Petition for Writ of Certiorari — Green Haven Preparative Meeting, et al., Petitioners v. New York State Department of Corrections and Community Supervision, et al.

No. 22-____

IN THE

Supreme Court of the United States

d

GREEN HAVEN PREPARATIVE MEETING , ET AL .,

Petitioners,

—v.—

NEW YORK STATE DEPARTMENT OF CORRECTIONS

AND COMMUNITY SUPERVISION , ET AL .,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FREDERICK R. DETTMER

Counsel of Record

LAW OFFICE OF FREDERICK R. DETTMER

35 Arbor Glen

New Rochelle, New York 10801

(914) 738-8782

fdettmer@aol.com

Counsel for Petitioners

i

QUESTIONS PRESENTED

1. Does the standing of a religious organization to

protect the fundamental practices of its faith from

being abridged by the state cease at the prison walls?

2. What is the proper standard for adjudicating

the First Amendment “free exercise” of religion rights

of religious organizations, ministers and other nonincarcerated religionists in the prison setting where

the religion has practiced an active prison ministry

since before the founding of the nation and has

conducted religious services in the affected prison for

over 40 years without incident?

3. Does the requirement that state action cause a

“substantial burden” to the claimant’s religious

practice empower a court to determine that the

connection between the action and the burden is too

attenuated to constitute a “constitutional substantial

burden”?

4. As a matter of statutory construction, does a

long-established prison church, which is subject to the

jurisdiction and oversight of supervisory organizations

in the faith (1) constitute “a person residing in or

confined to an institution” as that phrase is used in

Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. § 2000cc-1(a), and (2) constitute a

“prisoner” for purposes of the Prison Litigation

Reform Act, 42 USC § 1997e?

ii

PARTIES TO THE PROCEEDINGS

Petitioners are five Quaker institutions and ten

individual members of the Religious Society of

Friends. The institutional petitioners are New York

Yearly Meeting of the Religious Society of Friends,

Inc. (“NYYM”), the oversight body for Quakers in

New York and parts of Connecticut and New Jersey;

Nine Partners Quarterly Meeting of the Religious

Society of Friends (“NPQM”), the Quaker body that

represents the Quaker Meetings in the Hudson

Valley Region; and Bulls Head-Oswego Monthly

Meeting (“BHOM”), Poughkeepsie Monthly Meeting

(“PMM”), and Green Haven Prison Preparative

Meeting (“GHPM”), three monthly meetings within

NYYM and NPQM.

The individual petitioners are Yohannes Johnson,

individually and as Clerk of GHPM, Gregory

Thompson, individually and as a member of GHPM

(and subsequently released), Donald Badgley,

individually and as Co-Clerk of NPQM, Emily

Boardman, individually and as Co-Clerk of NPQM,

Carole Yvonne New, individually and as Clerk of

BHOM, David Leif Anderson, individually and as

Treasurer of BHOM, Frederick Doneit, Sr., as

Treasurer of PMM, and Julia Giordano, Margaret L.

Seely and Solange Muller, individually. All of the

individual plaintiffs are part of, and under the care

of, petitioners New York Yearly Meeting, Nine

Partners Quarterly Meeting and a plaintiff Monthly

Meeting.

Respondents are the New York State Department

of

Corrections

and

Community

Supervision

(“DOCCS”), DOCCS Acting Commissioner Anthony

Annucci, DOCCS Deputy Commissioner for Program

Services Jeff McKoy, DOCCS Director of Ministerial,

iii

Family and Volunteer Services Alicia Smith-Roberts,

Superintendent of Green Haven Correctional Facility

(“GHCF”)

Jamie

Lamanna,

GHCF

Deputy

Superintendent of Programs Jaifa Collado, and

GHCF Deputy Superintendent of Program Services

Marlyn Kopp.

iv

CORPORATE DISCLOSURE STATEMENT

Petitioner New York Yearly Meeting of the

Religious Society of Friends, Inc. is a not-for-profit

corporation.

It has no shareholders, parents,

subsidiaries or affiliates.

Petitioners Nine Partners Quarterly Meeting of the

Religious Society of Friends, Bulls Head-Oswego

Monthly Meeting, Poughkeepsie Monthly Meeting,

and Green Haven Prison Preparative Meeting of the

Religious Society of Friends are not-for-profit

voluntary associations.

Each of them has no

shareholders, parents, subsidiaries or affiliates.

v

TABLE OF CONTENTS

PAGE

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

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 7

THE PROCEEDINGS TO DATE . . . . . . . . . . . . . . . . 11

1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. Constitutional Standard . . . . . . . . . . . . . . . . . . 12

3. Substantial Burden Test. . . . . . . . . . . . . . . . . . 13

4. Statutory Construction . . . . . . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE PETITION . . . 17

1. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi

PAGE

2. First Amendment Rights of Religious

Organizations, Churches, Ministers and

Unincarcerated Religionists in the Prison

Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3. Substantial Burden . . . . . . . . . . . . . . . . . . . . . . 26

4. Statutory Construction . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

APPENDIX

Appendix A: Decision of the United States Court

of Appeals for the Second Circuit,

dated October 18, 2021 . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Order of the United States District

Court for the Southern District of New York,

dated December 3, 2019 . . . . . . . . . . . . . . . . . . . . 35a

Appendix C: Order of the United States District

Court for the Southern District of New York,

dated October 30, 2019 . . . . . . . . . . . . . . . . . . . . . 39a

Appendix D: Excerpt of Transcript of Proceedings

in the United States District Court for the

Southern District of New York,

dated October 30, 2019 . . . . . . . . . . . . . . . . . . . . . 41a

Appendix E: Constitutional Provisions, Statutes

and Regulations Involved in the Case Pursuant

to the Rules of the United States Supreme

Court, Rule 14(1)(f). . . . . . . . . . . . . . . . . . . . . . . . . 59a

vii

TABLE OF AUTHORITIES

PAGE(S)

Federal Cases

Am. Legion v Am. Humanist Assn.,

___ US ___, 139 SCt 2067,

204 LEd2d 452 (2019) . . . . . . . . . . . . . . . . . 23, 25, 31

Bader v Wren,

532 FSupp2d 308 (DNH 2008) . . . . . . . . . . . . . . . . . 4

Beard v Banks,

548 US 521, 126 SCt 2572,

165 LEd2d 697 (2006) . . . . . . . . . . . . . . . . . . . . . . . 23

BedRoc Ltd., LLC v United States,

541 US 176, 124 SCt 1587,

158 LEd2d 338 (2004) . . . . . . . . . . . . . . . . . . . . . . . 30

Bostock v Clayton County,

___ US ___, 140 SCt 1731,

207 LEd2d 218 (2020) . . . . . . . . . . . . . . . . . . . . . . . 30

Burwell v. Hobby Lobby Stores, Inc.,

573 US 682, 134 SCt 2751,

189 LEd2d 675 (2014) . . . . . . . . . . . . . . . . . 14, 26, 28

Church of Lukumi Babalu Aye v City of Hialeah,

508 US 520, 113 SCt 2217,

124 LEd2d 472 (1993) . . . . . . . . . . . . . . . . . . . . 18, 19

City of Boerne v Flores,

521 US 507, 117 SCt 2157,

138 LEd2d 624 (1997) . . . . . . . . . . . . . . . . . . . . . . 1, 2

viii

PAGE(S)

Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Sts. v Amos,

483 US 327, 107 SCt 2862,

97 LEd2d 273 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 23

Cutter v Wilkinson,

544 US 709, 125 SCt 2113,

161 LEd2d 1020 (2005) . . . . . . . . . . . . . . . . . . . . . . 27

Denver & R. G. W. R. Co. v Bhd. of R.R. Trainmen,

387 US 556, 87 SCt 1746,

18 LEd2d 954 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 29

DOC v. New York,

___ US ___, 139 SCt 2551,

204 LEd 2d 978 (2019) . . . . . . . . . . . . . . . . . . . . . . . 23

Engel v Vitale,

370 US 421, 82 SCt 1261,

8 LEd2d 601 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Espinoza v Montana Dept. of Revenue,

___ US ___, 140 SCt 2246,

207 LEd2d 679 (2020) . . . . . . . . . . . . . . . . . . . . . . . 25

Faretta v California,

422 US 806, 95 SCt 2525,

45 LEd2d 562 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fay v Noia,

372 US 391, 83 SCt 822,

9 LEd2d 837 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Food Mktg. Inst. v Argus Leader Media,

___ US ___, 139 SCt 2356,

204 LEd2d 742 (2019) . . . . . . . . . . . . . . . . . . . . . . . 30

ix

PAGE(S)

Girouard v United States,

328 US 61, 66 SCt 826,

90 LEd 1084 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Gonzalez v U.S. Immigration & Customs Enf’t,

975 F3d 788 (9th Cir 2020) . . . . . . . . . . . . . . . . . . 31

Green Haven Prison Preparative Mtg. of the

Religious Socy. of Friends v NY State Dept.

of Corr. & Community Supervision,

16 F.4th 67 (2d Cir 2021) . . . . . . . . . . . . . . . . passim

Green Haven Prison Preparative Mtg. v NY State

Dept. of Corr. & Community Supervision,

2019 US Dist LEXIS 208222, 2019 WL

6498252 (SDNY 2019) . . . . . . . . . . . . . . . . . . . . . . . . 5

Holt v Hobbs,

574 US 352, 135 SCt 853,

190 LEd 2d 747 (2015) . . . . . . . . . . . . . . . . . . . . . . . 27

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v EEOC,

565 US 171, 132 SCt 694,

181 LEd2d 650 (2012) . . . . . . . . . . . . . . . . . . 1, 19, 22

Human Rights Defense Ctr. v

Baxter County Arkansas,

999 F3d 1160 (8th Cir 2021) . . . . . . . . . . . . . . . . . 21

Illinois v Allen,

397 US 337, 90 SCt 1057,

25 LEd2d 353 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Islamic Ctr. of Mississippi, Inc. v Starkville,

840 F2d 293 (5th Cir 1988) . . . . . . . . . . . . . . . . . . 28

x

PAGE(S)

Johnson v California,

543 US 499, 125 SCt 1141,

166 LEd2d 798 (2005) . . . . . . . . . . . . . . . . . . . . . . . 21

Jones v Bock,

549 US 199, 127 SCt 910,

166 LEd2d 798 (2007) . . . . . . . . . . . . . . . . . . . . . . . 30

Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in North America,

344 US 94, 73 SCt 143, 97 LEd 120 (1952) . . . . 19

Koger v Bryan,

523 F3d 789 (7th Cir 2008) . . . . . . . . . . . . . . . . . . 27

Korte v Sebelius,

735 F3d 654 (7th Cir 2013) . . . . . . . . . . . . . . . . . . 18

Lexington Ins. Co. v Precision Drilling Co., L.P.,

830 F3d 1219 (10th Cir 2016) . . . . . . . . . . . . . . . . 31

Little Sisters of the Poor Sts. Peter & Paul Home v

Pennsylvania,

___US___, 140 SCt 2367,

207 LEd2d 819 (2020) . . . . . . . . . . . . . . . . . 14, 26, 30

Marsh v Chambers,

463 US 783, 103 SCt 3330,

77 LEd2d 1019 (1983) . . . . . . . . . . . . . . . . . . . . . . . 23

Masterpiece Cakeshop, Ltd. v

Colorado Civ. Rights Commn.,

___ US ___, 138 SCt 1719,

201 LEd2d 35 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 28

McCurry v Tesch,

738 F2d 271 (8th Cir 1984) . . . . . . . . . . . . . . . . . . 15

xi

PAGE(S)

McKune v Lile,

536 US 24, 122 SCt 2017,

153 LEd 2d 47 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 25

Murdock v Pennsylvania,

319 US 105, 63 SCt 870,

87 LEd 1292 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Murphy v Collier,

___ US ___, 139 SCt 1111,

204 LEd2d 252 (2019) . . . . . . . . . . . . . . . . . . . . . . . 21

N.A. of Mfrs. v DOD,

___ US ___, 138 SCt 617,

199 LEd2d 501 (2018) . . . . . . . . . . . . . . . . . . . . . . . 31

Nichols v United States,

___ US ___, 136 SCt 1113,

194 LEd2d 324 (2016) . . . . . . . . . . . . . . . . . . . . . . . 30

NLRB v. Noel Canning,

573 US 513, 134 SCt 2550,

189 LEd2d 538 (2014) . . . . . . . . . . . . . . . . . . . . . . . 23

O’Lone v Estate of Shabazz,

482 US 342, 107 SCt 2400,

96 LEd2d 282 (1987) . . . . . . . . . . . 12, 13, 20, 21, 25

Our Lady of Guadalupe Sch. v Morrissey-Berru,

___ US ___, 140 SCt 2049,

207 LEd2d 870 (2020) . . . . . . . . . . . . . . . . . . . . . . . 22

Page v Torrey,

201 F3d 1136 (9th Cir 2000) . . . . . . . . . . . . . . . . . 30

Pierce v Socy. of Sisters,

268 US 510, 45 SCt 571,

69 LEd 1070 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . 23

xii

PAGE(S)

Roberts v United States Jaycees,

468 US 609, 104 SCt 3244,

82 LEd2d 462 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 23

Roman Catholic Diocese of Brooklyn v Cuomo,

592 US ___, 141 SCt 63,

208 LEd2d 206 (2020) . . . . . . . . . . . . . . . . 12, 19, 27

Rotkiske v Klemm,

___ US ___, 140 SCt 355,

205 LEd2d 291 (2019) . . . . . . . . . . . . . . . . . . . . . . . 30

Salinas v United States RRB,

___ U S___, 141 SCt 691,

208 LEd2d 608 (2021) . . . . . . . . . . . . . . . . . . . . . . . 30

Schneider v State,

308 US 147, 60 SCt 146,

84 LEd 155 (1939) . . . . . . . . . . . . . . . . . . . . . . . . 22, 27

Southeastern Promotions, Ltd. v Conrad,

420 US 546, 95 SCt 1239,

43 LEd2d 448 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 15

Sperry Prods., Inc. v Assn. of Am. R.Rs.,

132 F2d 408 (2d Cir 1942) . . . . . . . . . . . . . . . . . . . 29

Thornburgh v Abbott,

490 US 401, 109 SCt 1874,

104 LEd2d 459 (1989) . . . . . . . . . . . . . . . . . . . . 12, 21

Trinity Lutheran Church of Columbia, Inc. v Comer,

___ US ___, 137 SCt 2012,

198 LEd2d 551 (2017) . . . . . . . . . . . . . . . . . . . . 23, 26

Turner v Safley,

482 US 78, 107 SCt 2254,

96 LEd2d 64 (1987) . . . . . . . . . . . . 12, 13, 20, 21, 25

xiii

PAGE(S)

United Mine Workers v Coronado Coal Co.,

259 US 344, 42 SCt 570,

66 LEd 975 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v Bryant,

996 F3d 1243 (11th Cir 2021) . . . . . . . . . . . . . . . . 30

United States v Haymond,

___ US ___, 139 SCt 2369,

204 LEd2d 897 (2019) . . . . . . . . . . . . . . . . . . . . . . . 21

United States v Macintosh,

283 US 605, 51 SCt 570,

75 LEd 1302 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v Means,

627 FSupp 247 (DSD 1985) . . . . . . . . . . . . . . . . . . 26

United States v Schwimmer,

279 US 644, 49 SCt 448,

73 LEd 889 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

W. Virginia State Bd. of Educ. v Barnette,

319 US 624, 63 SCt 1178,

87 LE 1628 (1943) . . . . . . . . . . . . . . . . . . . . . . . . 2, 23

Watchtower Bible & Tract Socy. of NY, Inc. v

Vil. of Stratton,

536 US 150, 122 SCt 2080,

153 LEd2d 205 (2002) . . . . . . . . . . . . . . . . . . . . 22, 27

Watson v. Jones,

80 US 679, 13 Wall 679,

20 LEd 666 (1872) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Yellowbear v Lampert,

741 F3d 48 (10th Cir 2014) . . . . . . . . . . . . 24, 26, 27

xiv

PAGE(S)

State Cases

Brown v Father Divine,

163 Misc 796 (NY Co 1937) . . . . . . . . . . . . . . . . . . 29

Harrison v. Hoyle,

24 Ohio St. 254 (Ohio Sup. Ct. 1873) . . . . . . . . . . 20

State v New York Yearly Meeting of Friends,

61 NJ Eq 620, 48 A 227

(NJ Prerogative Ct 1901) . . . . . . . . . . . . . . . . . . . . 20

White Lick Quarterly Meeting of Friends v. White

Lick Quarterly Meeting of Friends,

89 Ind. 136 (Ind. Sup. Ct. 1883) . . . . . . . . . . . . . . 20

Federal Constitution, Statutes and Rules

United States Constitution,

First Amendment . . . . . . . . . . . . . . . . . . . . . . . passim

United States Constitution, 14th Amendment,

Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

42 U.S.C. § 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28

42 U.S.C. § 1997e . . . . . . . . . . . . . . . . . . . . . 6, 10, 23, 28

42 U.S.C. § 2000cc et seq . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 29

xv

PAGE(S)

State Statutes

New York Corrections Laws, § 70(2) . . . . . . . . . . . . . . . 6

New York General Association Law, § 12 . . . . . . 6, 29

New York Religious Corporations Law, § 202 . . . . . . . 6

New York Religious Corporations Law, § 203 . . . . . . . 6

Other Authorities

Alternatives to Violence Project: AVP –

International, https://avp.international . . . . . . . . . 4

Alternatives to Violence Project: AVP – New York,

https://www.avpny.org/ . . . . . . . . . . . . . . . . . . . . . . . . 4

Alternatives to Violence Project: AVP – USA,

https://avpusa.org/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Scott Christianson, With Liberty for Some:

500 Years of Imprisonment in America

(Northeastern University Press 1998) . . . . . . . . . . 3

Faith and Practice: The Book of Discipline of the

New York Yearly Meeting of the Religious

Society of Friends (2018) . . . . . . . . . . . . . . . . . 7, 9, 10

Derek L. Gaubatz, RLUIPA at Four: Evaluating

the Success and Constitutionality of RLUIPA’s

Prisoner Provisions, 28 Harv. J.L. & Pub.

Pol’y 501 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gospel According to Matthew, 25:35-36, 40 . . . . . . . . 1

Letter from President George Washington to

Society of Friends, October 13, 1789

(founders.archives.gov/documents/

Washington/05-04-02-0188) . . . . . . . . . . . . . . . . . . 18

xvi

PAGE(S)

W. Lewis, From Newgate to Dannemora: The Rise

of the Penitentiary in New York, 1796-1848

(1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Michael McConnell, The Origins and Historical

Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1409 (1989) . . . . . . . . . . . . . . . . . . 2

McGowen, The Well-Ordered Prison: England,

1780-1865 in The Oxford History of the Prison:

The Practice of Punishment in Western Society

(N. Morris & D. Rothman eds. 1995) . . . . . . . . . . . . 3

David J. Rothman, The Discovery of the Asylum:

Social Order and Disorder in the New Republic

(Aldine Transaction 2008 rev. ed.) . . . . . . . . . . . . . . 3

Susan Sachs Goldman, Friends in Deed: The Story

of Quaker Social Reform in America

(Highmark Press 2012) . . . . . . . . . . . . . . . . . . . . . . . . 4

Steven Schlossman, Delinquent Children: The

Juvenile Reform School in The Oxford History

of the Prison: The Practice of Punishment in

Western Society (N. Morris & D. Rothman

eds. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Zedner, Wayward Sisters: The Prison for Women

in The Oxford History of the Prison: The

Practice of Punishment in Western Society

(N. Morris & D. Rothman eds. 1995) . . . . . . . . . . . . 3

1

PETITION FOR WRIT OF CERTIORARI

For over 350 years, the Religious Society of Friends,

better known as Quakers, has conducted an active,

peaceful and beneficial ministry among prisoners. Born

in the tumult of the mid-Seventeenth Century British

religious and civil wars, the first generations of Quakers

earned an enduring reputation for their unorthodox

beliefs and practices, and for their commitment to

prison and criminal justice reform and to the religious,

moral and physical sustenance of prisoners.

Jesus taught that God’s Kingdom was already in

our midst if we would just recognize it and embrace

it. Or so, at least, was the spiritual experiences of the

seekers who formed the Religious Society of Friends.

And because their faith was built on personal

communion with the Christ within, it emboldened the

meek to share revelation even where they were not

welcome and compelled the comfortable to heed

Jesus’s command to attend to the “least of these

brothers of mine.” 1

This marriage of public voice and public duty made

the first generations of Quakers an obnoxious bunch.2

1

Matthew 25:40 (NIV). The predicate to that teaching

was Jesus’s parable of the sheep and the goats, which states in

part:

“For I was hungry and you gave me something to eat. I

was thirsty and you gave me something to drink. I was a

stranger and you invited me in. I needed clothes and you

clothed me. I was sick and you looked after me. I was

in prison and you came to visit me.” (Matthew

25:35-36 (NIV) (emphasis added))

2

This Court has taken notice of the Quakers’ experiences

as the target of state officials enforcing orthodoxy. E.g.,

Hosanna-Tabor Evangelical Lutheran Church & Sch. v EEOC,

565 US 171, 183, 132 SCt 694, 181 LEd2d 650 (2012); City of

2

It also led them into deep experience with and abiding

concern for prison conditions and prisoners’

rehabilitation and welfare. English officials regularly

Boerne v Flores, 521 US 507, 557-559, 562, 117 SCt 2157, 138

LEd2d 624 (1997) (O’Connor, J., dissenting); Faretta v

California, 422 US 806, 828, n 37, 95 SCt 2525, 45 LEd2d 562

(1975); Illinois v Allen, 397 US 337, 353, 90 SCt 1057, 25 LEd2d

353 (1970) (Douglas, J., dissenting); Fay v Noia, 372 US 391,

402-405, 83 SCt 822, 9 LEd2d 837 (1963); W. Virginia State Bd.

of Educ. v Barnette, 319 US 624, 633 n. 13, 63 SCt 1178, 87

LEd1628 (1943); United States v Macintosh, 283 US 605, 632633, 51 SCt 570, 75 LEd 1302 (1931) (Holmes, CJ., dissenting);

United States v Schwimmer, 279 US 644, 49 SCt 448, 73 LEd

889 (1929) (Holmes, J., dissenting).

Indeed, protecting unorthodox Quaker practices is virtually

synonymous with “the original understanding of the Free

Exercise Clause.” City of Boerne v Flores, supra, 521 US at 548

(O’Connor, J., dissenting). See, for example, Michael McConnell,

The Origins and Historical Understanding of Free Exercise of

Religion, 103 Harv. L. Rev. 1409, 1423, 1424, 1425, 1428, 1439,

1448, 1454, 1461, 1466, 1467, 1468, 1469, 1471-1472, 1475,

1476, 1480, 1511, 1512, 1517 (1989).

As former Judge

McConnell concluded (id. at 1517):

“Justice Frankfurter [dissenting in W. Virginia State Bd.

of Educ. v Barnette, 319 US 624, 63 SCt 1178, 87

LEd1628 (1943)] overlooked the unique American

contribution to church-state relations and embraced

instead the Enlightenment ideal of Locke and Jefferson.

Locke and Jefferson may well have been animated, in

Justice Frankfurter’s words, by the ‘freedom from

conformity to religious dogma.’ But that is not what the

Baptists, Quakers, Lutherans, and Presbyterians who

provided the political muscle for religious freedom in

America had in mind. To them, the freedom to follow

religious dogma was one of this nation’s foremost

blessings, and the willingness of the nation to respect

the claims of a higher authority than ‘those whose

business it is to make laws’ was one of the surest signs

of its liberality.”

3

jailed them for the crime of preaching in public.3 Many

Quakers died in prison. In response, Quakers entered

the prisons to minister to prisoners’ physical and

spiritual sufferings. In these dark places, Quakers

found a receptive audience for their message of the

Christ within and took to preaching in the prisons,

thereby both frustrating the authorities’ efforts to

suppress the religion and swelling the ranks of the

Society of Friends.4 As they gained acceptance in their

communities, Quakers turned to prison and criminal

justice reform,5 inventing and implementing the

“penitentiary”,6 advocating rehabilitation and humane

treatment as penological goals, developing separate

facilities and programs for women, juveniles and the

mentally infirm,7 creating (at Green Haven Correctional

Facility) programs to teach prisoners nonviolence

3

See, e.g., Scott Christianson, With Liberty for Some: 500

Years of Imprisonment in America (Northeastern University

Press 1998), at 19-20 (hereinafter cited as “500 Years of

Imprisonment”).

4

500 Years of Imprisonment at 19-20.

5

See, e.g., McGowen, The Well-Ordered Prison: England,

1780-1865, in The Oxford History of the Prison: The Practice of

Punishment in Western Society (N. Morris & D. Rothman eds.

1995) (the AOxford History”), at 86-88; Zedner, Wayward Sisters:

The Prison for Women, in the Oxford History, at 298-301.

See, e.g., W. Lewis, From Newgate to Dannemora: The

Rise of the Penitentiary in New York, 1796-1848, at 1-7, 21-22,

28-37, 160-161 (1965) (hereinafter cited as “From Newgate to

Dannemora”); 500 Years of Imprisonment at 62-63, 88, 93-101,

155.

6

7

See, e.g., Steven Schlossman, Delinquent Children: The

Juvenile Reform School, in the Oxford History, at 327; From

Newgate to Dannemora at 160-161; David J. Rothman, The

Discovery of the Asylum: Social Order and Disorder in the New

Republic (Aldine Transaction 2008 rev. ed.) at 59-61, 278.

4

principles and practices,8 and establishing prison

meetings or congregations under the care of Quaker

organizations and unincarcerated Quakers. As a result,

the Quakers have practiced a vibrant, peaceful,

constructive and principled prison ministry for over 350

years.9 For over 30 years, Quakers in the Hudson River

Valley have practiced that ministry in Green Haven

Correctional Facility (“GHCF” or “Green Haven

Prison”).

This case involves the significant dismantling by

prison officials of long-standing Quaker programs at

Green Haven Prison, a maximum security prison in

Dutchess County, New York that is under the

supervision of the State’s Department of Corrections

and Community Supervision (“DOCCS”). The lawsuit

is brought by the affected Quaker governing bodies,

meetings (congregations) and individuals to vindicate

their institutional, collective and personal rights

under the First Amendment and the Religious Land

Use and Institutionalized Persons Act, 42 USC §

2000cc et seq. (“RLUIPA”) to continue or resume the

Quaker religious observances that had been held in

Green Haven Prison for over 30 years without

incident.

8

See Bader v Wren, 532 FSupp2d 308, 310 (DNH 2008)

(“AVP [Alternatives to Violence Project] was conceived in the 1970s

as a means of teaching incarcerated inmates how to turn away from

violence. . . . Its origins are rooted in the Quaker idea of the power

within each individual to lead nonviolent lives through self

affirmation and respect for others; however, AVP is not built upon

nor does it advance any religion.”). See, also, AVP – USA,

https://avpusa.org/; AVP – New York, https://www.avpny.org/; AVP

– International, https://avp.international/.

9

See, e.g., Susan Sachs Goldman, Friends in Deed: The

Story of Quaker Social Reform in America (Highmark Press

2012), at 167-169.

5

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Second Circuit (App 1a) is reported at Green

Haven Prison Preparative Mtg. of the Religious Socy.

of Friends v NY State Dept. of Corr. & Community

Supervision, 16 F.4th 67 (2d Cir 2021). The Second

Circuit affirmed the decision of the United States

District Court for the Southern District of New York

denying petitioners’ application for a preliminary

injunction. The District Court announced its decision

on the record at the conclusion of argument (App 41a)

and filed an order denying the motion the same day

(App 39a). The decision is not officially reported.

The District Court’s decision denying petitioners’

motion for reconsideration (App 35a) is reported at

2019 U.S. Dist. LEXIS 208222, 2019 WL 6498252

(SDNY 2019).

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

The Second Circuit’s opinion was issued on October

18, 2021.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional provisions, treaties,

statutes, ordinances and regulations are involved in

this case. The text of these provisions is set out in

full in the Appendix, beginning at page 59a.

6

Federal:

Constitutional Provisions:

United States Constitution, First Amendment

United States

Section 1

Constitution,

14th

Amendment,

Statutes:

Dictionary Act, 1 USC § 1

Certiorari, 28 USC § 1254

Civil Action for Deprivation of Rights, 42 USC § 1983

Civil Rights of Institutionalized

Definitions, 42 USC § 1997

Persons

Act,

Prison Litigation Reform Act, 42 USC § 1997e

Religious Land Use and Institutionalized Persons

Act, 42 USC § 2000cc-1 through 2000cc-5

Rules:

Capacity to Sue or Be Sued, Federal Rules of Civil

Procedure, Rule 17(b)

State:

Statutes:

Establishment, Use and Designation of Correctional

Facilities, New York Corrections Laws, § 70(2)

Action or Proceeding by Unincorporated Association,

New York General Association Law, § 12

Trusts for Shakers and Friends, New York Religious

Corporations Law, § 202

Conveyance or Incumbrance of Trust Property of

Friends, New York Religious Corporations Law, § 203

7

STATEMENT OF THE CASE

In 1976, Quakers representing petitioners New

York Yearly Meeting of the Religious Society of

Friends, Inc. (“NYYM”), Nine Partners Quarterly

Meeting of the Religious Society of Friends

(“NPQM”), Bulls Head-Oswego Monthly Meeting

(“BHOM”) and Poughkeepsie Monthly Meeting

(“PMM”) established a “worship group” 10 in Green

Haven Prison.

Over time, the worship group

developed into a “preparative meeting,” petitioner

Green Haven Prison Preparative Meeting of the

Religious Society of Friends (“Green Haven Prison

Meeting”), under the care of petitioners PMM, NPQM

and NYYM. 11

Faith and Practice: The Book of Discipline of the New

York Yearly Meeting of the Religious Society of Friends (2018)

(hereinafter, “Faith and Practice”) is propounded and revised by

petitioner NYYM for the purpose of providing spiritual and

temporal guidance to Quakers throughout NYYM on the bases

and fruits of Friends’ faith and on Friends’ methods of practice

and process. (Faith and Practice is included in the exhibits in

this proceeding and is available online at nyym.org/faithand-practice.)

Faith and Practice provides (at 93): “When Friends or other

seekers choose to worship together regularly, whether in a

community or in a prison, they may form a worship group by

requesting the care of a nearby monthly, quarterly, half-yearly

or regional meeting.”

11

Faith and Practice provides (at 93): “A preparative

meeting, like the monthly meeting of which it is a part, has a

definite membership list and meets regularly to conduct

business, but does not have final authority to receive, transfer,

or dismiss members, or to perform marriages. A preparative

meeting may be established by a monthly meeting on its own

initiative or on request of a group of members desiring to

organize a preparative meeting.”

10

8

Green Haven Prison Meeting met three times a

week for worship, study and “meeting for worship

with a concern for business” (hereinafter, “Meeting

for Religious Business”). As well, Quakers from the

surrounding communities annually gathered with

prisoners for a “Quarterly Meeting,” hosted by Green

Haven Prison Meeting. Both Meeting for Religious

Business and Quarterly Meeting are core Quaker

religious practices.

Beginning in 2015, prison officials at Green Haven

Prison dismantled both of these religious exercises.

First, prison officials refused to continue the

Quarterly Meeting as it had been practiced in the

prison for over 30 years and unilaterally substituted

some other program which they named a “Quaker

Meeting” but which contained severe participation,

duration and program restrictions. The Quakers

declined the prison officials’ concoction because it

made impossible the spiritual requirements and goals

of a prison Quarterly Meeting.

As it had been practiced at GHCF, Quarterly

Meetings were held on Saturdays over approximately

6 hours in order to include worship, program,

discernment, business, food and fellowship. Prison

officials imposed no numerical limits nor license

requirements for the participating Quakers from the

surrounding region. This religious exercise reflected

the Quarterly Meetings held among Quakers since

the Society’s founding and still held regularly

throughout New York Yearly Meeting, with due

accommodation of penological concerns and needs.

The program that prison officials created and

named a “Quaker Meeting” would be limited to four

non-incarcerated Quakers who had to be licensed by

DOCCS, and would be held over a couple of hours on

9

a week night after dinner. The constriction in length

and the designation of a post-meal night time for the

“Quaker Meeting” precluded the inclusion of twothirds of the actual Quaker Quarterly Meeting

religious program.

The required license subjects a person to the

control of prison officials and imposes a

communications ban that precludes the individual

from ethically participating in a Quaker gathering

intended to develop and deepen long-term

relationships, to report to incarcerated Quakers how

the Spirit is moving among unincarcerated Quakers,

and to explore how the Spirit is moving among

incarcerated Quakers and then report to the broader

Quaker Community.

The so-called “Quaker Meeting” designed by prison

officials was the equivalent of a 20 minute mass and

communion, but without wafer or wine or priest, and

held at a time when few could participate.

Petitioner Donald Badgley participated in the

Quarterly Meetings pursuant to a “Minute of Travel”

issued by his meeting, PMM. A Minute of Travel

provides formal approval of a Quaker’s ministry by

his/her meeting and commends the traveling minister

to those to be visited. 12 The license requirement

Faith and Practice provides (at 131): “Where a member

proposes to travel under the weight of a concern, the monthly

meeting may issue a minute of travel releasing the Friend for a

particular service.

The minute of travel is a certificate

endorsing the Friend’s concern, indicating that the meeting is in

unity with and in support of this venture. . . . Discretion and

sensitivity to divine guidance, as well as to the conditions of

those who will be met, are vital qualifications for visitors. A

minute of travel should not be granted lightly, and the monthly

meeting’s preparers should so phrase it that there can be no

12

10

imposed by prison officials destroyed his ministry.

He could no longer participate without being licensed

by prison officials. And participating as a licensee

would preclude him from developing spiritual

relationships with prisoners.

For three years, the Quaker community tried to

find common ground with DOCCS to resolve this

matter. Then, in 2018, after learning that the

Quakers were preparing to file suit over the

destruction of the Quarterly Meeting, GHCF prison

officials terminated Green Haven Prison Meeting’s

Meeting for Religious Business on the basis that it

“does not appear to be a study group or a worship

service and therefore does not appear necessary.”

Meetings for Religious Business are a core Quaker

religious practice. 13 They are the means through

which Quakers develop, deepen, share and

implement their beliefs, practices, ministry,

testimony and witness. As a religion without clerical

hierarchy and control and without overriding creeds

and rituals, Quaker discernment of faith and

practice, belief and conduct, flow upward from

seekers gathered in a local congregation to the wider

body of the Society. That makes gathering frequently

to conduct business and discernment central to the

evolution of Quaker practice and beliefs, particularly

in prison, where the prisoners have limited

opportunities for collective discernment.

Petitioners’ suit asserts claims under 42 USC

§ 1983 for, among other claims, violations of their

rights under the First Amendment free exercise of

doubt of the purpose for which the monthly meeting issued it or

any basis for confusion with a letter of introduction.”

13

See Faith and Practice at 26-28, 81-82, 83, 86-89.

11

religion guarantee and under the Religious Land Use

and Institutionalized Persons Act, 42 USC § 2000cc et

seq. The district court’s jurisdiction is based on 28

U.S.C. § 1331.

THE PROCEEDINGS TO DATE

The Court of Appeals for the Second Circuit

affirmed the district court’s denial of petitioners’

application for a preliminary injunction to reinstate

Quarterly Meeting and Meeting for Religious

Business during the pendency of the case. In doing

so, it relied upon novel holdings in four areas.

1. Standing: The court of appeals held that the

unincarcerated institutional petitioners – NYYM,

NPQM, PMM and BHOM – have standing to pursue

the claims regarding Quarterly Meeting, but not to

challenge the termination of Meetings for Religious

Business. The court reasoned that the Quaker bodies

lack standing because the Meetings for Religious

Business “have never been attended by outsiders and

involve only Green Haven inmates” and therefor “the

Non-Incarcerated Plaintiffs themselves are not

directly affected by any changes in the frequency of

religious services that they do not attend and claim

no right to attend.” (App 18a-19a, 26a; 16 F.4th at

79, 83)

The court of appeals offered no legal authorities for

this proposition, nor did it address the facts that (1)

“Green Haven inmates” are members of and/or under

the care of the supervisory Quaker bodies, petitioners

NYYM, NPQM and PMM; (2) prisoner and petitioner

Yohannes Johnson, the clerk of Green Haven Prison

Meeting, is a member of petitioner BHOM; (3) the

institutional

Quaker

organizations

have

an

independent constitutional interest in protecting the

12

practice of the Quaker religion; and (4) prison

officials did not merely refuse to accommodate the

request of a single seeker, but rather terminated an

entire part of the core practices of a Quaker

congregation. The Bishop was not required to show

that he attended mass at an affected church in

Brooklyn in order to gain standing to protect the faith

and flock from arbitrary Covid-19 restrictions. 14

The court of appeals also concluded that Green

Haven Prison Meeting has standing (App 19a; 16

F.4th at 79), but is disabled by the PLRA

requirement that a “prisoner” exhaust available

grievance processes before filing suit, and cannot

bring suit under RLUIPA because it is not a person

who resides in an institution. (App 24a-26a; 16 F.4th

at 82-83) Those determinations are addressed in

item 4, below.

As a result of these holdings, the court of appeals,

like the district court, simply did not address the

constitutionality or statutory permissibility of the

prison officials’ termination of Meetings for Religious

Business.

2. Constitutional Standard: The court of appeals

applied the attenuated constitutional standard

applicable to prisoners’ exercise of religion claims

that was announced by this Court in O’Lone v Estate

of Shabazz, 482 US 342, 107 SCt 2400, 96 LEd2d 282

(1987) and Turner v Safley, 482 US 78, 107 SCt 2254,

96 LEd2d 64 (1987). Citing Thornburgh v Abbott,

490 US 401, 404, 109 SCt 1874, 104 LEd2d 459

(1989) and general concerns about prison security,

the court reasoned that “the same considerations

14

Roman Catholic Diocese of Brooklyn v Cuomo, 592 US

___, 141 SCt 63, 208 LEd2d 206 (2020).

13

apply to Free Exercise claims, such that the

Non-Incarcerated Prisoners cannot claim a right to

more searching review of prison regulations affecting

religious liberty than the reasonableness standard

applied to their incarcerated co-religionists.” (App

29a; 16 F.4th at 84) The court did not explain why

the disabilities flowing from conviction for

committing a felony can constitutionally be applied to

a religion, a church, its ministers or free congregants.

The court of appeals also conceived of the Turner

and O’Lone “reasonableness” test as limited to

requiring prison officials to name a penological

concern, with no inquiry into whether the proffered

concern is actually implicated by the affected

religious activity. The court of appeals concluded:

“the Quarterly Meetings create additional security

concerns and disrupt equitable allocation of scarce

staffing and resources, since special events involving

outside visitors require extra security to protect

civilian visitors and to maintain safety in the facility

– a burden that is heightened on weekends, when

fewer staff members are on duty.” (App 32a; 16 F.4th

at 86) The court of appeals made no findings that the

Quarterly Meetings actually required “extra security”

in the past or would in the future. Nor could it have:

prison officials submitted no evidence that the

Quarterly Meetings had ever caused any staffing,

resource or security costs or concerns over the past

30+ years, and no evidence that continuation of the

religious program would have created such costs or

concerns.

3. Substantial Burden Test: The changes to the

Quarterly Meeting unilaterally instituted by Green

Haven prison officials included (i) limiting

participation to four unincarcerated Quakers, (ii) who

had to be licensed by prison officials; (iii)

14

abbreviating a 6-hour program to 2 hours, (iv)

thereby eliminating 2/3 of the program; and (v)

moving the event to a week night after dinner. The

court of appeals found that these actions did not

cause the Quaker community to suffer a substantial

burden “at least in the constitutional sense.” (App

30a-31a; 16 F.4th at 85)

The court first simplified the prison officials’

actions into “scheduling changes.” (App 3a, 4a, 18a,

19a, 30a, 31a, 32a;16 F.4th at 72, 79, 85, 86) That

simplification enabled it to conclude that “Plaintiffs

have failed to establish that scheduling the Quarterly

Meetings on Saturdays (as opposed to any other day)

bears any religious significance whatsoever; the

inconveniences they suffer as a result of Defendants’

decision, therefore, cannot constitute substantial

burdens on their religious exercise.” (App 31a; 16

F.4th at 85 (emphasis in original)) The court of

appeals offered no legal authorities for this

proposition. Completing a 1-page form is not an act

that “bears any religious significance” yet it can

constitute a substantial constitutional burden to a

person or an entity with religious beliefs about

certain types of health care. 15

The court of appeals acknowledged that, as a result

of prison officials’ actions, “it might be impossible for

some of them [non-incarcerated Quakers] to attend.”

(App 32a; 16 F.4th at 85) It dismissed that harm on

the bases that (1) “the particular Non-Incarcerated

Plaintiffs have no constitutional right to have

services at Green Haven scheduled to suit their

15

Little Sisters of the Poor Sts. Peter & Paul Home v

Pennsylvania, ___US___, 140 SCt 2367, 2383, 207 LEd2d 819

(July 8, 2020); Burwell v. Hobby Lobby Stores, Inc., 573 US 682,

725-726, 134 SCt 2751, 189 LEd2d 675 (2014).

15

convenience” and (2) “other non-incarcerated Quakers

might find a weekday event easier to attend.” (App

32a; 16 F.4th at 85) The court offered no legal

authorities for these propositions, nor did it identify

these “other non-incarcerated Quakers” who would

find it easier to attend on a weekday night. 16 In fact,

the Court just made them up. Finally, the court of

appeals accused the Religious Society of Friends of

“intransigence” for refusing to accede to prison

officials’ “Quaker Meeting.” (App 31a, n. 7; 16 F.4th

at 85, n. 7)

4. Statutory Construction: In denying Green

Haven Prison Meeting the opportunity to be heard on

the merits, the court of appeals determined both that

(1) Green Haven Meeting is not “a person residing in

or confined to an institution” as that phrase is used in

RLUIPA, 42 U.S.C. § 2000cc-1(a); and (2) Green

Haven Meeting is subject to the requirements

imposed by the PLRA on a “prisoner confined in any

jail, prison, or other correctional facility.” It did so by

interpreting the phrase “a person residing in or

confined to an institution” to mean a “prisoner” in

order to exclude Green Haven Meeting from

RLUIPA’s coverage; and by interpreting the phrase

“prisoner confined in any jail, prison or other

correctional facility” as encompassing an “incorporeal

entity” based in the prison in order to subject the

church to a special requirement in the PLRA

intended to restrict the rights of felons. (App 24a26a; 16 F.4th at 82-83)

16

Compare Southeastern Promotions, Ltd. v Conrad, 420

US 546, 95 SCt 1239, 43 LEd2d 448 (1975); Engel v Vitale, 370

US 421, 429-430, 82 SCt 1261, 8 LEd2d 601 (1962); McCurry v

Tesch, 738 F2d 271, 275 (8th Cir 1984).

16

The court reasoned: “To the extent that Green

Haven Meeting can be, for statutory purposes, a

‘person,’ it plainly is not the kind of person that can

‘resid[e] in or [be] confined to an institution.’ . . . An

incorporeal entity cannot be imprisoned, even if all of

its human members are prisoners. To whatever

extent one might metaphorically consider an

association composed entirely of prisoners to reside,

in some sense, in prison, it derives that status

entirely from the status of its members. The action

brought by Green Haven Meeting is brought to

vindicate the rights of its members, and those

members, as prisoners, are bound by the

requirements of the PLRA. In short, the Incarcerated

Plaintiffs may not avoid the exhaustion requirement

simply by forming an organization and then suing in

the name of that organization. Accordingly, the

claims of Green Haven Meeting, as well as those of

the Incarcerated Plaintiffs suing in their own names,

must be dismissed for failure to exhaust

administrative remedies.” (App 25a-26a; 16 F.4th at

82-83)

The court of appeals offered no legal authorities for

these propositions, nor did it address the facts that

(1) Green Haven Meeting was formed by (and is

under the continuing supervision of) PMM, with the

concurrence of NPQM and NYYM, not by some group

of prisoners; (2) Green Haven Meeting was organized

over 40 years ago, before any of the current prisoner

faithful were in Green Haven Prison or were involved

with the Meeting; and (3) “the action brought by

Green Haven Meeting” is brought not only “to

vindicate the rights of its members,” but equally to

vindicate its independent right to practice its religion

free of unwarranted government interference.

17

REASONS FOR GRANTING THE PETITION

The Court should grant the petition because:

1. The case raises important issues of first

impression involving preeminent constitutional

rights.

2. The court of appeals ignored established

precedent of this Court.

3. The case involves the faith and practice of a

small religion whose unorthodox beliefs and conduct

both have long aroused animus and discrimination

and, for that reason, were a principal concern of the

Founders in guaranteeing the right to exercise our

religions free from government interference.

In United States v Schwimmer, 279 US 644, 655, 49

SCt 448, 73 LEd 889 (1929), 17 Justice Holmes

remarked in dissent: “I would suggest that the

Quakers have done their share to make the country

what it is, that many citizens agree with the

applicant’s belief and that I had not supposed

hitherto that we regretted our inability to expel them

because they believe more than some of us do in the

teachings of the Sermon on the Mount.”

Invoking “security,” Green Haven prison officials

seek to diminish, if not expel, the long-standing

Quaker ministry in Green Haven Prison. Prison

officials might plausibly accuse Quakers of many

unorthodox beliefs and conduct, but creating security

risks has never been one of them. 18 And prison

17

Schwimmer was overruled by Girouard v United States,

328 US 61, 66 SCt 826, 90 LEd 1084 (1946).

18

As George Washington wrote to the Quakers from the

White House: “Your principles & conduct are well known to me

C and it is doing the People called Quakers no more than Justice

18

officials’ destruction of principal elements of that

ministry deserves a more respectful hearing than

excusing their actions as involving a mere

“scheduling change”, demeaning the Quakers’

concerns as whining about an “inconvenience” and

hectoring the Quakers as “intransigent” for not

acceding to prison officials’ ignorant and hostile

conceptions of their faith.

1. Standing.

The court of appeals held that the Quaker

organizations other than Green Haven Prison

Meeting do not have standing to challenge prison

officials’ termination of Meetings for Religious

Business because Athe Non-Incarcerated Plaintiffs

themselves are not directly affected by any changes

in the frequency of religious services that they do not

attend and claim no right to attend.” (App 18a-19a,

26a; 16 F.4th at 79, 83))

That is inconsistent with this Court’s teachings in

two respects.

First, the court of appeals adopted a limited

associational conception of the standing of religious

organizations to vindicate religious rights that is not

correct. 19 For example, in Church of Lukumi Babalu

to say, that (except their declining to share with others the

burden of the common defence) there is no Denomination

among us who are more exemplary and useful Citizens.”

Letter from President George Washington to Society of

Friends, October 13, 1789 (founders.archives.gov/documents/

Washington/05-04-02-0188).

19

Compare Korte v Sebelius, 735 F3d 654, 674-675 (7th Cir

2013): “Indeed, the Supreme Court has enforced the RFRA

rights of an incorporated religious sect, see O Centro Espirita

Beneficente Uniao Do Vegetal v. Ashcroft, 546 U.S. at 439, aff’g

389 F.3d 973, 973 (10th Cir. 2004)(en banc) (identifying the

19

Aye v City of Hialeah, 508 US 520, 525, 113 SCt 2217,

124 LEd2d 472 (1993), the Court noted that “The

Church and its congregants practice the Santeria

religion.” Similarly, the Roman Catholic Diocese of

Brooklyn was not personally injured by Governor

Cuomo’s limitations on congregating, but this Court

did not hesitate to address the injury to its faith and

flock. 20 Petitioners NYYM and NPQM are in the

same position here as the Diocese of Brooklyn was in

that case: charged with responsibility to protect the

practice of their religion throughout their

jurisdictions. Would the Diocese’s standing be any

less if the state had terminated confession at a

correctional facility? Unless this Court is to adopt a

special rule limiting standing of a religious

organization to challenge state action abridging the

practice of its faith in a prison, the court of appeals

erred in denying the institutional standing of these

Quaker bodies with respect to the termination of

Meeting for Religious Business.

plaintiff church as ‘a New Mexico corporation’), and the

free-exercise rights of an incorporated church, see Lukumi, 508

U.S. at 525, 547. The church corporations in these cases

were not in court solely asserting the rights of their

members based on associational standing; they were

asserting their own rights, too.” (emphasis added)

20

Roman Catholic Diocese of Brooklyn v Cuomo, supra,

141 SCt at 208 LEd2d 206 (2020). See also Hosanna-Tabor

Evangelical Lutheran Church & Sch. v EEOC, supra, 565 US at

186 (“As we would put it later, our opinion in [Watson v. Jones,

80 US 679, 13 Wall 679, 20 LEd 666 (1872)] ‘radiates ... a spirit

of freedom for religious organizations, an independence from

secular control or manipulation B in short, power to decide for

themselves, free from state interference, matters of church

government as well as those of faith and doctrine.’”); quoting

Kedroff v. Saint Nicholas Cathedral of Russian Orthodox

Church in North America, 344 US 94, 116, 73 SCt 143, 97 LEd

120 (1952).

20

Second, even on the court of appeals’ terms, the

Quaker organizations have associational standing to

challenge the termination of Meetings for Religious

Business because the Quaker prisoners are members

of or under the care of the Quaker oversight bodies.

PMM has immediate responsibility for the Green

Haven Prison Meeting and its participants. BHOM

has immediate responsibility for its member, prisoner

Yohannes Johnson, who clerks Green Haven Prison

Meeting. NPQM has first oversight charge of the

meetings and Quakers in its area, including Green

Haven Prison Meeting; and NYYM has ultimate

responsibility for the conduct of the congregations

and the practice of Quakerism in its territory. 21

2. First Amendment Rights of Religious

Organizations, Churches, Ministers and

Unincarcerated Religionists in the Prison

Setting.

Prisoners are afforded only limited constitutional

rights under Turner and O’Lone. The Court has

explained that “lawful incarceration brings about the

necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the

considerations underlying our penal system. The

limitations on the exercise of constitutional rights

arise both from the fact of incarceration and from

valid penological objectives -- including deterrence of

21

See, for example, State v New York Yearly Meeting of

Friends, 61 NJ Eq 620, 621, 48 A 227 (NJ Prerogative Ct 1901),

(“The New York Yearly Meeting is the general governing body of

the Society of Friends, and has primary control over the

missionary purposes and general benefactions of such minor

bodies as act by its authority. It has a large number of

meetings.”); White Lick Quarterly Meeting of Friends v. White

Lick Quarterly Meeting of Friends, 89 Ind. 136 (Ind. Sup. Ct.

1883); Harrison v. Hoyle, 24 Ohio St. 254 (Ohio Sup. Ct. 1873).

21

crime, rehabilitation of prisoners, and institutional

security.” 22 In Thornburgh v. Abbott, supra, the

Court applied some form of the Turner/O’Lone

factors to a question involving the rights of prisoners

to receive and of publishers to send printed material

into a prison. But even in that case, the Court

undertook a substantially more searching inquiry

than typical under Turner and O’Lone. Subsequent

decisions continue to suggest that constitutional

rights of non-prisoners in the prison setting may

differ from the circumscribed rights accorded

prisoners. 23 And in Johnson v California, 543 US

499, 125 SCt 1141, 160 LEd2d 949 (2005), the Court

held that Turner and O’Lone do not apply to racial

discrimination claims, even in a setting involving

only prisoners. 24

The Court has never determined what standard

applies to free exercise of religion claims by religious

organizations and ministers in the prison setting.

Particularly in the context of action by prison officials

directly abridging the long-standing, peaceful prison

mission of a church as a whole, rather than denying

an accommodation to an individual prisoner, why

should the guarantee of “free exercise” be

circumscribed?

The Court also has not addressed what standard

applies to free exercise claims by ministers in a

prison setting. Petitioner Donald Badgley peacefully

O’Lone v Estate of Shabazz, supra, 482 US at 348.

E.g., United States v Haymond, ___ US ___, 139 SCt

2369, 204 LEd2d 897 (2019); Human Rights Defense Ctr. v

Baxter County Arkansas, 999 F3d 1160, 1165 (8th Cir 2021).

24

See also Murphy v Collier, ___ US ___, 139 SCt 1111,

204 LEd2d 252 (2019) (Alito, J., dissenting from grant of

application for a stay).

22

23

22

participated in the Quaker religious program at

Green Haven Correctional Facility (Quarterly

Meetings) for 15 years as part of his ministry. Prison

officials’ adoption of a license requirement for the

Quakers precluded his continued ministry.

The court of appeals dismissed the harm to

Badgley’s ministry on the basis that “the particular

Non-Incarcerated Plaintiffs have no constitutional

right to have services at Green Haven scheduled to

suit their convenience.” (App 32a; 16 F.4th at 85)

But the question is not “convenience.” The question

is whether a license requirement that imposes a

relational prohibition in a confessional setting on a

religionist

acting

in

a

ministerial

role

unconstitutionally interferes with ministers’ exercise

of their religion, or whether the constricted rights

permitted of felons applies to a non-prisoner seeking

to continue a prison ministry that his religion has

practiced for 350 years and he has practiced

peacefully for 15 years. 25

See, for example, Watchtower Bible & Tract Socy. of NY,

Inc. v Vil. of Stratton, 536 US 150, 167, 122 SCt 2080, 153

LEd2d 205 (2002) (“[R]equiring a permit as a prior condition on

the exercise of the right to speak imposes an objective burden on

some speech of citizens holding religious or patriotic views.”);

Murdock v Pennsylvania, 319 US 105, 63 SCt 870, 87 LEd 1292

(1943); Schneider v State, 308 US 147, 164, 60 SCt 146, 84

LEd155 (1939) (“To require a censorship through license which

makes impossible the free and unhampered distribution of

pamphlets strikes at the very heart of the constitutional

guarantees.”); Our Lady of Guadalupe Sch. v Morrissey-Berru,

___ US ___, 140 SCt 2049, 2060, 207 LEd2d 870 (2020) “[A]

church’s independence on matters ‘of faith and doctrine’ requires

the authority to select, supervise, and if necessary, remove a

minister without interference by secular authorities.”);

Hosanna-Tabor Evangelical Lutheran Church & Sch. v EEOC,

25

23

This case is unusual, if not unique, because it

involves the termination or abridgement of longstanding religious programs. That posture materially

impacts the prison officials’ assertion of penological

concerns, not because a court should substitute its

judgment for the judgment of prison officials, but

because the experience with the program is dramatic

evidence of whether, how and to what extent the

program has actually implicated the proffered

penological concern or is likely to do so in the

As this Court has noted, “history

future. 26

27

matters.”

The court of appeals applied a

constitutional standard that asks only if the proffered

justifications have facial plausibility in the most

general sense. 28 For example:

supra, 565 US at 184; Roberts v United States Jaycees, 468 US

609, 618-619, 104 SCt 3244, 82 LEd2d 462 (1984).

26

Cf. Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Sts. v Amos, 483 US 327, 337, 107 SCt

2862, 97 LEd2d 273 (1987); W. Virginia State Bd. of Educ. v

Barnette, supra, 319 US at 636-642.

27

DOC v. New York, ___ US ___, 139 SCt 2551, 2567, 204

LEd 2d 978 (2019); quoting NLRB v. Noel Canning, 573 US 513,

572, 134 SCt 2550, 189 LEd2d 538 (2014) (Scalia, J., concurring

in judgment). See also Am. Legion v Am. Humanist Assn., ___

US ___, 139 SCt 2067, 204 LEd2d 452 (2019); Trinity Lutheran

Church of Columbia, Inc. v Comer, ___ US ___, 137 SCt 2012,

2032, 198 LEd2d 551 (2017) (Sotomayor, J., dissenting) (“This

Court has consistently looked to history for guidance when

applying the Constitution’s Religion Clauses.”); Pierce v Socy. of

Sisters, 268 US 510, 534, 45 SCt 571, 69 LEd 1070 (1925); Corp.

of Presiding Bishop of the Church of Jesus Christ of Latter-Day

Sts. v Amos, 483 US 327, 337, 107 SCt 2862, 97 LEd2d 273

(1987); Marsh v Chambers, 463 US 783, 790-791, 103 SCt 3330,

77 LEd2d 1019 (1983).

28

Compare Beard v Banks, 548 US 521, 535-536, 126 SCt

2572, 165 LEd2d 697 (2006).

24

– Does it matter that there is no history of

Quarterly Meetings causing any security concerns?

Given that prison officials could not unearth a single

complaint from over 30 years of experience, did the

court of appeals apply the proper constitutional

standard in determining that “the Quarterly

Meetings create additional security concerns”? 29

– When prison officials invoke staffing and costs,

but offer no evidence that the affected religious

activity required any additional staffing or imposed

any costs over the past 30+ years, did the court of

appeals apply the proper constitutional standard in

determining that the Quarterly Meetings “disrupt

equitable allocation of scarce staffing and resources”?

– When the court of appeals adopts the prison

officials’ contention that holding Quarterly Meeting

on a Saturday would create “a burden that is

heightened on weekends, when fewer staff members

are on duty,” does it matter that prison officials

produced no evidence of such a burden over the

course of the prior 30+ years of holding Quarterly

Meetings on Saturdays? Does it matter that the

Quakers proposed two Saturdays for the 2015

Quarterly Meeting and prison officials rejected the

proposals even though there were no events at all

scheduled for those days?

The Court has never addressed the termination of

a long-standing prison religious program, particularly

one which has an unblemished record, which

29

Cf. Yellowbear v Lampert, 741 F3d 48, 57-58 (10th Cir

2014)

(“And

such

factually

unsupported

‘post-hoc

rationalizations’ aren’t the stuff of summary judgment victories

in RLUIPA cases (or in most any other).”).

25

contributes to the rehabilitation of prisoners, 30 which

enriches a religious society, and which testifies to the

immanence of the Living Spirit. 31 The Court has not

explained how the historical record of the Quaker

prison ministry that predates the Constitution and

was familiar to the Founders Ashould inform our

understanding of the Free Exercise Clause.” 32 The

Court has never determined whether the treatment

of prisoners under Turner and O’Lone, which

amounts to religious rights by judicial grace and

subject to unbridled bureaucratic discretion, 33 has

any application to the dismantling of a religion’s

prison ministry and, even if so, whether a court is to

consider evidence, to recognize the pertinence of

experience in weighing reasonableness, or is to limit

its inquiry to determining if prison officials’

invocation of general penological interests is

plausible.

See McKune v Lile, 536 US 24, 36-37, 122 SCt 2017, 153

LEd 2d 47 (2002) (“The Court has instructed that rehabilitation

is a legitimate penological interest that must be weighed against

the exercise of an inmate’s liberty. . . . Since most offenders will

eventually return to society, [a] paramount objective of the

corrections system is the rehabilitation of those committed to its

custody.” (citations & internal quotation marks omitted)).

31

Cf. Am. Legion v Am. Humanist Assn., supra, 139 SCt at

2085 (“These four considerations show that retaining

established, religiously expressive monuments, symbols, and

practices is quite different from erecting or adopting new ones.

The passage of time gives rise to a strong presumption of

constitutionality.”).

32

Espinoza v Montana Dept. of Revenue, ___ US ___, 140

SCt 2246, 2259, 207 LEd2d 679 (2020).

33

Derek L. Gaubatz, RLUIPA at Four: Evaluating the

Success and Constitutionality of RLUIPA’s Prisoner Provisions,

28 Harv. J.L. & Pub. Pol’y 501, 504, 507-509 (2005).

30

26

3. Substantial Burden

Petitioners explained how the changes unilaterally

instituted by prison officials undermined the religious

purposes and value of the Quarterly Meetings.

Indeed, the Quaker community made it clear that the

program devised by prison officials was inadequate

by refusing to participate. Nonetheless, the court of

appeals concluded that the Quaker community

suffered no cognizable injury to their beliefs and

practices because they did not ascribe religious

significance to the day of the week for the gatherings.

(App 31a; 16 F.4th at 85)

The substantial burden test, both within and

without the prison setting, is concerned with the

effect or impact of a restraint, not whether the chain

of causation comports with the magistrate’s notions of

religiosity. 34 As the Court recently explained, Athey

could not ‘tell the plaintiffs that their beliefs are

flawed’ because, in the Departments’ view, ‘the

connection between what the objecting parties must

do . . . and the end that they find to be morally wrong

. . . is simply too attenuated.’” 35

Neither the court of appeals nor the district court

questioned the sincerity of the Quaker community.

Consequently, the court had no business questioning

the Quaker community’s unanimous testimony that

the “Quaker Meeting” designed by prison officials did

34

Compare, e.g., Yellowbear v Lampert, 741 F3d 48, 56

(10th Cir 2014); United States v Means, 627 FSupp 247, 260-262

(DSD 1985).

35

Little Sisters of the Poor Sts. Peter & Paul Home v

Pennsylvania, supra, 140 SCt at 2383; quoting Burwell v. Hobby

Lobby Stores, Inc., supra, 573 US at 725-726. See also Trinity

Lutheran Church of Columbia, Inc. v Comer, supra, 137 SCt at

2022.

27

The

not qualify as a real Quaker Meeting. 36

Aconstitutional substantial burden” that the court of

appeals sought could be found in:

– The imposition of a licensing requirement, which

raises serious constitutional issues 37 and certainly

constitutes a substantial burden on Quakers’

religious exercise at Green Haven Prison. 38

– The imposition of numerical limits, which also

raises serious constitutional concerns 39 and certainly

constitutes a substantial burden on Quakers excluded

as a result.

– The reduction in the time allotted from 6 hours to

2 hours, which precluded 2/3 of the Quarterly

Meeting program. Even in this era of communication

by sound bites, abbreviations and emojis, such a

material diminution in the time afforded for

developing deep spiritual bonds will be a substantial

burden to the practice of the faith.

– Moving the gathering from a Saturday, the day

reserved for all comparable events at Green Haven

Prison, to a week night, which caused a substantial

Holt v Hobbs, 574 US 352, 369, 135 SCt 853, 190 LEd 2d

747 (2015); Cutter v Wilkinson, 544 US 709, 725, n 13, 125 SCt

2113, 161 LEd2d 1020 (2005); Yellowbear v Lampert, 741 F3d

48, 54 (10th Cir 2014).

37

Watchtower Bible & Tract Socy. of NY, Inc. v Vil. of

Stratton, 536 US 150, 122 SCt 2080, 153 LEd2d 205 (2002);

Schneider v State, 308 US 147, 164, 60 SCt 146, 84 LEd155

(1939).

38

Compare Koger v Bryan, 523 F3d 789, 798-800 (7th Cir

2008).

39

Roman Catholic Diocese of Brooklyn v Cuomo, supra,

141 SCt at 208.

36

28

burden because it prevents

unincarcerated Quakers. 40

participation

by

The instrument of harm may not be freighted with

religious significance, but that does not diminish the

religious injury suffered by the affected seeker. 41

4. Statutory Construction

Green Haven Prison Meeting was conceded to have

standing to challenge the actions of prison officials

diminishing its religious services and programs.

(App 19a; 16 F.4th at 79) The court of appeals

nonetheless held that Green Haven Meeting could

not be heard on its claims because (1) it is not a

“prisoner” for purposes of the Religious Land Use and

Institutionalized Persons Act, and (2) it is close

enough to being a “prisoner” for purposes of the

restrictions of the PLRA. (App 25a-26a; 16 F.4th at

82) Those determinations disregarded fundamental

principles of statutory construction applied by this

Court and every other Circuit Court.

RLUIPA grants rights to “a person residing in or

confined to an institution.” 42 U.S.C. § 2000cc-1(a).

Green Haven Meeting is a “person” for constitutional

and statutory purposes. 42 The court of appeals

seemed to accept that, but determined that Green

Compare Islamic Ctr. of Mississippi, Inc. v Starkville,

840 F2d 293, 298-299 (5th Cir 1988).

41

Burwell v. Hobby Lobby Stores, Inc., supra, 573 US at

723-725; Masterpiece Cakeshop, Ltd. v Colorado Civ. Rights

Commn., ___ US ___, 138 SCt 1719, 1737-1740, 201 LEd2d 35

(2018) (Gorsuch, J., concurring).

42

Burwell v. Hobby Lobby Stores, Inc., supra, 573 US at

725-726; Dictionary Act, 1 USC § 1; Civil Rights of

Institutionalized Persons Act, Definitions, 42 USC § 1997(3).

And see Prison Litigation Reform Act, 42 USC § 1997e(h)

(defining “prisoner”).

40

29

Haven Meeting is not “residing in an institution” on

the theory that “To whatever extent one might

metaphorically consider an association composed

entirely of prisoners to reside, in some sense, in

prison, it derives that status entirely from the status

of its members.” (App 25a; 16 F.4th at 82)

That is incorrect. An “incorporeal entity” has the

independent right to sue and be sued in its own name

and derives its residential situs from the location(s)

where it conducts its business, not from the

residences of its members. 43

Congress presumably was aware of this when it

granted a right of action under RLUIPA to “a person

residing in . . . an institution” in addition to persons

“confined” to an institution. Congress should be

assumed to have chosen this language for a reason

and with knowledge of this Court’s determinations

regarding the legal rights and residence of

unincorporated associations. 44

In contrast, PLRA’s requirements are applicable

only to “a prisoner confined in any jail, prison, or

other correctional facility.” Green Haven Prison

Preparative Meeting is not a “prisoner” and it is not

“confined” to a correctional facility, both of which the

court of appeals acknowledged. (App 25a; 16 F.4th at

43

United Mine Workers v Coronado Coal Co., 259 US 344,

383-392, 42 SCt 570, 66 LEd 975 (1922); Denver & R. G. W. R.

Co. v Bhd. of R.R. Trainmen, 387 US 556, 559-562, 87 SCt 1746,

18 LEd2d 954 (1967); Sperry Prods., Inc. v Assn. of Am. R.Rs.,

132 F2d 408, 409-412 (2d Cir 1942) (L. Hand, J.); Federal Rules

of Civil Procedure, Rule 17(b)(3); Brown v Father Divine, 163

Misc 796, 804 (NY Co 1937); New York General Association Law

§ 12.

44

Denver & R. G. W. R. Co. v Bhd. of R.R. Trainmen, 387

US 556, 561-562, 87 SCt 1746, 18 LEd2d 954 (1967).

30

82) Yet the court held that the PLRA was a barrier to

Green Haven Meeting’s assertion of its religious

rights because “the Incarcerated Plaintiffs may not

avoid the exhaustion requirement simply by forming

an organization and then suing in the name of that

organization.” 45 (App 26a; 16 F.4th at 82)

Modern statutory construction, however, does not

permit a court to rewrite a statute to correct errors in

the law’s coverage perceived by a judge. 46

45

Compare Page v Torrey, 201 F3d 1136, 1139-1140 (9th

Cir 2000).

46

Little Sisters of the Poor Sts. Peter & Paul Home v

Pennsylvania, supra 140 SCt at 2380, 2381 (“Our analysis

begins and ends with the text.” AIt is a fundamental principle of

statutory interpretation that absent provision[s] cannot be

supplied by the courts.”); Bostock v Clayton County, ___ US ___ ,

140 SCt 1731, 1737, 207 LEd2d 218 (2020); Rotkiske v Klemm,

___ US ___, 140 SCt 355, 360, 205 LEd2d 291 (2019) (AWe must

presume that Congress says in a statute what it means and

means in a statute what it says there.”); Food Mktg. Inst. v

Argus Leader Media, ___ US ___ , 139 SCt 2356, 2364, 204

LEd2d 742 (2019) (“In statutory interpretation disputes, a

court’s proper starting point lies in a careful examination of the

ordinary meaning and structure of the law itself. . . . Where, as

here, that examination yields a clear answer, judges must

stop.”); Nichols v United States, ___US___, 136 SCt 1113, 194

LEd2d 324 (2016) (“Yet even the most formidable argument

concerning the statute’s purposes could not overcome the clarity

we find in the statute’s text.”); Jones v Bock, 549 US 199, 216,

127 SCt 910, 166 LEd2d 798 (2007) (“Whatever temptations the

statesmanship of policy-making might wisely suggest, the

judge’s job is to construe the statute – not to make it better.”

(citation and internal quotation marks omitted)); BedRoc Ltd.,

LLC v United States, 541 US 176, 183-184, 124 SCt 1587, 158

LEd2d 338 (2004); United States v Bryant, 996 F3d 1243,

1257-1258 (11th Cir 2021). See also Salinas v United States

RRB, ___ U S___ , 141 SCt 691, 698, 208 LEd2d 608 (2021)

(“Where Congress includes particular language in one section of

a statute but omits it in another section of the same Act, it is

31

Finally, the court of appeals’ assertion that Green

Haven Meeting is nothing more than a prisoners’

attempt to “avoid the exhaustion requirement simply

by forming an organization and then suing in the

name of that organization” misrepresents the

undisputed record. Formal regular Quaker worship

in Green Haven Prison began in 1976. The intention

of the incarcerated and unincarcerated Quakers

responsible for establishing Green Haven Prison

Meeting some 40 years before this litigation is

probably unknowable, 47 but it could not include

plotting to avoid the requirements of a law that was

not adopted until 1996.

Green Haven Meeting is not “simply ... an

organization” formed by prisoners. It was born under

the care of the Society of Friends. It was continually

nurtured in deepening its Quaker religious practice

by the Society of Friends. As the worship group grew

in the depth and self-sufficiency of its Quaker

religious practice, it blossomed into a “preparative

meeting” still under the active, continual care of the

Society of Friends. At all times, the Green Haven

Prison Preparative Meeting has been under the direct

care and oversight of petitioner PMM and the further

care and oversight of petitioners NPQM and NYYM.

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (citation and

internal quotation marks omitted)); Gonzalez v U.S.

Immigration & Customs Enf’t, 975 F3d 788, 815 (9th Cir 2020);

N.A. of Mfrs. v DOD, ___ US ___ , 138 SCt 617, 631, 199 LEd2d

501 (2018) (“Courts are required to give effect to Congress’

express inclusions and exclusions, not disregard them.”);

Lexington Ins. Co. v Precision Drilling Co., L.P., 830 F3d 1219,

1221-1223 (10th Cir 2016).

47

Cf., Am. Legion v Am. Humanist Assn., supra, 139 SCt

at 2082 (2019).

32

To suggest that it is merely a concoction of some

prisoners to avoid the facility’s grievance procedures

is both indefensible and demeaning to the religious

practice of the Society of Friends.

Congress chose to limit the scope of the PLRA to “a

prisoner confined in any jail, prison, or other

correctional facility.” It employed a different concept

with RLUIPA: “a person residing in or confined to an

institution.”

The court of appeals essentially

substituted the PLRA language for the different

concept Congress agreed upon in deciding who would

be able to take advantage of the rights provided by

RLUIPA. The language of RLUIPA is not limited to a

suit by a prisoner for a personal deprivation to

his/her religious practice. The PLRA is so limited. In

addition to claims of harm by individual inmates,

RLUIPA encompasses claims to protect the practice

of its religion by a responsible religious body

operating within a prison. That also would be

consistent with this Court’s standards for standing of

religious organizations.

The court of appeals’

decision narrows the protections of religious practice

afforded by Congress in RLUIPA. It is inconsistent

with Congress’ direction that the Courts should

construe those rights broadly. 42 USC § 2000cc-3(g).

And it puts the Second Circuit at odds with the rules

of statutory construction applied by this Court and all

the other Circuit Courts.

33

CONCLUSION

The Court should grant the petition.

January 18, 2022

Respectfully submitted,

/s/ Frederick R. Dettmer

FREDERICK R. DETTMER

Counsel of Record

LAW OFFICE OF

FREDERICK R. DETTMER

35 Arbor Glen

New Rochelle, New York

10801

914-738-8782

fdettmer@aol.com

Attorney for Petitioners

APPENDIX

1a

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE S ECOND C IRCUIT

__________

August Term, 2020

Argued: October 30, 2020

Decided: October 18, 2021

Docket No. 20-18-pr

__________

GREEN HAVEN PRISON PREPARATIVE MEETING OF THE

RELIGIOUS SOCIETY OF FRIENDS, AN UNINCORPORATED

ASSOCIATION, YOHANNES JOHNSON, INDIVIDUALLY, AND

AS CLERK OF GREEN HAVEN PRISON PREPARATIVE

MEETING, GREGORY THOMPSON, INDIVIDUALLY, AND AS

MEMBER OF GREEN HAVEN PRISON PREPARATIVE

MEETING, NINE PARTNERS QUARTERLY MEETING OF

THE RELIGIOUS SOCIETY OF FRIENDS, AN

UNINCORPORATED ASSOCIATION, DONALD BADGLEY,

INDIVIDUALLY, AND AS CO-CLERK OF NINE PARTNERS

QUARTERLY MEETING, EMILY BOARDMAN,

INDIVIDUALLY AND AS CO-CLERK OF NINE PARTNERS

QUARTERLY MEETING, BULLS HEAD-OSWEGO MONTHLY

MEETING, AN UNINCORPORATED ASSOCIATION, CAROLE

YVONNE NEW, INDIVIDUALLY AND AS CLERK OF BULLS

HEAD-OSWEGO MONTHLY MEETING, DAVID LEIF

ANDERSON, INDIVIDUALLY AND AS TREASURER OF BULLS

HEAD-OSWEGO MONTHLY MEETING, POUGHKEEPSIE

MONTHLY MEETING, AN UNINCORPORATED

ASSOCIATION, FREDERICK DONEIT, SR., AS TREASURER

OF POUGHKEEPSIE MONTHLY MEETING, JULIA

GIORDANO, MARGARET L. SEELY, SOLANGE MULLER,

2a

NEW YORK YEARLY MEETING OF THE RELIGIOUS

SOCIETY OF FRIENDS, INC.,

—v.—

Plaintiffs-Appellants,

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND

COMMUNITY SUPERVISION, ANTHONY ANNUCCI, IN HIS

CAPACITY AS ACTING COMMISSIONER OF THE

DEPARTMENT OF CORRECTIONS AND COMMUNITY

SUPERVISION, JEFF MCKOY, IN HIS CAPACITY AS THE

DEPUTY COMMISSIONER FOR PROGRAM SERVICES OF

THE DEPARTMENT OF CORRECTIONS AND COMMUNITY

SUPERVISION, ALICIA SMITH-ROBERTS, IN HER CAPACITY

AS THE DIRECTOR OF MINISTERIAL, FAMILY AND

VOLUNTEER SERVICES OF THE DEPARTMENT OF

CORRECTIONS AND COMMUNITY SUPERVISION, JAMIE

LAMANNA, IN HIS CAPACITY AS SUPERINTENDENT OF

GREEN HAVEN CORRECTIONAL FACILITY, JAIFA

COLLADO, IN HER CAPACITY AS DEPUTY

SUPERINTENDENT OF PROGRAMS AT GREEN HAVEN

CORRECTIONAL FACILITY, MARLYN KOPP, IN HER

CAPACITY AS DEPUTY SUPERINTENDENT OF PROGRAM

SERVICES AT GREEN HAVEN CORRECTIONAL FACILITY,

Defendants-Appellees. *

__________

B e f o r e:

LIVINGSTON, Chief Judge,

CABRANES, and LYNCH, Circuit Judges.

__________

Several unincorporated associations and individual

members of the Religious Society of Friends (widely

3a

referred to as “Quakers”) appeal from an order of the

United States District Court for the Southern District

of New York (Karas, J.) denying their motion for a

preliminary injunction directing defendant officials of

the New York State Department of Corrections and

Community Supervision to rescind changes in the

scheduling of certain regularly-held Quaker religious

gatherings at Green Haven Correctional Facility. We

agree with the district court that a preliminary

injunction is not warranted because PlaintiffsAppellants are unable to demonstrate a likelihood of

success on the merits of their claims. The order of the

district court is thus AFFIRMED.

__________

FREDERICK R. DETTMER, Law Office of Frederick

R. Dettmer, New Rochelle, NY, on the

brief, for Plaintiffs-Appellants.

MARK S. GRUBE, Assistant Solicitor General,

State of New York, New York, NY (Letitia

James, Attorney General, Barbara D.

Underwood, Solicitor General, Anisha S.

Dasgupta, Deputy Solicitor General, on the

brief), for Defendants- Appellees.

__________

GERARD E. LYNCH, Circuit Judge:

This case arises from scheduling changes made by

the New York State Department of Corrections and

Community Supervision (“DOCCS”) to certain

regularly-held religious gatherings of the Religious

Society of Friends, generally known as “Quakers,” at

Green Haven Correctional Facility (“Green Haven”).

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DOCCS’s measures affected the scheduling of two

types of Quaker religious gatherings. The first type,

called Quarterly Meetings, are held four times a year

and involve neighboring Quaker communities

gathering at Green Haven to worship with inmates.

The second type, referred to as “meetings for worship

with a concern for business” (“MFWCBs”), are weekly

meetings where inmates at Green Haven who

participate in Quaker activities discuss the group’s

business concerns. The scheduling changes generally

prevented inmates from holding these meetings on

their preferred days of the week. PlaintiffsAppellants, who include both Quaker prisoners

Yohannes Johnson and Gregory Thompson (the

“Incarcerated Plaintiffs”) and outside Quaker

individuals and organizations who participate in

communal worship with the Incarcerated Plaintiffs

(“the

Non-Incarcerated

Plaintiffs”)

(together,

“Plaintiffs”) brought this action in the United States

District Court for the Southern District of New York

challenging the scheduling changes, and moved for a

preliminary injunction. Plaintiffs sought to direct

Defendants-Appellees, who include DOCCS and

several DOCCS and Green Haven officials

(collectively, “Defendants”), to reinstate the meetings

at their previously scheduled times.

The district court (Kenneth M. Karas, J.) concluded

that the Incarcerated Plaintiffs were unable to

demonstrate a likelihood of success on the merits of

their claims, in part because they failed to comply

with the Prison Litigation Reform Act’s (“PLRA’s”)

requirement to exhaust administrative remedies and

failed to demonstrate that they qualified for an

exception to the exhaustion mandate. The court

further concluded that all Plaintiffs failed to show

that the scheduling changes imposed a substantial

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burden on their religious exercise. We conclude that

the district court did not err in denying the

preliminary injunction.

BACKGROUND

I.

Quaker Meetings

Adherents of the Quaker faith, formally referred to

as “Friends,” believe that a person can convene

directly with God without a mediator (such as a

priest, minister, or other member of the clergy) and

that a group of individuals form a congregation when

they worship together and submit their independent

religious revelations and insights to collective

discernment at periodic meetings for worship. 1

Friends who meet and worship together regularly as

a congregation may organize themselves into a formal

group known as a “Monthly Meeting.” A Monthly

Meeting is responsible for local matters of business,

including organizing worship services, managing

membership applications and lists, approving and

overseeing marriages, and providing pastoral care. A

Monthly Meeting conducts institutional business at

specially-convened gatherings called “meetings for

worship with a concern for business.”

A Monthly Meeting may include multiple

congregations which regularly hold their own

separate worship services. Such constituent

congregations may be organized as “Worship Groups”

1

Here and throughout this opinion, we base our

understanding of Quaker belief and practice on materials

submitted in the record by Plaintiffs.

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called “Preparative Meetings.” 1 Two or more Monthly

Meetings and Worship Groups in the same region

may form a Quarterly Meeting, which meets four

times a year, and two or more Quarterly Meetings in

a larger area may unite to form a Yearly Meeting,

which meets annually. Friends form Quarterly and

Yearly Meetings to “gather for the spiritual

enrichment available from a larger body and to

conduct business together.” Appellants’ Br. at 7. In

pursuit of meaning and truth through collective

deliberation and consensus, Friends use these larger

meetings to test and discuss with a broader group

insights from their smaller local Meetings.

II. Quaker Meetings at Green Haven

Green Haven is a maximum security correctional

facility that houses approximately 1900 inmates with

diverse religious affiliations. Formed in 1976,

Plaintiff Green Haven Prison Preparative Meeting

(“Green Haven Meeting”) is the organized Quaker

Worship Group at Green Haven; its approximately

eight members, including the Incarcerated Plaintiffs,

are all prisoners there. Before the implementation of

the changes at issue in this appeal, the group met

three times a week: Thursday evenings in a study

group from 6:00 p.m. to 8:30 p.m. in Building 12 led

by a civilian volunteer, Friday evenings for worship

from 6:00 p.m. to 8:30 p.m. in the J School led by a

civilian volunteer, and Saturdays from 12:30 p.m.

until about 2:00 p.m. for MFWCBs in the J School led

by Incarcerated Plaintiff Johnson, who was the

1

Unlike a Monthly Meeting, a Preparative Meeting “does

not have final authority to receive, transfer, or dismiss

members, or to perform marriages.” J. App’x at 138.

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designated inmate facilitator. 2 Green Haven Meeting

also held Quarterly Meetings four times a year on

Saturdays for approximately six hours, starting in

the morning and ending in the mid-afternoon.

Green Haven Meeting, Poughkeepsie Monthly

Meeting, Bulls Head- Oswego Monthly Meeting and

other Quaker meetings in the region belong to Nine

Partners Quarterly Meeting (“Nine Partners

Quarter”). Poughkeepsie Monthly Meeting, Bulls

Head-Oswego Monthly Meeting, and Nine Partners

Quarter

are

not-for-profit

unincorporated

associations and are Non-Incarcerated Plaintiffs.

New York Yearly Meeting, a not-for-profit corporation

and also a Non-Incarcerated Plaintiff, is an umbrella

organization for all Meetings and worship groups

throughout New York and parts of Connecticut and

New Jersey. New York Yearly Meeting, the

unincorporated associations of non-incarcerated

Quakers, and eight individual members of those

associations join the Incarcerated Plaintiffs in

appealing the district court’s order denying the

preliminary injunction.

III. Regulatory Framework

DOCCS Directive 4202, titled “Religious Programs

and Practices,” sets forth DOCCS’s policy for the

promotion of religious experiences of persons under

its supervision. “[I]n recognition of the First

Amendment right of ‘religious liberty,’” the policy

aims “to provide as many opportunities as feasible for

the practice of [inmates’] chosen faiths, consistent

with the safe and secure operations of the DOCCS

2

A facilitator is an inmate designated by DOCCS to serve

as the representative of the faith group in the absence of a

competent chaplain.

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correctional facilities.” J. App’x 573. Directive 4202

§ VI(B)(2) discusses two types of regularly scheduled

religious gatherings: worship services and educational

gatherings. Additional special religious holy days,

celebrations, or observances are governed by § VII

and the Religious Holy Day Calendar, which is

distributed annually. Directive 4202 § VI(B)(2) allows

faiths with six to ten requesting adherents to hold

religious gatherings such as classes or study groups

twice a month subject to the availability of space and

staffing. The Superintendent may also approve

additional gatherings “if the accommodation can be

made without incurring any additional costs/

resources.” J. App’x at 576. Pursuant to Directive

4750, titled “Volunteer Services Program,” civilian

religious volunteers must be registered in order to be

permitted into correctional facilities to assist in

programs.

Plaintiffs do not challenge the reasonableness of

these system-wide regulations. Rather, their

complaint concerns the specific implementation of the

regulations at Green Haven with respect to Quaker

gatherings at the prison, starting in 2015.

IV. Policy Changes

In the fall of 2014, following a spate of security

breaches involving visitors smuggling in weapons,

cash, and contraband, and in at least one instance a

corrections officer taking a bribe to smuggle a pound

of marijuana to Green Haven inmates, the Acting

Commissioner of DOCCS, Defendant Anthony

Annucci, installed new Green Haven administrators,

including a new Superintendent and several new

Deputy Superintendents, including Defendant Jaifa

Collado (“Collado”) who was Deputy Superintendent

for Program Services at Green Haven and responsible

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for scheduling religious and other activities. The

security concerns prompted the new administration to

reevaluate special events and other gatherings held in

the facility.

A. Quarterly Meetings

For 35 years, from 1980 to 2015, Green Haven

Meeting hosted Friends from Nine Partners Quarter

at Green Haven for full-day Quarterly Meetings.

Those meetings, which typically took place over six or

more hours on Saturdays and included lunch, allowed

Quaker inmates and non-incarcerated Friends in the

region to worship together and exchange beliefs,

practices and concerns. Quarterly Meetings also

provided inmates who were not members of the

Green Haven Meeting an opportunity to participate

in and be introduced to the Quaker religion. Plaintiffs

contend that holding these Quarterly Meetings on

Saturdays, as opposed to any other day of the week,

is “critical to their success” because on Saturdays

non-incarcerated Friends are less limited by work

schedules, parental obligations, evening travel, and

other workweek commitments. J. App’x at 216.

Special events – including Quaker Quarterly

Meetings – typically require the presence of extra

security staff to protect the non-incarcerated visitors

and volunteers who may attend the events and to

maintain safety for the general prison population. In

light of ongoing security concerns raised by the

security breaches in the fall of 2014, the new prison

administration sought to reduce the size and number

of special events at Green Haven, and special events

held on weekends in particular, since the staff on

weekend duty is smaller and the prison would have to

pay overtime to adequately staff events. Special

events also increase “out counts,” the number of

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inmates away from their cells when a countof inmates

occurs. Prison administration sought to reduce the

out count since the absence of inmates from the count

carries security risks associated with tracking inmate

movement. As a result, in 2015, Green Haven

administration moved Quarterly Meetings from

Saturdays to Friday evenings after 5:30 p.m.

In 2014, Green Haven Meeting hosted Saturday

Quarterly Meetings – which were scheduled on the

special events calendar – on March 29, June 7,

September 13 and December 27 from 8:30 a.m. to

2:30 p.m. Visitors were prohibited from bringing food,

beverages, packages, or gifts into the facility. Green

Haven provided food for the Quarterly Meetings in

the form of “offline meals,” which are meals from the

mess hall’s regular menu. All registered Quaker

inmates, who numbered from six to nine at the

relevant times, were allowed but not required to

attend these Quarterly Meetings. Green Haven also

allowed 15 registered civilian volunteers to attend the

March, June and September Quarterly Meetings.

After noticing that only a few of the volunteers

actually attended the Quarterly Meetings, and in

light of ongoing security concerns about events

including a large number of civilians, prison

administration limited the maximum number of

guests at the December 27, 2014 Quarterly Meeting

to any four from the list of registered volunteers.

Thaddeus Davis (“Davis”), the designated

facilitator for Quaker inmates at Green Haven before

Plaintiff Johnson took over that role, corresponded

with prison administration about, inter alia, his four

proposed dates for the 2015 Quarterly Meetings,

which were all Saturdays. In one of her responses,

Collado requested an explanation for Davis’s request

for four Quarterly Meetings per year since, according

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to the approved special events calendar, the Quakers

had no special holy days in 2014 other than the

common Christian holidays of Easter and Christmas.

In a response memo, Davis explained Quaker

practices and the religious significance of Quarterly

Meetings, but he did not identify any particular

significance to holding the Quarterly Meetings on

Saturdays.

Green Haven officials determined that it was not

possible to implement the preferred schedules for all

religious denominations in the community given

“security concerns” and “logistical considerations” at

the prison. J. App’x at 540. Thus, prison

administration moved the Quarterly Meetings to

Friday evenings, after 5:30 p.m., and distributed the

2015 special events calendar with Quarterly

Meetings scheduled for March 20, June 5, September

11, and December 11. Green Haven Meeting objected

to the move, in part, because it already held worship

services from 6:00 p.m. to 8:30 p.m. on Friday

evenings. Prison administration offered to move the

Quarterly Meetings to another weekday evening, but

Green Haven Meeting declined the offer. As a result,

the Quarterly Meetings were removed from the

special events calendar in the years following 2015.

Since then, DOCCS and Green Haven Meeting have

negotiated about the Quarterly Meetings, which has

resulted in DOCCS offering to schedule one of the

Quarterly Meetings as a special event, with an out

count that would permit a longer meeting along with

a meal paid for by the Quakers.

B. MFWCBs

Green Haven also made changes that affected

MFWCBs. Green Haven Meeting would typically hold

MFWCBs on Saturdays from 12:30 p.m. to about 2:00

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p.m. in the J School. Incarcerated Plaintiff Johnson

facilitated these meetings, which were attended by

inmates who had to “call out,” or in other words,

receive permission in advance to be away from their

cells in order to attend. Correctional officers must

accompany an inmate who has called out from his cell

to the location of the event, where one or more other

correctional officers must stay to monitor the inmate

throughout the event.

Defendant Marlyn Kopp (“Kopp”) succeeded

Collado as Deputy Superintendent for Program

Services at Green Haven in March 2017. By January

2018, Kopp and other administrators identified

overcrowding as an issue in the J School building,

where some Quaker activities were held. The

overcrowding stemmed in part from too many call

outs by non-Quaker inmates, including several

maximum security inmates, attending call-out

gatherings such as Green Haven Meeting’s MFWCBs.

On January 6, 2018, for instance, 21 inmates

attended the MFWCB, 9 of whom were registered

Quakers and 12 of whom were not registered

Quakers. The unusually high ratio of non-Quakers to

Quakers prompted Kopp to take action to reduce

what officials perceived to be excessive call outs,

which she deemed were more likely to be subject to

abuse since no chaplain or community volunteer was

present. 3

On February 9, 2018, Johnson corresponded with

Green Haven administration in response to an

3

Section VI(B)(3) of Directive 4202 limits inmates to

attending up to three services or classes per year of religions

other than the one for which they are registered in order to

“learn more about the religious practices of another faith”

(hereinafter, the “Three Times Rule”).

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inquiry about the purpose of the MFWCB and

irregularities in the attendance of non-adherents.

Kopp responded by informing Johnson of her decision

to revoke permission for MFWCBs. She wrote, in

part, “The Quakers, just like any other religion, are

already approved to have worship services and study

classes. They have Friday Worship and Thursday

[b]ook study. The Saturday call-out does not appear

to be a study group or a worship service and therefore

does not appear necessary. With a congregation of a

total of 8 inmates, having a Thursday study group

and Friday worship service appears to be sufficient.”

J. App’x at 560.

C. The Holy Day Calendar

Separate from the regular weekly religious

activities, DOCCS prepares and distributes a

Religious Holy Day Calendar applicable to all of its

correctional facilities, which identifies dates of

religious significance throughout the year. The

administration of an individual correctional facility,

however, may schedule additional religious activities

for the various faith groups within each facility.

Plaintiffs object to the DOCCS Calendar’s

identification of the Society of Friends as “Protestant”

and the designation of Pentecost as the “Family

Event” day for the Society of Friends, along with

other groups characterized as Protestant. A Family

Event Day enables outside family and friends to join

inmates of their faith for worship and celebration.

Plaintiffs argue that Quakers do not celebrate

Pentecost and that DOCCS is unjustified in its

refusal to revise the Calendar to add Quarterly

Meetings.

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V.

District Court Proceedings

The

Incarcerated

Plaintiffs

did

not

file

administrative grievances about any of the rule

changes concerning the various Quaker meetings at

Green Haven. Instead, Plaintiffs filed the present

complaint in September 2018, bringing claims under

the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free

Exercise Clause of the First Amendment, the

Establishment Clause of the First Amendment, the

Equal Protection Clause of the Fourteenth

Amendment, the freedom of religion guarantees in

the New York State Constitution, art. I, § 3, and New

York Correction Law § 610(1), which guarantees to

inmates “the free exercise and enjoyment of religious

profession and worship, without discrimination or

preference.”

In particular, as concerning their RLUIPA claim,

the Incarcerated Plaintiffs allege that Defendants’

termination of and refusal to reinstate Quarterly

Meetings and MFWCBs imposes a substantial burden

on their exercise of religion and is neither in

furtherance of a compelling government interest nor

the least restrictive means of furthering any such

interest. They also asserted claims under the Free

Exercise Clause of the First Amendment (and

corresponding claims under Section 610 of the New

York Correction Law), alleging, in relevant part, that

Defendants’ cancellation of Quarterly Meetings and

MFWCBs imposes a substantial burden on their

sincerely held religious beliefs and religious exercise

and is not reasonably related to legitimate

penological interests. Finally, they alleged that

Defendants' actions – including their designation of

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Quakers as “Protestants” and celebrants of Pentecost

– violate the Establishment Clause. 4

The Non-Incarcerated Plaintiffs asserted claims

under the Free Exercise Clause of the First

Amendment, alleging that Defendants’ cancellation of

Quarterly Meetings deprived them of their ability to

exercise their religion, a deprivation not reasonably

related to legitimate penological interests.

All plaintiffs also asserted corresponding claims

under the Free Exercise Clause of the New York

State Constitution. Finally, all plaintiffs asserted a

claim under the Equal Protection Clause of the

Fourteenth Amendment, alleging that DOCCS allows

other unspecified faith groups to hold religious events

that “are the equivalent of” Quarterly Meetings and

MFWCBs. J. App’x at 314. Plaintiffs sought an order

directing Defendants to reinstate MFWCBs and

Saturday meeting times for Quarterly Meetings at

Green Haven Correctional Facility.

Plaintiffs moved for a preliminary injunction on

March 29, 2019. The district court heard oral

argument on October 30, 2019 and denied the motion

orally at the conclusion of the hearing. The district

court concluded that the deprivation of religious

rights alleged by Plaintiffs was sufficient to establish

irreparable harm but Plaintiffs were unable to show a

likelihood of success on the merits. First, the district

court held that the Incarcerated Plaintiffs’ claims

were unlikely to succeed because those plaintiffs had

failed to exhaust their administrative remedies.

4

The Incarcerated Plaintiffs also raised separate claims

for “retaliation,” alleging that Defendants' decision to terminate

the MFWCBs were retaliatory and were intended to deter the

Incarcerated Plaintiffs from “vindicating” their rights. J. App’x

317.

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Further, the court determined that none of the

plaintiffs had shown that the actions of prison

administration placed a “substantial burden” on their

religious rights. J. App’x at 907. A written order

denying the motion was filed the same day. Plaintiffs

moved for reconsideration, which was denied on

December 3, 2019.

DISCUSSION

I.

Standards of Review

We review a district court’s denial of a preliminary

injunction for abuse of discretion, examining the legal

conclusions underpinning the decision de novo and

the factual conclusions for clear error. County of

Nassau v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008);

Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d

Cir. 1998). We review de novo whether a plaintiff has

exhausted administrative remedies under the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).

Amador v. Andrews, 655 F.3d 89, 95 (2d Cir. 2011).

A plaintiff “seeking a preliminary injunction must

ordinarily establish (1) irreparable harm; (2) either (a)

a likelihood of success on the merits, or (b)

sufficiently serious questions going to the merits of

its claims to make them fair ground for litigation,

plus a balance of the hardships tipping decidedly in

favor of the moving party; and (3) that a preliminary

injunction is in the public interest.” New York ex rel.

Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d

Cir. 2015) (internal quotation marks omitted), citing

Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 164

(2d Cir. 2011). The PLRA requires that any

preliminary injunctive relief concerning prison

conditions “be narrowly drawn, extend no further

than necessary to correct the harm the court finds

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requires preliminary relief, and be the least intrusive

means necessary to correct that harm.” 18 U.S.C. §

3626(a)(2). In weighing a request for preliminary

injunctive relief, “[t]he court shall give substantial

weight to any adverse impact on public safety or the

operation of a criminal justice system caused by the

preliminary relief.” Id.

II. Standing

Before turning to the merits of the appeal, we

address the threshold issue of standing. Because the

question of standing goes to the constitutional

limitations on the “judicial Power of the United

States,” which is limited to resolving “Cases” or

“Controversies,” U.S. Const. art. III, we”are entitled

at any time sua sponte to delve into the issue” of

standing even if defendants do not raise the issue.

Transatlantic Marine Claims Agency, Inc. v. Ace

Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105,

108 (2d Cir. 1997).

A. Non-Incarcerated Plaintiffs’ Standing

Plaintiffs assert that the Non-Incarcerated

Plaintiffs have constitutional rights in the prison

setting which were infringed upon by Green Haven’s

policy changes and that the organizational NonIncarcerated Plaintiffs have standing to represent the

constitutional rights of their parishioner-members.

We agree.

At the preliminary injunction stage, “a plaintiff’s

burden to demonstrate standing will normally be no

less than that required on a motion for summary

judgment. Accordingly, to establish standing for a

preliminary injunction, a plaintiff cannot rest on . . .

mere allegations . . . but must set forth by affidavit or

other evidence specific facts” that establish the “three

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familiar elements of standing: injury in fact,

causation, and redressability.” Cacchillo v. Insmed,

Inc., 638 F.3d 401, 404 (2d Cir. 2011) (internal

quotation marks and citation omitted).

Here, the Non-Incarcerated Plaintiffs allege injury

on the ground that the prison administration’s

scheduling changes and treatment of the Society of

Friends in the Religious Holy Day Calendar, which

they characterize as the “eliminat[ion]” of “entire

programs of a church,” adversely impact their First

Amendment rights. Appellants’ Br. at 22. Defendants

do not challenge the sufficiency of these harms to

establish standing. In the prison context, the

Supreme Court has recognized the rights of nonincarcerated individuals under other provisions of the

First Amendment. See Thornburgh v. Abbott, 490

U.S. 401, 408 (1989) (“[T]here is no question that

publishers who wish to communicate with those who,

through subscription, willingly seek their point of

view have a legitimate First Amendment interest in

access to prisoners.”).

Not all of the changes in Green Haven’s practices

that are challenged in this case affect the NonIncarcerated Plaintiffs, however. As far as the record

reflects, the weekly Saturday MFWCBs have never

been attended by outsiders and involve only Green

Haven inmates. While the Non-Incarcerated

Plaintiffs

are understandably

distressed

by

restrictions on their incarcerated co-religionists’

opportunities to conduct MFWCBs and by the Green

Haven administrators’ arguably brusque and

incurious response to the Quaker inmates’ effort to

explain the religious function of these meetings, the

Non-Incarcerated Plaintiffs themselves are not

directly affected by any changes in the frequency of

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religious services that they do not attend and claim

no right to attend.

The Quarterly Meetings, on the other hand, are a

different matter. The well-pleaded allegations of the

complaint allege that Quarterly Meetings at which

members of affiliated regional Preparative or

Monthly Meetings gather play a significant role in

Quaker religious practice, and the Green Haven

authorities have for many years allowed nonincarcerated visitors to attend. The different injuries

alleged flow directly from the challenged policy

changes, and could be redressed by an injunction

reversing those changes. Accordingly, we are satisfied

that the Non-Incarcerated Plaintiffs have alleged

injuries to their constitutional rights sufficient to

confer Article III standing to challenge the scheduling

changeswith respect to the Quarterly Meetings.

B. Green Haven Meeting Standing

Plaintiffs further argue that Green Haven Meeting

has associational standing to pursue both

constitutional and statutory claims as an

unincorporated association. Defendants “do not

contest Green Haven Preparative Meeting’s standing

to sue based on the alleged injuries to its members.”

Appellees’ Br. 25 n. 9. “It is common ground that . . .

organizations can assert the standing of their

members.” Summers v. Earth Island Inst., 555 U.S.

488, 494 (2009). However, Defendants argue that

Green Haven Meeting lacks standing as an

institution, independent of its members’ standing, to

challenge the changed Green Haven policies because

it is not a “person residing in or confined to an

institution” under RLUIPA. 42 USC § 2000cc-1(a).

That argument is really a merits question about the

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scope of RLUIPA’s protections, which we address

below.

We conclude that the Non-Incarcerated Plaintiffs

have Article III standing to challenge the policy

changes relating to the Quarterly Meetings, and

Green Haven Meeting has Article III standing to

challenge all the policy changes. And of course, in any

event, the individual Incarcerated Plaintiffs

unquestionably have Article III standing to challenge

all of the policy changes at issue. Accordingly, we

have jurisdiction to address the merits of Plaintiffs’

claims, andwe thus turn to the merits of the appeal.

III. Irreparable Harm to Plaintiffs

In order to obtain a preliminary injunction,

Plaintiffs must show that they are likely to suffer

irreparable harm in the absence of injunctive relief.

The district court correctly found that there is “no

question” that the injury alleged by Plaintiffs

satisfies the irreparable harm requirement. Sp. App’x

at 11. “The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably

constitutes irreparable injury.” Elrod v. Burns, 427

U.S. 347, 373 (1976) (plurality opinion). We thus

conclude that, at least insofar as they challenge

substantive restrictions on their ability to conduct

religious services and meetings in accordance with

their beliefs, Plaintiffs have established that any

violation of their religious liberties would satisfy the

irreparable injury standard. 5

To the extent that Plaintiffs seek to challenge portions of

DOCCS’s Holy Day Calendar, Plaintiffs have waived any such

challenge because their request for injunctive relief below did

not specifically seek an order that DOCCS alter the calendar.

See Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d

34, 50 (2d Cir. 2015).

5

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IV. Likelihood of Success on the Merits

We consider next whether Plaintiffs are likely to

succeed on the merits of their claims, a prerequisite

for obtaining a preliminary injunction and the basis

of the district court’s denial of Plaintiffs’ injunction.

First, we consider whether, pursuant to the PLRA,

the

Incarcerated

Plaintiffs

exhausted

their

administrative remedies prior to seeking relief in the

district court. Next, we consider whether Plaintiffs

have otherwise shown a likelihood of success on the

merits of their claims. Plaintiffs principally challenge

the policy changes under the Free Exercise clause of

the First Amendment and RLUIPA. 6

A. Legal Framework

Under the PLRA, “a prisoner confined in any jail,

prison, or other correctional facility” may not bring an

action “with respect to prison conditions . . . until

such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). Under RLUIPA,

“[n]o government shall impose a substantial burden

on the religious exercise of a person residing in or

confined to an institution . . . unless the government

6

Plaintiffs allege claims under the Establishment Clause

of the First Amendment, the Equal Protection Clause of

Fourteenth Amendment, and state law. However, although they

recite the applicable legal standards for assessing the

constitutionality of state actions under the constitutional

provisions, they make no argument applying those standards to

the facts of this case that are separate from or independent of

their arguments under the Free Exercise Clause and RLUIPA,

and do not explain why they are entitled to a preliminary

injunction on those claims. Appellants’ Br. 31-34. Moreover, they

make no attempt to address their claims under New York state

law. Accordingly, those arguments have been waived for

purposes of this appeal, and we do not consider them in

addressing Plaintiffs’ entitlement to a preliminary injunction.

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demonstrates that imposition of the burden on that

person—(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental

interest.”42 U.S.C. § 2000cc-1(a). The Free Exercise

Clause of the First Amendment, which is applicable

to the States through the Fourteenth Amendment,

prohibits the government from making a law

“prohibiting the free exercise” of religion. Cruz v.

Beto, 405 U.S. 319, 322 (1972).

B. The Incarcerated Plaintiffs: Exhaustion of

Administrative Remedies

The Incarcerated Plaintiffs, as “prisoner[s] confined

in any . . . correctional facility,” 42 U.S.C. § 1997e(a),

are subject to the exhaustion requirements of the

PLRA. The PLRA requires “proper exhaustion” of

administrative remedies, meaning exhaustion in

“compliance with an agency’s deadlines and other

critical procedural rules,” Woodford v. Ngo, 548 U.S.

81, 90 (2006), “using all steps that the agency holds

out, and doing so properly.” Amador, 655 F.3d at 96

(internal quotation marks omitted). The PLRA

requires the exhaustion of remedies only insofar as

such remedies are “available to the inmate.” Hubbs v.

Suffolk County Sheriff’s Dep’t, 788 F.3d 54, 59 (2d

Cir. 2015) (internal quotation marks omitted). “An

administrative procedure is unavailable when (1) it

operates as a simple dead end – with officers unable

or consistently unwilling to provide any relief to

aggrieved inmates; (2) the scheme is so opaque that it

becomes, practically speaking, incapable of use,

meaning that some mechanism exists to provide

relief, but no ordinary prisoner can discern or

navigate it; or (3) when prison administrators thwart

inmates from taking advantage of a grievance process

through

machination,

misrepresentation,

or

23a

intimidation.” Hayes v. Dahlke, 976 F.3d 259, 268 (2d

Cir. 2020) (internal quotation marks omitted).

DOCCS regulations establish a three-step Inmate

Grievance Program (“IGP”) consisting of: (1) a

complaint to the Inmate Grievance Resolution

Committee (the “IGRC”) at the individual

correctional facility; (2) an appeal to the facility’s

superintendent; and (3) a further appeal to the

Department's Central Office Review Committee

(“CORC”). See N.Y. Comp. Codes R. & Regs.

(“N.Y.C.R.R.”) tit. 7, §§ 701.1(c), 701.5(a)-(d). The

parties agree that the Incarcerated Plaintiffs failed to

take any of these steps. Indeed, neither Johnson nor

Thompson nor anyone else from Green Haven

Meeting filed a complaint with the IGP clerk

regarding the availability of religious gatherings,

much less pursued such grievance through the final

level of review provided by DOCCS’s IGP. At issue

here is whether they should be required to do so. We

hold that they are.

Plaintiffs argue, based on language in DOCCS’s

IGP (Directive 4040) §701.3(d) that excludes claims

brought on behalf of a class of prisoners, that the

administrative procedures were not available to them

because DOCCS’s grievance process does not apply to

a matter which affects a class of inmates. The district

court was unpersuaded by that argument. See Sp.

App’x at 13-14. We similarly find it unavailing.

Directive 4040 states that individuals “personally

affected by a matter which affects a class of inmates

may only file a grievance on their own behalf.”

N.Y.C.R.R. tit. 7, § 701.3(d). As the district court

correctly found, this language makes clear that an

individual prisoner may still file a grievance on his

own behalf, even if other prisoners could benefit from

24a

the outcome. That inmates may not pursue actions

formally designated as class actions does not mean

that they may not pursue grievances “on their own

behalf,” even if their success could benefit others; to

the contrary, the regulations specifically provide that

they may. And if, under the DOCCS regulations, they

may, then, under the PLRA, they must. See Ngo, 548

U.S. at 85 (noting that the PLRA “strengthened” the

exhaustion requirement and that exhaustion of

remedies is “mandatory”).

Plaintiffs also appear to make a futility argument,

claiming that the grievance process was “a dead end”

such that they were not required to exhaust

administrative remedies. Appellants’ Br. at 52-53.

The bar for the availability of remedies, however, is

low. To constitute an “available” remedy, a process

requires only “the possibility of some relief.” Ross v.

Blake, 136 S. Ct. 1850, 1859 (2016) (emphasis added)

(quotation marks omitted). Here, the Incarcerated

Plaintiffs provide no evidence that a grievance

asserting that a prisoner’s religious liberty has been

violated by a limitation on the number or timing of

religious services or celebrations could not lead to a

change in the challenged prison policies. Plaintiffs

are thus unable to avoid the exhaustion requirement,

and the Incarcerated Plaintiffs’ RLUIPA claims fail.

Nor can the Incarcerated Plaintiffs avoid the

exhaustion requirement by suing under the banner of

Green Haven Meeting, of which they are members.

Plaintiffs argue that Green Haven Meeting is an

institutional entity distinct from its individual

members, and that, under RLUIPA, it is a “person”

whose religious exercise cannot be substantially

burdened absent a compelling government interest.

But they also contend that at the same time, Green

Haven Meeting is not a “prisoner” within the meaning

25a

of the PLRA and thus is not bound by the exhaustion

mandate. Plaintiffs rely on Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682 (2014), in support of their

argument. However, while Burwell held that a forprofit corporation had standing to assert religious

rights, it did not involve either a prison setting or an

unincorporated association of individuals, and did not

discuss an organization’s obligations to exhaust

administrative remedies under the PLRA. It is thus

of little utility in answering the question before us.

The problem with Plaintiffs’ attempt to avoid the

PLRA’s exhaustion requirement is that it attempts to

whipsaw the relevant statutes (RLUIPA and the

PLRA) in a manner that vitiates the PLRA’s

requirements. Moreover, their argument ignores the

full context of the word “person” in RLUIPA. We can

readily agree that Green Haven Meeting is a “person”

within the meaning of RLUIPA; the Dictionary Act, 1

U.S.C. § 1, provides that “[i]n determining the

meaning of any Act of Congress, unless the context

indicates otherwise[,] . . . the word[ ] “person” . . .

include[s] . . . associations . . . as well as individuals.”

But the relevant portion of RLUIPA does not grant

rights to all “persons.” Rather, it applies to “person[s]

residing in or confined to an institution.” 42 U.S.C.

§ 2000cc- 1(a). To the extent that Green Haven

Meeting can be, for statutory purposes, a “person,” it

plainly is not the kind of person that can “resid[e] in

or [be] confined to an institution.” Id. An incorporeal

entity cannot be imprisoned, even if all of its human

members are prisoners. To whatever extent one

might metaphorically consider an association

composed entirely of prisoners to reside, in some

sense, in prison, it derives that status entirely from

the status of its members. The action brought by

Green Haven Meeting is brought to vindicate the

26a

rights of its members, and those members, as

prisoners, are bound by the requirements of the

PLRA. In short, the Incarcerated Plaintiffs may not

avoid the exhaustion requirement simply by forming

an organization and then suing in the name of that

organization.

Accordingly, the claims of Green Haven Meeting,

as well as those of the Incarcerated Plaintiffs suing in

their own names, must be dismissed for failure to

exhaust administrative remedies. We thus turn to the

claims of the Non- Incarcerated Plaintiffs.

C. The Non-Incarcerated Plaintiffs

As discussed above, the Non-Incarcerated Plaintiffs

make no claims under RLUIPA, nor can they, not

being “person[s] residing in or confined to an

institution.” 42 U.S.C. § 2000cc-1(a). Moreover, they

lack standing to raise claims on any theory relating to

the limitation of the MFWCBs, which they have not

attended and which they claim no right to attend,

and they have not pressed on appeal their claims

under the Establishment Clause, the Equal

Protection Clause, or state law. Accordingly, we

confine our discussion to their claims that the

changes in the times of the Quarterly Meetings, and

the eventual cancellation of those meetings, infringed

their rights under the Free Exercise Clause of the

First Amendment.

In their briefs on appeal, Plaintiffs do not clearly

distinguish between the Free Exercise claims of the

Incarcerated

and

Non-Incarcerated

Plaintiffs,

arguing generally that the undifferentiated “Plaintiffs

[s]uffered a ‘[s]ubstantial [b]urden’” on their religious

practice. Appellants’ Br. at 40 (emphasis added). But

while the law applicable to prisoners’ religious rights

is well developed, Plaintiffs cite no authority

27a

addressing a prison regulation that affects the

religious liberty of non-prisoners who wish to attend

religious services with prisoners, relying for the most

part on the law applicable to prisoners.

That law must take account of both the rights of

prisoners to religious liberty and the security needs

inherent in prison administration. Precisely because

prisoners’ lives are (and for the most part must be)

closely controlled in ways that non-inmates’ lives are

not, courts must take care to ensure that prisoners’

ability to exercise their religions is not unnecessarily

impeded. “Although we recognize that great deference

should be accorded to prison officials as they

undertake the difficult responsibility of maintaining

order in prisons, we have long held that prisoners

should be afforded every reasonable opportunity to

attend religious services, whenever possible.” Young

v. Coughlin, 866 F.2d 567, 570 (2d Cir. 1989). “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.” Id. (internal

quotation marks omitted), citing O’Lone v. Estate of

Shabazz, 482 U.S. 342, 349 (1987). We afford

deference to prison administrators and judge prison

regulations alleged to infringe constitutional rights

under a “reasonableness test less restrictive than

that ordinarily applied” to claims of violations of

constitutional rights outside the prison setting.

O’Lone, 482 U.S. at 349 (internal quotation marks

omitted).

Courts have had fewer occasions to address prison

regulations alleged to infringe the religious liberty of

non-prisoners. In principle, it could be argued that

different considerations apply in such cases. Unlike

sentenced prisoners, the Non-Incarcerated Plaintiffs

28a

are free citizens who have committed no crime

justifying restrictions on their liberty. At the same

time, however, prison officials exercise no direct

control over the religious observance of persons

residing outside prison, as they do over prisoners. In

this case, for example, Quakers not confined at Green

Haven are free to schedule the number, location, and

timing of their meetings, both for worship and for the

conduct of business, at their own discretion and as

suits their interest and convenience. Still, as the

Supreme Court has noted in cases involving marriage

and mail censorship, regulations limiting association

of prisoners with outsiders do not affect inmates

alone, but can “work[] a consequential restriction on

the [constitutional] rights of those who are not

prisoners.” Procunier v. Martinez, 416 U.S. 396, 409

(1974), overruled on other grounds by Thornburgh,

490 U.S. 401.

Here, the Non-Incarcerated Plaintiffs claim a right

to associate with incarcerated persons for purposes of

collective worship and religious discussion. Like nonincarcerated persons who claim a First Amendment

right to associate with prisoners for other protected

purposes, such as family relationships and political or

artistic expression, they seek to enter the domain of

the prison itself, where security concerns are

pressing. After earlier suggesting that prison rules

affecting the rights of non-prisoners may be subject to

more searching scrutiny than regulations affecting

only prisoners, see Procunier, 416 U.S. at 409-12, the

Supreme Court ultimately concluded that even where

prison regulations affect the First Amendment rights

of non-prisoners, the “proper inquiry” remains the

standard, derived from Turner v. Safley, 482 U.S. 78

(1987), that asks “whether the regulations are

‘reasonably related to legitimate penological

29a

interests,’” Thornburgh, 490 U.S. at 404, quoting

Turner, 482 U.S. at 89. We think that the same

considerations apply to Free Exercise claims, such

that the Non-Incarcerated Prisoners cannot claim a

right to more searching review of prison regulations

affecting religious liberty than the reasonableness

standard applied to their incarcerated co-religionists.

“Courts must evaluate four factors in making the

reasonableness

determination:

whether

the

challenged regulation or official action has a valid,

rational connection to a legitimate governmental

objective; whether prisoners have alternative means

of exercising the burdened right; the impact on

guards,

inmates,

and

prison

resources

of

accommodating the right; and the existence of

alternative means of facilitating exercise of the right

that have only a de minimis adverse effect on valid

penological interests.” Salahuddin v. Goord, 467 F.3d

263, 274 (2d Cir. 2006) (footnote omitted). “The

prisoner must show at the threshold that the

disputed conduct substantially burdens his sincerely

held religious beliefs.” Id. at 274–75. “The defendants

then bear the relatively limited burden of identifying

the legitimate penological interests that justify the

impinging conduct; the burden remains with the

prisoner to show that these articulated concerns were

irrational.” Id. at 275 (internal quotation marks,

alteration, and citation omitted).

Plaintiffs argue that moving Quarterly Meetings

from Saturdays to weekdays “means that some

Friends cannot attend because of work commitments,

parental obligations, transportation limitations and

age.” Id. at 40. In support of their position, Plaintiffs

point out that “[s]pending extended time together is a

basic element of Quaker religious practice because

that is how Jesus taught his disciples to be a loving

30a

community.” Appellants’ Br. at 30. Plaintiffs

accordingly contend that DOCCS should modify the

Religious Holy Day Calendar to restore Quarterly

Meetings scheduled on Saturdays.

Defendants respond that Plaintiffs have failed to

clearly establish that Defendants’ actions concerning

Quarterly Meetings substantially burden Plaintiffs’

exercise of religion since Defendants rescheduled the

meetings for Friday evenings and did not terminate

them. Defendants argue that Plaintiffs’ desire to hold

Quarterly Meetings on Saturdays is driven by

convenience rather than religious significance and is

therefore insufficient to show a substantial burden.

Moreover, Defendants point out that they sought to

accommodate Green Haven Meeting’s concerns about

meeting length by offering to hold at least one of the

four Quarterly Meetings as a special event.

We conclude that Defendants have the better

argument. In finding that Plaintiffs “ha[d] not

established a clear likelihood of success in proving

that the restrictions create a substantial burden on

their free exercise rights,” the district court noted

that Plaintiffs themselves “describe[d] the moving of

the meetings as an inconvenience.” Sp. App’x at 18.

The district court properly cautioned that it was “not

making light of the inconvenience.” Id. at 19.

Plaintiffs noted that the scheduling change, inter

alia, “restricted the number of participants” at

Quarterly Meetings, “converted a full day (6 hours)

religious gathering to 2 hours,” and “eliminated food

from the event.” Appellants' Br. at 41-42. While these

are genuine burdens, particularly in light of the 35year history of Saturday Quarterly Meetings in

Green Haven without adverse incident, we conclude

that these burdens do not rise to the level of

“substantial” burdens on Plaintiffs’ religious exercise,

31a

at least in the constitutional sense. Like the district

court, we find it significant that nowhere in the

record do Plaintiffs claim that Saturdays have

religious significance in the Quaker community. The

point is not that only restrictions on practices

mandated by a prisoner’s religion can be a

substantial burden. To the contrary, we have noted

that “[n]either the Supreme Court nor we . . . have

ever held that a burdened practice must be mandated

in order to sustain a prisoner’s free exercise claim.”

Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003).

Rather , the point here is that Plaintiffs have failed to

establish that scheduling the Quarterly Meetings on

Saturdays (as opposed to any other day) bears any

religious significance whatsoever; the inconveniences

they suffer as a result of Defendants’ decision,

therefore, cannot constitute substantial burdens on

their religious exercise.

The scheduling shift proposed by the Green Haven

administration did not forbid Quarterly Meetings

between incarcerated and non-incarcerated Quakers

for communal religious services. 7 Unquestionably,

holding the services on weekday evenings rather than

Saturdays would inconvenience some of the Non7

Although Plaintiffs argue that the issue here is the

cancellation of the Quarterly Meetings, the record does not

support their claim that the issue should be so conceived. It is

true that after the Incarcerated Plaintiffs rejected the

rescheduled meetings proffered by the administration, the result

was that no Quarterly Meetings at all were scheduled. But that

outcome appears to have resulted as much from Plaintiffs’

intransigence as from any decision of Defendants. There is no

indication that Defendants ever rescinded their various

proposals for rescheduled Quarterly Meetings, and Defendants

even offered to hold one of those meetings as a “special event”

with extended hours.

32a

Incarcerated Plaintiffs, even to the point that it

might be impossible for some of them to attend. But

the particular Non-Incarcerated Plaintiffs have no

constitutional right to have services at Green Haven

scheduled to suit their convenience. Nor does any

inconvenience to particular individuals defeat the

ability of inmates and non-inmates to conduct joint

services, as other non-incarcerated Quakers might

find a weekday event easier to attend. Thus, the

various rescheduling proposals provided alternative

means for Quaker prisoners and their nonincarcerated brethren to fulfill the religious goal of

communal discussion and worship services, in ways

that imposed lessened security risks and a lesser

burden on prison staff than the risks and burden

posed by Plaintiffs’preferred schedule.

Moreover, the record reinforces the district court’s

conclusion that Defendants’ rescheduling decision

was supported by legitimate concerns – specifically,

that there were irregularities in attendance at

Quarterly Meetings, excessive call-outs, and

overcrowding in the meeting space. Thus, even if we

find that the scheduling changes do create a

substantial burden, we conclude that Defendants

have met their “burden of identifying the legitimate

penological interests that justify the impinging

conduct.” Salahuddin, 467 F.3d at 275. Here, the

Quarterly Meetings create additional security

concerns and disrupt equitable allocation of scarce

staffing and resources, since special events involving

outside visitors require extra security to protect

civilian visitors and to maintain safety inthe facility –

a burden that is heightened on weekends, when fewer

staff members are on duty. Defendants thus have a

legitimate penological interest in limiting Saturday

gatherings. It is possible that other accommodations

33a

or solutions could be imagined that would serve that

interest while preserving at least some Saturday

meetings involving non-incarcerated Friends. But as

the Supreme Court reminds us, “the realities of

running a penal institution are complex and

difficult,” such that “wide-ranging deference [must]

be accorded [to] the decisions of prison

administrators.” Jones v. N. C. Prisoners’ Lab. Union,

Inc., 433 U.S. 119, 126 (1977). Whatever the result

may be once the record is fully developed in this case,

at this stage of the proceedings, we cannot say that

Plaintiffs have established a likelihood of success on

the merits.

V.

Balance of Equities and the Public Interest

The final consideration in the preliminary

injunction analysis concerns whether the balance of

equities tips in favor of granting the injunction and

whether that injunction is in the public interest.

Defendants suggest that they have an important

interest in maintaining “institutional order and

security” and proper “allocation of prison resources.”

O’Lone, 482 U.S. at 350, 352. While there is no doubt

that Plaintiffs have a strong interest in their religious

freedoms, in the prison setting, we think that on

balance, the equities tip on favor of Defendants,

particularly where, as here, Defendants have offered

to hold Quarterly Meetings on any weekday that

Plaintiffs choose and continue to support and allocate

resources to the Quaker inmates.

Thus, Plaintiffs have not met their burden of

showing that a preliminary injunction is warranted in

this case.

34a

CONCLUSION

For the reasons stated above, we agree with the

district court that a preliminary injunction is not

warranted. The order of the district court is therefore

AFFIRMED.

35a

Appendix B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GREEN HAVEN

PRISON PREPARATIVE

MEETING OF THE

RELIGIOUS SOCIETY

OF FRIENDS, et al.,

Case No. 18-CV-8497

(KMK)

Plaintiffs,

v.

ORDER

NEW YORK STATE

DEPARTMENT OF

CORRECTIONS AND

COMMUNITY

SUPERVISION, et al.,

Defendants.

KENNETH M. KARAS, United States District Judge:

At Oral Argument on October 30, 2019, the Court

denied Plaintiffs’ Motion for a Preliminary

Injunction (the “PI Motion”). (Dkt. No. 61.) Before

the Court is Plaintiffs’ Motion for Reconsideration of

that ruling (the “Motion”). (Dkt. Nos. 62-63.) For the

following reasons, Plaintiffs’ Motion is denied.

I. Discussion

“Motions for reconsideration are governed by

Federal Rule of Civil Procedure 59(e) and Local Civil

Rule 6.3, which are meant to ensure the finality of

decisions and to prevent the practice of a losing party

examining a decision and then plugging the gaps of a

36a

lost motion with additional matters.” Arthur Glick

Truck Sales, Inc. v. Stuphen E. Corp, 965 F. Supp.

2d 402, 404 (S.D.N.Y. 2013) (citation and quotation

marks omitted), aff’d, 577 F. App’x 11 (2d Cir. 2014).

The standard for such motions is “strict” and “should

not be granted where the moving party seeks solely

to relitigate an issue already decided.” Shrader v.

CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see

also In re Gen. Motors LLC Ignition Switch Litig., No.

14-MC-2543, 2017 WL 3443623, at* 1 (S.D.N.Y. Aug.

9, 2017) (“It is well established that the rules

permitting motions for reconsideration must be

narrowly construed and strictly applied so as to avoid

repetitive arguments on issues that have been

considered fully by the [c]ourt.” (citation and

quotation marks omitted)). A movant may not “rely

upon facts, issues, or arguments that were previously

available but not presented to the court.” Indergit v.

Rite Aid Corp., 52 F. Supp. 3d 522, 523 (S.D.N.Y.

2014) (citation omitted). Nor is a motion for

reconsideration “the proper avenue for the

submission of new material.” Sys. Mgmt. Arts, Inc. v.

Avesta Tech., Inc., 106 F. Supp; 2d 519, 521 (S.D.N.Y.

2000). “Rather, to be entitled to reconsideration, a

movant must demonstrate that the [c]ourt overlooked

controlling decisions or factual matters that were put

before it on the underlying motion, which, had they

been considered might reasonably have altered the

result reached by the court.” Arthur Glick Truck

Sales, 965 F. Supp. 2d at 405 (citation and quotation

marks omitted); Shrader, 70 F.3d at 257 (same). In

other words, “[a] motion for reconsideration should be

granted only when the [movant] identifies an

intervening change of controlling law, the availability

of new evidence, or the need to correct a clear error or

prevent manifest injustice.” Alvarez v. City of New

37a

York, No. 11-CV-5464, 2017 WL 6033425, at *2

(S.D.N.Y. Dec. 5, 2017) (quoting Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729

F.3d 99, 104 (2d Cir. 2013)); see also Indergit, 52 F.

Supp. 3d at 523 (same).

The Court has reviewed the submitted documents.

(See Not. of Mot.; Pls.’ Mem. In Supp. of Mot. (“Pls.’

Mem.”); Defs.’ Mem. in Opp’n to Mot. (“Defs.’ Mem.”)

(Dkt. Nos. 62-63, 67)). Here, Plaintiffs have identified

no intervening change of controlling law, availability

of new evidence, or need to correct a clear error. See

Alvarez, 2017 WL 6033425, at *2. Instead, Plaintiffs

reiterate the same arguments that were expressly

considered and rejected in the Court’s ruling.

Because Plaintiffs “seek[] solely to relitigate an issue

already decided,” Shrader, 70 F.3d at 257, pointing to

no issue that the Court did not expressly consider

and no case law or fact that the Court overlooked, the

Motion is denied. See Cyrus v. City of New York, 450

F. App’x 24, 26 (2d Cir. 2011) (affirming denial of

motion for reconsideration where the plaintiff”fail[ed]

to point to any case law or other relevant information

that the district court overlooked,” and his arguments

merely “amount[ed] to a disagreement with the

district court’s conclusions with respect to the case

law that was already before it”); Bryant v. AB Droit

Audiovisuels, No. 07-CV- 6395, 2017 WL 2954764, at

*2 (S.D.N.Y. July 11, 2017) (“[A] party’s disagreement

with a [c]ourt’s decision is simply not a basis for

reconsideration.”); Women’s Integrated Network, Inc.

v. US. Specialty Ins. Co., No. 08-CV-10518, 2011 WL

1347001, at *1 (S.D.N.Y. Apr. 4, 2011) (“The Court

will not re-litigate the merits of the underlying

dispute on a motion for reconsideration.”), aff’d, 495

F. App’x 129 (2d Cir. 2012); Grand Crossing, L.P. v.

U.S. Underwriters Ins. Co., No. 03-CV-5429, 2008 WL

38a

4525400, at *4 (S.D.N.Y. Oct. 6, 2008) (“Because [the]

[p]laintiffs present no new factual information or law

that requires a different outcome in the underlying

motion, reconsideration is inappropriate.” (citation

omitted)); Davidson v. Scully, 172 F. Supp. 2d

458,464 (S.D.N.Y. 2001) (“Although plaintiff might

see this motion as a way to vent his frustration and

point out where he believes the Court erred in its

reasoning, that is not the purpose of a Rule 59(e)

motion for reconsideration.”).

II. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for

Reconsideration is denied.

The Clerk of the Court is respectfully requested to

terminate the pending Motion. (Dkt. Nos. 62-63).

SO ORDERED.

DATED:

December 3, 2019

White Plains, New York

/s/ Kenneth M. Karas

KENNETH M. KARAS

UNITED STATES DISTRICT

JUDGE

39a

Appendix C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GREEN HAVEN

PRISON PREPARATIVE

MEETING OF THE

RELIGIOUS SOCIETY

OF FRIENDS, et al.,

Plaintiffs,

v.

Case No. 18-CV-8497

(KMK)

ORDER

NEW YORK STATE

DEPARTMENT OF

CORRECTIONS AND

COMMUNITY

SUPERVISION, et al.,

Defendants.

KENNETH M. KARAS, District Judge:

For the reasons stated on the record at the Oral

Argument on October 30, 2019, the Court denies

Plaintiffs’ Motion for a Preliminary Injunction (the

“Motion”).

The Clerk of Court is directed to terminate the

pending Motion, (Dkt. No. 25).

Further, as discussed, Defendants are ordered to

submit a pre-motion letter to the Court by November

15, 2019, and Plaintiffs are ordered to respond to the

letter by November 22, 2019.

40a

Following receipt of the letters, the Court will

schedule a conference.

SO ORDERED.

DATED:

October 30, 2019

White Plains, New York

/s/ Kenneth M. Karas

KENNETH M. KARAS

UNITED STATES DISTRICT

JUDGE

41a

Appendix D

Excerpt of Transcript of Proceedings (Pages 1, 54–72)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------x

GREEN HAVEN PRISON

PREPARATIVE MEETING OF THE

RELIGIOUS SOCIETY OF FRIENDS,

an unincorporated association, et al.,

Plaintiffs,

Case No. 18-cv-8497

-vsNEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SUPERVISION, et al.,

Defendants.

---------------------------------------------------------x

United States Courthouse

White Plains, New York

October 30, 2019

11:17 a.m.

B e f o r e:

HONORABLE KENNETH M.

KARAS

District Judge

42a

A P P E A R A N C E S:

LAW OFFICE OF FREDERICK R. DETTMER

Attorneys for Plaintiffs

BY: FREDERICK R. DETTMER

STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL LETITIA

JAMES

Attorneys for Defendants

BY: STEVEN SCHULMAN

***

THE COURT: Right.

MR. SCHULMAN: But as I have said, the inmates

could have.

THE COURT: Right. But again, the mechanism –

the state administrative mechanism for grievances is

designed for incarcerated individuals. All right? So

the nonincarcerated individuals –

MR. SCHULMAN: I agree. I am not saying that –

THE COURT: I would have thought your

argument would have been that the Friends, the

nonincarcerated Friends, are not banned from coming

to the prison; they just have to do it on a different

day.

MR. SCHULMAN: I think that’s what it said.

THE COURT: Okay.

MR. SCHULMAN: I hope. Maybe it wasn’t clear,

but yes.

THE COURT: Okay.

MR. SCHULMAN: It is.

THE COURT: Okay. All right.

43a

MR. SCHULMAN: Thank you, Your Honor.

THE COURT: All right. All right. So since this is

an application for a preliminary injunction, I don’t

think it is advisable to have everybody wait while I

dot I’s and cross T’s among the opinions we have to

write and the other 500-plus cases that are on our

docket, so I am going to give you my ruling now.

In terms of the relevant facts, the plaintiffs are

either unincorporated associations or individuals

associated with the Religious Society of Friends, also

known as Quakers, as we have discussed. Two of the

individual plaintiffs are inmates at Green Haven.

The Green Haven Meeting consists of approximately

ten registered inmates and as many as 15 to 18

attending some of that. We talked about the numbers

also during the argument here; and everything that

is represented about the Quaker faith in plaintiffs’

memorandum of law and what counsel has said here

today of course is accepted, and I think, as Mr.

Schulman rightly concedes, there is no doubting the

sincerity of the individuals who are part of the

Friends who do practice their religion in prisons, and

even the historical basis for that, again, is not

doubted.

And of course there is an acceptance of the

representation of the religious significance of things

like the Quarterly Meeting, as well as the – which is

discussed at length in the papers, as well as the

Meetings for Worship With a Concern for Business.

Now, in terms of how that has played out at Green

Haven, this seems to be undisputed, but plaintiffs’

allegation is that from 1980 until approximately

2015, members of the Nine Partners Quarterly

Meeting and others came into Green Haven for a full

day of gatherings with Green Haven Meeting Friends

44a

at least once a year, and these meetings took place on

Saturdays. They included worship, business and

fellowship as well as lunch paid for by the visiting

Friends. Initially they were called seminars, and then

they were ultimately called Quarterly Meetings.

There are certain benefits to these meetings being on

Saturday. For example, it’s represented that it was

the only way that Friends with employment or

parenting responsibilities could attend; and also it

was helpful to those who had to travel long distances

to get to Green Haven; and of course, as I said, it’s

represented that the Quarterly Meetings are a

critical part of the practice of the Quaker faith.

Now DOCCS publishes a religious calendar, Holy

Day Calendar annually, and there is a whole series of

allegations about the calendar misidentifying the

Quaker group as Protestant. There was the colorful

description by Mr. Dettmer here about, apparently,

Quakers don’t know what Pentecost is. I doubt that’s

true, but anyways, there is a difference in the

religion, which I accept.

And so there are allegations that back in 2012, that

one of the Green Haven Meeting members had

requested DOCCS add Quarterly Meetings to the

Quakers’ page on the Religious Holy Day Calendar.

That was rejected by Cheryl Morris, who was then

the Director of Ministerial Family and Volunteer

Services, claiming that it already was in the religious

calendar.

In 2013, Davis submitted a request to Annucci, who

was the acting commissioner of DOCCS. That was

rejected by McKoy, who was the DOCCS deputy

commissioner for program services. The letter in

response is part of the record, but it is, in essence,

McKoy wrote that it wasn’t possible to implement all

45a

of the religious practices within the facilities that are

practiced in outside faith communities due to

institutional safety and security concerns, and then

citing the supposed Quaker section in the Religious

Holy Day Calendar.

Plaintiffs take issue with the veracity of those

representations indicating, again, that for years

DOCCS had been informed that the Religious Holy

Day Calendar was incorrect.

Then plaintiffs allege that there was a request for

Quarterly Meetings to Wayne Carroll, who was the

special subject supervisor as well as Reverend Dr.

Gideon Jebamani, the “Protestant Chaplain and Staff

Advisor.” Collado, who was then the deputy

superintendent of program services wrote back to

Davis asking to be advised of the, “Need or reason for

the Quarterly Meetings,” and plaintiffs alleged that

the Green Haven meeting provided Collado with,

“Substantial material and information in an effort to

explain the importance of the Quarterly Meetings.”

Notwithstanding that representation, Collado

terminated the Quarterly Meetings, according to

plaintiffs, writing, “It is not possible to implement all

the religious practices within the facilities that are

practiced in outside faith communities due to security

concerns, institutional safety, and logistical

consideration in this facility.”

And so, according to plaintiffs, the Green Haven

Meeting was not permitted to host a Quarterly

Meeting in Green Haven in 2015. That led to a

meeting between certain members of the Quaker

faith and from the New York Yearly Meeting and the

DOCCS leadership to discuss the possibility of

resuming these Quarterly Meetings. That meeting

apparently went nowhere.

46a

Then in September of 2015, the New York Yearly

Meeting wrote again to DOCCS reiterating the

importance of the Quarterly Meetings, but Morris

said that the issue had already been addressed in the

earlier meeting, and it would need to be discussed

with executive staff at each facility.

More requests were made to Green Haven

personnel for permission to include the Quarterly

Meetings in their Religious Holy Days Calendar,

which according to plaintiffs, were rejected on the

basis that the Quakers already had one designated

family event day, Pentecost.

Then there is the whole separate series of

allegations regarding the Meetings With Worship

With a Concern for Business. According to plaintiffs,

Kopp, who was the Deputy Superintendent of

Program Services at Green Haven, terminated Green

Haven Meetings, Weekly Meetings for Worship With

a Concern for Business. Kopp wrote a letter

explaining this to Rabbi Chill, but the meetings were

terminated because the Saturday, “Callout does not

appear to be a study group or a worship service,” and

that, “For a congregation of a total of eight inmates

having a Thursday study group and Friday worship

service appears to be sufficient.”

Plaintiffs take issue with the timing of this letter

because it’s soon after the prison officials had been

advised of the desire by individuals to go to court, and

there was a meeting in July of 2018 protesting the

cancellation, but that was never responded to,

according to plaintiffs.

The defendants take a different view at least of

some of the facts, saying that although the Quarterly

Meetings were not on the DOCCS Religious Holy

Days Calendar, they had been occurring anyway. So,

47a

for example, in 2014, there were Quarterly Meetings

at Green Haven on March 29, June 7, September 3rd

and December 27th, which were all Saturdays.

But in 2014, there were some events that increased

concern for security. So, for example, in August of ’14,

there was a corrections officer at Green Haven who

was arrested for taking a bribe to smuggle in some

marijuana. There was a complete lockdown ordered

at Green Haven in a facility-wide search, and

according to defendants, there was, “Credible

evidence that significant amounts of contraband had

been smuggled into the facility on a systemic –

systematic basis over time.” That’s all from Collado,

at paragraph 4 of his declaration.

So the whole administration at Green Haven got

replaced to fix these issues.

There were, according to Collado, some additional

contraband violations in 2015, including a visitor who

attempted to bring a razor blade into the facility.

There were a couple of visitors who tried to bring in

drugs. There was another visitor trying to smuggle in

cash and contraband, and then two inmates escaped

from Clinton, a different facility, in June of 2015,

with the help of civilian prison staff and smuggling

contraband into the facility.

And so there was a decision made to reduce the size

and number of special events at Green Haven,

according to Collado at paragraph 6; and so beginning

in 2015, what defendants say is that they moved the

meetings, the Quarterly Meetings, from Saturday to

Friday, and listed them in the special events calendar

for March 20, June 5, September 11 and December

11. That was rejected, defendants acknowledge, by

the Quaker community, so the defendants said that

Collado offered to permit the Quarterly Meetings on

48a

any weekday, but that was refused as well; and

according to defendants, the facility is willing to allow

the Quarterly Meetings to happen on four weekday

evenings per year, including having one Quarterly

Meeting per year with a meal, which would permit a

longer meeting.

With regard to the Meetings for Worship With a

Concern for Business, the defense view is that the

Friends inmates are permitted to meet weekly on

Fridays from 6:00 to 8:30 p.m. for worship and on

Thursdays from 6:00 to 8:30 for a study group, which

sessions normally can be led or were led by a civilian

volunteer.

According to the defense – this is from Kopp’s

declaration at paragraph 5 – Quaker inmates were

historically also permitted to hold, “An additional

callout on Saturdays from 12:30 to 2:00,” for

gatherings that were described as classes, but they

could be attended only by inmates, not by anybody

else, including civilians.

But because of overcrowding on Saturdays in the

area where the meetings were held, there had to be a

reevaluation; and so the way it’s described is that

defendants would claim that the callouts defined as,

“Permission to inmates to be at locations other than

assigned,” required to conduct the meetings where,

“Part of the problem was they were attended by more

non-Quakers than Quakers.”

And plaintiffs dispute a great deal of this, and we

talked about it, and I, of course, have read the

papers, and Mr. Dettmer went through some I think

what he considers some of the highlights of some of

the lack of basis or sort of lack of persuasiveness of

some of the claims, as well as lack of truth of some of

the claims.

49a

The complaint was filed in September of 2018. The

request for the PI was – first came by way of a letter

in late December of 2018. There was a conference in

February, and the briefing was done by July, sort of

mid to late July.

In terms of the legal standard, a preliminary

injunction has been described as, “An extraordinary

remedy,” and of course is not awarded as a matter of

right. It’s designed to preserve the status quo and

prevent irreparable harm until the Court has an

opportunity to rule on the lawsuit’s merits or to

change the status quo to avoid irreparable harm.

The standard is such that a party seeking a

preliminary injunction normally must establish first

irrevocable harm, and second, either a likelihood of

success on the merits or sufficiently serious questions

going to the merits of its claims to make a fair

grounds for litigation, plus the balance of the

hardships to being decidedly in favor of the moving

party; that the balance of hardships tips in its favor,

and that a preliminary injunction is in the public

interest.

The showing of irreparable harm is considered the

most important prerequisite, and to satisfy the

irreparable harm requirement, the plaintiff has to

demonstrate that, absent a preliminary injunction,

there will be a suffering of an injury that is neither

remote nor speculative, but actual and imminent, and

one that cannot be remedied if the Court waits until

the end of trial to resolve the harm. That’s from

Freedom Holdings versus Spitzer, 408 F.3d 112

at 114.

The heightened – the terms of the likelihood of

success on the merits or heightened standards for the

likelihood of success is appropriate where an

50a

injunction is mandatory or the injunction will provide

the movant with substantially all the relief sought

and that relief cannot be undone even if the

defendant prevails at a trial on the merits. That’s

from Schneiderman, 787 F.3d at 650.

In the case of a mandatory preliminary injunction,

which this clearly is, the movant must show a, “Clear

or substantial likelihood of success.” That’s from

Hoblock versus Albany County Board of Elections,

422 F.3d 77 at 97.

The balance of hardships just asks which of the two

parties would suffer most if the preliminary

injunction were wrongly decided, and the public

interests in this factor requires the Court to ensure

that the public interest would not be disserved by the

issuance of the preliminary injunction.

Now, for purposes of the irreparable harm, loss of

first First Amendment freedoms, even for minimal

periods

of

time,

unquestionably

constitutes

irreparable injury. That’s what the Supreme Court

said in Elrod versus Burns, 427 U.S. 347 at 373. So

there is really no question that the type of injury that

plaintiffs are alleging here satisfies the irreparable

harm requirement.

In terms of the likelihood of success on the merits,

the starting point is the exhaustion requirement. The

PLRA provides that, “No action shall be brought with

respect to prison conditions under Section 1983 or

any other federal law by a prisoner confined in jail,

prison or other correctional facility until such

administrative remedies as are available are

exhausted.” That’s 42 U.S.C. 1997e(a). This language

is mandatory, said the Supreme Court in Ross versus

Blake, 136 Supreme Court 1850 at 1856.

51a

Now, the grievance program that’s applicable here

is the DOCCS Inmate Grievance Program, the IGP.

So as the first step, the inmates submit a written

grievance to the Inmate Grievance Review

Committee, which attempts to resolve the issue

informally, and if there is no resolution, conducts a

hearing to answer the grievance or make a

recommendation to the superintendent. If the IGRC’s

determination is adverse to the inmate at the second

step,

the

inmate

appeals

to

the

prison

superintendent, and if the superintendent’s

determination is adverse to the inmate, at the third

and final step, the inmate appeals to the Central

Office Review Committee known as the CORC.

Only after CORC has received the appeal and

rendered a decision are New York grievance

procedures exhausted. All that is from King versus

Puershner, 2019 Westlaw 4519692 at Star 7.

The PLRA and its requirements applies to prisoner

suits whether they are pursuing monetary or

injunctive relief. That’s from Royster versus Spitzer,

2011 Westlaw 202044244 at Star 2.

Now, an inmate does not have to exhaust where the

administrative remedies are unavailable. The Ross

case lays out the three circumstances where that

happens: Where the procedure operates as a dead

end; where the procedure is so opaque that it becomes

incapable of use; or where the prison administrators

thwart inmates from taking advantage of the process

through

machination,

misrepresentation

or

intimidation.

In the Court’s view, the inmate plaintiffs have

failed to exhaust their administrative remedies as

required by the PLRA and the IGP, which

undermines their ability to show a likelihood of

52a

success on the merits. Indeed, it’s not clear that the

plaintiffs filed any grievance at all, much less

appealed it to the final stages or received a final

decision from CORC. So instead of trying to make

that point, what they – what plaintiffs suggest or

argue is a number of reasons why the PLRA does not

apply to them. So they argue that the issues raised by

the motion are excluded from the PLRA because the

PLRA does not apply to, “A matter which affects a

class of inmates,” because, “The facts relating to

defendant’s termination of Quarterly Meetings

plainly take this claim outside the facility.”

Because plaintiffs’ grievances are in part against

DOCCS central management, which is not covered by

the PLRA, because McKoy already denied the

addition of Quarterly Meetings to the calendar, and

there is, “No higher authority to grieve his decision.”

None of these arguments is persuasive. While it’s

true that the IGP states that, “Class actions are not

accepted,” inmate plaintiffs routinely raise issues

pertaining to religious practice through the grievance

procedures, even though their grievances might apply

to other inmates who share the same religious beliefs.

Among the cases so noting are Alster versus Fischer,

2017 Westlaw 3085842 at stars 1 through 3. Williams

versus King, 56 F. Supp 3d 308 to 316-317.

It’s also worth noting that the plaintiffs are not a

class. This is not a class action. This is a discrete

number of inmates who share a claim that their

religious right to practice their religion and also their

religion under the First Amendment under RLUIPA

are being violated. That is not a class. This class –

this would not be certified as a class action as it’s

currently alleged; but even if they wanted to proceed

as a class, the PLRA does not exempt them from

53a

exhaustion entirely, but provides, “Grievances which

are raised in terms of class actions should be referred

to the Inmate Liaison Committee.” Indeed, the PLRA

further specifies if an inmate is unsure whether an

issue is grievable, the inmate should, “File a

grievance, and the question will be decided through

the grievance process.”

What’s more is that Section 701.2(a) of the IGP

specifies that inmates may file a complaint with an

IGP clerk about, “The substance or application of any

written or unwritten policy, regulation, procedure or

rule,” and I will put in brackets, “of DOCCS, or any of

its program units.”

So to the extent, for example, that some of the

complaint here deals with DOCCS Religious Holy

Days Calendar, that does not exempt plaintiffs from

complying with the PLRA.

PLRA also says that merely addressing a letter to a

facility or central office is not a grievance. So there is

simply no claim that, for example, writing to McKoy

somehow qualifies as a grievance under the PLRA.

Nor does Kopp’s alleged lack of response excuse

plaintiffs from – the inmate plaintiffs – from

complying with the PLRA. So to begin, the letter

itself doesn’t really qualify as a grievance, and also it

only directs the parties – the PLRA, that is, only

directs the parties to attempt to resolve the grievance

informally, but then if that doesn’t occur, then the

grievance process has to move to a more formal

hearing process.

And “Where a prisoner files a grievance, and the

IGRC does not respond, the inmate must

nevertheless exhaust his appeal to the facility

superintendent and the CORC.” That’s from

54a

Hernandez versus Coffey, 2003 Westlaw 22241431 at

star 4.

Then there is the claim that the Green Haven

Meeting is an unincorporated association and not an

individual prisoner, and therefore, it does not have to

exhaust. So – and the legal basis for saying that it

has standing to pursue a First Amendment claim

comes from Hobby Lobby, but of course that case says

nothing about the PLRA. And the reality is the Green

Haven Meeting doesn’t have rights except

derivatively through the prisoners. Green Haven

Meeting is made up of the prisoners, and the notion

that the prisoners can circumvent the exhaustion

requirement and all that it’s supposed to accomplish

just by creating an association, or even being an

association, finds zero support in the case law. None.

To the extent that the plaintiffs suggest, in their

reply papers especially, that the PLRA process wasn’t

available to them because the administrators

thwarted the grievance process, there is absolutely no

support for this claim. All there is is basically a view

that the prison officials’ responses were confusing or

maybe they didn’t agree with them, but certainly

nothing close to suggesting – even close to suggesting

beatings or threats of retaliation for filing a

grievance, or that there was somehow no opportunity

for them to file the grievance. This is all discussed in

Ruggiero versus County of Orange, 467 F.3d 170 at

178. Nowhere is there a claim that any of the inmate

plaintiffs filed a grievance, tried to file a grievance,

and so therefore, their claim fails on the likelihood of

success on the merits.

Now, in terms of the other pieces of the merits, of

course, prisoners continue to retain constitutional

protection afforded by the free exercise clause. That’s

55a

been said many times. Among the cases saying so is

Ford versus McGinnis, 352 F.3d 582 at 588. “A

prisoner’s free exercise rights are balanced against

the interests of prison officials charged with complex

duties arising from the administration of the penal

system.” That’s from Brown versus Griffin, 2013

Westlaw 4688461 at star 5. And the Thornburgh

case, which we talked about earlier, 490 U.S. 401,

applies a similar standard to non-inmates.

Now to establish a First Amendment violation a

prisoner has to show that – the threshold is that the

disputed conduct substantially burdens his sincerelyheld religious beliefs. The defendants then bear the

relatively limited burden of identifying the legitimate

penological interests that justify the impinging

conduct. The burden remains with the prisoner to

show that these articulated concerns were irrational.

That is Salahuddin versus Goord, 467 F.3d 263 at

274-275.

RLUIPA protects institutionalized persons who are

unable to freely attend their religious needs and are

therefore dependent on the government’s permission

to – permission and accommodation for exercise of

their religion. That’s from Cutter versus Wilkinson,

544 U.S. 709 at 721. RLUIPA does call for a more

stringent standard than does the First Amendment.

So that the government is barred from imposing a

substantial burden on a prisoner’s free exercise

unless the challenged conduct or regulation,

“Furthers a compelling governmental interest and

the least restrictive means of furthering that

interest.” That’s from Holland versus Goord. In terms

of substantial burden, the circuit – our circuit has

assumed that substantial burden is a term of art in

the free exercise arena that Congress by so using it

56a

intended to incorporate the same use of it in the

RLUIPA context.

It does bear noting that the non-pri

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