Sharp v. Johnson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2174

_____________

SHAWN C. SHARP,

Appellant

v.

SUPERINTENDENT JOHNSON; DEPUTY

SUPERINTENDENT KRYSEVIG;

DEPUTY SUPERINTENDENT DICKSON; DEPUTY

SUPERINTENDENT STICKMAN, PROGRAM

MANAGER RHODA A. WINSTEAD; CHAPLAIN

FATHER TURSA, CHAPLAIN TANKO IBRAHIYM,

SUPERINTENDENT CONNER BLAIN; DEPUTY

SUPERINTENDENT PAUL STOWITZKY; DEPUTY

SUPERINTENDENT JOHN MILLER, CAPTAIN

COLEMAN; LIEUTENANT FISHER; MAJOR

MELVIN LOCKETT; LIEUTENANT MATCUS;

LIEUTENANT BLAKEY; JEAN A. MEARS;

CHAPLAIN GEORGE J. MONECK; CHAPLAIN

IHMAM MUHAMMED,

_____________

1

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-00-cv-02156

Magistrate Judge: The Honorable Amy Reynolds Hay

Argued November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit

Judges

(Filed: February 9, 2012)

Anderson T. Bailey (Argued)

Thomas S. Jones

Jones Day

500 Grant Street

Suite 4500

Pittsburgh, PA 15219

Counsel for Appellant

Kemal A. Mericli (Argued)

Scott A. Bradley

Office of Attorney General of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Susan J. Forney

2

Office of Attorney General of Pennsylvania

15th Floor

Strawberry Square

Harrisburg, PA 17120

Counsel for Appellee

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

Plaintiff Shawn Sharp, an inmate in the custody of

the Pennsylvania Department of Corrections (“DOC”),

brought this civil rights action in November 2000 claiming

that two prison facilities (SCI-Pittsburgh and SCI-Greene)

unlawfully denied his request to accommodate his particular

religious group. 1 After years of motions practice, in which

1

Eleven defendants testified at the bench trial in this matter.

They were Philip Johnson, William Stickman, Joel Dickson,

Mark Krysevig, Rhoda Winstead, Father William Terza and

Imam Tanko Ibrahiym, who were assigned to SCI-Pittsburgh

during all times relevant to the respective allegations made by

Sharp, and William Stickman, Brian Coleman, Jean Mears,

Father George Moneck and Imam Abu Bakr Muhammad,

who were assigned to SCI-Greene. All of these individuals

are Appellees in this matter. The remaining seven defendants

did not testify at trial and include Conner Blain, Lieutenant

Blakey, Lieutenant Fisher, Melvin Lockett, Lieutenant

Matcus, John Miller and Paul Stowitzky.

3

several of Sharp’s claims were dismissed, Sharp’s remaining

two claims proceeded to a three-day bench trial before the

Magistrate Judge. 2 They were: (1) a claim pursuant to 42

U.S.C. § 1983 that Defendants’ policies and practices violated

Sharp’s right to practice his religion as guaranteed by the

First and Fourteenth Amendments (the “First Amendment

Action”); and (2) a claim pursuant to the Religious Land Use

and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc

(2000) (the “RLUIPA Action”). The Magistrate Judge

entered judgment in favor of Defendants and issued a

memorandum setting forth her findings of fact and

conclusions of law. We will affirm.

I. BACKGROUND

Sharp is serving a life term of imprisonment following

his conviction for first degree murder. He was incarcerated at

SCI-Pittsburgh from September 18, 1998 to May 23, 2001.

Sharp was transferred to SCI-Greene and was incarcerated

there from May 23, 2001 to June 13, 2006, when he was

transferred to SCI-Dallas.

2

The parties consented to have the Magistrate Judge conduct

all proceedings in this case, including entry of final judgment,

pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

4

A. SCI-PITTSBURGH

1. RELIGIOUS SERVICES OFFERED AND

POLICIES FOR REQUESTING RELIGIOUS

ACCOMMODATIONS

SCI-Pittsburgh recognizes and accommodates several

different religions and religious groups, namely Christians,

Jews, and Muslims. With respect to Christianity, SCI-

Pittsburgh offers Catholic, Protestant, and Jehovah’s

Witnesses services. As to Islam, SCI-Pittsburgh offers

Nation of Islam, Moorish Science Temple, and Sunni Muslim

services.

An inmate practicing a religion not covered by the

aforementioned groups may request an accommodation. DC-

Administrative 819 (“DC-ADM 819”) sets forth the DOC’s

policy for requesting recognition of a religion and obtaining

services for that group. The version of DC-ADM 819 that

was in effect from March 2, 1998 until July 15, 2002 stated,

in pertinent part, that:

Requests to engage in religious practices . . .

which are not being accommodated by the

[DOC], must be initiated by the inmate via an

‘Inmate Religious Accommodation Request

Form’ . . . . The form shall be completed by the

requesting inmate and submitted to the Facility

Chaplaincy Program Director for review by

appropriate staff.

5

The Inmate Religious Accommodation Request Form, also

known as DC-52, stated that “[i]f more than one inmate is

filing a request, each inmate must submit a form. If this is a

group request, information must be submitted to the Facility

Chaplaincy Program Director, who will compile information

about the group request.” After the inmate submits this form,

the prison’s chaplain director must obtain publications from

the faith group regarding the goals, beliefs and practices of

that group. The chaplain then circulates a recommendation

form to certain prison officials, each of whom makes a

written recommendation as to whether the request should be

granted or denied. The chaplain then forwards the prisoner’s

request, the compiled religious information, and the staff

recommendations to the Administrator of Religion and

Family Services at the DOC central office, who ultimately

determines whether to approve or deny the request.

2. SHARP’S INCARCERATION AND ACCOMMODATION

REQUEST AT SCI-PITTSBURGH

Sharp is a member of the faith group known as Ahlus

Sunnati Wal Jama‘ah, whose members are frequently referred

to as Sunni Muslims. There are different subsets within the

6

broader Sunni Muslim group. Sharp identifies himself as a

member of the Habashi sect. 3

The Islamic Chaplains testified that Muslims at the

prison typically take part in Jumah and Taleem. Jumah is a

group prayer service held on Fridays that every Muslim is

obligated to attend if possible. Taleem is a religious study

period that is generally held on a weekly basis though there is

no religious obligation to attend. Defendant Tanko Ibrahiym,

the Islamic Chaplain at SCI-Pittsburgh from 1998 to 2004 and

a self-identified Sunni Muslim, led Jumah services and

3

Testimony from Imam Muhammad and exhibits introduced

at trial provided general background information regarding

the Habashi sect. Pursuant to this information, the Habashis

are followers of Abdullah Alharrari Alhabashi, an Ethiopian

who settled and taught in Lebanon. The Habashi are

offspring of the Al-Ashari community, which was founded by

Abu-Hasan Al-Ashari around the year 860 A.D.

One of the purported differences between the Habashi

sect of Sunni Islam and other Sunni sects is the direction of

prayer. As a precondition for a Muslim’s prayers to be valid,

those prayers must be offered toward the Qiblah, which is the

direction to the Kabah, the holy shrine in Mecca. Thus, the

direction of a Muslim’s prayer is dependent on the orientation

between that person’s current location and the Kabah. Imam

Muhammad estimated that 99.9% of Muslims in the United

States pray in a northeast direction. Habashis, however,

contend that the Kabah is southeast from the United States,

and they pray in that direction.

7

Taleem classes for Sunni Muslims at the prison. Sharp

regularly attended these services and classes.

At some point, Sharp informed Imam Ibrahiym that he

believed there were ideological differences between Sharp’s

Habashi sect and the recognized Sunni group at SCI-

Pittsburgh. Sharp believed that the Habashi could not be

accommodated within the Sunni Muslim community at SCI-

Pittsburgh. Imam Ibrahiym disagreed with Sharp’s assertion

that the Habashi were not being accommodated and advised

that if Sharp was a Sunni Muslim, as he claimed to be, then

there was no reason why Sharp could not attend the services

and programs that were offered to the Sunni Muslims at SCI-

Pittsburgh.

On October 14, 1999, Sharp, on behalf of a purported

group of Habashi members, submitted a typed document

titled “Religious Accommodation Request for Ahlus Sunnati

wal Jama’ah,” requesting recognition and accommodation of

the Habashi sect. In particular, Sharp sought space for

separate Jumah services and Taleem classes on behalf of his

purported group of 30 inmates. Although the document

submitted was not the DC-52 form required by DC-ADM

819, it contained similar substantive information.

Imam Ibrahiym discussed this group request with

Defendant Father William Terza, who was the Facility

Chaplain Program Director and was responsible for

overseeing the chaplaincy program at SCI-Pittsburgh. Father

Terza informed Sharp that his request was improperly

submitted because it did not include an individual request on

the proper DC-52 form, as required by DC-ADM 819. Father

8

Terza told Sharp that once he submitted the proper form,

Father Terza would circulate it to the appropriate SCI-

Pittsburgh staff members for their recommendation and then

forward it to the DOC central office for a decision. The

District Court found that Sharp never submitted the proper

individual request form to Father Terza.

On November 28, 1999, a meeting was held between

Defendant Mark Krysevig, who was the Deputy

Superintendent at SCI-Pittsburgh, Defendant Rhoda

Winstead, who was the Corrections Classification Program

Manager (the “CCPM”) at SCI-Pittsburgh, Imam Ibrahiym,

Father Terza and several inmates, including Sharp, to discuss

SCI-Pittsburgh’s Ramadan services. Specifically, discussions

were held to determine how Ramadan, a month-long Muslim

observance, would be accommodated among the various

Muslim groups and inmates who wished to participate. At

this meeting, Sharp again — this time orally — raised his

request for a group accommodation of his Habashi sect.

On November 30, 1999, Sharp was placed in

administrative custody (i.e., the restrictive housing unit)

because, according to Defendants, Sharp’s efforts to organize

a separate religious group were creating a threat to

institutional security. In particular, the prison officials found

that Sharp was a danger to others, that he was attempting to

establish himself as the leader of a group of inmates, and that

he threatened disruption and violence if his religious group

was not recognized. Defendants Krysevig and William

Stickman, who was the Deputy Superintendent for Facility

Management at SCI-Pittsburgh, believed that Sharp was more

interested in placing himself in a leadership position over a

9

group of inmates than obtaining a genuine religious

accommodation. Several inmates complained to Krysevig

that Sharp was being disrespectful of their beliefs, and

Krysevig was concerned that these other inmates might

retaliate against Sharp. In sum, Sharp was placed in

administrative custody for “fomenting unrest in group

activity.”

On December 1, 1999, Sharp filed Grievance No. PIT-

0997-99 (the “Pittsburgh Grievance”) questioning why no

determination had been issued with respect to his group

request for accommodation. On December 20, 1999,

Winstead denied the Pittsburgh Grievance in writing, stating,

in pertinent part:

At the meeting you mention on November 28,

1999 it was verified that all staff mentioned

received a copy of your proposal [i.e., Sharp’s

request for an accommodation].

In accordance with DC-ADM 819-3 for

religious accommodations, you were to submit

the proper form requesting such an

accommodation for you as an individual. Any

other inmates requesting an accommodation

must be filed individually. Your form should be

forwarded to the chaplaincy coordinator. Your

form was improperly filed.

The SCI-Pittsburgh Defendants testified that Sharp

never submitted a form requesting religious accommodations

for himself as an individual. Sharp claims that he and other

10

Habashi members submitted handwritten, individual requests

for accommodation to Imam Ibrahiym. Imam Ibrahiym’s trial

testimony on this issue was, at best, unclear. Imam Ibrahiym

testified that he never received a DC-52 form from Sharp or

any other of the inmates that practice Habashi. Later, Imam

Ibrahiym testified that he received written requests for

accommodation from Sharp, though the nature of these

purported requests was unclear. 4

Sharp appealed the denial of the Pittsburgh Grievance

to Defendant Philip Johnson, who was Superintendent of SCI-

Pittsburgh. On January 5, 2000, Johnson dismissed Sharp’s

appeal as untimely.

Sharp further claims that, while he was in

administrative custody, Defendants proposed that he sign a

behavioral modification contract that included a condition

that he agree not to practice his religion in exchange for

release into the general population. SCI-Pittsburgh had a

Program Review Committee (“PRC”) that would periodically

meet with inmates confined to administrative custody and

review their restricted status. Defendants Krysevig and Joel

Dickson, who was the Deputy Superintendent at SCI-

4

The Magistrate Judge did not find Sharp’s claim that he

submitted a handwritten, individual request to Imam Ibrahiym

credible because Sharp could not produce a copy of this

request at trial despite producing copies of all the other

important documents in the case. The Magistrate Judge also

found Sharp’s claim belied by his grievance requests, which

refer to group requests, not an individual request.

11

Pittsburgh, were on Sharp’s PRC. 5 Because the PRC had

“serious reservations” about releasing Sharp into the general

population absent modification of his behavior, the PRC

offered him the opportunity to agree to a behavioral

modification contract. Behavioral modification contracts

were informal agreements between the institution and the

inmate setting the terms of the inmate’s release from

administrative custody. If the inmate fails to comply with the

terms of the contract, he can be returned to administrative

custody. The PRC proposed a behavioral modification

contract to Sharp, the general terms of which were to include

promises by Sharp to cease fomenting unrest and to refrain

from showing disrespect for the religious beliefs and practices

of others, in exchange for release from administrative

custody. Sharp was to draft the specific language of the

contract. Both Krysevig and Dickson testified that the PRC

never made restrictions on Sharp’s practice of his religion a

condition of his release from administrative custody. Sharp

never submitted a draft to — nor reached an agreement with

— the PRC. 6

On May 23, 2001, the DOC transferred Sharp from

SCI-Pittsburgh to SCI-Greene.

5

Defendant Melvin Lockett, who was a Unit Manager at SCI-

Pittsburgh, was the third member of Sharp’s PRC.

6

Collectively, Defendants Johnson, Krysevig, Dickson,

Stickman, Winstead, Terza, and Ibrahiym are the “SCI-

Pittsburgh Defendants.”

12

B. SCI-GREENE

1. RELIGIOUS SERVICES OFFERED AND

POLICIES FOR REQUESTING RELIGIOUS

ACCOMMODATIONS

SCI-Greene recognizes and accommodates several

different religions and religious groups, namely Christians,

Jews, Native Americans and Muslims. With respect to

Christianity, SCI-Greene offers Catholic, Protestant,

Jehovah’s Witness and Yoke Fellowship services. As to

Islam, SCI-Greene offers Nation of Islam and Sunni services.

Effective July 15, 2002, the DOC issued a revised DC-ADM

819. This revised policy stated, in pertinent part, that requests

for religious accommodation were to be made as follows:

a. Each inmate must use a DC-52, Inmate

Religious Accommodation Request Form . . .

to submit his/her request for accommodation to

the FCPD [Facility Chaplaincy Program

Director].

***

c. The inmate shall obtain written information

from his/her outside faith group, including any

publications that describe the goals, beliefs, and

practices of the group and supply this

information to the FCPD for review.

d. The Religious Accommodation Review

Committee shall review each inmate’s request

for a religious accommodation within 45 days

13

of receipt and forward a recommendation to the

affected Regional Deputy Secretary.

e. The Regional Deputy Secretary shall, within

15 days of receiving the recommendation from

the Director of the Bureau of Inmate

Services/designee, approve/disapprove the

request and notify the Director of the Bureau of

Inmate Services of the decision.

f. The Director, Bureau of Inmate Services

shall, within 10 days, inform the Facility

Manager and the FCPD of the requesting

facility of the determination and ensure copies

of all final determinations are provided to all

Deputy Secretaries and Facility managers. The

FCPD shall be responsible for informing the

affected inmate of the outcome of his/her

request no later than 10 working days from the

date that the determination of

approval/disapproval is received.

g. If an inmate is informed by the FCPD that

the request will not be accommodated, the

inmate may then file a grievance in accordance

with Department policy DC-804, “Inmate

Grievances.” Grievances may only be

submitted after the inmate has received

notification of the decision on the requested

accommodation.

14

(emphasis in original). The DOC did not make any

substantive changes to the DC-52 Inmate Religious

Accommodation Request Form.

Defendant Imam Abu Bakr Muhammad, who was the

Muslim Chaplain at SCI-Greene, testified that he is a Sunni

Muslim. Imam Muhammad provided Taleem and led the

weekly Jumah prayer services for Muslim inmates.

2. SHARP’S INCARCERATION AND

ACCOMMODATION REQUESTS AT SCI-GREENE

On September 30, 2002, more than a year after being

transferred to SCI-Greene, Sharp submitted a DC-52 form

requesting an individual religious accommodation of his

Habashi sect pursuant to DC-ADM 819. 7 Sharp’s request

sought, among other things, Jumah services and Taleem

study, library space with books teaching his beliefs, prayer

time at sunset during Ramadan with others who shared his

beliefs, an outside coordinator on a weekly basis, and a

community bank account.

Defendant Father George Moneck, who was the

Director of Chaplaincy at SCI-Greene, reviewed Sharp’s

request and recommended that the DOC central office deny it.

Father Moneck further commented on the form that Sharp

“can practice his religion privately. [SCI-Greene] cannot

7

Sharp identified the formal name of his religion as “Islam as

taught by the Ashariy Community of Ahlus Sunnah wal

Jama’ah,” but he noted that it is commonly referred to as

Habashi.

15

accommodate another Muslim sect. [Sharp] is most welcome

to join the Sunni or the Nation of Islam communities.”

Father Moneck circulated the vote form to the other

staff members, who all recommended that Sharp’s request be

denied. Defendant Jean Mears, who was SCI-Greene’s

CCPM, generally reviewed inmates’ requests for religious

accommodation. Mears, however, was unavailable when

Sharp’s request was circulated. Michael Bruno, who was

SCI-Greene’s acting CCPM at the time, reviewed and

recommended that the DOC central office deny Sharp’s

request. Bruno is not a defendant in this action. Stickman,

who was promoted to Superintendent at SCI-Greene in 2002, 8

generally participated in reviewing inmates’ requests for

religious accommodation. Stickman, however, was

unavailable and did not participate in the review of Sharp’s

request. Defendant Paul Stowitzky, who was SCI-Greene’s

acting superintendent at the time, reviewed and recommended

that the DOC central office deny Sharp’s request. 9

8

This is the same Defendant who was the Deputy

Superintendent at SCI-Pittsburgh during Sharp’s incarceration

at that prison.

9

Two others voted to recommend that Sharp’s request be

denied: the Major-of-the-Guard and the Deputy

Superintendent for Centralized Services. The record is not

clear who these individuals are, and they do not appear to be

named as defendants.

16

Father Moneck submitted Sharp’s request and the

staff’s recommendations to the DOC’s central office for a

final determination. On December 18, 2002, the central

office denied Sharp’s request. Father Moneck informed

Sharp that his request was denied because he was “able to

attend existing Islamic services or practice [his] religion

privately in [his] cell.”

On December 26, 2002, Sharp submitted Grievance

No. 39662 (the “Greene Grievance”), challenging the denial

of his request for an accommodation. Mears conducted the

initial review and denied Sharp’s grievance because, in her

estimation, Sharp was not denied the right to practice his faith

or prohibited from maintaining his beliefs and praying in his

cell. Sharp appealed the denial of his grievance to Stickman.

This appeal was dismissed as untimely. Sharp did not submit

any other requests for religious accommodation at SCI-

Greene.

Sharp complained to Defendant Brian Coleman, who

was the Security Captain at SCI-Greene, about the content of

certain sermons given by Imam Muhammad. Sharp

specifically complained that Imam Muhammad made derisive

comments about the Habashi sect and Sharp in particular.

Coleman informed Mears of Sharp’s complaint. Mears and

Father Moneck reviewed the videotape of Imam

Muhammad’s sermons and found nothing inflammatory.

Sharp claimed that Coleman ordered his cell to be

searched in order to confiscate Sharp’s religious materials.

Coleman denied this and testified that he had never ordered a

17

search of an inmate’s cell specifically to retrieve religious

materials.

Sharp also claimed that Imam Muhammad would not

allow him to participate in Ramadan services unless Sharp

signed an agreement that he would not practice his Habashi

faith. Imam Muhammad denied this and testified that,

although he did develop an agreement form for inmates

wishing to participate in Ramadan, this form did not require

the inmates to profess or practice a specified religion. 10

On June 13, 2006, the DOC transferred Sharp from

SCI-Greene to SCI-Dallas.

10

Collectively, Defendants Coleman, Mears, Moneck,

Muhammad, Stowitzky, and Stickman are the “SCI-Greene

Defendants.” Collectively, the SCI-Pittsburgh and Greene

Defendants are the “Defendants.”

The Magistrate Judge dismissed, among others, the

following defendants prior to trial: Blaine, Miller, Fisher,

Lockett, Matcus, and Blakey. On appeal, Sharp has not

expressly challenged the dismissal of these parties. In fact,

Sharp’s supplemental brief only references these individuals

in the case caption. Consequently, Sharp has abandoned any

issues with respect to these individuals on appeal. See, e.g.,

Kost v. Kozakiewicz, 1 F.3d 176, 182-83 (3d Cir. 1993);

Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).

18

C. PROCEDURAL BACKGROUND

On November 2, 2000, Sharp filed his complaint. 11

The case underwent years of motions practice and several of

Sharp’s claims were dismissed prior to trial. 12 Sharp’s First

Amendment and RLUIPA Actions proceeded to a bench trial

before the Magistrate Judge.

On April 7, 2008, the Magistrate Judge entered

judgment in favor of Defendants and set forth her findings of

fact and conclusions of law in a comprehensive

memorandum. The Magistrate Judge found against Sharp on

the First Amendment Action because, among other things:

Sharp failed to comply with the DOC’s regulations regarding

11

Counsel was appointed and represented Sharp for much of

the pre-trial proceedings, but Sharp’s counsel, apparently at

Sharp’s request, sought to withdraw prior to trial. Thereafter,

Sharp proceeded pro se, including at trial.

12

By Order dated December 28, 2004, the Magistrate Judge

granted Defendants’ motion to dismiss and/or for summary

judgment with respect to Sharp’s claims for: compensatory

damages under the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb; lost and/or destroyed property; and lost

wages and employment opportunities.

By Order dated December 28, 2005, the Magistrate

Judge granted Defendants’ motion for summary judgment,

dismissing Sharp’s claims asserting violations of his rights

under the Eighth Amendment and Fourteenth Amendment’s

Due Process Clause.

19

individualized submissions (SCI-Pittsburgh); Sharp failed to

meet his burden of demonstrating that denial of his request

had no rational connection to any legitimate penological

interest (SCI-Greene); the Defendants did not have any

personal involvement in the denial of Sharp’s requests to

support a § 1983 action (SCI-Pittsburgh and Greene); and

Defendants were entitled to qualified immunity (SCI-

Pittsburgh and Greene). The Magistrate Judge found against

Sharp on the RLUIPA Action because, among other things:

Sharp was not entitled to any relief under the statute;

Defendants were entitled to qualified immunity; and in any

event, Sharp’s claim failed on the merits.

20

Sharp appealed. 13

II. DISCUSSION

The District Court had jurisdiction under 28 U.S.C. §

1331. We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291.

We apply a clearly erroneous standard when reviewing

the findings of fact from a bench trial and a plenary standard

to the conclusions of law. Trustees of Nat’l Elevator Indus.

Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d

188, 191 (3d Cir. 2003).

13

On April 21, 2008, Sharp filed a pro se notice of appeal.

After the initial briefs were submitted, we requested

supplemental briefing and appointed counsel to represent

Sharp.

Defendants’ motion to strike Section VI of Sharp’s

supplemental reply brief (“Section VI”) is currently pending

before us. Defendants assert that Section VI contains

arguments regarding issues not raised in Sharp’s

supplemental brief. Sharp argues that these issues were

raised in his informal brief, and that two of the three issues

raised are a response to Defendant’s supplemental opposition

brief. We conclude that Section VI improperly exceeded the

scope of Defendants’ supplemental opposition brief.

Accordingly, we grant Defendants’ motion to strike Section

VI in that we have given that portion of the brief no

consideration in our decision.

21

A. THE RLUIPA ACTION

Sharp’s RLUIPA Action sought injunctive relief and

money damages against Defendants in both their official and

individual capacities. The Magistrate Judge held that Sharp’s

claims for injunctive relief were mooted by his transfer from

SCI-Pittsburgh and SCI-Greene to SCI-Dallas, and that

RLUIPA does not permit recovery against Defendants in their

official or individual capacities. On appeal, Sharp is

challenging only the Magistrate Judge’s denial of his

RLUIPA claim against Defendants in their individual

capacities. The issue of whether RLUIPA permits actions

against State officials in their individual capacities is one of

first impression for this Court. For the reasons discussed

below, we conclude that RLUIPA does not permit such

actions.

RLUIPA permits plaintiffs to “obtain appropriate relief

against a government.” 42 U.S.C. § 2000cc-2.

“[G]overnment,” in pertinent part, is defined as:

(i) a State, county, municipality, or other

governmental entity created under the

authority of a State;

(ii) any branch, department, agency,

instrumentality, or official of an entity

listed in clause (i); and

(iii) any other person acting under color of

State law[.]

22

42 U.S.C. § 2000cc-5(4)(A) (emphasis added).

Sharp argues that the express language of RLUIPA, in

particular the separate references to an “official” and “any

other person acting under color of State law,” supports his

position that Congress intended the statute to permit relief

against government employees in their individual capacities.

In particular, Sharp asserts that, by the “any other person

acting under color of State law” language, Congress

purposefully tracked its § 1983 language. Sharp concludes

that because § 1983 permits recovery against a government

employee in her individual capacity, so too must RLUIPA.

Sharp, however, overlooks the constitutional underpinnings

of RLUIPA. In fact, the Courts of Appeals for the Fourth,

Fifth, Seventh and Eleventh Circuits — the only circuits we

are aware of that have addressed this issue in precedential

opinions — have rejected arguments similar to Sharp’s and

held that RLUIPA does not permit actions against

government employees in their individual capacities. See,

e.g., Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009);

Rendelman v. Rouse, 569 F.3d 182, 186-89 (4th Cir. 2009);

Sossamon v. Lone Star State of Texas, 560 F.3d 316, 327-29

(5th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1271-75 (11th

Cir. 2007), abrogated on other grounds, Sossamon v. Texas,

131 S. Ct. 1651, 1654 (2011) (abrogating Smith as to the

claim against government employees in their official

capacities).

23

Congress enacted RLUIPA pursuant to its spending

power under Article I of the Constitution. 14 When Congress

enacts legislation pursuant to its spending power, it may

attach conditions on the receipt of federal funds and

essentially create a contract between the federal government

and the State recipient. Smith, 502 F.3d at 1273; see also

Nelson, 570 F.3d at 887 (citing Pennhurst State Sch. & Hosp.

v. Halderman, 451 U.S. 1, 17 (1981)). As a result, the statute

may, as a condition of the funding, “subject the grant

recipient to liability in a private cause of action, but the

spending power cannot be used to subject individual

defendants, such as state employees, to individual liability in

a private cause of action.” Smith, 502 F.3d at 1274; see also

Sossamon, 560 F.3d at 329.

Thus, non-recipients of the funds, including

individuals who are state officials, generally cannot be subject

to private liability for monetary damages. See, e.g., Nelson,

570 F.3d at 888-89 (stating that permitting suits against

government officials in their individual capacity would “raise

serious questions regarding whether Congress had exceeded

its authority under the Spending Clause”); Rendelman, 569

F.3d at 189 (concluding that the RLUIPA’s definition of

“government” did not clearly convey Congress’s intent to

impose a condition of individual liability pursuant to the

14

Although Congress enacted RLUIPA pursuant to both its

spending power and the Commerce Clause, see, e.g., 42

U.S.C. § 2000cc-1(b), the parties have conceded that only

Congress’s authority under the spending power is implicated

here.

24

Spending Clause); Sossamon, 560 F.3d at 329

(“Congressional enactments pursuant to the Spending Clause

do not themselves impose direct liability on a non-party to the

contract between the state and the federal government.”);

Smith, 502 F.3d at 1273-74 (drawing an analogy to the court’s

Title IX jurisprudence, which does not permit suits against

individuals because Title IX was enacted pursuant to the

Spending Clause).

Moreover, when Congress desires to impose a

condition under the Spending Clause, it is Congress’s burden

to affirmatively impose the condition in clear and

unmistakable statutory terms. See, e.g., Pennhurst State Sch.

& Hosp., 451 U.S. at 17. In Pennhurst State School &

Hospital, the Supreme Court stated that

[t]he legitimacy of Congress’s power to

legislate under the spending power thus rests on

whether the State voluntarily and knowingly

accepts the terms of the “contract.” . . . There

can, of course, be no knowing acceptance if a

State is unaware of the conditions or is unable

to ascertain what is expected of it. Accordingly,

if Congress intends to impose a condition on the

grant of federal moneys, it must do so

unambiguously.

Id. (internal citations omitted).

Here, the Magistrate Judge correctly concluded that

RLUIPA does not permit an action against Defendants in

their individual capacities. Pennsylvania, not Defendants,

25

was the direct recipient of any federal funds. Thus, RLUIPA

cannot impose direct liability on Defendants, who were not

parties to the contract created between Pennsylvania and the

federal government. 15

Further, RLUIPA does not unambiguously signal

Congress’s intent to impose a condition of individual liability.

The Supreme Court’s recent decision in Sossamon v. Texas

— which reviewed the related issue of whether States, by

accepting federal funds, waived sovereign immunity under

RLUIPA — is particularly instructive. In Sossamon, the

Court held that States did not consent to waive their sovereign

immunity with respect to RLUIPA suits for damages against

State employees in their official capacities. See 131 S. Ct. at

1655. The Court reasoned that RLUIPA’s authorization of

“‘appropriate relief against a government,’ § 2000cc-2(a),

[was] not an unequivocal expression of state consent” to

waive sovereign immunity to suits for money damages. Id. at

1658-59. Rather, the Court found RLUIPA’s “appropriate

15

Sharp’s reliance on Sabri v. United States, 541 U.S. 600

(2004), for the proposition that Congress may regulate the

actions of third parties under the Spending Clause, is

misplaced. In Sabri, Congress enacted the statute at issue, 18

U.S.C. § 666(a)(2), pursuant to its powers under the Spending

and the Necessary and Proper Clauses to protect its

expenditures against local bribery and corruption. Sabri, 541

U.S. at 602, 605-07. Here, however, Congress did not enact

RLUIPA to protect its own expenditures, but rather it enacted

RLUIPA to protect the religious rights of institutionalized

persons. Thus, Sabri is inapposite.

26

relief” language to be “open-ended and ambiguous about

what types of relief it includes,” thereby precluding any

finding that the States consented to waive sovereign

immunity. Id. at 1659. Similarly here, it cannot be said that

RLUIPA’s “appropriate relief” language unambiguously

signaled Congress’s intent to impose a condition of individual

liability.

Accordingly, the Magistrate Judge did not err when

she entered judgment against Sharp and for Defendants on the

RLUIPA Action.

B. THE FIRST AMENDMENT ACTION

We will affirm the judgment for Defendants on the

First Amendment Action because the Magistrate Judge did

not err in concluding that Defendants were protected by

qualified immunity (discussed in greater detail infra Section

II.B.2). The Magistrate Judge, however, did err in placing the

burden on Sharp to demonstrate that the denial of his request

had no rational connection to any legitimate penological

interest. Although this error ultimately does not affect our

holding, we discuss it next to provide clarity and avoid future

confusion.

1. THE MAGISTRATE JUDGE ERRED IN PLACING THE

BURDEN OF PROOF REGARDING THE PENOLOGICAL

INTEREST FACTOR ON SHARP

Inmates do not completely forego their constitutional

rights because of their incarcerated status, but those rights are

necessarily limited. Waterman v. Farmer, 183 F.3d 208, 213

(3d Cir. 1999) (citing Jones v. N.C. Prisoners’ Labor Union,

27

433 U.S. 119, 125 (1977)). An inmate retains his First

Amendment rights that are “not inconsistent with his status as

a prisoner or with the legitimate penological objectives of the

corrections system.” Pell v. Procunier, 417 U.S. 817, 822

(1974); see also Turner v. Safley, 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court recognized that

subjecting the day-to-day judgments of prison officials to a

strict scrutiny analysis would impede the officials’ ability to

anticipate and solve security and administrative problems.

482 U.S. at 89. Instead, the Court found that “when a prison

regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.” Id. The Court listed four factors that

are relevant in determining the reasonableness of a particular

prison regulation: (1) there must be a “valid, rational

connection” between the prison regulation and the legitimate,

neutral governmental interest put forward to justify it (the

“First Turner Factor”); (2) whether the inmate has alternative

means of exercising the right at issue; (3) the burden that the

accommodation would impose on prison resources; and (4)

whether any ready alternatives to the regulation exist that

would fully accommodate the inmate’s rights at de minimis

cost to valid penological objectives (Turner factors 2-4 are

the “Other Turner Factors”). Id. at 89-91 (quoting Block v.

Rutherford, 486 U.S. 576, 586 (1984)). 16 Turner does not

16

Note that the prisons do not have to use the least restrictive

means possible to further legitimate penological interests.

Turner, 482 U.S. at 90.

28

expressly state which party, the inmate or the prison, bears

the burden of proving these factors.

After Turner, we developed a two-step analysis for

determining whether a prison’s regulation is reasonably

related to a penological interest. First, the prison has the

burden of demonstrating the First Turner Factor. See

Waterman, 183 F.3d at 218 n.9; Wolf v. Ashcroft, 297 F.3d

305, 308 & n.2 (3d Cir. 2002). This burden is slight, and in

certain instances, the connection may be a matter of common

sense. Wolf, 297 F.3d at 308. Second, if the prison meets its

burden under the First Turner Factor, then we consider the

Other Turner Factors. See Waterman, 183 F.3d at 218 n.9;

Wolf, 297 F.3d at 308 & n.2; see also Jones v. Brown, 461

F.3d 353, 360 (3d Cir. 2006).

After our decisions in Waterman and Wolf, the

Supreme Court, in Overton v. Bazzetta, stated that where an

inmate challenges regulations, the burden “is not on the State

to prove the validity of prison regulations but on the prisoner

to disprove it.” 539 U.S. 126, 132 (2003). Notably, Overton

did not expressly state that the burden for the First Turner

Factor is on the inmate.

In Jones v. Brown, we interpreted Overton as placing

the “ultimate burden of persuasion with regard to the

reasonableness of a regulation” on the inmate but continued

to require that the prison “put forward the legitimate

governmental interest alleged to justify the regulation and

demonstrate that the policy drafters could rationally have seen

a connection between the policy and [that interest].” Jones,

461 F.3d at 360-61 (citations and quotation marks omitted

29

(alteration in original)). Other Third Circuit decisions have

followed Jones. See, e.g., Fontroy v. Beard, 559 F.3d 173,

177 (3d Cir. 2009) (“Although the Inmates bear the ultimate

burden of showing that the DOC’s new mail policy is

unconstitutional, it is the DOC Officials’ burden to

demonstrate that a rational connection exists between the

policy and a legitimate penological interest.”); Monroe v.

Beard, 536 F.3d 198, 207 (3d Cir. 2008) (stating that the

party challenging the regulation bears the burden of showing

that it is unreasonable, but that the prison must come forward

with a legitimate interest justifying the regulation).

Here, the Magistrate Judge erred in concluding that

Overton overruled, sub silentio, our Jones line of cases that

placed the burden for the First Turner Factor on the prison.

See Sharp v. Johnson, No. 00 civ. 2156, 2008 WL 941686, at

*12 (W.D. Pa. Apr. 7, 2008) (placing the burden on Sharp to

“negative every conceivable legitimate penological interest

which might support [Defendants’] denial of the

accommodation”). First, Overton’s burden language does not

support the Magistrate Judge’s conclusion that the burdens of

production and persuasion for all Turner factors fall on those

challenging the regulations. See, e.g., Overton, 539 U.S. at

132. In other words, Overton did not tie its burden language

to the Turner factors; rather, it made a statement about the

general burden of persuasion where a prisoner is challenging

a regulation.

Second, Jones is binding Third Circuit precedent, and

it interpreted Overton’s burden language to mean that the

“ultimate burden of persuasion” — not the burden to prove

the First Turner Factor — is on the inmate. Jones, 461 F.3d

30

at 360-61. In fact, the Supreme Court’s plurality opinion in

Beard v. Banks, 548 U.S. 521 (2006) (“Banks”) supports

Jones’s interpretation of Overton. In Banks, an inmate

challenged the prison’s policy of restricting certain

periodicals and photographs. Banks, citing Overton, stated

that the prisoner “bears the burden of persuasion” when he is

challenging a regulation, 548 U.S. at 529, and that “Turner

requires prison authorities to show more than a formalistic

logical connection between a regulation and a penological

objective.” 17 548 U.S. at 535. 18

17

This is consistent with Turner, where the Court stated that

“there must be a valid, rational connection between the prison

regulation and the legitimate governmental interest put

forward to justify it.” Turner, 482 U.S. at 89 (quotation

marks omitted) (emphasis added). Commonsense dictates

that only the prison officials, not the inmates, would be

putting forth a legitimate governmental interest to support the

regulation.

18

Defendants’ assertion that Banks is inapposite because it

was presented to the Supreme Court in a different procedural

posture (i.e., a motion for summary judgment) than the instant

matter is not persuasive. Banks stated that Turner, not

Federal Rule of Civil Procedure 56, requires prison

authorities to demonstrate the connection between a

regulation and its penological interest. See, e.g., 548 U.S. at

535. Thus, Banks is applicable to the instant matter.

31

Third, contrary to Defendants’ assertion, we see no

internal inconsistency in our jurisprudence on the placement

of the burden for the First Turner Factor. In Newman v.

Beard, a case cited by Defendants, we upheld the dismissal of

the inmate’s First Amendment claim on a 12(b)(6) motion

because the inmate did not allege that the regulation at issue

served no legitimate penological objectives or was not

reasonably related to rehabilitation. 617 F.3d 775, 781 (3d

Cir. 2010). Newman involved a pleading deficiency, not a

determination as to the burden of proof at trial.

In Williams v. Morton, the other case cited by

Defendants for the proposition that our jurisprudence is

inconsistent, we granted summary judgment for the prison

officials and stated that the inmates “have the burden of

disproving the validity of the regulation.” 343 F.3d 212, 218

(3d Cir. 2003). This is essentially the same burden statement

set forth in Overton, which we interpreted in Jones to mean

the general burden of persuasion. In fact, the prison

administrators in Williams set forth a number of legitimate

penological interests to support their regulation. See, e.g.,

343 F.3d at 218 (listing simplified food service, prison

security, and budgetary constraints as legitimate penological

interests supporting the prison’s refusal to serve Halal meat).

Neither Newman nor Williams stated that they were deviating

from the established Third Circuit precedent set forth in Jones

and its progeny. We are satisfied that our jurisprudence on

this issue is consistent.

Finally, policy concerns favor placing the burden of

the First Turner Factor on prison officials. According to the

Magistrate Judge, for Sharp to meet his burden of proving the

32

First Turner Factor, he would have to accomplish the

herculean task of negating “every conceivable legitimate

penological interest which might support” the denial of his

accommodation. Defendants argue that a prisoner seeking a

religious accommodation would merely have to show no

impact on security, orderly administration of the prison, or

expenditures. Defendants, however, ignore the fact that

within these three broad categories are numerous sub-

categories of potential penological interests that an inmate

would also have to negate (e.g., the interests within

expenditures would include: additional guard salary/overtime,

purchase of religious books, space concerns within the library

and prayer areas, additional chaplain expenses, and potential

speaker fees). Placing this burden on prisoners unnecessarily

creates inefficiencies and would invite speculation into the

often subjective motivations of prison officials.

Consequently, policy implications favor placing the burden

on the prison officials.

Accordingly, the Magistrate Judge erred in placing the

burden for the First Turner Factor on Sharp. This error,

however, was not fatal to the judgment on the First

Amendment Action because Defendants were entitled to

qualified immunity.

2. QUALIFIED IMMUNITY

As an initial matter, the Magistrate Judge did not err in

determining that Defendants did not waive their qualified

immunity defense. We review a lower court’s decision

regarding the waiver of an affirmative defense for abuse of

discretion. See, e.g., Cetel v. Kirwan Fin. Group, Inc., 460

33

F.3d 494, 506 (3d Cir. 2006); see also Eddy v. V.I. Water &

Power Auth., 256 F.3d 204, 210 (3d Cir. 2001). 19 Qualified

immunity is an affirmative defense and generally must be

included in a responsive pleading or may be considered

waived. See, e.g., Leveto v. Lapina, 258 F.3d 156, 161 (3d

Cir. 2001) (stating that qualified immunity is an affirmative

defense); see also Fed. R. Civ. P. 8(c). Although it is true

that parties should generally assert affirmative defenses early

in the litigation, there is no firm rule. See Cetel, 460 F.3d at

506. Thus, affirmative defenses may be raised at any time,

even after trial, so long as the plaintiff suffers no prejudice.

See Cetel, 460 F.3d at 506 (citing Charpentier v. Godsil, 937

F.2d 859, 863-64 (3d Cir. 1991)). A party may raise qualified

immunity as a defense at trial, especially where the facts are

not clear. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir.

2002) (stating that fact issues may require a trial before

determining whether qualified immunity is appropriate);

Eddy, 256 F.3d at 210 n.3 (stating in dicta that qualified

immunity may be raised at trial).

Here, Defendants, who pled qualified immunity as an

affirmative defense, placed Sharp on notice of their intent to

raise that defense at trial. Defendants’ delay in asserting

qualified immunity was understandable because trial

testimony was necessary to develop the contours of Sharp’s

19

A court abuses its discretion when its decision “rests upon a

clearly erroneous finding of fact, an errant conclusion of law

or an improper application of law to fact.” Oddi v. Ford

Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) (quoting

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127

(3d Cir.1993)).

34

claims and to determine certain factual issues, including the

number of Habashi adherents at SCI-Pittsburgh and Greene.

Sharp, who was proceeding pro se at trial, did not incur any

unnecessary legal fees as a result of Defendants’ delay, and

he has not identified any substantial prejudice caused by the

delay. If anything, Sharp may have benefited from the delay

because he was afforded the opportunity to introduce

evidence at trial demonstrating that qualified immunity was

improper under the circumstances. Consequently, the

Magistrate Judge did not abuse her discretion by permitting

Defendants to raise their qualified immunity defense at trial.

The Magistrate Judge also did not err in holding that

Defendants were protected by qualified immunity because

they did not violate Sharp’s clearly established rights. We

review the grant of qualified immunity de novo as it raises a

purely legal issue. See Burns v. PA Dep’t of Corr., 642 F.3d

163 (3d Cir. 2011). The qualified immunity doctrine

“protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (citations and quotation marks omitted); see also Ray

v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).

“Qualified immunity balances two important interests — the

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson, 555 U.S. at 231. Qualified

immunity protects “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986); see also Ray, 626 F.3d at 173-74. Thus, so

35

long as an official reasonably believes that his conduct

complies with the law, qualified immunity will shield that

official from liability. See Pearson, 555 U.S. at 244.

In Saucier v. Katz, the Supreme Court established a

two-part analysis for determining when qualified immunity is

applicable: (1) whether the official’s conduct violated a

constitutional or federal right; and (2) whether the right at

issue was “clearly established.” 533 U.S. 194, 201 (2001),

overruled in part by Pearson, 555 U.S. at 236 (relaxing the

Saucier analysis by no longer requiring courts to determine

the Saucier prongs in sequential order); see also Ray, 626

F.3d at 174.

A right is clearly established for qualified immunity

purposes where its contours are “sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Saucier, 533 U.S. at 202; see also

Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006). In

determining whether a right has been clearly established, the

court must define the right allegedly violated at the

appropriate level of specificity. Williams, 455 F.3d at 191

(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). In some

cases, even though there may be no previous precedent

directly on point, an action can still violate a clearly

established right where a general constitutional rule already

identified in the decisional law applies with obvious clarity.

Williams, 455 F.3d at 191 (citing Hope v. Pelzer, 536 U.S.

730, 741 (2002)).

At issue here is whether Sharp had a clearly

established right under the First Amendment to separate

36

religious services in accordance with the Habashi sect of

Sunni Islam when Sunni Islamic services were already

available. The Supreme Court has stated that “[a] special

chapel or place of worship need not be provided for every

faith regardless of size; nor must a chaplain, priest, or

minister be provided without regard to the extent of the

demand.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). We

echoed this when we said, “The requirement that a state

interpose no unreasonable barriers to the free exercise of an

inmate’s religion cannot be equated with the suggestion that

the state has an affirmative duty to provide, furnish, or supply

every inmate with a clergyman or religious services of his

choice.” Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir.

1970). Although we later stated that “an opportunity to

worship as a congregation by a substantial number of

prisoners may be a basic religious experience and, therefore, a

fundamental exercise of religion by a bona fide religious

group,” Small v. Lehman, 98 F.3d 762, 768 (3d Cir. 1996), 20

we have never indicated, let alone clearly established, that a

single prisoner or a non-substantial number of like-minded

prisoners are entitled to place on the state the burden of

20

Small held that the Religious Freedom Restoration Act of

1993 (“RFRA”), 42 U.S.C. § 2000bb, applies to prisoners’

claims. 98 F.3d at 768. Subsequent to our decision in Small,

the Supreme Court in City of Boerne v. Flores declared the

RFRA unconstitutional. 521 U.S. 507 (1997). Although

Small has been overruled in part by Boerne, Small’s finding

that communal worship by a substantial number of prisoners

may be a fundamental aspect of the exercise of religion is still

good law in the Third Circuit.

37

furnishing separate religious services for them. 21 Given this

precedent, a reasonable official would not have understood

the denial of Sharp’s request, whether made by Sharp on

behalf of either himself or a small number of inmates, to

violate a constitutional right. 22

21

Cf. Smith v. Kyler, 295 F. App’x 479, 483-84 (3d Cir.

2008) (determining an inmate’s Free Exercise rights were not

violated by a DOC policy prohibiting group worship in the

absence of an approved faith group leader); Boretsky v.

Corzine, No. 08 civ. 2265, 2011 WL 2610370, at *13 (D.N.J.

June 30, 2011) (holding that a Jewish inmate’s restriction

from congregational services as well as communal activities

did not violate his constitutional rights); Palmer v. Rustin,

No. 10 civ. 0042, 2011 WL 2489820, at *9 (W.D. Pa. June

21, 2011) (dismissing a claim based on denial of right to

attend Muslim services); Gould v. Beard, No. 07 civ. 0055,

2010 WL 845566, at *6 (W.D. Pa. Jan. 16, 2010) (holding

that a prisoner did not have a right to communal Nation of

Islam services); Morris-El v. Menei, No. 00 civ. 200J, 2006

WL 1455592, at *2-6 (W.D. Pa. May 22, 2006) (denying

claim that failure to provide Moorish Science services

violated the inmate’s right to Free Exercise).

22

Sharp further argues that, pursuant to Grant v. City of

Pittsburgh, the Magistrate Judge erred by not conducting a

careful examination of the record and detailing a factual

description of each defendant’s actions. 98 F.3d 116 (3d Cir.

1996) (denying qualified immunity because the district court

did not analyze the specific conduct of each defendant). This

is a red herring. Although the Magistrate Judge did state in a

38

Accordingly, Defendants are entitled to qualified

immunity as to Sharp’s First Amendment Action. 23

conclusory fashion that “the evidence shows that the

Defendants acted reasonably,” she only did so after making

factual findings as to the involvement of each SCI-Pittsburgh

and Greene Defendant with respect to Sharp’s First

Amendment Action. Thus, the Magistrate Judge did conduct

a proper examination of the record.

23

Sharp’s informal brief also expressly asserted that the

Magistrate Judge erred when she: (1) determined that he

waived his retaliation claim; and (2) dismissed his due

process claim. We disagree.

Prior to trial, the Magistrate Judge found that Sharp’s

amended complaint did not include any retaliation claims in

the section identified as “Legal Claims.” The Magistrate

Judge was unsure whether this omission was intentional.

Thus, the Magistrate Judge directed Sharp to “identify any

retaliation claim he intends to pursue in a separate paragraph

within the section of his [second amended complaint] wherein

he sets forth his legal claims.” Sharp, who was represented

by counsel at that time, filed his second amended complaint,

but did not include retaliation claims in the legal claims

section. Sharp never sought to amend his second amended

complaint to include a retaliation claim. Because Sharp

omitted his retaliation claim in his second amended

complaint, the Magistrate Judge did not err in concluding that

Sharp waived this claim.

The Magistrate Judge also did not err in granting

Defendants’ motion for summary judgment on Sharp’s due

39

III. CONCLUSION

For the reasons set forth above, we will affirm the

judgment in favor of Defendants.

process claim. Sharp claims that his confinement in

administrative custody for thirty months violated his

Fourteenth Amendment Due Process rights. Sharp, however,

failed to demonstrate that he was not afforded proper due

process protections. We have previously upheld the

constitutionality of the DOC’s policy statement 802, which

sets forth the policies and procedures for confining inmates to

administrative custody and the PRC’s periodic review of their

status. See Shoats v. Horn, 213 F.3d 140, 145-46 (3d Cir.

2000). Sharp has not argued that the DOC’s policy statement

802 has been substantively amended since Shoats or that the

DOC failed to follow this policy.

Accordingly, the Magistrate Judge did not err in

determining that he waived his retaliation claim or in

dismissing his due process claim.

40