Respondents Brief — Mario Cavin, Petitioner v. Heidi E. Washington, Director, Michigan Department of Corrections, et al.

Supreme Court briefApr 16, 2018

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No. 17-7089

In the Supreme Court of the United States

MARIO CAVIN, PETITIONER

DANIEL H. HEYNS AND JEFFREY WOODS

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Bill Schuette

Michigan Attorney General

Aaron D. Lindstrom

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

LindstromA@michigan.gov

(517) 373-1124

James E. Long

Assistant Attorney General

Civil Litigation, Employment, and

Elections Division

Attorneys for Respondents

-iQUESTION PRESENTED

Cavin, a prisoner of the Michigan Department of Corrections, committed several instances of serious misconduct (for example, he possessed a razor) and so was

temporarily confined to his cell under what is called “toplock” status. Under the operating procedure at his particular prison, prisoners on toplock status are not allowed

to attend group religious services. Cavin alleges the ban on attending group religious

services while on toplock status, which resulted in him missing two Wiccan group

services, violated his First Amendment right to practice his religion.

The question presented is: Were the respondent prison officials entitled to

qualified immunity where they did not allow a prisoner who was temporarily confined

to his cell for disciplinary reasons to attend group religious services?

-iiPARTIES TO THE PROCEEDING

The petitioner, Mario Cavin, was the plaintiff-appellant in the proceeding below. He is a state prisoner confined in the Michigan Department of Corrections

(MDOC).

The respondents—Daniel Heyns, former Director of the MDOC, and Jeffrey

Woods, Warden of the Chippewa Correctional Facility—were defendants-appellees in

the proceedings below.

-iiiTABLE OF CONTENTS

Page

Question Presented......................................................................................................... i

Parties to the Proceeding .............................................................................................. ii

Index of Authorities ...................................................................................................... iv

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 3

MDOC policy regarding confining a prisoner to his cell ......................... 3

Cavin’s religious practices and misconduct............................................. 4

Cavin’s lawsuit ......................................................................................... 5

Reasons for Denying the Petition.................................................................................. 8

II.

There is no split between the circuits as to whether barring prisoners

from group religious services violates the First Amendment. .......................... 8

None of his cases about religious services held that a First

Amendment violation had occurred. ........................................................ 8

His remaining cases did not even involve religious services and

so also did not reach any holding that conflicts with the decision

below. ...................................................................................................... 11

The Sixth Circuit correctly held that the defendants are entitled to

qualified immunity............................................................................................ 14

Conclusion .................................................................................................................... 18

-ivINDEX OF AUTHORITIES

Page

Constitutional Provisions

U.S. Const. amend I ....................................................................................................... 1

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 1291 ............................................................................................................. 1

28 U.S.C. § 1331 ............................................................................................................. 1

42 U.S.C. § 1983 ......................................................................................................... 1, 5

42 U.S.C. § 2000cc-1 ...................................................................................................... 5

Cases

Beard v. Banks,

548 U.S. 521 (2006) ........................................................................................ 7, 10, 15

Carroll v. Carman,

135 S. Ct. 348 (2014) ................................................................................................ 17

DeFunis v. Odegaard,

416 U.S. 312 (1974) .................................................................................................. 17

Ford v. McGinnis,

352 F.3d 582 (2d Cir. 2003)................................................................................ 11, 12

Kisela v. Hughes,

No. 17-467, 2018 WL 1568126 (U.S. Apr. 2, 2018) ..................................... 14, 16, 17

LaReau v. MacDougall,

473 F.2d 974 (2d Cir. 1972)...................................................................................... 10

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006) .................................................................................... 10

Makin v. Colorado Dep’t of Corrections,

183 F.3d 1205 (10th Cir. 1999) .......................................................................... 12, 13

-vMawhinney v. Henderson,

542 F.2d 1 (2d Cir. 1976) ..................................................................................... 9, 10

McEachin v. McGuinnis,

357 F.3d 197 (2004) .................................................................................................. 12

O’Lone v. Shabazz,

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

Overton v. Bazzetta,

539 U.S. 126 (2003) .................................................................................................. 16

Turner v. Safley,

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

Walker v. Mintzes,

771 F.2d 920 (6th Cir. 1985) .......................................................................... 7, 14, 17

Young v. Coughlin,

866 F.2d 567 (2d Cir. 1989).............................................................................. 8, 9, 10

-1OPINIONS BELOW

The order of the court of appeals (Pet. App. A), which affirmed the district

court’s judgment, is unreported. The order of the United States District Court for the

Western District of Michigan (Pet. App. B), which granted summary judgment to the

respondents on Cavin’s 42 U.S.C. § 1983 complaint, is not published but is available

at 2016 WL 6275347.

JURISDICTION

The district court had jurisdiction over Cavin’s claims under 28 U.S.C. § 1331.

The court of appeals had jurisdiction to review the district court’s final judgment under 28 U.S.C. § 1291. The court of appeals filed its order affirming the district court’s

judgment on September 12, 2017. This Court’s jurisdiction rests on 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

42 U.S.C. § 1983 states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .

-2INTRODUCTION

Cavin, a prisoner of the MDOC, alleges that the respondent prison officials

violated his First Amendment free-exercise right by imposing a “blanket ban” on his

ability to attend group religious services while he was temporarily confined to his cell

for misconduct, misconduct that included possessing a razor. He contends that this

ban violated clearly established law and created a circuit split.

He is wrong on each point. There is no circuit split; none of the cases he cites

held that it violates the First Amendment for prison officials to temporarily confine a

prisoner to his cell and so to preclude him from attending group religious services in

response to misconduct by the prisoner. Nor is there clearly established law holding

that this type of temporary restriction violates the First Amendment; to the contrary,

circuit precedent holds that it does not violate the First Amendment to impose a total

ban on prisoners attending group religious services for a period of six months. And

that circuit precedent is consistent with this Court’s caselaw. This Court too has upheld policies that prevented prisoners from attending group religious services, O’Lone

v. Shabazz, 482 U.S. 342 (1987), and has recognized that the need to provide incentives for better prisoner behavior—the precise reason asserted by the officials here—

is a legitimate reason for restricting constitutional rights.

Here, Cavin remained free to practice his religion on an individual basis even

while confined, and the temporary limitation on his associational interest in congregating with others for religious purposes was a reasonable restriction that supported

legitimate penological goals.

-3The Sixth Circuit properly applied this Court’s test in Turner v. Safley, 482

U.S. 78 (1987), and properly concluded that the prison officials were entitled to qualified immunity. Certiorari is not warranted.

STATEMENT OF THE CASE

A. MDOC policy regarding confining a prisoner to his cell

Under MDOC policy directives, prisoners who have been found guilty through

a misconduct hearing may be placed under a restriction known as “toplock.” Pet. App.

C. Toplock means that a prisoner must remain in his cell: “A prisoner on toplock is

restricted to his/her own cell, room, or bunk and bunk area.” Id. Toplock may also

include depriving a prisoner “of use of his/her television, radio, tape player, and portable media player,” id., though those restrictions are not at issue here. Under MDOC

policy, prisoners on toplock “shall be released from toplock for regular showers, visits,

medical care (including individual and group therapy), school, and law library.” Id.

The state-wide policy also provides that the warden of a particular facility “may authorize prisoners on toplock to go to the dining room, work assignments, and/or other

specified activities, including group religious services.” Id.

Toplock may be imposed only for a limited duration; it may be imposed for no

more than 30 days for a violation, even if the violation is for serious misconduct such

as homicide, assault and battery, or possession of dangerous contraband. MDOC Policy Directive 03.03.105, Attachment D.

-4B. Cavin’s religious practices and misconduct

Mario Cavin has been a Wiccan since 2005 or 2006. Defs.’ Mot. for Summ. J.,

Exh. A, Page ID 301. The Wiccan religion celebrates eight Sabbats (Wiccan holidays)

each year; these sabbats include a group ceremony. Id. at 302, 304. In addition to

group practices, the Wiccan religion includes “solitary rituals,” prayers, and chants.

Id. at 304–05. According to Cavin, he was allowed to keep both books about his Wiccan faith (including study guides) and religious items (such as tarot cards) in his cell.

Id. at 304, 306.

In June 2014 and September 2014, while incarcerated at the Chippewa Correctional Facility, Cavin was serving “toplock” sanctions because he violated prison

rules, including possessing dangerous contraband (a razor). Defs.’ Mot. for Summ. J.,

Page ID 303. The record does not reflect whether these toplocks lasted a full month,

but it does show that one of his prior detentions (for threatening a guard) lasted only

ten days. Defs.’ Mot. for Summ. J. re Exhausting Administrative Remedies, Exh. B

at Page ID 92.

In accordance with MDOC’s prisoner discipline policy, the warden of the Chippewa Correctional Facility, Jeffrey Woods, issued an operating procedure allowing

prisoners on toplock to go to the dining room, to attend vocational or academic school,

and to attend the law library on toplock library call out. But Warden Woods precluded

prisoners on toplock from attending religious services or work assignments. Pet. App.

A at 4. Because Cavin was serving toplock sanctions in June and September 2014, he

was prevented from attending two Wiccan group religious services, one on June 21,

2014, and one on September 21, 2014.

-5C. Cavin’s lawsuit

Cavin brought a pro se civil rights claim under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1

against respondents Daniel Heyns (the former Director of the MDOC) and Warden

Woods. Cavin alleged that his rights were violated under the First Amendment, the

Fourteenth Amendment, and RLUIPA when he was precluded from attending group

religious services on two occasions, in June and September 2014, during his incarceration at the Chippewa Correctional Facility. He alleged that the MDOC, through defendant Heyns, instituted a policy that gave wardens the discretion to preclude prisoners on toplock from attending group religious services. Cavin alleged that Warden

Woods abused his discretion by implementing a blanket ban for prisoners on toplock

from attending group religious services.

The prison officials moved for summary judgment, arguing that Cavin’s

RLUIPA claim, which sought injunctive relief, was moot because Cavin had transferred to another prison. The respondents also argued they were entitled to qualified

immunity and that Cavin’s claim under the Fourteenth Amendment should be dismissed because the First Amendment offers a source of protection for prisoners’ religious rights. Pet. App. A at 2.

The district court granted the respondents summary judgment, determining

that Cavin’s RLUIPA claim for declaratory and injunctive relief was moot as to defendant Woods and unripe as to defendant Heyns, that the respondents were entitled

to qualified immunity on Cavin’s First Amendment claim, and that Cavin’s

-6Fourteenth Amendment claim was improper because it was covered by his First

Amendment claim. Pet. App. A at 2.

On appeal, Cavin did not challenge the dismissal of his RLUIPA and Fourteenth Amendment claims. Pet. App. A at 2. Instead, the sole issue Cavin raised was

whether the district court erred in granting the respondents qualified immunity on

his First Amendment claim. Cavin contended that his right to attend religious services while on toplock status was clearly established and that Woods’ operating procedure was unreasonable because it “fails to consider individual prisoners or the misconduct involved” and imposes a blanket ban. Pet. App. A at 6.

The Sixth Circuit, in affirming the district court, applied the four factors set

forth in Turner v. Safley, 482 U.S. 78 (1987), which are used to determine whether a

prison regulation that impinges on a prisoner’s constitutional right is reasonably related to a legitimate penological interest. Those factors include: (1) whether there is

a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether a prisoner has alternative

means of exercising the asserted right; (3) the impact that accommodating the right

will have on guards, other prisoners, and the allocation of prison resources; and (4)

whether there are alternatives available that accommodate the prisoner’s rights at a

minimal cost to penological interests. Pet. App. A at 4–5.

As to the first factor, the Sixth Circuit found that the respondents’ rationale

for barring participation in group religious services for toplock prisoners—to give

them an incentive to behave better in the future—was a valid penological interest.

-7Pet. App. A at 5. Indeed, the Sixth Circuit noted that “the Supreme Court held that

the very reason cited by the defendants in this case—the need to provide increased

incentives for better prison behavior—was an adequate justification for a prison’s

policy denying certain prisoners in a long-term segregation unit access to newspapers, magazines, and photographs.” Pet. App. A at 5 (citing Beard v. Banks, 548 U.S.

521, 530 (2006)). As to Cavin’s argument that a “blanket ban” and the failure to consider an individual prisoner’s misconduct makes Warden Woods’ policy unreasonable,

the Sixth Circuit noted that binding circuit precedent had upheld a blanket ban that

limited access to group religious services for all prisoners in administrative segregation. Pet. App. A at 6 (citing Walker v. Mintzes, 771 F.2d 920, 930 (6th Cir. 1985)).

The Sixth Circuit also determined that the other Turner factors, on balance,

weighed in the respondents’ favor. Specifically, as to the second factor, the Sixth Circuit noted that although Cavin was prevented from attending group religious services

while on toplock, he had alternative means to practice his Wiccan faith. For example,

although Cavin contended that he did not really know what to do for the sabbats,

despite having been a Wiccan since 2005 or 2006, he had a book and a study guide to

assist him and he conceded that he was not prevented from practicing his religion on

his own. Pet. App. A at 6.

As to the third and fourth Turner factors, the Sixth Circuit determined that

allowing Cavin to attend group religious services while on toplock would have only a

small impact on prison resources (staff would have to let him in and out of his cell),

but that there would be an overall negative impact if he attended group religious

-8services because it would undermine efforts to encourage better behavior. Pet. App.

A at 6.

The Sixth Circuit’s conclusion that the ban on group religious services for prisoners on toplock was reasonably related to a legitimate penological interest meant

that Cavin could not overcome the respondents’ claim of qualified immunity.

REASONS FOR DENYING THE PETITION

There is no split between the circuits as to whether barring prisoners

from group religious services violates the First Amendment.

Cavin asserts that the circuits are split on whether prisoners are entitled to

attend religious services while in disciplinary confinement. He is incorrect. Of the six

circuit cases he cites, only three even involve religious services; the other three involve religious dietary issues. And not one of the cases about religious services held

that it violated the First Amendment to temporarily prevent a prisoner from attending group religious services. Instead, in all three cases the courts merely let the case

proceed beyond a motion to dismiss or a motion for summary judgment because the

prison officials had not yet asserted any penological interest that might justify the

restrictions and thus might show that no First Amendment violation had occurred.

In short, no circuit has reached a holding that conflicts with the Sixth Circuit’s holding here.

A. None of his cases about religious services held that a First

Amendment violation had occurred.

Consider first Young v. Coughlin, 866 F.2d 567 (2d Cir. 1989). In that case, the

defendants never proffered a reason for preventing the plaintiff from attending

-9religious services while he was confined to his cell; though they moved for summary

judgment against the prisoner (and were awarded summary judgment by the district

court), “[a]t no time during the pendency of this action did the defendants proffer an

explanation as to why Young was denied access to religious services, or articulate a

particular penological interest that was served by denying appellant such access.” Id.

at 570; see also id. (“A prisoner’s first amendment right to the free exercise of his

religious beliefs may only be infringed to the extent that such infringement is ‘reasonably related to legitimate penological interests.’ ” (quoting O’Lone v. Estate of

Shabazz, 482 U.S. 342, 349 (1987) (some quotation marks omitted))). Accordingly, the

Second Circuit correctly reversed and remanded, stating that “[w]hile it very well

may be true, on remand, appellees will be able to show that the restrictions at issue

here are reasonably adapted to achieving a legitimate penological objective, the district court should not have dismissed appellant’s first amendment claim without requiring prison officials to establish the basis for the first amendment restrictions imposed.” Id. Unlike the defendants in Young, the respondents in Cavin’s case set forth

a legitimate penological reason for restricting him from attending group religious services—namely, to encourage future good behavior.

The situation was similar in the other two cases Cavin cites that involves religious services. In Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976), the district

court dismissed the prisoner’s First Amendment claim “that he was denied access to

religious services while in punitive segregation” at the screening stage, “prior to service of summons and answer.” Id. at 2. As in Young, the Second Circuit correctly

-10reversed and remanded to require the officials to answer and explain what penological interest justified the restriction. Id. at 4. And in so doing, it acknowledged that

restrictions on religious freedoms are permissible “ ‘if the state regulation has an important objective and the restraint on religious liberty is reasonably adapted to

achieving that objective.’ ” Id. at 3 (quoting LaReau v. MacDougall, 473 F.2d 974, 979

(2d Cir. 1972)). Similarly, in Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006), a prisoner

brought RLUIPA and First Amendment claims when he was removed from Ramadan

participation, including from “congregational prayers,” after he allegedly broke Ramadan fast. Id. at 181. The Fourth Circuit vacated the district court’s grant of summary

judgment to the defendants on the First Amendment claim because the district court

failed to apply the Turner factors and because “the prison [had] yet to come forward

with any substantive rationale for the restrictions.” Id. at 200 & n.9. And in its ruling,

the Lovelace court reiterated that a prisoner’s free exercise rights may be restricted

by punitive measures that are “ ‘reasonably adapted to achieving a legitimate penological objective.’ ” Id. at 200 (quoting Young, 866 F.2d at 570).

In each of these three cases, the courts applied the correct test from Turner (or

its progeny, O’Lone) and, in so doing, properly reversed and remanded because the

district court had either not considered the Turner factors or because the defendants

did not present evidence to address the Turner factors. But unlike the defendants in

Young, Mawhinney, and Lovelace, the officials here did assert a penological interest,

and it is one that this Court has held to be an adequate justification for prison policies:

the need to “provid[e] increased incentives for better prison behavior.” Beard v.

-11Banks, 548 U.S. 521, 530 (2006) (plurality); accord id. at 537 (Thomas, concurring in

judgment) (concluding that the Eighth Amendment, not the First Amendment, supplies the relevant standard for evaluating prison policies).

In short, not one of Cavin’s cases that involves the same issue—temporary preclusion from attending religious services—held that such a policy violates the First

Amendment, and therefore no circuit split exists.

B. His remaining cases did not even involve religious services and so

also did not reach any holding that conflicts with the decision

below.

His remaining three cases are farther afield, as they dealt with issues about

the food prisoners received while restricted to their cell, not about whether prison

officials had to allow them to leave their cell to associate with others via religious

services.

In Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003) (Sotomayor, J.), for example,

a Muslim prisoner alleged that his First Amendment rights were violated when he

was denied participation in a particular meal, the Eid ul Fitr feast. Id. at 584. The

Second Circuit noted that the defendants had “not argue[d] that legitimate penological interests justified their conduct, and the district court therefore never reached the

issue.” Id. at 595. It accordingly vacated the district court’s grant of summary judgment to the prison officials and “remand[ed] for the district court to determine

whether the denial of the meal was reasonably related to a legitimate penological

interest under the test applied in Turner v. Safley, 482 U.S. 78 (1987), and [O’Lone].”

Id. (parallel citations omitted). The Second Circuit declined to weigh the Turner

-12factors for the first time on appeal and remanded so that, “[i]f the defendants renew

their motion for summary judgment, the district court will be able to access the facts

in light of the Turner balancing test in the first instance.” Id. at 596. Ford thus did

not reach a holding even as to the religious-diet issue it confronted, let alone as to

any religious-services issues.

McEachin v. McGuinnis, 357 F.3d 197 (2004), follows the same pattern. There,

the prisoner alleged he was denied a religious meal for seven days as discipline. Id.

at 198. After the district court dismissed his complaint at the screening stage, id. at

200 (noting that the defendants “were not served and did not file an answer”), the

Second Circuit reversed, concluding that his complaint should not have been dismissed “at such an early stage of the proceedings,” id. at 201. But the Court also noted

that his “success on his First Amendment free exercise claim, of course, still depends

upon the defendants’ inability to demonstrate a reasonable relationship between the

potentially infringing policy and a legitimate penological interest.” Id. at 201 n.8 (citing Turner). So it merely remanded for the district court to consider whether the officials could offer a legitimate penological interest that supported the policy.

Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205 (10th Cir. 1999), also

does not support the existence of a circuit split. In Makin, the Tenth Circuit upheld

the district court’s determination that a prisoner’s First Amendment rights were violated when prison officials refused to serve meals in accordance with Ramadan to

prisoners in punitive segregation. The Ramadan meals needed to be consumed before

dawn or after sunset, but prison officials delivered the meals after dawn. While the

-13Makin defendants argued qualified immunity on appeal, the Tenth Circuit did not

consider their arguments because defendants failed to preserve the issue. Id. at 1210.

Moreover, the Tenth Circuit determined that defendants failed to present any evidence to support its proffered reasons for not serving meals to Muslim prisoners in

segregation before dawn or after sunset. Id. at 1214. In contrast, in Cavin’s case, the

respondents properly raised and preserved their qualified-immunity argument and

provided support for their actions.

No circuit split exists. The Sixth Circuit applied the same legal test (the Turner

factors) that the Second, Fourth, and Tenth Circuits applied. The one case Cavin cites

that held that prison officials violated the First Amendment (Makin) involved a substantially different issue—what food a prisoner would eat within the confines of his

cell, not whether a prisoner could be let out of his cell to associate with other prisoners

at a religious service. In the other five cases he relies on, the courts did not even hold

that a First Amendment violation occurred; instead, they simply allowed the case to

proceed because the defendants had not yet put forward a legitimate penological reason for temporarily limiting a particular religious practice. Here, in contrast, the

respondents provided a legitimate penological reason for temporarily restricting participation in group religious services while on toplock, and the district court and the

Sixth Circuit properly applied the Turner factors and determined that the respondents were entitled to qualified immunity.

-14II. The Sixth Circuit correctly held that the defendants are entitled to

qualified immunity.

As this Court has repeatedly explained, qualified immunity “protects all but

the plainly incompetent or those who knowingly violate the law.” Kisela v. Hughes,

No. 17-467, 2018 WL 1568126 (U.S. Apr. 2, 2018) (internal quotation marks omitted).

To satisfy that standard, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. ((internal quotation marks omitted).

Here, existing precedent favored the prison officials: the Sixth Circuit had “previously upheld as reasonable a blanket ban that limited access to group religious services for all inmates in administrative segregation.” Pet. App. A at 6 (citing Walker v.

Mintzes, 771 F.2d 920 (6th Cir. 1985)). In Walker, the prisoners argued, just as Cavin

does here, “that by restricting their access to group religious meetings, prison officials

have violated their first amendment right to the free exercise of their religions.” 771

F.2d at 929. While the district court in Walker agreed “that this ‘total ban’ on group

services violated the first amendment,” the Sixth Circuit reversed, holding that the

total ban on group services was reasonable for a period of at least six months. (The

lockdowns began on May 27, 1981, and extended past the end of the trial on November 12, 1981, through January 1, 1982. Id. at 924, 930, 931.) Here, the prison officials

imposed a ban for a much shorter period of time—no more than 30 days for each

serious misconduct. If anything, a competent prison official could conclude that binding Sixth Circuit precedent affirmatively authorized this restriction as constitutional.

And reasonable prison officials could also believe that O’Lone itself supports

this restriction on group religious services. In O’Lone, a group of Islamic prisoners

-15“challenged policies adopted by prison officials which resulted in their inability to

attend Jumu’ah, a weekly Muslim congregational service . . . .” 482 U.S. at 345. This

Court held that the permanent restriction on the group religious service did not violate the First Amendment under the four-factors set out in Turner. As to the first

factor, the policies in O’Lone were “justified by concerns of institutional order and

security.” Id. at 351. Here, the prison’s policy is also justified by concerns about promoting order and security, specifically by providing incentives to prisoners to refrain

from serious misconduct (such as possessing a razor). Indeed, as the Sixth Circuit

pointed out, in Beard v. Banks, 548 U.S. 521 (2006) (plurality), this Court “held that

the very reason cited by the defendants in this case—the need to provide increased

incentives for better prison behavior—was an adequate justification for a prison’s

policy denying certain prisoners in a long-term segregation unit access to newspapers, magazines, and photographs.” Pet. App. A at 5.

The other three Turner factors also favor the prison officials here. As to the

second, even though in O’Lone there was “no alternative means of attending

Jumu’ah,” the prisoners were able “to participate in other Muslim religious ceremonies” and “other religious observances of their faith” at other times. Id. at 352. Here,

although there was no alternative way to attend the sabbat ceremonies, Cavin was

able to participate in other religious exercises, including studying his cell and praying. Pet. App. A at 6. As to the third Turner factor, allowing Cavin to attend religious

services would have “an impact on prison resources, albeit a mild one.” Id. And as to

the fourth Turner factor, providing an alternative way to engage in group religious

-16services would undermine the very rationale of the policy: the incentive to behave or

to face losing the opportunity to engage in group activities is more effective if those

are the only two choices. See Overton v. Bazzetta, 539 U.S. 126, 134 (2003) (explaining

that “[w]ithdrawing visitation privileges is a proper and even necessary management

technique to induce compliance with the rules of inmate behavior, especially for highsecurity prisoners who have few other privileges to lose”).

One additional point further supports the reasonableness of the restriction at

issue here. Cavin is not complaining that he has been prohibited in any way from

freely exercising his religion on an individual basis; he has remained free, even when

confined to his cell, to pray, to study the Wiccan faith, and to use Wiccan religious

items such as tarot cards. Defs.’ Mot. for Summ. J., Exh. A, Page ID 305–06. Rather,

his complaint is about exercising his religion by associating with others. But “freedom

of association is among the rights least compatible with incarceration.” Overton, 539

U.S. at 131. In Overton, this Court held that it is reasonable for “Michigan, like many

other States, [to use] withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline.” Id. at 137. The same is true of the associational privilege of attending group religious services.

As this shows, the law was not clearly established such that it is “beyond debate,” Kisela, 2018 WL 1568126 at *2, that a temporary restriction on attending group

religious services violates the First Amendment. And this means that this case presents a poor vehicle for reaching the underlying constitutional question, because anything the Court says about whether there was a constitutional violation would be

-17dicta: even if this Court were to state that this policy violates the First Amendment,

these prison officials would nonetheless be entitled to qualified immunity because at

the time of their conduct, the law (in both Walker and O’Lone) did not clearly establish

that this would be a violation. E.g., Kisela 2018 WL 1568126 at *4 (reversing denial

of qualified immunity where “the most analogous Circuit precedent favor[ed] [the defendant police officer]”); Carroll v. Carman, 135 S. Ct. 348, 351 (2014) (reversing denial of qualified immunity where the controlling circuit precedent “arguably support[ed] [defendant police officer] Carroll’s view”). So the officials will ultimately be

entitled to qualified immunity, even if this Court were to announce a new rule of

constitutional law. Accordingly, if this Court wants to reach the underlying constitutional issue, this Court should wait for a case where a decision on that issue would

matter to the rights of the litigants. See DeFunis v. Odegaard, 416 U.S. 312, 316

(1974) (repeating “the familiar proposition that ‘federal courts are without power to

decide questions that cannot affect the rights of litigants in the case before them’ ”).

Because there is no circuit split, because the Sixth Circuit applied the correct

legal test, and because the officials engaged in conduct that was permissible under

governing law, this case does not warrant further review by this Court.

-18-

CONCLUSION

This Court should deny the petition for a writ of certiorari.

Respectfully submitted,