.S. 521, 530–

32 (2006) (plurality opinion) (holding that encouraging pro-

gress toward rehabilitation serves legitimate penological ob-

jectives); Jones v. Brown, 461 F.3d 353, 364 (3d Cir. 2006) (not-

ing that “the health and safety of inmates … are legitimate

penological interests”); Goodwin v. Turner, 908 F.2d 1395,

1399–1400 (8th Cir. 1990) (holding that treating male and fe-

male inmates equally furthered a legitimate penological in-

terest). We have no doubt that the term also involves the

protection of the constitutional rights of other prisoners. In-

deed, prison officials are under a constitutional duty to pro-

tect those rights. We therefore have no doubt that the prison

officials are on solid ground in maintaining that they have a

right, and indeed an obligation, to protect the right of other

prisoners who adhere to the MSTA faith to worship in a

congregational manner to the extent that such a practice is

consistent with other penal objectives.

Of course, in asserting such an objective and in choosing

a means to achieve such an objective, Turner v. Safley, 482

U.S. 78, 89–90 (1987), teaches that prison officials cannot rely

on the mere incantation of a penal interest but must come

forward with record evidence that substantiates that the in-

( … continued)

and Customs of the Moorish Science Temple of America, Inc. and sets

the tone for services to flow smoothly and without [sic] from the

body/membership; and guests.”).

No. 17-2980 27

terest is truly at risk and that prison officials have chosen an

appropriate manner to assert that interest. Before us, the de-

fendants justify their actions only in terms of the MSTA’s

rights without any reference to the possible impact on the

security, operations, or finances of the CIF. Under such cir-

cumstances, we cannot conclude that the defendants have

articulated a legitimate “penological” reason for denying

Mr. Neely-Bey full participation in MSTA’s Friday services. 45

The merits of Mr. Neely-Bey’s claim for injunctive relief

therefore remain an open question. In considering this ques-

tion, the district court should not only determine the propri-

ety of injunctive relief under the Free Exercise Clause, but

possible relief under RLUIPA. We have observed that, when

a pro se prisoner asserts a claim under the Free Exercise

Clause, the district court should interpret that constitutional

claim to include a statutory claim under RLUIPA. Grayson,

666 F.3d at 451.46 RLUIPA prohibits prison officials from

45 In writing the Report of Conduct, Chaplain Smith interpreted

Mr. Neely-Bey’s actions as intending to interfere with and disrupt MSTA

services on Holy Days. See R.81 at 73. Avoiding disruption of, and inter-

ference with, the meetings of authorized groups at the CIF is a legitimate

penological interest. However, as already discussed, the defendants have

not argued that this was a consideration in the action they took against

Mr. Neely-Bey.

46 Although damages are not available under RLUIPA, injunctive relief

is. See Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012). Thus, because

sovereign immunity and qualified immunity protect government offi-

cials only from damages suits, those doctrines cannot protect officials

from claims for injunctive relief brought under RLUIPA. See Sorrentino v.

Godinez, 777 F.3d 410, 415 (7th Cir. 2015) (“Sovereign immunity normally

does not bar suits for injunctive relief in federal court alleging that a state

official violated the federal constitution or laws.”); Hannemann v. S. Door

(continued … )

28 No. 17-2980

“impos[ing] a substantial burden on the religious exercise”

of an inmate “unless the government demonstrates that im-

position of the burden on that person … is the least restric-

tive means of furthering [a] compelling governmental inter-

est.” 42 U.S.C. § 2000cc-1(a). Because RLUIPA “confers

greater religious rights on prisoners than the free exercise

clause has been interpreted to do,” Grayson, 666 F.3d at 451,

it is possible that Mr. Neely-Bey is entitled to statutory in-

junctive relief even if he cannot establish a right to relief un-

der the Free Exercise Clause.

A word of caution. On remand, the district court first

should consider whether subsequent events have rendered

Mr. Neely-Bey’s claims for injunctive relief moot. Prior to

oral argument, the defendants notified us that

Mr. Neely-Bey had been transferred from the CIF to the

Westville Correctional Facility. At oral argument, counsel for

the defendants suggested that the transfer rendered

Mr. Neely-Bey’s claims for injunctive relief moot. However,

there is no evidence in the record regarding how

Mr. Neely-Bey’s transfer will affect his ability to participate

in MSTA worship. Moreover, we do not know the likelihood

of Mr. Neely-Bey being transferred back to the CIF. See

Young v. Lane, 922 F.2d 370, 373–74 (7th Cir. 1991) (noting

that the likelihood of being transferred back to an institution

is a factual determination for the district court). We leave it,

therefore, to the district court to determine on a more devel-

( … continued)

Cnty. Sch. Dist., 673 F.3d 746, 758 (7th Cir. 2012) (“[T]he defense of quali-

fied immunity does not protect defendants from an action for injunctive

relief.”).

No. 17-2980 29

oped record the effect of Mr. Neely-Bey’s transfer on his

claims for injunctive relief under the Free Exercise Clause

and RLUIPA.

In sum, we agree with the district court that the defend-

ants are entitled to summary judgment on Mr. Neely-Bey’s

claims for damages under the Free Exercise Clause. Howev-

er, the district court failed to consider Mr. Neely-Bey’s

claims for injunctive relief under either the Free Exercise

Clause or under RLUIPA. We therefore remand to the dis-

trict court for further consideration of these claims in the

first instance, including the effect of any subsequent events

on Mr. Neely-Bey’s claims for injunctive relief.

B. Establishment Clause

Mr. Neely-Bey also maintains that the district court erred

in failing to address his Establishment Clause claim. He fur-

ther asserts that, had the district court considered the claim,

it would have concluded that the defendants violated the

Establishment Clause in enforcing Brother Doles Bey’s pro-

hibition against his full participation in MSTA meetings.

Mr. Neely-Bey is correct that the district court’s order

granting the defendants’ motion for summary judgment did

not explicitly mention the Establishment Clause. However, it

did speak more broadly of whether the defendants’ actions

had violated Mr. Neely-Bey’s “rights under the First

Amendment.” 47 It concluded that there was no controlling

authority “directly establishing that the defendants’ conduct

in this case, where state officials enforced a ban from partici-

47 R.84 at 8.

30 No. 17-2980

pating in religious activities that was put in place by the re-

ligious entity itself, violated Mr. [Neely-Bey’s] rights under

the First Amendment.” 48 It therefore granted qualified im-

munity to the defendants. We turn, therefore, to the question

whether the defendants are entitled to qualified immunity

on Mr. Neely-Bey’s claim under the Establishment Clause.

1.

Mr. Neely-Bey submits that, at the time Chaplain Smith

limited his participation in MSTA meetings, it was clear that

such action violated the Establishment Clause. He begins by

noting that then, as now, “[a] government policy or practice

violates the Establishment Clause if (1) it has no secular pur-

pose, (2) its primary effect advances or inhibits religion, or

(3) it fosters an excessive entanglement with religion.” Kauf-

man v. McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005) (citing

Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)). According to

Mr. Neely-Bey, the defendants’ actions violated all three

prongs.

First, he claims that there is no secular purpose for ban-

ning him from participating in MSTA Holy Day services. In-

stead, he contends, the defendants’ “only reason for impos-

ing this restriction is a desire to enforce the religious di-

rective of an outside volunteer minister, a directive that is

based entirely on religious orthodoxy.”49 We cannot accept

this submission. In determining whether a government ac-

tion has a secular purpose, “a government’s characterization

of its purpose is entitled to deference, although courts must

48 Id. at 7–8.

49 Appellant’s Br. 41.

No. 17-2980 31

ensure that the government’s characterization is sincere.”

Vision Church v. Vill. of Long Grove, 468 F.3d 975, 992 (7th Cir.

2006) (internal quotation marks omitted). Fairly read, the de-

fendants have stated that their reason for giving effect to

Brother Doles Bey’s memo was to protect the associational

rights of the MSTA to choose, in the context of a religious

worship ceremony, participants and leaders of the ob-

servance. Chaplain Smith’s directive to Mr. Neely-Bey

makes this objective crystal clear. The directive explicitly

recognizes Mr. Neely-Bey “as a guest of MST of A,” who

could “listen,” but not instruct at MSTA meetings. 50 In pro-

tecting the rights of the other prisoners, as was their obliga-

tion, the defendants may have reinforced incidentally the

tenets of that faith. There is no evidence in the record, how-

ever, their actions were designed to produce such an effect. 51

Mr. Neely-Bey also maintains that the primary effect of

the action is to advance the orthodoxy of the MSTA. He be-

lieves that his situation mirrors the “pernicious fusion” of

church and state that the Court condemned in Larkin v.

Grendel’s Den, Inc., 459 U.S. 116 (1982), and Board of Education

50 R.81 at 78.

51 Mr. Neely-Bey also maintains that he is being singled out because of

his religious beliefs. “The restriction imposed by Defendants,”

Mr. Neely-Bey explains, “which prohibits [him] from speaking or stand-

ing during Friday Holy Day services while others do so[,] is not based on

any neutral or generally applicable rules about conduct or even member-

ship in religious groups or participation in religious services.” Appel-

lant’s Br. 42. It is, however, based on a neutral rule—that religious asso-

ciations should be able to control their own leadership and membership.

32 No. 17-2980

of Kiryas Joel Village School District v. Grumet, 512 U.S. 687

(1994). 52

In Larkin, a Massachusetts state law provided that estab-

lishments “located within a radius of five hundred feet of a

church or school shall not be licensed for the sale of alcoholic

beverages if the governing body of such church or school

file[d] [a] written objection” to the license. 459 U.S. at 117 (in-

ternal quotation marks omitted). The Court determined that

the statute resulted in an unconstitutional cessation of gov-

ernmental authority to a religious institution:

Section 16C gives churches the right to deter-

mine whether a particular applicant will be

granted a liquor license, or even which one of

several competing applicants will receive a li-

cense.

The churches’ power under the statute is

standardless, calling for no reasons, findings,

or reasoned conclusions. That power may

therefore be used by churches to promote goals

beyond insulating the church from undesirable

neighbors; it could be employed for explicitly

religious goals, for example, favoring liquor li-

censes for members of that congregation or

adherents of that faith.

Id. at 125. It therefore did “not strain” the Court’s “prior

holdings to say that the statute can be seen as having a ‘pri-

mary’ and ‘principal’ effect of advancing religion.” Id. at 126.

52 Id. at 44.

No. 17-2980 33

Similarly, in Kiryas Joel Village School District, a special

state law had created a school district, the lines of which

were the same as the lines of property owned by a Hasidic

Jewish congregation. The result was that the provision of

public educational services within a district had been

awarded based on religious views and was completely con-

trolled by a religious body. The Court observed that the Free

Exercise and Establishment Clauses “‘compel[] the State to

pursue a course of “neutrality” toward religion,’ favoring

neither one religion over others nor religious adherents col-

lectively over nonadherents.” Bd. of Educ. of Kiryas Joel Vill.

Sch. Dist., 512 U.S. at 696 (quoting Comm. for Pub. Ed. & Reli-

gious Liberty v. Nyquist, 413 U.S. 756, 792–93 (1973)). The

statute at issue, the Court explained, “depart[ed] from this

constitutional command by delegating the State’s discretion-

ary authority over public schools to a group defined by its

character as a religious community, in a legal and historical

context that gives no assurance that governmental power

has been or will be exercised neutrally.” Id.

In both Larken and Kiryas Joel Village School District, there-

fore, a formal enactment ceded a discretionary function of

governance to a religious body. The CIF, however, has not

ceded disciplinary authority to the MSTA. The CIF has not

given the MSTA the power to discipline an MSTA member

if, for instance, the member fails to attend Friday services.

Instead, the MSTA asked the CIF defendants to protect its

right to control the religious content of the MSTA’s own

meetings by determining who may or may not teach its con-

gregants. Here, a religious entity has not been given carte

blanche to administer a government program or bestow a

government benefit as it sees fit.

34 No. 17-2980

Finally, Mr. Neely-Bey submits that the CIF’s enforce-

ment of Brother Doles Bey’s memo violates the entangle-

ment prong of the Lemon test. To establish excessive entan-

glement with religion, Mr. Neely-Bey has to “demonstrate

‘sponsorship, financial support, and active involvement of

the sovereign in religious activity.’” Vision Church, 468 F.3d

at 995 (quoting Jimmy Swaggart Ministries v. Bd. of Equaliza-

tion of California, 493 U.S. 378, 393 (1990)). “The general rule

is that, to constitute excessive entanglement, the government

action must involve ‘intrusive government participation in,

supervision of, or inquiry into religious affairs.’” Id. (quoting

United States v. Indianapolis Baptist Temple, 224 F.3d 627, 631

(7th Cir. 2000)).

Mr. Neely-Bey does not address these standards or sug-

gest how the evidence in the record establishes the level of

intrusiveness required for entanglement. Instead, he submits

that Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009), necessitates

such a finding of entanglement.

In Nelson, an Illinois inmate had requested a meatless di-

et on Fridays as an act of penance in accordance with his

Catholic faith. The correctional facility’s chaplain, Miller, re-

viewed the request, “cross-checking the inmate’s declared

religious affiliation to determine if a religious diet was re-

quired”; specifically, he “looked for confirmation of the reli-

gious dietary tenet ‘on paper’—that is, he looked for confir-

mation of the requirement in some ‘church document’—as

opposed to inquiring regarding the spiritual goals of the in-

mate.” Id. at 872. The prison chaplain denied the request,

and, in his denial, he “cited several Bible passages purport-

edly contradicting Nelson’s beliefs regarding penance.” Id. at

No. 17-2980 35

881. Eventually, at the direction of the warden, Nelson re-

ceived a vegan diet.

Nelson filed an action against Miller and several other

administrators at the correctional facility, alleging, among

other claims, a violation of the Establishment Clause. Specif-

ically, Nelson alleged that Miller had “favored Muslim and

African Hebrew Israelite prisoners by approving vegan diets

for those prisoners without obtaining written verification

that such diets were required by their religions.” Id. at 880–

81. The district court, however, “found that Nelson had not

proven a violation of the establishment clause because there

were valid neutral reasons for Miller’s actions in this re-

gard.” Id. at 881. On appeal, we agreed with the district

court. We explained that the correctional facility’s regula-

tions

provided that prisoners could abstain from

“any foods the consumption of which violates

their required religious tenets” and the district

court concluded that Miller had required doc-

umentation because he was unfamiliar with

any Catholic “required religious tenet” which

necessitated a non-meat diet. Under the district

court’s reasoning, Miller did not ask Muslim

and African Hebrew Israelite prisoners to

submit verification because he understood

from his experience that a limited diet was part

of many of these prisoners’ religious practice.

Id.

Nevertheless, we observed, Miller’s denial, which “cited

several Bible passages purportedly contradicting Nelson’s

36 No. 17-2980

beliefs regarding penance, improperly entangled [Miller] in

matters of religious interpretation. It simply [wa]s not ap-

propriate for a prison official to argue with a prisoner re-

garding the objective truth of a prisoner’s religious belief.”

Id.

We fail to see Nelson’s application to the circumstances

here. Chaplain Smith did not undertake his own review of

MSTA doctrine. Rather, he was told by the MSTA minister at

the CIF, Brother Doles Bey, 53 that Mr. Neely-Bey’s profession

of sovereign citizenship 54 precluded him from full member-

ship and participation in the MSTA. This tension between

the tenets of the MSTA and the sovereign-citizen movement

is well documented in our case law. See Bey v. State, 847 F.3d

559, 560–61 (7th Cir. 2017). Chaplain Smith accepted the

statement of the MSTA representative; he made no commen-

tary at all concerning the “objective truth” of

Mr. Neely-Bey’s beliefs. He simply forbade him from dis-

rupting the MSTA service.

In sum, at the very least, Chaplain Smith did not act in a

manner inconsistent with existing precedent. See al-Kidd, 563

U.S. at 741. Consequently, we affirm the district court’s

judgment granting qualified immunity to the defendants on

Mr. Neely-Bey’s claims for damages under the Establish-

ment Clause.

53 Again, there is no question that Brother Doles Bey is the designated

representative of the MSTA at the CIF. See supra note 9.

54As noted previously, see supra note 8, Mr. Neely-Bey’s profession of

sovereign-citizen beliefs is not at issue here.

No. 17-2980 37

2.

As we already have noted, qualified immunity protects

the defendants only against claims for damages; it does not

protect the defendants against claims for injunctive relief. See

Hannemann, 673 F.3d at 758. The district court failed to rec-

ognize Mr. Neely-Bey’s claims for injunctive relief and,

therefore, never addressed the merits of those claims. On

appeal, the defendants, as well, have failed to address the

merits of Mr. Neely-Bey’s claims for injunctive relief under

the Establishment Clause. They simply maintain that

Mr. Neely-Bey has waived or abandoned any claims for in-

junctive relief—a contention we already have rejected.

If the record contained any evidence that might support

the granting of injunctive relief, we would vacate the district

court’s judgment in this respect and remand for further pro-

ceedings. However, as our earlier discussion of

Mr. Neely-Bey’s Establishment Clause argument demon-

strates, the record is entirely devoid of any evidence that

might form the basis for such a claim. Consequently, the dis-

trict court need not revisit the matter of injunctive relief on

remand.

Conclusion

For the foregoing reasons, we affirm the district court’s

judgment regarding Mr. Neely-Bey’s claims for damages

under the Free Exercise and Establishment Clauses. We also

direct the district court to enter judgment for the defendants

on Mr. Neely-Bey’s claims for injunctive relief under the Es-

tablishment Clause. However, we remand the case to the

district court for it to consider, in the first instance,

Mr. Neely-Bey’s claims for injunctive relief under the Free

38 No. 17-2980

Exercise Clause and under RLUIPA. In undertaking this

task, the district court first should ensure that the controver-

sy has not become moot.

The parties shall bear their own costs of this appeal.

AFFIRMED in part; REMANDED in part