Amicus Curiae Brief — Conraad Hoever, Petitioner v. P. Belleis, et al.

No. 17-1035

IN THE

SUPREME COURT OF THE UNITED STATES

_________

CONRAAD HOEVER,

v.

Petitioner,

P. BELLEIS, CHIEF OF SECURITY COLONEL, ET AL.

Respondents.

_________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICI CURIAE MUSLIM

ADVOCATES, THE RUTHERFORD

INSTITUTE, AND THE NATIONAL COUNCIL

OF JEWISH WOMEN IN SUPPORT OF

PETITIONER

JOHN W. WHITEHEAD

JOHNATHAN SMITH

DOUGLAS R. MCKUSICK

COUNSEL OF RECORD

THE RUTHERFORD

SIRINE SHEBAYA

INSTITUTE

MATTHEW CALLAHAN*

923 GARDENS BOULEVARD

MUSLIM ADVOCATES

CHARLOTTESVILLE, VA

PO BOX 66408

22901

WASHINGTON, DC 20035

(434) 987-3888

(202) 897-2622

johnathan@muslimadvocates.org

sirine@muslimadvocates.org

matthew@muslimadvocates.org

*admitted in California, supervised by members of the D.C. bar.

Attorneys for Amici Curiae

i

QUESTIONS PRESENTED

1.

For many faiths, certain observances are

important but not mandatory. In a free exercise case,

a plaintiff must establish that the government

imposed a burden on a religious practice. The court of

appeals furthered confusion in the lower courts by

holding that only interference with a practice

mandated by an incarcerated person’s faith can

burden the incarcerated person’s right to the free

exercise of religion.

The first question presented is:

Does the First Amendment extend to an incarcerated person’s non-mandatory religious exercise?

2.

Section 42 U.S.C. 1997e(e), a provision of the

Prison Litigation Reform Act, states that an

incarcerated person may not bring a claim “for mental

or emotional injury” unless the incarcerated person

makes “a prior showing of physical injury or the

commission of a sexual act.” In six circuits, this

provision permits incarcerated persons to recover

compensatory damages for First Amendment

violations unaccompanied by a physical injury or

sexual act. In five other circuits, the opposite is true:

compensatory damages are prohibited.

The second question presented is:

Does 42 U.S.C. § 1997e(e) permit an

incarcerated person to recover compensatory damages

against prison officials who violate the First

Amendment?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ...................................... iv

INTERESTS OF AMICI CURIAE ............................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT............................... 2

ARGUMENT ............................................................... 5

I. Restricting non-mandatory religious practices

burdens the right to free exercise of religion ....... 5

A. Limiting the Free Exercise Clause’s

protections to “mandatory” practices

conflicts with this Court’s precedent and

impermissibly requires state actors to make

religious decisions ............................................ 6

B. Limiting the protections of the Free

Exercise Clause to “mandatory” practices

excludes many important religious

practices ......................................................... 12

II. Deprivations of religious liberty do not require

a showing of physical harm under the Prison

Litigation Reform Act ......................................... 14

A. The PLRA’s plain meaning and legislative

history demonstrate that it was not

intended to deprive inmates of

compensatory damages for violations of

religious liberty .............................................. 16

B. The availability of a compensatory damages

remedy serves as an important deterrent

against violations of religious liberty in

prisons ............................................................ 18

iii

TABLE OF CONTENTS--Continued

Page

C. There is no adequate alternative to

compensatory damages for violations of

religious liberty in the prison context ........... 21

III. Conclusion ........................................................... 24

iv

TABLE OF AUTHORITIES

Page

CASES:

Al-Amin v. Smith,

637 F.3d 1192 (11th Cir. 2011) ............................. 22

Aref v. Lynch,

833 F.3d 242 (D.C. Cir. 2016) ............................... 22

Ashby v. White,

(1703) 87 Eng. Rep. 808 ........................................ 17

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) ............................................. 7

Butts v. Martin,

877 F.3d 571 (5th Cir. 2017) ................................... 5

Butz v. Economou,

438 U.S. 478 (1978) ..........................................18, 22

Chesser v. Walton,

No. 12-cv-1198, 2016 WL 6471435

(S.D. Ill. Nov. 2, 2016)........................................... 21

City of Riverside v. Rivera,

477 U.S. 561 (1986) ............................................... 18

Cruz v. Beto,

405 U.S. 319 (1972) ................................................. 3

Davis v. District of Columbia,

158 F.3d 1342 (D.C. Cir. 1998) ............................. 22

v

TABLE OF AUTHORITIES--Continued

Page

Elrod v. Burns,

427 U.S. 347 (1976) ............................................... 18

Ford v. McGinnis,

352 F.3d 582 (2d Cir. 2003) ...............................6, 14

Frazee v. Ill. Dep’t of Emp’t Sec.,

489 U.S. 829 (1989) ................................................. 9

Grayson v. Schuler,

666 F.3d 450 (7th Cir. 2012) ........................7, 12, 13

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ............................................... 19

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ............................................... 20

Harris v. Garner,

216 F.3d 970 (11th Cir. 2000) ............................... 15

Hernandez v. Comm’r,

490 U.S. 680 (1989) ................................................. 6

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ............................... 7

Hobson v. Wilson,

737 F.2d 1 (D.C. Cir. 1984) ................................... 17

Hoever v. Belleis,

703 F. App’x 908 (11th Cir. 2017) .....................4, 15

vi

TABLE OF AUTHORITIES--Continued

Page

Hutchins v. McDaniels,

512 F.3d 193 (5th Cir. 2007) ................................. 22

Johnson v. Killian,

No. 07-cv-6641, 2009 WL 1066248

(S.D.N.Y. April 21, 2009) ...................................... 21

Levitan v. Ashcroft,

281 F.3d 1313 (D.C. Cir. 2002) ........................12, 14

McCreary County v. ACLU of Ky.,

545 U.S. 844 (2005) ................................................. 7

Meachum v. Fano,

427 U.S. 215 (1976) ............................................... 21

Midrash Sephardi, Inc. v. Town

of Surfside,

366 F.3d 1214 (11th Cir. 2004) ............................... 4

Monroe v. Gerbin,

No. 16-cv-02818

(S.D.N.Y. Dec. 27, 2017) ..................................10, 11

Muhammad v. Sapp,

388 F. App’x 892 (11th Cir. 2010) .......................... 8

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ............................................... 11

Owen v. City of Independence,

445 U.S. 622 (1980) ............................................... 18

vii

TABLE OF AUTHORITIES--Continued

Page

Pearson v. Callahan,

555 U.S. 223 (2009) ............................................... 20

Presbyterian Church in U.S. v. Mary

Elizabeth Blue Hull Mem’l

Presbyterian Church,

393 U.S. 440 (1969) ................................................. 7

Richardson v. McKnight,

521 U.S. 399 (1997) .............................................. 20

Scheuer v. Rhodes,

416 U.S. 232 (1974) ............................................... 20

Smith v. Riley,

No. 10-cv-2583, 2013 WL 1176076,

(N.D. Ala. Feb. 7, 2013) ........................................ 10

Smith v. Wade,

461 U.S. 30 (1983) ................................................. 22

Tenafly Eruv Ass’n, Inc. v. Borough

of Tenafly,

309 F.3d 144 (3d Cir. 2002) .................................. 13

Thomas v. Review Bd. of Ind. Emp’t

Sec. Div.,

450 U.S. 707 (1981) ..............................................7, 9

Thompson v. Carter,

284 F.3d 411 (2d Cir. 2002) .................................. 22

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ................................................. 16

viii

TABLE OF AUTHORITIES--Continued

Page

Turner v. Safley,

482 U.S. 78 (1987) ................................................. 11

United States v. Moon,

718 F.2d 1210 (2d Cir. 1983) ................................ 14

Williams v. Wilkinson,

645 F. App’x 692 (10th Cir. 2016) ........................ 12

Zelman v. Simmons-Harris,

536 U.S. 639, 679 n.4 (2002) ................................... 3

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ........................................... 20

STATUTES:

42 U.S.C. § 1997e(e) ..................................4, 14, 15, 16

42 U.S.C. § 2000cc-1 ................................................... 2

Prison Litigation Reform Act of 1995,

Pub. L. 104-134, 110 Stat. 1321-71 ...................... 16

OTHER AUTHORITIES:

Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131, 1159

(1991) ....................................................................... 2

Kitty Calavita & Valerie Jenness,

Appealing to Justice: Prisoner Grievances,

Rights, and Carceral Logic (2015)........................ 23

ix

TABLE OF AUTHORITIES--Continued

Page

Mona Chalabi, “Are Prisoners Less Likely

to Be Atheists?”, FiveThirtyEight

(Mar. 12, 2015) ........................................................ 8

Erwin Chemerinsky, The Constitution in

Authoritarian Institutions, 32 Suffolk

U.L. Rev. 441 (1999) ............................................. 19

John J. Gibbons & Nicholas De B.

Katzenbach, Confronting Confinement:

A Report of the Commission on Safety

and Abuse in America’s Prisons,

22 Wash. U.J.L. & Pol’y 385 (2006)...................... 23

John C. Jeffries, Jr., In Praise of the

Eleventh Amendment and Section 1983,

84 Va. L. Rev. 47 (1998) ........................................ 19

The Federalist No. 51 (James Madison) .................. 18

1 Arthur G. Sedgwick & Joseph H. Beale, Jr.,

A Treatise on the Measure of Damages

(8th ed. 1891) ........................................................ 17

1

BRIEF OF AMICI CURIAE MUSLIM

ADVOCATES, THE RUTHERFORD

INSTITUTE, AND THE NATIONAL COUNCIL

OF JEWISH WOMEN IN SUPPORT OF

PETITION FOR CERTIORARI

Amici Curiae Muslim Advocates, The

Rutherford Institute, and The National Council of

Jewish Women respectfully submit this amici curiae

brief in support of Petitioners.1

-♦INTERESTS OF AMICI CURIAE

Amicus curiae Muslim Advocates, a national

legal advocacy and educational organization formed in

2005, works on the frontlines of civil rights to

guarantee freedom and justice for Americans of all

faiths. The issues at stake in this case directly relate

to Muslim Advocates’ work fighting religious

discrimination against vulnerable communities.

Amicus curiae The Rutherford Institute is

an international nonprofit civil liberties organization

headquartered in Charlottesville, Virginia. Founded

in 1982 by its President, John W. Whitehead, the

Institute specializes in providing pro bono legal

representation to individuals whose civil liberties are

threatened and in educating the public about

Pursuant to Supreme Court Rule 37.2(a), amici sent timely

notice to all parties, and all parties have consented to the filing

of this brief. Pursuant to Supreme Court Rule 37.6, amici curiae

affirm that no counsel for a party authored this brief in whole or

in part, and no person other than amici curiae, its members, and

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief.

1

2

constitutional and human rights issues, including

freedom of religion. To that end, the Institute actively

participates in cases addressing the First

Amendment’s religion clauses. The Institute served as

amicus curiae in prior religious freedom cases before

this Court, including Burwell v. Hobby Lobby Stores,

Inc., 134 S. Ct. 2751 (2014), Hosanna-Tabor

Evangelical Lutheran Church & School v. EEOC, 565

U.S. 171 (2012), Sossamon v. Texas, 563 U.S. 277

(2011); Cutter v. Wilkinson, 544 U.S. 709 (2005); and

Hobbie v. Unemployment Appeals Commission of

Florida, 480 U.S. 136 (1987).

Amicus curiae The National Council of

Jewish Women (NCJW) is a grassroots organization

of 90,000 volunteers and advocates who turn

progressive ideals into action. Inspired by Jewish

values, NCJW strives for social justice by improving

the quality of life for women, children, and families

and by safeguarding individual rights and freedoms.

NCJW's Principles state that: “Religious liberty and

the separation of religion and state are constitutional

principles that must be protected and preserved in

order to maintain democratic society.” Consistent

with its Principles and Resolutions, NCJW joins this

brief.

-♦INTRODUCTION AND

SUMMARY OF ARGUMENT

The free exercise of religion is among the most

important liberties protected by the Constitution. As

members of this Court have noted, “[t]he free exercise

clause . . . . was specially concerned with the plight of

minority religions.” Zelman v. Simmons-Harris, 536

3

U.S. 639, 679 n.4 (2002) (Thomas, J., concurring)

(quoting Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131, 1159 (1991)).

Accordingly, when the protections of the Free Exercise

Clause are weakened, it is often minority religions

that suffer most.

The erosion of these religious liberties is

especially likely to begin in prisons. Incarcerated

persons must forego many liberties upon becoming

incarcerated; while the law seeks to protect the

religious liberty of this population, see 42 U.S.C. §

2000cc-1 (protecting the religious exercise of

institutionalized persons), they often lack the

resources or the political power to enforce and

vindicate their rights. Strong constitutional and

statutory protections are, all too often, all that keeps

an incarcerated person’s right to free exercise from

being lost. That is why, as this Court has held,

“reasonable opportunities must be afforded to all

prisoners to exercise the religious freedom guaranteed

by the First and Fourteenth Amendment without fear

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

Petitioner, who is Christian, was denied such a

“reasonable opportunity” to practice his religion.

Prison officials refused Petitioner’s request for an

English-language Christian Bible during his time in

solitary confinement—providing him instead with

only a Spanish-language Bible he could not read. The

courts below compounded the error by dismissing

Petitioner’s suit for damages over this deprivation.

This case merits review by this Court because

the Eleventh Circuit’s opinion fails to protect the

Petitioner’s religious freedom in two ways.

4

First, the Eleventh Circuit held that there is no

burden on a plaintiff’s right of free exercise unless “the

conduct complained of ‘completely prevents the

individual from engaging in religiously mandated

activity or requires participation in an activity

prohibited by religion.’” Hoever v. Belleis, 703 F. App’x

908, 912 (11th Cir. 2017) (quoting Midrash Sephardi,

Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th

Cir. 2004)) (internal punctuation omitted). Because

Petitioner’s access to the Bible was “beneficial, but not

mandatory” for his exercise of Christianity, the court

held that his religious practice was not burdened for

purposes of the Free Exercise Clause. Id. at 913. Such

a requirement conflicts with this Court’s precedents

and the holdings of other circuits. This holding not

only improperly asks state officials to determine what

religious practices are mandatory and nonmandatory, it fails to protect many fundamental

religious practices that are crucial to religious

adherents in many traditions.

Second, the lower court’s ruling applies the

Prison Litigation Reform Act (“PLRA”) to bar

Petitioner and other incarcerated persons deprived of

religious liberty from recovering compensatory

damages for the violation of their religious freedom

unless they can show that they have suffered a

physical injury. Id. at 912. This results from the

Eleventh Circuit’s erroneous conclusion that a loss of

religious liberty constitutes “mental or emotional

injury” for purposes of the PLRA. Id. (quoting 42

U.S.C. § 1997e(e)). In doing so, the court reaffirmed its

position in a long-standing split among the courts of

appeals which has left many of the nation’s

incarcerated persons without the necessary recourse

to deter and compensate their losses of religious

liberty.

5

Unless this Court steps in to correct this error

and resolve the circuit split on both points, the

deprivation of constitutional rights will continue, and,

for many of the most vulnerable Americans, the

promise of the Constitution’s protections for religious

liberty will remain out of reach. Accordingly, the

Court should reverse the Eleventh Circuit’s decision.2

-♦ARGUMENT

I.

Restricting

non-mandatory

religious

practices burdens the right to free exercise of religion.

The Court should grant certiorari in this case

to resolve the critical issue of whether the Free

Exercise Clause protects a plaintiff’s non-mandatory

religious exercise.

Because the Eleventh Circuit continues to rely

on this impermissible condition, it is important that

the Court makes clear that such a requirement is not

a part of the test for a burden on religious practice

under the Free Exercise Clause.3

2 Amici take no position on the merits of Petitioner’s underlying

criminal conviction.

3 Whether a plaintiff pleading a violation of the Free Exercise

Clause must show a substantial burden on religious practice, or

if some lesser showing is required, is itself a question that has

divided the courts of appeal. See Butts v. Martin, 877 F.3d 571,

585-86 & n.7 (5th Cir. 2017) (discussing the decisions of the

various courts of appeals, noting that the Eighth, Ninth, and

Tenth Circuits require that the religious burden in a free exercise

6

A.

Limiting the Free Exercise Clause’s

protections to “mandatory” practices conflicts with this Court’s

precedent and impermissibly requires state actors to make religious decisions.

A rule that only “mandatory” religious practices

qualify for protection under the Free Exercise Clause

conflicts with both the explicit holdings and the logic

of this Court’s First Amendment jurisprudence.

By requiring state actors—prison officials in

the first instance, and courts in exercising judicial

review over those decisions—to determine what

constitutes a “mandatory” religious practice, the

Eleventh Circuit’s rule necessarily runs afoul of the

Establishment Clause. In evaluating a plaintiff’s

belief, the court’s “scrutiny extends only to whether a

claimant sincerely holds a particular belief and

whether the belief is religious in nature.” Ford v.

McGinnis, 352 F.3d 582, 590 (2d Cir. 2003)

(Sotomayor, J.) (emphasis added). This Court has

been clear that “[i]t is not within the judicial ken to

question the centrality of particular beliefs or

practices to a faith, or the validity of particular

litigants’ interpretations of those creeds.” Hernandez

v. Comm’r, 490 U.S. 680, 699 (1989); see also Thomas

v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,

claim be substantial, the Third and Fifth Circuits do not, and the

Second Circuit has assumed-without-deciding that a substantial

burden is required). While the Court need not decide that issue

to resolve Petitioner’s case, a grant of certiorari here would

provide an opportunity for welcome guidance regarding the

standard for stating a free exercise claim.

7

716 (1981) (“Courts are not arbiters of scriptural

interpretation.”); Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114, 1153 (10th Cir. 2013) (en banc)

(Gorsuch, J., concurring) (“[I]t . . . is not, the place of

courts of law to question the correctness or the

consistency of tenets of religious faith, only to protect

the exercise of faith.”), aff'd sub nom. Burwell v.

Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

“Plainly, the First Amendment forbids civil courts

from” “determin[ing] matters at the very core of a

religion—the interpretation of particular church

doctrines and the importance of those doctrines to the

religion.” Presbyterian Church in U.S. v. Mary

Elizabeth Blue Hull Mem’l Presbyterian Church, 393

U.S. 440, 450 (1969) (unanimous). As Justice

O’Connor recognized, the Framers of the Free

Exercise Clause knew that “line-drawing between

religions is an enterprise that, once begun, has no

logical stopping point.” McCreary County v. ACLU of

Ky., 545 U.S. 844, 884 (2005) (O’Connor, J.,

concurring).

Adhering to this precedent, six circuit courts

have held that a religious practice need not be

mandatory in order for its restriction to trigger

scrutiny under the Free Exercise Clause. See Pet’r’s

Br. at 9-11 (listing cases from five circuits); Grayson

v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012) (Posner,

J.) (“[O]ptional as distinct from mandatory religious

observances aren't excluded” from the protection of

the Free Exercise Clause.).

Despite the example of the other courts of

appeals, the Eleventh Circuit’s error in this case is not

an isolated incident. The Eleventh Circuit has also

previously relied on the non-mandatory nature of a

religious practice to deprive an incarcerated person of

8

his rights. In Muhammad v. Sapp, the Eleventh

Circuit considered a free exercise claim by an

incarcerated Muslim who sought a qibla compass,

which would permit him to locate Mecca so he could

properly direct his prayers. 388 F. App’x 892, 896

(11th Cir. 2010). In holding that the plaintiff had not

demonstrated a substantial burden on his religious

exercise, the Eleventh Circuit relied in part on

evidence that the compass was “permissible and a

useful item to have” but was not “mandatory.” Id.

Accordingly, the court found there was no substantial

burden on the plaintiff’s religious exercise and

affirmed the grant of summary judgment on this

claim. Id.

Government actors asked to make these

determinations must inevitably rely on their own

experience if they are called to sit in judgment on the

beliefs of adherents. Such a process offers the

opportunity for unscrupulous actors to give special

weight to beliefs that accord with the decider’s own

preferences and reflect the decider’s point of view.

While state officials should not make religious

determinations on behalf of any adherent, the harm is

especially great for those who belong to minority

faiths. Because even the best-intentioned government

actors is likely to have less information about

minority faiths, their assessments of what is

mandatory for those faiths will be especially prone to

error or guessing. The best available data suggests

that minority faiths are overrepresented in U.S.

prisons. For instance, in 2013, the Federal Bureau of

Prisons represented that 8.4% of the federal prison

population self-identified their religion as “Muslim”

and 3.1% as “Native American,” while U.S. Census

9

data placed the total number of Americans with those

faiths at only .6% and .1%, respectively.4

For example, the Indiana Supreme Court held

that a Jehovah’s Witness who believed that

constructing tanks for the military was against his

creed made a “personal philosophical choice rather

than a religious choice,” with that court giving

“significant weight to the fact that another Jehovah’s

Witness had no scruples about working on tank

turrets.” Thomas, 450 U.S. at 715. This Court

reversed that decision because “the guarantee of free

exercise is not limited to beliefs which are shared by

all of the members of a religious sect.” Id. at 715-16.

The Court noted that “[i]ntrafaith differences of that

kind are not uncommon among followers of a

particular creed, and the judicial process is singularly

ill equipped to resolve such differences in relation to

the Religion Clauses.” Id. at 715. This Court has

adhered to this principle on numerous occasions. See,

e.g., Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829,

832-34 (1989) (holding that claimant’s belief that he

could not work on Sunday was protected by the Free

Exercise Clause even when other members of his faith

did not share the belief).

In spite of this Court’s guidance, courts and

other state actors in the Eleventh Circuit continue to

make independent judgments about the proper nature

of a incarcerated person’s religious practice. For

example, the St. Clair Correctional Facility in

Alabama instituted a policy requiring a Religious

4 Mona Chalabi, “Are Prisoners Less Likely to Be Atheists?”,

FiveThirtyEight (Mar. 12, 2015),

https://fivethirtyeight.com/features/are-prisoners-less-likely-tobe-atheists/ (last accessed Mar. 1, 2018).

10

Activities Review Committee (“Committee”) to

approve all requests for religious accommodation. See

Smith v. Riley, No. 10-cv-2583, 2013 WL 1176076, at

*3-4 (N.D. Ala. Feb. 7, 2013), report and

recommendation adopted, 2013 WL 1178673 (N.D.

Ala. Mar. 14, 2013), aff'd sub nom. Smith v. Governor

for Ala., 562 F. App'x 806 (11th Cir. 2014). When an

incarcerated person practicing the religion of Odinism

requested items for his religious practice, the

Committee relied on its own research into the Odinist

religion to find that one of the items was not

“religiously necessary” and that a requested holy day

“did not have the same significance” as other holy

days which had been approved. Id. at *5-6. The

magistrate judge, in a report and recommendation

later affirmed by both the district court and the

Eleventh Circuit, found that the plaintiff failed to

show a substantial burden under the Free Exercise

Clause in part because he had not “point[ed] the court

to religious authorities for support of his requests” for

his religious practices—even as the magistrate noted

he was assuming the incarcerated person was sincere

in his religious belief. Id. at *7.

Outside the Eleventh Circuit, this result would

have been different. For instance, in New York—

where the Second Circuit has made clear that courts

are not to engage in an inquiry beyond the sincerity of

a plaintiff’s religious belief—a district court recently

rejected an attempt by prison officials to override an

incarcerated person’s sincere belief. A Muslim

incarcerated at Otisville Correctional Facility in New

York requested an accommodation permitting him to

consume his diabetes medication after sundown, as

was required by his faith. See Monroe v. Gerbin, No.

16-cv-02818, at *5-6 (S.D.N.Y. Dec. 27, 2017), ECF No.

92. After initially accommodating this request, the

11

prison officials reversed course based on the religious

opinion of a prison chaplain, who expressed the

opinion—not shared by the plaintiff—that this

particular consumption of medicine was permitted by

Islam under an exception to the rule of fasting during

Ramadan. Id. at *25. Fortunately, the district court,

relying on this Court’s precedent and the Second

Circuit’s interpretation thereof, rejected this

argument and found that the plaintiff had alleged a

substantial burden on his free exercise of religion. See

id.

The harm caused by the Eleventh Circuit’s rule

would be great. Such a rule would require courts to

dismiss all claims in which an incarcerated person

alleges interference with a non-mandatory burden.

This would leave prisons free to ban any and all nonmandatory religious activity, as defined by the prisons

and the courts, without violating the Free Exercise

Clause.

Nor would a rule protecting non-mandatory

religious practices lead to an explosion of frivolous

claims. Existing doctrine has made clear that even

“[w]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342,

349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89

(1987)). Prison officials will have the same

opportunity to establish their rationale for a rule

restricting non-mandatory religious exercise that they

presently do for mandatory religious exercise in the

Eleventh Circuit. Nor have the Courts of Appeals for

the Second, Seventh, Ninth, Tenth, and D.C. Circuits

collapsed under the weight of additional litigation

12

after holding that the Free Exercise Clause protects

non-mandatory religious practices.

Outsourcing to prison officials and courts a

determination of what is religiously “mandatory” will

result in many sincere believers being deprived of the

chance to practice their religion—which is the very

evil the Free Exercise Clause is meant to prohibit.

Unless the Court corrects the Eleventh Circuit’s error,

these incidents will only multiply.

B.

Limiting the protections of the Free

Exercise Clause to “mandatory”

practices excludes many important

religious practices.

Even if courts and prison officials were able to

make unerring judgments about whether a given

plaintiff’s religious practice is or is not “mandatory,” a

Free Exercise Clause that only protected mandatory

conduct would leave many important religious

practices unprotected.

Many religions include practices that are

considered fundamentally important to adherents but

that are not necessarily deemed mandatory. Courts

outside the Eleventh Circuit have properly extended

the protection of the Free Exercise Clause to similarly

non-mandatory practices in the prison context. See,

e.g., Williams v. Wilkinson, 645 F. App’x 692, 704–05

(10th Cir. 2016) (holding that an incarcerated

Muslim’s religiously-motivated request for a kosher

diet implicated the Free Exercise Clause even though

he did not allege that he needed the diet to practice

his religion); Grayson v. Schuler, 666 F.3d 450, 454–

55 (7th Cir. 2012) (finding the Free Exercise Clause

protected Rastafarian taking the Nazirite Vow of

13

Separation); Levitan v. Ashcroft, 281 F.3d 1313, 1320

(D.C. Cir. 2002) (finding incarcerated Catholics were

entitled to wine for Communion because “[m]any

cherished religious practices are performed devoutly

by adherents who nonetheless do not or cannot insist

that those practices are mandated.”). The Eleventh

Circuit’s construction of the Free Exercise Clause

would permit prison officials to burden any of these

rights without permitting incarcerated persons to

invoke the protections of the First Amendment.

Outside the prison context, adherents are also

threatened by a rule that only mandatory religious

practices can be burdened the Free Exercise Clause.

For example, the Third Circuit considered a free

exercise claim by Orthodox Jews seeking to establish

an eruv ceremonial area that would, among other

things, permit disabled congregants to attend

synagogue. See Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly, 309 F.3d 144 (3d Cir. 2002). The city borough

council refused to permit the plaintiffs to place the

markers of the ceremonial area on city property. The

appeals court declined the council’s invitation to

investigate whether the plaintiffs were engaged in

“optional” or “mandatory” religious conduct in seeking

to establish an eruv ceremonial area because

“[n]either the Supreme Court nor our Court has

intimated that only compulsory religious practices fall

within the ambit of the Free Exercise Clause.” Id. at

171-72. Many spiritual practices that matter deeply to

adherents are undertaken for motives other than

strict compliance with a mandatory religious tenet.

For example, “[a] Catholic who vows to obey the Rule

of St. Benedict and therefore avoid ‘the meat of fourfooted animals’ is performing a religious observance

even though not a mandatory one.” Grayson, 666 F.3d

at 454. A Free Exercise Clause that is limited to

14

mandatory practices leaves these important acts of

non-mandatory

worship

unprotected

against

government interference.

Requiring a showing of mandatory practices

may exclude not only certain religious practices, but

entire religions. Under a construction of the Free

Exercise Clause that protects only mandatory

religious practices, “religions that lack the concepts of

commandments necessary for the salvation of the soul

would find themselves outside the scope of the First

Amendment protection altogether. Nothing in the free

exercise clause suggests that it only protects religions

that incorporate mandatory tests.” Levitan, 281 F.3d

at 1320; accord Ford, 352 F.3d at 593. As the Second

Circuit has held, “under the Religion Clauses,

everyone is entitled to entertain such view respecting

his relations to what he considers the divine and the

duties such relationship imposes as may be approved

by that person's conscience, and to worship in any way

such person thinks fit so long as this is not injurious

to the equal rights of others.” United States v. Moon,

718 F.2d 1210, 1226-27 (2d Cir. 1983). Only by

rejecting the Eleventh Circuit’s focus in this case on

the mandatory nature of a religious practice can this

Court preserve the freedom of religion for adherents

of all faiths.

II.

Deprivations of religious liberty do not

require a showing of physical harm under the Prison Litigation Reform Act.

This case also provides the Court an

opportunity to resolve the long-standing conflict

among the federal courts of appeals over whether

harms to religious liberty constitute “mental or

emotional injuries” for purposes of the Prison

15

Litigation Reform Act (“PLRA”) in 42 U.S.C.

§ 1997e(e), and accordingly are not a basis for

recovering compensatory damages absent proof that

the incarcerated person has suffered physical harm.

The PLRA bars an incarcerated person from

bringing a “[f]ederal civil action . . . for mental or

emotional injury suffered while in custody without a

prior showing of physical injury or the commission of

a sexual act.” 42 U.S.C. § 1997e(e). The statute does

not define “mental or emotional injury,” nor does it

make any reference to constitutional harms. Six

courts of appeals have held that a deprivation of an

incarcerated person’s religious liberty is not properly

cognized as “mental or emotional injury,” and

accordingly have recognized the availability of a

compensatory damages remedy. See Pet’r’s Br. 16-18.

Five courts of appeals have reached the opposite

conclusion, holding that a deprivation of religious

freedom under the Free Exercise Clause constitutes a

“mental or emotional injury” under the statute and

thus that compensatory damages are unavailable to

incarcerated persons without a predicate physical

injury. See id. at 18-19.

The Eleventh Circuit has long held that the

PLRA bars compensatory damages for First

Amendment harms without a physical injury. See

Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir.

2000). In its opinion below, the Eleventh Circuit

adhered to this holding. See Hoever v. Belleis, 703 F.

App’x 908, 912 (11th Cir. 2017) (citing Harris at 98485). In doing so, the Eleventh Circuit thereby removes

a critical deterrent against the violation of

incarcerated persons’ constitutional rights, including

their religious liberty. Because Congress did not

intend to leave incarcerated persons unprotected

16

against violations of their religious liberty, this Court

should grant certiorari, reverse the Eleventh Circuit’s

holding, and clarify that the PLRA does not require a

showing of physical injury to seek compensatory

damages for constitutional harms.

A.

The PLRA’s plain meaning and legislative history demonstrate that it

was not intended to deprive inmates of compensatory damages for

violations of religious liberty.

The PLRA establishes a requirement of

physical harm only for suits seeking compensation for

“mental or emotional injury.” 42 U.S.C. § 1997e(e).

The error of the Eleventh Circuit (and the other four

courts of appeals that have taken the same view) is in

construing this language to include claims for

deprivations of constitutional rights, which are not

simply claims for “mental or emotional harm.”

As Petitioner makes clear, Congress was

perfectly capable of stating that all suits by

incarcerated persons seeking damages for any nonphysical injury are barred. Pet’r’s Br. 22. By using the

phrase “mental or emotional harm,” Congress instead

established a bar to a more limited category of cases.

Insofar as courts have simply presumed that any

injury that is not physical must be mental or

emotional, they have rendered the phrase “mental or

emotional” superfluous, contrary to the basic principle

of statutory construction that requires every term in

a statute to be given effect. See TRW Inc. v. Andrews,

534 U.S. 19, 31 (2001).

This false presumption that all non-physical

harm must be mental or emotional also defies the

17

well-established, centuries-old legal history against

which Congress was legislating. When Congress

passed the PLRA in 1995,5 deprivations of personal

liberty were widely understood to be distinct as a legal

matter from mental or emotional harms. For example,

the leading nineteenth-century damages treatise

divided damages into six classes: injuries to property,

physical injuries, mental injuries, injuries to family

relations, injuries to personal liberty, and injuries to

reputation. 1 ARTHUR G. SEDGWICK & JOSEPH H.

BEALE, JR., A TREATISE ON THE MEASURE OF DAMAGES

44-51 & n.1 (8th ed. 1891). Similarly, American

jurisprudence had long recognized that “injury to a

First Amendment-protected interest could itself

constitute compensable injury wholly apart from any

‘emotional distress, humiliation and personal

indignity, emotional pain, embarrassment, fear,

anxiety and anguish’ suffered by plaintiffs.” Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 315 (1986)

(Marshall, J., concurring in the judgment) (quoting

Hobson v. Wilson, 737 F.2d 1, 62 (D.C. Cir. 1984)).

Deprivations of voting rights have also been held to be

compensable through damages awards for centuries,

dating back to Lord Holt’s celebrated Queen’s Bench

opinion in the eighteenth-century case Ashby v. White.

(1703) 87 Eng. Rep. 808 (Holt, C.J., dissenting) (An

invasion of voting rights permitted a recovery of

compensatory damages even without any pecuniary

loss because “an injury imports a damage, when a

man is thereby hindered of his right.”), rev’d and

dissent adopted, 91 Eng. Rep. 665. The difference

between First Amendment injuries and mental or

emotional injuries can also be seen in the doctrine

holding that, unlike mental or emotional injuries,

5 See Prison Litigation Reform Act of 1995, Pub. L. 104-134, 110

Stat. 1321-71.

18

“[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury” for purposes of a preliminary

injunction. Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality opinion).

The Eleventh Circuit and its sister circuits that

have adopted a contrary position thus defy the obvious

intent of the statute in reading the PLRA statutory

provision to include violations of religious liberty as

“mental or emotional injury.”

B.

The availability of a compensatory

damages remedy serves as an important deterrent against violations

of religious liberty in prisons.

The availability of compensatory damages is

critical to protecting the religious liberty of

incarcerated persons. The possibility of financial

liability helps to deter prison officials from violating

individuals’ religious liberty in the first place. Such

“controls on government” are necessary because

“angels [do not] govern men.” The Federalist No. 51

(James Madison). Deterring future violations is one of

the important purposes of statutes governing civil

rights claims. See Owen v. City of Independence, 445

U.S. 622, 651 (1980) (“Moreover, [42 U.S.C.] § 1983

was intended not only to provide compensation to the

victims of past abuses, but to serve as a deterrent

against future constitutional deprivations, as well.”).

This Court has recognized that “the damages a

plaintiff recovers contributes significantly to the

deterrence of civil rights violations in the future.” City

of Riverside v. Rivera, 477 U.S. 561, 575 (1986); accord

Butz v. Economou, 438 U.S. 478, 506 (1978) (“In

19

situations of abuse, an action for damages against the

responsible individual can be an important means of

vindicating constitutional guarantees.”). Damages

deter violations of rights by making officials

internalize the costs of their illegal activity rather

than forcing their victims to bear it. See John C.

Jeffries, Jr., In Praise of the Eleventh Amendment and

Section 1983, 84 Va. L. Rev. 47, 72 (1998). Faced with

the choice between respecting someone’s religious

liberty and risking liability by violating it, officials are

more likely to follow the law.

This deterrence is especially important for

incarcerated persons. As this Court has noted,

“history and common sense teach us that an

unchecked system of detention carries the potential to

become a means for oppression and abuse.” Hamdi v.

Rumsfeld, 542 U.S. 507, 530 (2004) (plurality

opinion). Incarcerated persons face a power imbalance

unlike any other persons in modern society; they

generally lack political power and are often unable to

access redress outside of the courts. Renowned law

professor Erwin Chemerinsky has correctly observed

that prisons are among “the places where aggressive

judicial review is most essential . . . [because] the

authoritarian nature of these institutions makes them

places where serious abuses of power and violations of

rights are likely to occur; and . . . the political process

is extremely unlikely to provide any protections.”

Erwin

Chemerinsky,

The

Constitution

in

Authoritarian Institutions, 32 Suffolk U.L. Rev. 441,

458 (1999); see also id. at 459 (noting incarcerated

persons “are classic discrete and insular minorities,

who have little political power. Those in prisons, for

example,

are

routinely

and

permanently

disenfranchised.”). Further, deprivations of religious

liberty in prisons often involve “individual instances

20

of discrimination or law enforcement overreach, which

due to their very nature are difficult to address except

by way of damages actions after the fact.” See Ziglar

v. Abbasi, 137 S. Ct. 1843, 1862 (2017). Damages thus

serve to protect the religious liberty of society’s most

vulnerable.

Nor is the prospect of expanding the number of

constitutional claims by incarcerated persons cause

for concern. Qualified immunity ensures that the

benefits of deterrence do not impose unreasonable

costs on defendants. The qualified immunity doctrine

“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 responsibly.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). By immunizing

officials from liability for all but violations of “clearly

established” rights, id., qualified immunity allows

officials to make difficult choices without fearing

litigation at every turn. See Richardson v. McKnight,

521 U.S. 399, 407-08 (1997) (qualified immunity

protects “government’s ability to perform its

traditional functions”); Scheuer v. Rhodes, 416 U.S.

232, 240 (1974) (qualified immunity protects officials

who exercise discretion and encourages them to

exercise good judgment).

Construing the PLRA to permit constitutional

claims for damages without a showing of physical

injury, then, would not place an unreasonable burden

on government officials. Only the worst actors—those

who take action that a reasonable person would know

to be unlawful—would be liable. See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Permitting the

Eleventh Circuit’s faulty construction of the PLRA to

21

cut off a damages remedy for free exercise harms

altogether would upset the balance that qualified

immunity strikes between the government’s ability to

function and the First Amendment’s protection for

religious liberty.

C.

There is no adequate alternative to

compensatory damages for violations of religious liberty in the

prison context.

The other major remedy available to a victim of

religious discrimination—injunctive relief—is not an

adequate substitute for compensatory damages in the

prison context. Prison officials may provide or deny

incarcerated persons religious accommodations at will

and may transfer incarcerated persons among units

with different rules and accommodations at almost

any time. See, e.g., Meachum v. Fano, 427 U.S. 215,

228 (1976). This makes it very easy for a defendant

government official or agency to moot a case brought

by an incarcerated person premised on injunctive

relief. See, e.g., Chesser v. Walton, No. 12-cv-1198,

2016 WL 6471435, at *1, *4 (S.D. Ill. Nov. 2, 2016)

(finding claims moot because incarcerated plaintiff

had been transferred to a different facility); Johnson

v. Killian, No. 07-cv-6641, 2009 WL 1066248 at *1

(S.D.N.Y. April 21, 2009) (mooting incarcerated

Muslim’s Religious Freedom Restoration Act claim

challenging prison’s group prayer policy of

incarcerated Muslim by transferring him to another

federal prison). Not only does this remove a major

incentive for the incarcerated person to continue the

litigation (and entirely moot the claims of plaintiffs

who did not plead an action for nominal or punitive

damages); these strategic transfers can also slow the

22

development of the law by denying courts the chance

to rule on substantive disputes.

While the availability of nominal damages6

may serve to avoid mootness as a formal matter under

the PLRA, the D.C. Circuit has noted “the illusory

nature, in practice, of such relief.” Aref v. Lynch, 833

F.3d 242, 265 n.17 (D.C. Cir. 2016). “[N]ominal

damages do little to deter repetition of the illegal

conduct and do not provide any compensation for

actual harms suffered.” Id. (citing Butz, 438 U.S. at

506). As such, the availability of nominal damages

does nothing to alter the urgency of this Court’s

intervention to find that the PLRA does not bar suits

for compensatory damages for violations of the First

Amendment.7

6 Courts generally permit the award of nominal damages but are

divided on the availability of punitive damages under section

1997e(e). Compare Hutchins v. McDaniels, 512 F.3d 193, 196-98

(5th Cir. 2007) (“[W]e recognize that § 1997e(e) does not bar

[Plaintiff’s] recovery of nominal or punitive damages.”) and

Thompson v. Carter, 284 F.3d 411, 417-18 (2d Cir. 2002) (holding

that the PLRA bars compensatory damages but “does not limit

the availability of nominal damages for the violation of a

constitutional right or of punitive damages.”) with Al-Amin v.

Smith, 637 F.3d 1192, 1199 (11th Cir. 2011) (“[A]ccording to the

law of our circuit, the PLRA precludes the recovery of punitive

damages in the absence of physical injury.”) and Davis v. District

of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998) (holding

punitive damages unavailable under the PLRA for mental or

emotional injuries).

7 Punitive damages also do not adequately replace compensatory

damages, since, as the D.C. Circuit noted, “[p]unitive damages

are never awarded as a matter of right, and the standard is

understandably high—requiring evil motive or reckless

indifference to the rights of others.” Aref, 833 F.3d at 265 n.17

(citing Smith v. Wade, 461 U.S. 30, 51-52 (1983)).

23

Because prisons are so easily able to moot

incarcerated persons’ claims (as discussed supra),

incarcerated persons must have an incentive to

continue to pursue the vindication of their rights.

Only the most dedicated incarcerated persons will

persevere in a legal matter when both injunctive relief

and compensatory damages are unavailable. This is

particularly true because incarcerated persons who

maintain lawsuits against prisons and prison officials

often face harassment and retaliation. See John J.

Gibbons & Nicholas De B. Katzenbach, Confronting

Confinement: A Report of the Commission on Safety

and Abuse in America’s Prisons, 22 Wash. U.J.L. &

Pol’y 385, 514 (2006) (noting that a survey by the

Correctional Association of New York found that more

than half of incarcerated persons who file grievances

report experiencing retaliation for making a

complaint against staff); Kitty Calavita & Valerie

Jenness,

APPEALING TO JUSTICE: PRISONER

GRIEVANCES, RIGHTS, AND CARCERAL LOGIC 68 (2015)

(reporting a study that showed over 70% of

incarcerated persons believed correctional officers

retaliate against incarcerated persons who file

grievances). Removing an incentive for incarcerated

persons to pursue their claims effectively insulates

bad actors in the prison system from facing any

responsibility for their unconstitutional actions.

For many plaintiffs—and especially those who

are incarcerated—foreclosing compensatory damages

will in many instances make the Free Exercise

Clause’s promise to protect their religious liberty little

more than a dead letter. Without the possibility of

having to pay damages, government defendants can

often moot meritorious suits for injunctive relief by

granting

last-minute

relief

or

transferring

incarcerated persons to a different facility where they

24

must re-start the process of obtaining a religious

accommodation. Thus, the potential for compensatory

damages serves to deter government officials from

violating the religious liberty rights of some of

society’s most vulnerable.

III.

Conclusion

For the foregoing reasons, the Court should

grant the Petitioner’s petition for certiorari, and

reverse the Eleventh Circuit’s opinion.

Respectfully submitted,

JOHNATHAN SMITH

COUNSEL OF RECORD

SIRINE SHEBAYA

MATTHEW CALLAHAN*

MUSLIM ADVOCATES

AT PO BOX 66408

WASHINGTON, DC 20035

(202) 897-2622

johnathan@muslimadvocates.org

sirine@muslimadvocates.org

matthew@muslimadvocates.org

*ADMITTED IN CALIFORNIA, SUPERVISED BY MEMBERS OF THE D.C.

BAR.

25

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

923 GARDENS BOULEVARD

CHARLOTTESVILLE, VA 22901

(434) 987-3888

March 19, 2018