Brian Davis v. George Wigen

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________________

No. 21-3162

_______________________

BRIAN A. DAVIS;

FREDRICKA K. BECKFORD,

Appellants

v.

GEORGE C. WIGEN, Former Warden, Moshannon Valley

Correctional Center;

THE GEO GROUP, INC.;

DONNA MELLENDICK, Former Administrator, Bureau of

Prisons

Privatization Management Branch;

DAVID O’NEILL, Assistant Field Director, Department of

Homeland Security

_______________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 3-16-cv-00026

District Judge: The Honorable Kim R. Gibson

__________________________

Argued December 13, 2022

Before: RESTREPO, McKEE, and SMITH,

Circuit Judges

(Filed: August 4, 2023)

Stephen A. Fogdall [ARGUED]

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Appellants

Dino L. LaVerghetta

Sidley Austin

1501 K Street, N.W.

Washington, DC 20005

Counsel for Amicus Appellants

Morgan M.J. Randle

Teresa O. Sirianni

Marshall Dennehey Warner Coleman & Goggin

501 Grant Street

Union Trust Building, Suite 700

Pittsburgh, PA 15219

Thomas A. Specht [ARGUED]

2

Marshall Dennehy Warner Coleman & Goggin

P.O. Box 3118

Scranton, PA 18505

Counsel for Appellees George C. Wigen and

GEO Group, Inc.

Jacqueline C. Brown

Adam N. Hallowell [ARGUED]

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellees Donna Mellendick

and David O’Neill

__________________________

OPINION OF THE COURT

__________________________

SMITH, Circuit Judge.

Plaintiff-Appellants are a former federal inmate, Brian

Davis, and his fiancée, Fredricka Beckford. Davis served four

years of his sentence at Moshannon Valley Correctional

Center, a private prison that primarily houses alien inmates.

During that time, he submitted a request to the prison that he

be permitted to marry Beckford. Moshannon Valley officials

denied the request despite Davis’s contention that he met all

3

requirements under the prison’s marriage policy. Plaintiffs

filed suit and now appeal the dismissal of three claims: (1) a

claim under the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. § 2000bb-1; (2) a claim under 42 U.S.C.

§ 1985; and (3) a claim for intentional infliction of emotional

distress. We conclude that Plaintiffs have stated a RFRA claim,

but that their other two claims fail. Accordingly, we will vacate

the District Court’s dismissal of Plaintiffs’ RFRA claim and

affirm the remainder of the Court’s order.

I. Factual Background

We draw the following facts from averments in the

Second Amended Complaint (SAC), which we accept as true

for purposes of this appeal. Brian Davis and his fiancée

Fredricka Beckford met when they were children. The two

maintained a lifelong friendship, one that became a romantic

relationship that lasted throughout Davis’s extensive period of

incarceration. Davis and Beckford are both of Jamaican

descent, and while Beckford is a U.S. citizen, Davis is not.

In 1993, Davis was sentenced to life in prison for non-

violent drug trafficking convictions. Despite the restrictiveness

of Davis’s life sentence, he and Beckford remained close

throughout Davis’s incarceration. Beckford wished to marry

him, but Davis feared that he would never be able to support

her because he expected to spend the remainder of his life in

prison. But when his prison sentence was reduced to 30 years

in 2008, Davis changed his mind about marriage. Because he

could then foresee an eventual release, Davis agreed to marry

Beckford.

4

Davis and Beckford are both devout Christians. They

allege that their desire to marry had “profound religious

significance for them” and that they “viewed their marriage as

an expression of that faith.” JA 100.

Davis’s reduced sentence qualified him for a transfer to

a lower security prison. Accordingly, in 2012, he was moved

from Federal Correctional Institute McKean to Moshannon

Valley Correctional Center (Moshannon Valley). Moshannon

Valley is a private prison that houses low-security alien

inmates. The facility is operated by The GEO Group, Inc.

(GEO Group), which contracts with the U.S. Bureau of Prisons

(BOP) to house federal inmates. At least 98 percent of the

inmate population at Moshannon Valley are noncitizens who

are “faced with an impending immigration matter or have been

ordered deported from the United States.” JA 94.

Davis maintained the hope that, after his transfer, he and

Beckford could be married. He sought to comply, then, with all

of Moshannon Valley’s marriage policy requirements. The

written policy then in effect required that inmates be housed in

general population and demonstrate good living skills,

program participation, “clear conduct” for six months, and

acceptable work performance. JA 110. If an inmate met those

requirements, the prison psychologist and other prison officials

were to indicate whether they approved or disapproved the

request to marry. Plaintiffs allege that Moshannon Valley’s

policy “goes beyond” what BOP requires. JA 93.

Plaintiffs allege that Davis met each of these

qualifications when he submitted his marriage request.

Nevertheless, Moshannon Valley administrative personnel

5

denied his request. Beckford also contacted the prison’s

officials and sought permission to marry Davis. Moshannon

Valley denied her request as well.

Davis challenged the denial of his marriage request

through the prison’s administrative appeal process. When his

appeal was denied, Davis contacted the Administrator of the

BOP Privatization Management Branch, Donna Mellendick,

seeking her intervention. Her office informed Davis in writing

that the grant or denial of inmate marriage requests remained

exclusively within the province of Moshannon Valley officials.

Davis eventually learned from discussions with the

prison chaplain, as well as several Moshannon Valley

employees and at least 20 other inmates, that Moshannon

Valley had not approved a single inmate’s request to marry

since GEO Group began its contractual relationship with BOP.

Plaintiffs accordingly allege that despite Moshannon Valley’s

official policy, its actual practice was to deny all marriage

requests.

In 2015, Davis’s sentence was again reduced, this time

to 27 years. The sentence reduction was a mixed blessing. He

was deported after his release the following year. Although

Plaintiffs concede that their marriage would not have allowed

Davis to challenge his deportation, they allege that marriage to

a U.S. citizen could provide a basis for other inmates at

Moshannon Valley to challenge their orders of removal.1

1

Under 8 U.S.C. § 1182(h)(1)(B), the Attorney General

may in his discretion waive an alien’s inadmissibility due to a

6

Plaintiffs allege that BOP and DHS officials directed

Moshannon Valley officials to deny all inmate marriage

requests to ensure that marriage to a U.S. citizen would not

interfere with deportation proceedings. Based on research and

information they obtained from Moshannon Valley employees,

Plaintiffs allege that those BOP and DHS officials are

Defendants Donna Mellendick, the Administrator of the BOP

Privatization Branch, and David O’Neill, the Assistant

Director of the Philadelphia Field Office of U.S. Immigration

and Customs Enforcement (collectively, Federal Defendants).

Plaintiffs also allege that GEO Group and George

Wigen, the former warden of Moshannon Valley (collectively,

GEO Defendants), have a financial incentive to prevent

noncitizen inmates from marrying U.S. citizens because BOP’s

payments to Moshannon Valley are based on the number of

inmates it houses. If noncitizen inmates were able to marry

conviction for a crime of moral turpitude if the alien is married

to a U.S. citizen or lawful permanent resident and can show

that “denial of admission would cause extreme hardship to the

citizen or lawful[] resident.” The Attorney General may not

grant such a waiver if (1) the alien was convicted of “murder

or criminal acts involving torture, or an attempt or conspiracy

to commit murder or a criminal act involving torture”; or (2) if

the alien had been admitted as a permanent resident but was

later convicted of an aggravated felony or had not resided

continuously in the United States for seven years before

initiation of the removal proceedings. 8 U.S.C. § 1182(h)(2).

7

U.S. citizens, some might request a transfer out of Moshannon

Valley, thereby lowering GEO Group’s headcount.

Beckford further alleges that her inability to marry

Davis caused her to suffer serious emotional distress. She

contends that because she was not Davis’s spouse, prison

officials were not obligated to inform her of matters such as his

transfer to another prison or his deportation. Beckford worried

about Davis’s safety in prison, and she claims that this lack of

information compounded her concern. Plaintiffs allege that

Beckford’s emotional distress led to serious health

consequences requiring hospitalization.

II. Procedural Background

In January 2016, Plaintiffs filed a pro se complaint

against the director of the BOP, the BOP, the administrator of

the BOP Privatization Management Branch, Wigen, the current

warden of Moshannon Valley, and GEO Group. Plaintiffs

asserted an intentional infliction of emotional distress claim

and several civil rights claims, principally under § 1983,

Bivens,2 and the Equal Protection Clause. Plaintiffs alleged that

by refusing to allow them to marry, these Defendants

discriminated against them based on their race and national

origin. Plaintiffs sought both declaratory and monetary relief.

Soon thereafter, and while still proceeding pro se,

Plaintiffs filed an amended complaint adding a § 1985(3)

claim. More than a year later, the District Court dismissed the

2

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971).

8

case in its entirety for failure to prosecute because Plaintiffs

had yet to serve the complaint on any of the Defendants.

Plaintiffs successfully moved to reopen and then served all

Defendants except the Federal Defendants.

The Defendants that had been served moved to dismiss

the amended complaint under Federal Rule of Civil

Procedure 12(b)(6). The District Court granted their motion

and dismissed the case. It concluded that: the Bivens claims

against GEO Defendants failed because those Defendants were

not federal actors; the § 1985(3) claims failed because

conspiracies under § 1985(3) involving private actors are

limited to violations of the right to be free from involuntary

servitude and the right to travel; the § 1983 claim failed for

lack of state action; and the claims against the Federal

Defendants failed for lack of prosecution.

Plaintiffs appealed and secured counsel in June 2020,

prior to oral argument before this Court. We reversed in part.

Davis v. Samuels, 962 F.3d 105 (3d Cir. 2020). We held that

private parties engaging in “the federal equivalent of ‘state

action,’” like the private prison here, may be subject to Bivens

liability. Id. at 112. Yet we affirmed the dismissal of the Bivens

claim because “a remedy for the infringement of the right to

marry” presented a new Bivens context and we declined to

extend the reach of Bivens. Id. at 112–13 (citing Ziglar v.

Abbasi, 582 U.S. 120 (2017)).

As to the § 1985(3) claim, we explained that the

Supreme Court has limited purely private § 1985(3)

conspiracies to violations of the right to be free from

involuntary servitude and the right to travel. But because

9

Plaintiffs alleged a conspiracy between the private prison and

the federal government, those limitations did not apply. Id.

at 113–14. We also held that § 1985(3) claims are available

against those acting under color of federal law in addition to

those acting under color of state law. Id. at 115. Taking no

position on the merits of Plaintiffs’ § 1985 claim, we vacated

the District Court’s dismissal of that claim. Id. at 114.

We also reversed the dismissal of the claims against the

Federal Defendants for failure to prosecute. We concluded that

the District Court had abused its discretion by failing to

consider whether there was good cause to extend the deadline

for Plaintiffs to serve the Federal Defendants under Rule 4(m).

Id. at 116.

On remand, Plaintiffs filed their Second Amended

Complaint—now the operative complaint—and served the

Federal Defendants. In the SAC, Plaintiffs again asserted

claims under §§ 1983 and 1985(3) and added a RFRA claim.

Beckford also reasserted a claim for intentional infliction of

emotional distress (IIED). Both sets of Defendants filed

motions to dismiss. The District Court granted the motions and

dismissed all claims.

Plaintiffs’ § 1985(3) claim alleges conspiracy to

discriminate based on race, national origin, and alienage. The

District Court dismissed Plaintiffs’ § 1985(3) race and national

origin claims because the inmates at Moshannon Valley are not

all of the same race or national origin. The District Court

dismissed the § 1985(3) alienage claim because Plaintiffs

allege that 98 percent of the inmates were non-citizens, as

opposed to the entire prison population. That, the District Court

10

reasoned, made it implausible that Defendants discriminated

based on alienage. The District Court also noted that even

if 100 percent of inmates were non-citizens, Plaintiffs’

§ 1985(3) claim would still fail because alienage is a mutable

characteristic and therefore not a protected class under

§ 1985(3).

As for the RFRA claim, the District Court first

concluded, per our Court’s prior opinion, that the GEO

Defendants were federal actors subject to RFRA. Yet the Court

dismissed the RFRA claim against all Defendants because

Plaintiffs did not allege a substantial burden on their religious

exercise. Citing this Court’s opinion in Washington v.

Klem, 497 F.3d 272 (3d Cir. 2007), the District Court

concluded that Plaintiffs’ inability to marry did not cause

Plaintiffs to violate their religious beliefs and therefore did not

rise to a substantial burden under RFRA.

Turning to Beckford’s IIED claim, the District Court

held that because the Federal Defendants acted within the

scope of employment when they denied Davis’s marriage

request, the Liability Reform Act required that the United

States stand in place of the Federal Defendants. See 28 U.S.C.

§ 2679(d)(1). The District Court then concluded that Beckford

failed to exhaust her administrative remedies under the

Liability Reform Act and dismissed the IIED claim against the

United States. See id. § 2675(a). As for the IIED claim against

the GEO Defendants, the District Court concluded that

Beckford failed to allege a physical manifestation of her

emotional distress and failed to support that allegation with

competent medical evidence as Pennsylvania law requires. The

11

District Court therefore dismissed Beckford’s IIED claim

against the GEO Defendants. Finally, the District Court

dismissed Plaintiffs’ § 1983 claim because all Defendants were

acting under color of federal law rather than state law.

This appeal followed. Plaintiffs challenge the dismissal

of their § 1985(3) claim based on alienage, their RFRA claim,

and Beckford’s IIED claim against the GEO Defendants.

III. Jurisdiction and Standard of Review

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

§§ 1331, 1343, and 1367. We have jurisdiction under 28

U.S.C. § 1291. “We exercise plenary review over a district

court’s grant of a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6).” Talley v. Wetzel, 15 F.4th 275,

286 n.7 (3d Cir. 2021).

IV. Discussion

A. RFRA

The District Court dismissed Plaintiffs’ RFRA claim

because they failed to allege that Defendants pressured

Plaintiffs to either refrain from conduct that their faith

prescribed or participate in conduct that their faith prohibited.

JA 27. The District Court drew these requirements from this

Court’s construction of “substantial burden” under the

Religious Land Use and Institutionalized Persons Act

(RLUIPA) originally laid out in Washington v. Klem, 497

12

F.3d 272 (3d Cir. 2007).3 Plaintiffs contend, however, that the

District Court’s reasoning cannot be correct because RFRA

protects religious exercise whether or not it is “compelled by,

or central to, a system of religious belief.” See 42 U.S.C.

§ 2000cc-5(7)(A). Although the District Court’s read of Klem

is not unreasonable, we take this opportunity to clarify that a

substantial burden under RFRA extends to non-mandatory

religious conduct and expression, i.e. conduct or expression not

“compelled by, or central to, a system of religious belief.”

Plaintiffs’ marriage, as we discuss below, falls within that

category.

1. Whether Plaintiffs State a RFRA Claim

RFRA provides that the government “shall not

substantially burden a person’s exercise of religion.” 42 U.S.C.

§ 2000bb-1(a). The statute defines “exercise of religion” as the

term is defined in the RLUIPA.4 Id. § 2000bb-2(4). RLUIPA

3

We later extended our construction of “substantial

burden” under RLUIPA to RFRA. Mack v. Warden Loretto

FCI, 839 F.3d 286, 304 n.103 (3d Cir. 2016).

4

Congress enacted RFRA in the wake of the Supreme

Court’s decision in Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

See 42 U.S.C. § 2000bb. As originally enacted, RFRA applied

to both the state and federal government. City of Boerne v.

Flores, 521 U.S. 507, 516 (1997). After the Supreme Court

held in City of Boerne that Congress had exceeded its authority

by extending RFRA to the states, Congress enacted RLUIPA,

which applies only to state land use regulation and state

13

defines “religious exercise” as including “any exercise of

religion, whether or not compelled by, or central to, a system

of religious belief.” Id. § 2000cc-5(7)(A). Finally, these

statutes must be “construed in favor of a broad protection of

religious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.” Id. § 2000cc-3(g);

Hobby Lobby v. Burwell, 573 U.S. 682, 696 & n.5 (2014)

(explaining that this rule of construction applies to both

RLUIPA and RFRA).

To state a prima facie RFRA claim, a plaintiff “must

allege that the government (1) substantially burdened (2) a

sincere (3) religious exercise.” Mack v. Warden Loretto

FCI, 839 F.3d 286, 304 (3d Cir. 2016) (citing Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

428 (2006)). At the pleadings stage, a court asks only whether

the plaintiff has plausibly alleged each element of his prima

facie case. See Castleberry v. STI Grp., 863 F.3d 259, 266 (3d

Cir. 2017) (explaining that a claim of employment

discrimination, which is subject to burden-shifting,

“necessarily survives a motion to dismiss so long as the

requisite prima facie elements have been established”). On a

summary judgment motion or at trial, if the plaintiff makes an

initial showing that the defendant substantially burdened his

sincere religious exercise, then the burden shifts to the

defendant to show that the offending policy is the least

prisons. 42 U.S.C. §§ 2000cc, 2000cc-1; Holt v. Hobbs, 574

U.S. 352, 357 (2015). RLUIPA also amended RFRA’s

definition of “exercise of religion.” See 42 U.S.C. § 2000bb-

2(4).

14

restrictive means of achieving a compelling government

interest. 42 U.S.C. § 2000bb-1(b); Holt v. Hobbs, 574

U.S. 352, 363 (2015).

As noted, we first construed the phrase “substantial

burden” under RLUIPA in Washington v. Klem, 497 F.3d

at 280. Taking direction from a joint statement by RLUIPA’s

principal sponsors, we primarily looked to the Supreme

Court’s pre-Smith Free Exercise jurisprudence in formulating

a definition.5 See id. at 278 (citing 146 Cong. Rec. S7774, 7776

(statement of Sens. Hatch and Kennedy)). We settled on a

“disjunctive test that couples the holdings of Sherbert and

Thomas”6 and noted that although other circuits had adopted

similar tests with different wording, it remained an open

question whether the semantic variations resulted in “any

meaningful differences in application.” Id. at 279–80. For our

formulation of the test, we held that a “substantial burden” on

religious exercise occurs when:

1) a follower is forced to choose between

following the precepts of his religion and

forfeiting benefits otherwise generally available

to other inmates versus abandoning one of the

5

We note, however, that the Supreme Court later

rejected the idea that “RFRA did no more than codify this

Court’s pre-Smith Free Exercise Clause precedents.” Burwell

v. Hobby Lobby Stores, Inc., 573 U.S. 682, 713–16 (2014).

6

Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas

v. Review Board of the Indiana Employment Security

Division, 450 U.S. 707 (1981).

15

precepts of his religion in order to receive a

benefit; OR 2) the government puts substantial

pressure on an adherent to substantially modify

his behavior and to violate his beliefs.

Id. at 280. We later extended that construction to RFRA.

Mack, 839 F.3d at 304 n.103.

Plaintiffs here raise a question that we have not

previously addressed: whether an individual suffers a

substantial burden on religious exercise when the particular

religious exercise is not mandatory. Defendants contend the

answer is no because under Klem, a burden is only

“substantial” if it causes Plaintiffs to violate the precepts of

their religion or mandatory religious beliefs. See Klem, 467

F.3d at 280. Because neither Christian tradition nor doctrine

requires adherents to marry, Defendants argue that the denial

of Plaintiffs’ marriage request did not cause them to violate any

religious precept or belief. Although such a read of our Klem

opinion is not unreasonable, we cannot agree that Klem’s reach

is so limited.

First, we acknowledged in Klem that “RLUIPA does not

permit a court to determine whether the belief or practice in

question is ‘compelled by, or central to, a system of religious

belief.’” Id. at 277 (quoting 42 U.S.C. § 2000cc-5(7)(A)).

Indeed, RLUIPA and RFRA define “religious exercise” as

“any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.” 42 U.S.C. § 2000cc-

5(7)(A); id. § 2000bb-2(4). Given that the breadth of this

definition appears in a section of RLUIPA to which our Klem

opinion expressly referred, it can hardly be gainsaid that we

16

would not have taken that language into account when

construing “substantial burden.”

Second, as noted above, we explained in Klem that

“semantic differences” between varying articulations of the

Sherbert/Thomas test may not make a practical “difference in

application.” 497 F.3d at 279–80. Accordingly, in light of the

statutory text, our use of the phrase “violate his beliefs” in

prong two of Klem does not exclude non-mandatory religious

conduct or beliefs.

Here, Plaintiffs desired to marry because marriage “had

profound religious significance for them” and because they

“viewed their marriage as an expression of” their Christian

faith. JA 100. Although marriage may not be required of every

Christian, Plaintiffs allege that their desire to marry has

significant religious meaning for them. They contend that

marriage is an expression of their faith. By denying Plaintiffs’

marriage request, Defendants caused them to refrain from such

religious expression and thereby “violate their beliefs.” See

Klem, 497 F.3d at 280.

There can hardly be a more substantial burden on a

religious practice or exercise than its outright prohibition. See

Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014) (“The

greater restriction (barring access to the practice) includes the

lesser one (substantially burdening the practice).”). While not

every government-imposed hurdle to the practice of sincere

faith-based conduct will be a substantial burden, the more

proximate the government action is to an outright bar, the more

likely it is a substantial burden. We conclude, therefore, that

17

Plaintiffs have adequately alleged a substantial burden on their

religious beliefs.

Defendants raise several additional arguments that are

not appropriate for resolution at this stage of the litigation. The

GEO Defendants contend that even if RFRA protects

Plaintiffs’ desire to marry, Moshannon Valley’s marriage

policy imposed no substantial pressure because it conditioned

approval of a prisoner’s request to marry only on whether the

prisoner met certain behavioral requirements. This argument

disputes factual allegations in the complaint. Plaintiffs allege

that despite Moshannon Valley’s official policy, its actual

practice was to routinely deny all marriage requests regardless

of whether the inmate had met the prison’s requirements of

good behavior. JA 93–94. Plaintiffs also allege that Davis met

those requirements. JA 92. Accepting those allegations as true,

Moshannon Valley prohibited Plaintiffs from marrying

throughout Davis’s four years at the prison. This prohibition,

as explained above, satisfies the substantial burden prong of a

RFRA claim. See Haight, 763 F.3d at 565.

Next, the GEO Defendants argue that even if Plaintiffs

state a prima facie RFRA claim, we should still affirm the

dismissal of that claim because Defendants have shown that

the no-marriage policy was narrowly tailored to a compelling

government interest. This is not the time to resolve that issue,

nor are we presented with a record that would allow us to do

so. Whether Moshannon Valley’s practice of denying marriage

requests is supported by a compelling interest (such as

penological concerns, safety concerns, or something else), and

whether it is narrowly tailored to that interest are questions that

18

necessarily require us to look beyond the mere allegations of a

complaint. See Castleberry, 863 F.3d at 266.

Finally, the Federal Defendants challenge the sincerity

of Plaintiffs’ beliefs and argue that Plaintiffs did not actually

want to marry for religious reasons. But at the pleadings stage,

we must accept Plaintiffs’ plausible allegations as true and

draw all inferences in their favor. If Defendants wish to

challenge Plaintiffs’ sincerity, they may do so at a later stage

in the proceedings. See Cutter v. Wilkinson, 544 U.S. 709, 725

n.13 (2005) (noting that the defendants may challenge the

alleged sincerity of the plaintiff’s religious belief, but not in

response to a motion to dismiss).

2. Whether RFRA Applies to the GEO

Defendants

Finally, the GEO Defendants argue that even if

Plaintiffs state a RFRA claim, the GEO Defendants are not

subject to RFRA because they do not meet RFRA’s definition

of “government.” RFRA prohibits the “government” from

substantially burdening religious exercise without a

compelling interest. 42 U.S.C. § 2000bb-1(a). RFRA defines

“government” as “a branch, department, agency,

instrumentality, and official (or other person acting under color

of law) of the United States, or of a covered entity.” Id.

§ 2000bb-2.

Though GEO Group is a private corporation, it contracts

with the Bureau of Prisons to house low-security alien inmates.

Wigen served as warden of Moshannon Valley during Davis’s

time there. By operating a prison containing federal inmates,

19

GEO Group and Wigen acted as “instrumentalities” of the

federal government.

Moreover, this Court already held in Plaintiffs’ previous

appeal that the GEO Defendants were federal actors for

purposes of Plaintiffs’ Bivens claim. Davis, 962 F.3d at 112.

Defendants have identified no meaningful distinction between

the state action doctrine and RFRA’s definition of

“government” such that the GEO Defendants could be subject

to liability pursuant to Bivens but not for a RFRA claim. We

conclude that RFRA applies to the GEO Defendants.

3. Qualified Immunity

The Federal Defendants argue that they are entitled to

qualified immunity as to Plaintiffs’ RFRA claim because the

law was not clearly established when Moshannon Valley

denied Davis’s marriage request. As we have acknowledged,

Defendants’ and the District Court’s read of Klem was not

unreasonable. So, in light of our articulation of the test in Klem,

we cannot conclude that it was clearly established that a prison

imposes a substantial burden on its inmates by prohibiting

participation in non-mandatory religious conduct. The Federal

Defendants are therefore entitled to qualified immunity as to

Plaintiffs’ RFRA claim. Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (holding that qualified immunity protects

government officials performing discretionary functions

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known”). Accordingly, we need not address

Mellendick’s argument that she was not timely served.

20

B. Section 1985(3)

Plaintiffs also appeal the dismissal of their § 1985(3)

claim based only on alienage.7 To state a claim under

§ 1985(3), the plaintiff must allege:

(1) a conspiracy; (2) for the purpose of

depriving, either directly or indirectly, any

person or class of persons of the equal protection

of the laws, or of equal privileges and immunities

under the laws; and (3) an act in furtherance of

the conspiracy; (4) whereby a person is either

injured in his person or property or deprived of

any right or privilege of a citizen of the United

States.

United Bhd. of Carpenters & Joiners of Am. v. Scott, 463

U.S. 825, 828–29 (1983). To allege that the defendant deprived

a class of persons of equal protection of the laws, the plaintiff

must allege “some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’

action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

As a threshold matter, we note that while Plaintiffs

appeal the dismissal of their § 1985(3) claim based on alienage,

Beckford is a citizen. She cannot, therefore, state a § 1985(3)

claim based on alienage.

7

Plaintiffs do not appeal the dismissal of their § 1985(3)

claim based on race and national origin.

21

As for Davis, he alleges that the GEO and Federal

Defendants “conspired to deprive, either directly or indirectly,

MVCC alien inmates of the equal protection of the laws” in

violation of § 1985(3). JA 98. Davis therefore asks us to

recognize alienage as a protected class under § 1985(3). But

we need not reach that question because Davis fails to plausibly

allege that Defendants deprived Moshannon Valley inmates of

the right to marry because of their status as noncitizens.

In Bray v. Alexandria Women’s Health Clinic, the

Supreme Court held that a plaintiff asserting a § 1985(3) claim

must allege “that the decisionmaker . . . selected or reaffirmed

a particular course of action at least in part ‘because of,’ not

merely ‘in spite of,’ its adverse effects upon an identifiable

group.” 506 U.S. 263, 272–73 (1993) (quoting Pers. Adm’r of

Mass. v. Feeney, 442 U.S. 256, 279 (1979)). The Supreme

Court later elaborated on that same standard in Ashcroft v.

Iqbal, holding that to plausibly allege discrimination “because

of” a protected characteristic, the plaintiff “must plead

sufficient factual matter” to show that the defendants took the

challenged action “not for a neutral . . . reason but for the

purpose of discriminating on account” of the protected

characteristic. 556 U.S. 662, 677 (2009).

Davis has not alleged sufficient facts to make it

plausible that Moshannon Valley’s practice of denying inmate

marriage requests was motivated by Defendants’ intent to

discriminate against aliens. True, Davis alleges that nearly all

Moshannon Valley inmates are aliens. JA 94. And some of

those inmates may be able to challenge their deportation orders

after marrying a U.S. citizen. Id. But the simple fact that the

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challenged conduct applies to a group that happens to share a

protected characteristic does not, by itself, mean that the

conduct was taken because of the group’s protected

characteristic.

Bray offers an illustration of this principle. In Bray,

certain abortion clinics sought to enjoin individuals from

conducting demonstrations in opposition to abortion. 506 U.S.

at 266. The clinics asserted a § 1985(3) claim on the theory that

the demonstrators had conspired to discriminate against two

alternative classes: “women seeking abortion” or “women”

more generally. Id. at 269–70. The Supreme Court rejected

both theories. As to the second theory, the Supreme Court held

that it need not decide whether § 1985(3) protects women as a

class because the defendants’ opposition to abortion did not

amount to invidious animus against women. Id. at 269. The

Court explained that the plaintiffs failed to show that the

demonstrations were motivated by animus against women “by

reason of their sex.” Id. And the fact that the plaintiffs alleged

that only persons of one sex sought abortions did not mean that

“disfavoring of abortion” is “ipso facto sex discrimination.” Id.

at 272–73. Instead, the Court believed that opposition to

abortion could be viewed as a “value judgment” unmotivated

by animus against one sex. Id. at 272–74.

Here, similarly, even if § 1985(3) were construed to

protect alienage, an alleged discriminatory policy that applies

to a prison population comprised almost exclusively of aliens

does not alone give rise to the plausible inference that

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Defendants harbored animus toward aliens.8 As in Bray, Davis

has not alleged additional facts showing that Defendants

implemented the no-marriage policy because of Moshannon

Valley inmates’ alien status. For example, an allegation that

Defendants used more favorable marriage policies in prisons

holding citizen inmates could elevate Davis’s allegations of

animus from the merely possible to the realm of the plausible.

But here, we have only an allegation that the government

instructed a private contractor to restrict the ability of

incarcerated individuals to marry. So, the bare allegation that

Moshannon Valley denies all marriage requests at the Federal

Defendants’ direction, without more, fails to show animus

toward Moshannon Valley inmates because of their alien

status. See also Dean v. Warren, 12 F.4th 1248, 1257–64 (11th

Cir. 2021) (extensively analyzing Bray and rejecting the

plaintiff’s § 1985(3) claim because it did not “clear the high

bar established in Bray for alleging invidious discriminatory

animus against” the alleged class).

Moreover, some of Davis’s allegations counsel against

drawing an inference of animus. Davis alleges that for most

inmates, including himself, marriage to a U.S. citizen would

not allow an effective challenge to deportation, JA 94, and

Moshannon Valley’s documented marriage policy

8

To be clear, we do not subscribe to the District Court’s

reasoning that Plaintiffs’ § 1985(3) claim fails because they

allege that only 98 percent of Moshannon Valley inmates, as

opposed to 100 percent, are aliens. The fact that Moshannon

Valley may house a small percentage of citizen inmates does

not alone undermine Plaintiffs’ § 1985(3) claim.

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acknowledges as much, JA 113 (“The majority of the inmates

serving their sentences at MVCC are foreign nationals and will

be advised that the marriages will not have any effect on their

citizenship status or their pending deportation proceedings.”).

This belies Davis’s assertion that Moshannon Valley’s

marriage policy is part of a conspiracy to prevent noncitizens

from marrying U.S. citizens.

We conclude, therefore, that Davis has failed to state a

§ 1985(3) claim. We leave for another day the important

question of whether § 1985(3) protects alienage.

C. Intentional Infliction of Emotional Distress

Beckford asserts a state law claim of intentional

infliction of emotional distress (IIED) based on alleged psychic

injuries stemming from her inability to marry Davis. Beckford

does not appeal the dismissal of her IIED claim against the

Federal Defendants. As for the GEO Defendants, Beckford

challenges the District Court’s conclusion that she has not

alleged any physical manifestation of her emotional distress

and has not “alluded to any competent medical evidence of any

physical or emotional harm.” JA 34.

We will affirm the dismissal of Beckford’s IIED claim,

but for a different reason than that stated by the District Court.

To state a claim for IIED under Pennsylvania law, the plaintiff

must allege “intentional outrageous or extreme conduct by the

defendant, which causes severe emotional distress to the

plaintiff” and “some type of resulting physical harm due to the

defendant’s conduct.” Swisher v. Pitz, 868 A.2d 1228, 1230

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(Pa. Super. 2005) (quoting Reeves v. Middletown Athletic

Ass’n, 866 A.2d 1115, 1122 (Pa. Super. 2004)).

Beckford’s IIED claim fails because the GEO

Defendants’ conduct is not the sort of behavior that is “so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized society.” Hoy v.

Angelone, 720 A.2d 745, 754 (Pa. 1998) (quoting Buczek v.

First Nat’l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa.

Super. Ct. 1987)). Liability attaches “for only the most clearly

desperate and ultra extreme conduct.” Id. at 754. The GEO

Defendants’ decision to deny Plaintiffs’ marriage request

simply does not rise to that level. We will therefore affirm the

dismissal of Beckford’s IIED claim.

V. Conclusion

We will vacate in part and affirm in part. We will vacate

the dismissal of Plaintiffs’ RFRA claim, affirm the dismissal

of Plaintiffs’ § 1985(3) claim and the dismissal of Beckford’s

IIED claim, and remand to the District Court for further

proceedings consistent with the foregoing opinion.

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