Petition for Writ of Certiorari — D. K. Williams, Warden, et al., Petitioners v. Rafiq Sabir, et al.

APPENDIX

TABLE OF APPENDICES

Appendix A

Amended Opinion of the United States

Court of Appeals for the Second Circuit,

Sabir v.

Williams,

No.

19-3575

(Oct. 28, 2022) .............................................. App-1

Original Opinion of the United States

Court of Appeals for the Second Circuit,

Sabir v.

Williams,

No.

19-3575

(June 17, 2022) .......................................... App-30

Appendix B

Order of the United States District Court

for the District of Connecticut on the

Motion to Dismiss, Sabir v. Williams,

No. 3:17-cv-749 (VAB) (Aug. 27, 2019) ..... App-59

Appendix C

Order of the United States Court of

Appeals for the Second Circuit Denying

the Amended Petition for Rehearing En

Banc, Sabir v. Williams, No. 19-3575

(Dec. 29, 2022) ........................................... App-86

Appendix D

Second

Amended

Complaint,

Sabir v. Williams, No. 3:17-cv-749 (VAB)

(June 1, 2018) ............................................ App-88

Appendix E

Excerpts

of

Hearing

Transcript,

Sabir v. Williams, No. 3:17-cv-749 (VAB)

(June 25, 2019) ........................................ App-135

ii

Appendix F

Relevant Statute

42 U.S.C. § 2000bb-1 ........................ App-137

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________

No. 19-3575

________________

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs-Appellees,

v.

D.K. WILLIAMS, in her individual capacity

and official capacity as Warden of FCI Danbury,

HERMAN QUAY, in his individual capacity,

Defendants-Appellants,

MARK S. INCH, Director of Federal Bureau of Prisons,

THOMAS R. KANE, Director of Federal Bureau of

Prisons, HUGH J. HURWITZ, in his individual capacity

as Director of the Federal Bureau of Prisons,

Defendants.

________________

August Term, 2021

Argued: October 14, 2021;

Decided: June 17, 2022; Amended: October 28, 2022

Document No. 117

________________

Before:

WALKER, SACK, and CARNEY,

Circuit Judges.

App-2

AMENDED OPINION

Defendants-appellants D.K. Williams and

Herman Quay appeal from an order denying their

motion to dismiss in part and rejecting their qualified

immunity defense against the Religious Freedom

Restoration Act (“RFRA”) claims of plaintiffsappellees Rafiq Sabir and James Conyers. The

plaintiffs-appellees are practicing Muslims whose

religion requires them to perform daily congregational

prayers with as many other Muslims as are available.

According to the allegations in their complaint, while

Sabir and Conyers were incarcerated at the Federal

Correctional Institution in Danbury, Connecticut, the

defendants-appellants enforced a policy that

restricted group prayer to the prison’s chapel, despite

that facility’s frequent unavailability. As a result,

Sabir and Conyers were forced to forgo their religious

exercise of group prayer to avoid disciplinary action.

We conclude that the wardens are not entitled to

qualified immunity at this stage of the proceedings

because the pleadings do not establish that their

enforcement of the policy against Sabir and Conyers

was in service of a compelling interest, and it was

clearly established at the time of the violation that

substantially burdening an inmate’s religious exercise

without justification violates RFRA. We therefore

AFFIRM the order of the district court.

***

[Council list omitted]

SACK, Circuit Judge:

The plaintiffs, Rafiq Sabir and James Conyers,

are practicing Muslims who believe that they are

App-3

required under the precepts of their religion to

perform five daily congregational prayers with as

many other Muslims as are available and wish to

participate. Sabir and Conyers allege that while they

were incarcerated at the Federal Correctional

Institution in Danbury, Connecticut (“FCI Danbury”),

Warden D.K. Williams and Warden Herman Quay

enforced a policy that restricted prayer in groups of

more than two to the prison’s chapel, despite that

facility’s frequently unavailability. As a result, the

plaintiffs were forced to forgo their engagement in a

required religious practice to avoid disciplinary action.

The plaintiffs filed this suit against defendant

prison officials in the United States District Court for

the District of Connecticut, seeking injunctive relief

and damages on the grounds that FCI Danbury’s

communal prayer policy violated the Religious

Freedom Restoration Act (“RFRA”) and the Free

Exercise Clause of the First Amendment to the United

States Constitution. In August 2019, the district court

(Bolden, J.) granted the defendants’ motion to dismiss

the plaintiffs’ Second Amended Complaint in large

part, but declined to dismiss the plaintiffs’ RFRA

claims for damages against the defendants in their

individual capacities, holding that qualified immunity

was not available to Williams and Quay at the motionto-dismiss stage.

We agree with the district court that the

defendants-appellants are not entitled to qualified

immunity at this stage of the proceedings because the

allegations in the complaint and the documents

attached to it as exhibits do not establish that their

enforcement of the policy against Sabir and Conyers

App-4

was in service of a compelling interest, and it was

clearly established at the time of the violation that

substantially burdening an inmate’s religious exercise

without justification violates RFRA.

BACKGROUND

Factual Background

For the purposes of this appeal from the district

court’s denial of a motion to dismiss, we are required

“to accept as true those factual assertions set forth in

plaintiff[s’] complaint.” Charles W. v. Maul, 214 F.3d

350, 356 (2d Cir. 2000). In reviewing a motion to

dismiss, we “may consider [not only] the facts alleged

in the complaint, [but also] documents attached to the

complaint as exhibits, and documents incorporated by

reference in the complaint.” DiFolco v. MSNBC Cable

L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). According to

the complaint as thus augmented:

Plaintiffs Rafiq Sabir and James Conyers were

inmates at FCI Danbury, a low-security federal

prison, beginning in July 2014 and September 2016,

respectively. Defendant Herman Quay was the

Warden of FCI Danbury from July 2014 to December

2015; Defendant D.K. Williams was the Warden of

FCI Danbury at the time of the plaintiffs’ Second

Amended Complaint, dated June 1, 2018 (the “SAC”),

which was the operative pleading at the time of the

defendants’ motion to dismiss.

Individuals incarcerated at FCI Danbury have a

relatively high degree of autonomy: Many living

quarters remain unlocked, and inmates regularly

gather, with prison approval, in large groups for

activities ranging from inmate-led fitness classes to

App-5

sports and card games. FCI Danbury has several

recreational facilities, including “a recreation yard,

weight room, gymnasium, bathroom, wellness room,

hobbycraft [sic] room, music room, video viewing area

with game tables, the chapel facility, and several

offices.” SAC at 8, ¶ 29. The inmates also have access

to “the medical area, food services, education and

housing facilities, laundry, the barber shop, and the

prison work program area.” Id.

Sabir and Conyers are practicing Muslims. A

central aspect of their religious exercise is a prayer

known as a “salah,” which, according to the religion’s

tenets, adult Muslims are required to perform five

times each day. The plaintiffs possess the “sincerelyheld religious belief that if two or more Muslims are

together at a time of required prayer, they must pray

together behind one prayer leader” and cannot “break

up into smaller groups.” Id. at 6, ¶ 23. They explain

that performing group prayer with the largest possible

number of other Muslims “multiplies the blessings

and utility of prayer.” Id. at 5-6, ¶ 19.

The Federal Bureau of Prisons (“FBOP”) does not

have a formal policy categorically banning

congregational prayer within its facilities. Each

facility’s warden is, however, authorized to

temporarily restrict a specific religious practice if he

or she determines that the “practice jeopardizes the

facility’s safety and security.” Id. at 6-7, ¶ 24. At many

FBOP facilities—including those in which both Sabir

and Conyers were previously housed—prison officials

allowed congregational prayer without significant

restrictions.

App-6

In March 2014, FCI Danbury’s then-warden,

Maureen Baird, nonetheless instituted a policy

restricting prayer in groups of more than two people

to the prison’s chapel. The policy statement provided:

Congregate Prayer, outside of the Chapel, for

all faith groups will follow the following

guidelines:

a) Must get the approval of the location to

pray from work supervisor, program

supervisor, etc.

b) Prayer individually or in pairs is

permitted, however, group prayer of 3 or more

is restricted to the Chapel.

c) Prayers can be made at work detail sites,

school, or units during break times.

d) Prayer rug or clean towel is permitted to

cover the floor.

e) In case of institutional emergency or

instructed by staff prayers will be

terminated.

Id. at 8-9, ¶ 30 (alterations omitted). Although FCI

Danbury permitted congregational prayer in the

chapel, groups seeking to use the space could only do

so when chapel staff was present and the rooms were

not otherwise occupied or reserved. The facility was

“frequently unavailable” during the plaintiffs’ prayer

times. Id. at 9, ¶ 32.

In October 2014, Sabir was praying with two

other inmates in the auditorium when corrections

officers approached to inform them that group prayer

was only permitted in the chapel and that violating

App-7

the rule could result in discipline. Sabir and the others

explained to the officers that their religion required

them to perform congregational prayer five times per

day and that the chapel was frequently unavailable

during those times. The officers responded by

reiterating the terms of the prison’s group prayer

policy. As a result of this incident, Sabir was “fearful”

that he would be sanctioned or disciplined for

engaging in group prayer. Id. at 11, ¶ 41. Prison

officials also repeatedly informed Conyers that

congregational prayer outside of the chapel was not

allowed. He therefore felt compelled to refrain from

engaging in group prayer to avoid disciplinary action.

The plaintiffs allege that the wardens’ “enforcement of

the Policy prevent[ed] [them] from . . . engaging in

daily congregational prayer as mandated by [their]

sincerely-held religious beliefs.” Id. at 11, ¶¶ 41-42.

Sabir and Conyers have thus “been forced to choose

between acting in accordance with their sincere

religious beliefs and facing discipline at the prison,

including possible solitary confinement and loss of

other privileges.” Id. at 11, ¶ 44. According to the SAC,

“Defendants have offered no meaningful justification

for the [p]olicy” restricting group prayer. Id. at 9, ¶ 33.

Each plaintiff submitted an administrative

grievance asserting that the policy violated his right

to freely exercise his religion. Warden Quay denied

Sabir’s grievance in January 2015 but offered no

explanation beyond reiterating the content of the

policy, stating that “congregate prayer is not

restricted” because praying in pairs was allowed and

“congregate prayer is permitted in the Chapel.”

Response of H. Quay to Sabir (Jan. 27, 2015), J.A. 48.

Quay’s determination was subsequently upheld by

App-8

FBOP’s Regional Director, who wrote that FCI

Danbury’s congregate prayer policy was “a reasonable,

least restrictive alternative of accommodating prayer

by groups of three or more inmates in the chapel when

the schedule permits.” Response of J.L. Norwood to

Sabir (Mar. 11, 2015), J.A. 51. FBOP’s Administrator

of National Inmate Appeals later agreed, reiterating

the terms of the policy, and stating that it provided “a

reasonable and equitable opportunity to pursue your

religious beliefs and practices.” Response of Ian

Connors to Sabir (Sept. 27, 2016), J.A. 53.

In May 2017, Warden Williams denied Conyers’s

grievance, restating the policy and explaining that

that the prison’s Religious Services Department had

consulted with Muslim Imams and determined that

Muslims were not required to perform their five daily

prayers in groups of three or more. See Response of

D.K. Williams to Conyers (May 19, 2017), J.A. 56.

Williams’s determination was upheld by FBOP’s

Regional Director, who found that “the institution’s

policy on prayer does not ban group prayer.” Response

of M.D. Carvajal to Conyers (July 5, 2017), J.A. 58.

Instead, the Regional Director explained that “the

policy provides the necessary structure to promote

equity among all faith groups in regards to prayers in

the chapel area” and that “[t]his allowance offers you

a least restrictive alternative when congregational

prayer cannot be accommodated.” Id. The

Administrator of National Inmate Appeals concurred,

adding that the policy was “the least restrictive

alternative in order to afford inmates with more

opportunities to practice this religious observance

consistent with security and budgetary constraints.”

App-9

Response of Ian Connors to Conyers (Oct. 24, 2017),

J.A. 61.

After the initiation of this proceeding, Sabir and

Conyers were each transferred to another institution.

Procedural History

In May 2017, Sabir, acting pro se, initiated this

suit against Williams and the director of the FBOP,

alleging violations of the Free Exercise Clause of the

First Amendment, the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”), and the

Religious Land Use and Institutionalized Persons Act,

42 U.S.C. § 2000cc, et seq. (“RLUIPA”). The district

court dismissed Sabir’s suit for failure to pay a filing

fee, then reopened the case and dismissed it under the

screening provision of the Prison Litigation Reform

Act, 28 U.S.C. § 1915A.

In December 2017, the district court granted

Sabir’s motion to reopen the case and amend his

complaint. The court dismissed Sabir’s RLUIPA claim

because that statute applies only to state and local

governments, but it allowed his RFRA and Free

Exercise claims to proceed.

Sabir then filed the SAC, through newly obtained

counsel, in June 2018. The SAC added Conyers as an

additional plaintiff and named Quay as an additional

defendant. Sabir and Conyers asserted that FCI

Danbury’s communal prayer policy violated RFRA and

the Free Exercise Clause. They sought a declaration

that the policy was unlawful, injunctive relief

preventing the enforcement of the policy, and damages

from Williams and Quay in their individual capacities.

The defendants moved to dismiss the claims for

App-10

damages against Williams and Quay, and later moved

to dismiss the equitable claims as moot in light of

Sabir’s and Conyers’s respective transfers out of FCI

Danbury.

The district court granted in part and denied in

part the defendants’ motion to dismiss. See Sabir v.

Williams, No. 3:17-cv-749 (VAB), 2019 WL 4038331

(D. Conn. Aug. 27, 2019). It declined to dismiss the

plaintiffs’ RFRA claims for damages against the

defendants acting in their individual capacities,

concluding that the group prayer policy was “arguably

a substantial burden on the exercise of religion.” Id. at

*9. 1 The plaintiffs stated a claim by “detail[ing] the

religious importance of congregational prayer,”

showing “the burden the Policy has placed on [the

plaintiffs’] exercise of religion,” and “alleg[ing] that

FCI Danbury only applies this sort of burden to

religious activities, while other group activities

continued unencumbered.” Id.

The district court held that qualified immunity

was not available to Williams or Quay at the motionto-dismiss stage. The court explained that the policy

On appeal, we consider only the plaintiffs’ claim for

individual-capacity damages under RFRA, not under the First

Amendment. Before the district court, the defendants argued

that a Bivens claim “is the only avenue for damages under the

First Amendment” and claimed that the “[p]laintiffs s[ought] to

impermissibly expand Bivens to include a new context . . . .”

Sabir, 2019 WL 4038331, at *7-8. In response, the plaintiffs

conceded that “they only seek money damages against the

wardens in their individual capacity based on the Religious

Freedom Restoration Act[;] therefore Plaintiffs need not, and do

not, look to Bivens to seek damages.” Id. at *8 (internal quotation

marks omitted).

1

App-11

“may violate clearly established First Amendment

case law and the RFRA statute,” and, therefore,

decided that “it is plausible—at this stage—that

qualified immunity would not shield Defendants from

liability in their individual capacities.” Id. at *10-11.

The court found it “[s]ignificant[]” that in Salahuddin

v. Goord, 467 F.3d 263 (2d Cir. 2006) (“Salahuddin”),

the Second Circuit denied qualified immunity to

prison officials for religious liberties claims, even at

the later stage of summary judgment proceedings,

“because it was clearly established . . . that prison

officials may not substantially burden inmates’ right

to religious exercise without some justification . . . .”

Sabir, 2019 WL 4038331, at *11 n.3 (quoting

Salahuddin, 467 F.3d at 275-76).

The district court dismissed most of the plaintiffs’

equitable claims as moot in light of Sabir’s and

Conyers’s transfers. See id. at *5 (“[A]n inmate’s

transfer from a prison facility generally moots claims

for declaratory and injunctive relief against officials of

that facility.” (quoting Salahuddin, 467 F.3d at 272)).

The only surviving claim for equitable relief was

Sabir’s claim against FBOP’s Director, see id. at*6, but

in May 2020, Sabir voluntarily dismissed it. 2

We have jurisdiction to consider this appeal of the court’s

partial denial of the defendants’ motion to dismiss under 28

U.S.C. § 1291 through the collateral order doctrine. See Locurto

v. Safir, 264 F.3d 154, 162 (2d Cir. 2001) (“A denial by a district

court of a claim of qualified immunity—to the extent that it turns

on an issue of law—isa collateral order subject to immediate

appeal.”).

2

App-12

DISCUSSION

On appeal, the wardens assert that the district

court erred in denying their motion to dismiss the

plaintiffs’ individual-capacity damages claims because

the wardens are entitled to qualified immunity, even

at this early stage of the proceedings. We disagree.

They cannot point to assertions in the SAC or evidence

in its attachments that demonstrate that their

enforcement of the policy against Sabir and Conyers

was in service of a governmental interest. Because it

was clearly established at the time that substantially

burdening prisoners’ religious exercise without

justification violates RFRA, the wardens are not

entitled to qualified immunity.

I.

Standard of Review

“We review a district court’s denial of qualified

immunity on a motion to dismiss de novo, accepting as

true the material facts alleged in the complaint and

drawing all reasonable inferences in plaintiffs’ favor.”

Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2015) (internal

quotation marks omitted).

II. Qualified Immunity

A. Legal Analysis

We apply a two-step analysis to determine

whether qualified immunity bars a plaintiff’s claim

against government officials for civil damages related

to actions taken in the course of their official duties.

Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019).

“Pursuant to that analysis, ‘[q]ualified immunity

shields federal and state officials from money damages

unless [the] plaintiff pleads facts showing (1) that the

App-13

official violated a statutory or constitutional right, and

(2) that the right was “clearly established” at the time

of the challenged conduct.’” Id. (alterations in original)

(quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir.

2016)). When qualified immunity shields defendants

from liability, courts may “exercise their sound

discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009);

see also Francis, 942 F.3d at 140. 3 However, because

3 Before Pearson, courts were required to complete both steps

in every case, because “skip[ping] ahead” to the second step

without first holding that an official violated a plaintiff’s rights

might preclude “the law’s elaboration from case to case.” Saucier

v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court has

continued to recognize this well-founded concern, even after

Pearson introduced discretion as to the order in which courts may

address the prongs. See Camreta v. Greene, 563 U.S. 692, 704-06

(2011) (recognizing “that our regular policy of avoidance

sometimes does not fit the qualified immunity situation because

it threatens to leave standards of official conduct permanently in

limbo” and explaining that merits rulings in immunity-barred

cases are” self-consciously designed . . . with this Court’s

permission” to “establish[] controlling law and prevent[]

invocations of immunity in later cases”). Camreta warned of a

“repetitive cycle” in which a court repeatedly declines to address

the merits because immunity exists, and the official continues to

engage in the challenged practice because he will remain immune

until the right is clearly established. Id. at 706 & n.5. This cycle

could happen “again, and again, and again,” id. at 706, thereby

allowing “palpably unreasonable conduct [to] go unpunished,”

Kiselav. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,

dissenting).

Although this “repetitive cycle of qualified immunity defenses”

could be broken if the same merits questions “arise in a case in

which qualified immunity is unavailable,” the Court has warned

App-14

we conclude that the district court properly denied

qualified immunity to the defendants at the pleadings

stage, we must engage in both prongs of the analysis.

First, we decide that the plaintiffs have adequately

pled a violation of RFRA, and second, we conclude that

their rights were clearly established at the time of the

alleged violations.

B. Violation of RFRA

In the first step of the qualified immunity inquiry,

we must determine whether the SAC plausibly alleges

that the wardens’ enforcement of the group-prayer

policy against Sabir and Conyers violated RFRA. We

conclude that it does.

RFRA

prohibits

the

government

from

“substantially burden[ing] a person’s exercise of

religion” unless “application of the burden . . . (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.

§ 2000bb-1(a)-(b). To establish a prima facie RFRA

that “some kinds of constitutional questions do not often come up

in these alternative settings.” Camreta, 563 U.S.at 706 n.5 (citing

Pearson, 555 U.S. at 236 and County of Sacramento v. Lewis, 523

U.S. 833, 841 n.5 (1998)). Claims brought by incarcerated

individuals against officials at a specific institution likely fall into

that category. As evidenced by the case at bar, a prisoner’s

equitable claims could be mooted at any moment by his transfer

to a new facility. See Salahuddin, 467 F.3d at 272. Thus, these

circumstances present a higher likelihood that prisoners’ rights

do not become clearly established. Even if it were not clearly

established that the wardens violated RFRA, we would therefore

still address the merits question first to clearly establish the law

and prevent a vicious cycle of shielded misconduct.

App-15

violation, the plaintiffs must demonstrate that they

sought to engage in the exercise of religion and that

the defendant-officials substantially burdened that

exercise. The government then faces an “exceptionally

demanding” burden to show “that it lacks other means

of achieving its desired goal without imposing a

substantial burden on the exercise of religion by the

objecting parties . . . .” Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 728 (2014).

First, Sabir and Conyers’s performance of

congregational prayer is undoubtedly religious

exercise. The term “exercise of religion” extends

beyond “belief and profession” and encompasses “the

performance of . . . physical acts [such as] assembling

with others for a worship service.” Cutter v. Wilkinson,

544 U.S. 709, 720 (2005). “It is well established that

prisoners have a constitutional right to participate in

congregate religious services,” Salahuddin v.

Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (emphasis

added), and that same religious exercise is also

protected by RFRA, which Congress intended to cover

an even broader range of activity than the First

Amendment does, see Hobby Lobby Stores, Inc., 573

U.S. at 696. 4

Williams’s purported reliance on the advice of imams to

determine that Muslims do not need to perform the five daily

prayers in groups does not change this analysis. RFRA’s

definition of the “exercise of religion” broadly includes “any

exercise of religion, whether or not compelled by, or central to, a

system of religious belief.” Hobby Lobby Stores, Inc., 573 U.S. at

696 (quoting 42 U.S.C. § 2000cc-5(7)(A)). The “proper inquiry” is

whether Sabir’s and Conyers’ beliefs were “sincerely held and in

[their] own scheme of things, religious,” which the SAC

adequately alleges. Ford v. McGinnis, 352 F.3d 582, 598 (2d Cir.

4

App-16

Second, the wardens’ application of the groupprayer policy against Sabir and Conyers substantially

burdened that religious exercise. An incarcerated

plaintiff “easily satisfie[s]” his burden of proving that

a prison policy substantially burdens his religious

exercise when the policy “puts [him] to th[e] choice”

between” engag[ing] in conduct that seriously violates

[his] religious beliefs” or risking” serious disciplinary

action” for adhering to those beliefs. Holt v. Hobbs, 574

U.S. 352, 361 (2015) (internal quotation marks

omitted). 5 Sabir stopped engaging in congregate

prayer because he was “fearful” of being disciplined

after officers chastised his prayer group and

threatened” that violation of th[e] rule may result in

disciplinary action.” SAC at 10-11, ¶¶ 37-38; 41.

Officials

repeatedly

warned

Conyers

that

congregational prayer outside of the chapel was not

allowed, and “[r]ather than risk discipline for

engaging in congregational prayer . . . [he] refrained

from engaging in congregational prayer on many

occasions.” Id. at 11,¶ 43. Both plaintiffs “have been

forced to choose between acting in accordance with

their sincere religious beliefs and facing discipline at

the prison, including possible solitary confinement

2003) (emphasis and internal quotation marks omitted); see id.

(“[R]eligious authorities’ opinions that a particular practice is not

religiously mandated under Muslim law, without more, cannot

render defendants’ conduct reasonable.”).

Holt involved a challenge under RLUIPAto restrictions on

religious exercise and is relevant here because the statutory

provision in that case “mirrors RFRA and . . . thus allows

prisoners to seek religious accommodations pursuant to the same

standard as set forth in RFRA.” Holt, 574 U.S.at 357-58 (internal

quotation marks omitted).

5

App-17

and loss of other privileges.” Id., ¶ 44.” Because the

[group prayer] policy puts [the plaintiffs] to this

choice, it substantially burdens [their]religious

exercise.” Holt, 574 U.S. at 361. Moreover, “the

availability of alternative means of practicing

religion”—such as praying in pairs—is insufficient to

eliminate that substantial burden. Id.

Third, once plaintiffs have demonstrated that

defendants substantially burdened their religious

exercise, the defendants must establish that the

“application of the burden to the [plaintiffs]” is the

“least restrictive means of furthering [a] compelling

governmental interest.” 42 U.S.C. § 2000bb-1(b).

RFRA thus places an “exceptionally demanding”

burden on the wardens to show that they “lack[ed]

other means of achieving [their] desired goal without

imposing a substantial burden on the exercise of

religion by the objecting parties.” Hobby Lobby Stores,

Inc., 573 U.S. at 728. And because RFRA expressly

requires government officials to demonstrate a

compelling interest, it follows that prison officials

necessarily violate RFRA when they substantially

burden a plaintiff’s exercise of religion without

demonstrating that they had any interest, compelling

or otherwise, in doing so. See Salahuddin, 467 F.3d at

275-76 (“[P]rison officials may not substantially

burden inmates’ right to religious exercise without

some justification . . . .”). The wardens chose to press

this appeal at the motion-to-dismiss stage; therefore,

our consideration is limited to any interests and

evidence of narrow tailoring contained in the

allegations of the complaint or, as relevant here, any

facts reflected in the attachments to it. See

Chamberlain v. City of White Plains, 960 F.3d 100, 110

App-18

(2d Cir. 2020). From these documents, we can discern

no asserted governmental interest—much less a

compelling one—for the requirement that Sabir and

Conyers engage in group prayer only in the prison

chapel.

Quay’s and Williams’s denials of the plaintiffs’

administrative grievances were attached to the

complaint and may therefore be considered in

reviewing their motion to dismiss, but they are

ultimately unhelpful to their position. In denying

Sabir’s grievance, Quay declared that “congregate

prayer is not restricted” despite recognizing that

“group prayer of 3 or more is restricted to the Chapel.”

Response of H. Quay to Sabir (Jan. 27, 2015), J.A. 48.

His confusing paraphrase of the policy does nothing to

demonstrate that a compelling interest is at stake, or

that the policy is the least restrictive means of

furthering any such interest. In denying Conyers’s

grievance, Williams also restated the policy and

suggested that the prison had determined through

consultations with religious leaders that performing

congregate prayer five times per day was not

necessary. At most, Williams’s defense of the policy

could suggest that Conyers’s religious beliefs were not

widely held, but the administrative denial again fails

to offer any governmental interest for the policy’s

enforcement against Conyers or explain how this

enforcement was narrowly tailored to serve any such

interest.

The wardens contend that other attachments to

the complaint adequately reflect the governmental

interests served by their enforcement of the policy

against Sabir and Conyers. Specifically, they point to

App-19

subsequent statements by high-ranking FBOP

officials upholding the wardens’ denials. One response

from FBOP’s Regional Director offers the conclusory

statement that FCI Danbury’s policy was “a

reasonable,

least

restrictive

alternative

of

accommodating prayer” consistent with “the orderly

running of the institution” and with “staff

supervision” and “space” constraints. Response of J.L.

Norwood to Sabir (Mar. 11, 2015), J.A. 51. Another

response by FBOP’s Administrator of National Inmate

Appeals similarly declares that the policy was “the

least restrictive alternative” that would allow for

group prayer “consistent with security and budgetary

constraints.” Response of Ian Connors to Conyers (Oct.

24, 2017), J.A. 61.

Even taking into account these subsequent

attempts by non-defendant FBOP officials to justify

the policy’s existence more broadly, we cannot identify

any governmental interests on which Quay and

Williams relied when they enforced the policy against

Sabir and Conyers. “[P]rison officials must have been

pursuing the interest . . . when limiting [the

plaintiffs’] religious exercise,” and we have explained

that this requirement “ensures that prison officials

actually had, not just could have had, a legitimate

reason for burdening protected activity.” Salahuddin,

467 F.3d at 277 (emphasis added). Subsequent

statements from regional and national supervisory

officials shed no light on the wardens’ actual reasons

for enforcing the policy against Sabir and Conyers. For

the same reason, a panel of this Court similarly

refused to “impute[] the penological interest

articulated by [one official] onto [another].” Barnes v.

Fedele, 813 F. App’x 696, 701 (2d Cir.) (summary

App-20

order), cert. denied, 141 S. Ct. 884 (2020). Here,

“nothing in the record sets forth [the wardens’]

motivation or thinking,” and “[i]t is possible, after all,

that [the FBOP officials’] ‘understanding’ of the policy

. . . was not aligned with” that of the wardens. Id. The

wardens cannot “point[] to anything in the [complaint

or the evidence in the attachments] to show that they

relied on” compelling interests, and we cannot

“manufacture facts out of thin air.” Salahuddin, 467

F.3d at 275 (emphasis added); see Barnes v. Furman,

629 F. App’x 52, 57 (2015) (summary order)

(“[B]ecause defendants have not identified any

penological interests supporting the policy, we cannot

assess the reasonableness of their actions.”).

Even if we could impute the FBOP officials’

reasoning to the wardens, it would not suffice. Under

RFRA, it is not enough to offer “very broad terms”;

rather, RFRA demands “a more focused inquiry” that

“requires the Government to demonstrate that the

compelling interest test is satisfied through

application of the challenged law to . . . the particular

claimant whose sincere exercise of religion is being

substantially burdened.” Hobby Lobby Stores, Inc.,

573 U.S. at 726 (internal quotation marks omitted).

“This requires us to ‘loo[k] beyond broadly formulated

interests’ and to ‘scrutiniz[e] the asserted harm of

granting specific exemptions to particular religious

claimants . . . .’” Id. at 726-27 (quoting Gonzales v. O

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

418, 431 (2006)). The FBOP officials’ statements do

not explain how the wardens’ enforcement of this

policy against Sabir and Conyers served an interest in

“the orderly running of the institution,” or “security

and budgetary constraints.” Responses of J.L.

App-21

Norwood and Ian Connors, supra at J.A. 51, 61. They

offer only “broadly formulated interests,” which are

insufficient to satisfy RFRA. 6 Hobby Lobby Stores,

Inc., 573 U.S. at 726.

Further, FBOP officials offered only conclusory

assertions that the policy was the “least restrictive

alternative,” Responses of J.L. Norwood and Ian

Connors, supra at J.A. 51, 61, and even if these claims

were attributable to the wardens, we could not credit

them in our review since the plaintiffs plausibly allege

that the policy is more restrictive than necessary. See

Williams v. Annucci, 895 F.3d 180, 192 (2d Cir. 2018)

(“Taking the [government] at its word under such

circumstances would involve ‘a degree of deference

that is tantamount to unquestioning acceptance.’”

(quoting Holt, 574 U.S. at 364)). Indeed, it seems

highly unlikely that the policy is narrowly tailored

considering the fact that, according to the SAC,

comparable secular activities—including inmate-led

fitness classes and card games—do not face similar

restrictions. See Williams, 895 F.3d at 193

(“[U]nexplained disparate treatment of ‘analogous

nonreligious conduct’ leads us to suspect that a

narrower policy that burdens [the plaintiffs] to a lesser

6 This not to say that the plaintiffs would necessarily fail to

state a claim under RFRA if the wardens, in their responses to

the plaintiffs’ grievances, had identified a sufficiently specific

interest furthered by the policy. So long as the plaintiffs plausibly

allege that any purported interests are pretextual—as they have

done here by asserting that there is no meaningful justification

for the policy and pointing to comparable secular activities that

are not restricted—the legitimacy of the officials’ justification for

the policy would be an issue of fact incapable of resolution at the

motion-to-dismiss stage.

App-22

degree is in fact possible.”); Hobby Lobby Stores, Inc.,

573 U.S. at 730 (noting that the government “itself has

demonstrated that it has at its disposal an approach

that is less restrictive” because it “has already

established an accommodation” for others). 7

Based on the pleadings and other material

available to us on review, we thus conclude that Sabir

and Conyers have plausibly alleged that the wardens’

enforcement of the group-prayer policy against them

violated RFRA.

C. Whether the Right was “Clearly Established”

Having determined that the plaintiffs pled a

RFRA violation, we must address the second prong of

the qualified immunity analysis: whether” the right

[at issue] was clearly established at the time of the

challenged conduct.” Francis, 942 F.3d at 139

(internal quotation marks omitted). We conclude that

the plaintiffs’ rights under RFRA were clearly

established at the time of the alleged violations.

1.

Legal Standard

Although the scope of qualified immunity is

considered broad enough to protect “all but the plainly

incompetent or those who knowingly violate the law,”

itis not available when an officer’s actions are not

objectively reasonable in light of clearly established

This “under inclusiveness” also counsels against a finding

that the policy serves a compelling governmental interest.

Williams, 895 F.3d at 189; see also id. at 191 (“Such unexplained

disparate treatment of ‘analogous nonreligious conduct’ leads us

to question whether the [government’s] interest . . . is as

compelling as it suggests . . . .”).

7

App-23

law. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)

(internal quotation marks omitted). “To determine

whether the relevant law was clearly established, we

consider the specificity with which a right is defined,

the existence of Supreme Court or Court of Appeals

case law on the subject, and the understanding of a

reasonable officer in light of preexisting law.” Terebesi

v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014). Precedent

“directly on point” is not required for law to be clearly

established, District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018), and “[i]t is not necessary, of course,

that the very action in question has previously been

held unlawful,” Abbasi, 137 S. Ct. at 1866 (internal

quotation marks omitted). Thus, “the absence of a

decision by this Court or the Supreme Court directly

addressing the right at issue will not preclude a

finding that the law was clearly established so long as

preexisting law clearly foreshadows a particular

ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92

(2d Cir. 2015) (internal quotation marks and brackets

omitted).

2.

Qualified Immunity at the Pleadings Stage

The Supreme Court has “repeatedly . . . stressed

the importance of resolving immunity questions at the

earliest possible stage in litigation.” Hunter v. Bryant,

502 U.S. 224, 227 (1991). “But there is an obvious, if

rarely expressed, corollary to that principle: The

immunity question cannot be resolved before the

earliest possible stage, i.e., prior to ascertainment of

the truth of the plausible factual allegations on which

a finding of qualified immunity is premised.”

Chamberlain, 960 F.3d at 110 (internal quotation

marks and citation omitted).

App-24

The wardens chose to press their qualified

immunity defense at the pleadings stage, and they

therefore must face the “more stringent standard

applicable to this procedural route.” McKenna v.

Wright, 386 F.3d 432, 436 (2d Cir. 2004). Specifically,

“the facts supporting the defense [must] appear on the

face of the complaint,” id., or in its attachments and

documents incorporated by reference, DiFolco v.

MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.

2010). 8 On a motion to dismiss, the plaintiffs are

“entitled to all reasonable inferences from the facts

alleged, not only those that support [their] claim, but

also those that defeat the immunity defense.”

McKenna, 386 F.3d at 436.

For this reason, we have explained that

“advancing qualified immunity as grounds for a

motion to dismiss is almost always a procedural

mismatch.” Chamberlain, 960 F.3d at 111. Although it

is possible for a qualified immunity defense to succeed

on a motion to dismiss, see Liberian Cmty. Ass’n of

Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir.

2020), such a defense “faces a formidable hurdle . . .

and is usually not successful,” Field Day, LLC v.

County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)

(internal quotation marks omitted); see also

Chamberlain, 960 F.3d at 110 (“[A]s a general rule, the

defense of qualified immunity cannot support the

grant of a [Rule] 12(b)(6) motion.” (internal quotation

marks omitted)).

8 A previous version of this opinion referred to a since-overruled

pleading standard. The reference has been deleted. We conclude

that nothing further is required to correct the error.

App-25

3.

Application

A reasonable officer should have known, based on

clearly established law, that denying a Muslim inmate

the ability to engage in group prayer without any

justification or compelling interest, as alleged in the

SAC, violates RFRA.

In 2006, we held in Salahuddin that it was clearly

established that prison officials cannot substantially

burden inmates’ religious exercise without offering

any justification. 467 F.3d at 275-76. There, we

concluded that prison officials violated inmates’

religious freedom under both RLUIPA and the First

Amendment by requiring Sunni Muslims and Shi’ite

Muslims to pray and fast jointly for Ramadan. See id.

at 270, 275. Defendants had “not pointed to anything

in the record to show that they relied on legitimate

penological justifications” and “our review of the

record [did not] reveal any such evidence.” Id. at 275.

“Without some support in the record, we [could not]

find that [prison] officials were worried that separate

services would endanger inmates, or were short on

space for separate services, or had some other reason

for mandating the joint services.” Id. “Although the

facts at trial might [have] show[n] otherwise,” even at

the summary judgment stage in Salahuddin, the lack

of evidence of the policy’s justification “establish[ed]

that [the plaintiff’s] free-exercise rights were

substantially burdened by a joint-worship policy not

justified by . . . [a] compelling governmental interest

. . . .” Id.

In addition to showing that violations of the

plaintiff’s constitutional and statutory rights had

occurred, the lack of justification for the policy’s

App-26

enforcement in the record made clear that “[q]ualified

immunity [was] not appropriate” even at the summary

judgment stage “because it was clearly established at

the time of the alleged violations that prison officials

may not substantially burden inmates’ right to

religious exercise without some justification.” Id. at

275-76. “[W]e [could not] say as a matter of law that it

was objectively reasonable for any defendant to

believe that the facts as they [stood] on summary

judgment showed no violation of a clearly established

right.” Id. at 276.

In the case at bar, we are at an even earlier stage

of litigation than we were in Salahuddin. We are

limited here to the allegations in the complaint and

the evidence in the attachments to it. The wardens

cannot point to any justification in that material for

their imposition of a substantial burden on Sabir’s and

Conyers’s religious exercise. 9 To repeat yet again, as

in Salahuddin, “although the facts at trial” or

summary judgment “might show otherwise,” we

cannot “manufacture [such] facts out of thin air.” Id.

at 275. Because it was clearly established at the time

of the alleged violations of Sabir and Conyers’s RFRA

rights that the wardens could “not substantially

burden inmates’ right to religious exercise without

Nor can the officials seriously dispute that it was clearly

established that preventing a prisoner from engaging in

congregational prayer constitutes a substantial burden on the

prisoner’s religious exercise. As we explained above, we have

consistently recognized that policies restricting access to group

prayer impose a burden on prisoners’ free exercise rights. See

Salahuddin v. Coughlin, 993 F.2d at 308; Young v. Coughlin, 866

F.2d 567, 570 (2d Cir. 1989).

9

App-27

some justification,” “[q]ualified immunity is not

appropriate at this stage” of the proceedings. Id. at

275-76. 10

We reject the wardens’ argument that

Salahuddin’s holding is an “abstract legal principle”

that “cannot establish law for purposes of qualified

immunity.” Appellants’ Br. at 17. There are, of course,

some contexts in which a higher degree of specificity

is required to establish the law for purposes of

qualified immunity than in others. For example, the

Fourth Amendment’s prohibition of “unreasonable

searches and seizures” is an “abstract right[]” because

“it may be difficult for an officer to know whether a

search or seizure will be deemed reasonable given the

precise situation encountered.” Abbasi, 137 S. Ct. at

1866; see also Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(per curiam) (“Such specificity is especially important

10 Our decision should not, of course, be read to suggest that the

district court should automatically grant summary judgment to

defendants on qualified immunity grounds upon the introduction

of any evidence that their enforcement of the policy served a

compelling interest. On a motion for summary judgment, any

“unchallenged and unresolved factual allegations” will be

“viewed in the light most favorable to” Sabir and Conyers.

Salahuddin, 467 F.3d at 275. It may be that the qualified

immunity issue can only be resolved at trial if, for instance, it

appears that a justification offered by the defendants may be

pretextual. Id. at 277 (holding that officials must prove they were

“pursuing the interest . . . when limiting [the plaintiff’s] religious

exercise,” so as to “ensure[] that prison officials actually had, not

just could have had, a legitimate reason for burdening protected

activity”). For example, a purported interest in security may be

pretextual if comparable secular activities posing identical

security concerns are not restricted. See Williams, 895 F.3d at

191-92.

App-28

in the Fourth Amendment context, where the Court

has recognized that it is sometimes difficult for an

officer to determine how the relevant legal doctrine . . .

will apply to the factual situation the officer

confronts.” (internal quotation marks and alteration

omitted)). No such concerns are present here. Based

on RFRA’s requirements, it is not “difficult for an

[official] to know whether” an unjustified substantial

burden on religious exercise “will be deemed

reasonable.” Abbasi, 137 S. Ct. at 1866. As the text of

the statute itself explains: “Government may

substantially burden a person’s exercise of religion

only if it demonstrates that application of the burden

to the person . . . is in furtherance of a compelling

governmental interest . . . .” 42 U.S.C. § 2000bb-1

(emphasis added); see also Okin v. Vill. of CornwallOn-Hudson Police Dep’t, 577 F.3d 415, 433-34 (2d Cir.

2009) (noting that courts “may examine statutory or

administrative provisions in conjunction with

prevailing circuit or Supreme Court law to determine

whether an individual had fair warning that his or her

behavior would violate the victim’s constitutional

rights.”). Put another way, if an official substantially

burdens a sincere religious exercise but cannot point

to evidence that the application of the burden was in

service of any interest—let alone a compelling one—

the official has violated RFRA.

Thus, the wardens are not entitled to dismissal of

the SAC on the basis of qualified immunity because

our case law, in conjunction with the text of RFRA,

clearly established at the time of the events at issue

that substantially burdening Sabir’s and Conyers’s

religious exercise with no justification, as was alleged

by the plaintiffs, violated RFRA.

App-29

CONCLUSION

We have considered the parties’ remaining

arguments on appeal and conclude that they are

without merit. For the reasons set forth above, we

affirm the district court’s order.

App-30

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________

No. 19-3575

________________

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs-Appellees,

v.

D.K. WILLIAMS, in her individual capacity

and official capacity as Warden of FCI Danbury,

HERMAN QUAY, in his individual capacity,

Defendants-Appellants,

MARK S. INCH, Director of Federal Bureau of Prisons,

THOMAS R. KANE, Director of Federal Bureau of

Prisons, HUGH J. HURWITZ, in his individual capacity

as Director of the Federal Bureau of Prisons,

Defendants.

________________

August Term, 2021

Argued: October 14, 2021;

Decided: June 17, 2022

Document No. 88

________________

Before:

WALKER, SACK, and CARNEY,

Circuit Judges.

ORIGINAL OPINION

Defendants-appellants D.K. Williams and

Herman Quay appeal from an order denying their

App-31

motion to dismiss in part and rejecting their qualified

immunity defense against the Religious Freedom

Restoration Act (“RFRA”) claims of plaintiffsappellees Rafiq Sabir and James Conyers. The

plaintiffs-appellees are practicing Muslims whose

religion requires them to perform daily congregational

prayers with as many other Muslims as are available.

According to the allegations in their complaint, while

Sabir and Conyers were incarcerated at the Federal

Correctional Institution in Danbury, Connecticut, the

defendants-appellants enforced a policy that

restricted group prayer to the prison’s chapel, despite

that facility’s frequent unavailability. As a result,

Sabir and Conyers were forced to forgo their religious

exercise of group prayer to avoid disciplinary action.

We conclude that the wardens are not entitled to

qualified immunity at this stage of the proceedings

because the pleadings do not establish that their

enforcement of the policy against Sabir and Conyers

was in service of a compelling interest, and it was

clearly established at the time of the violation that

substantially burdening an inmate’s religious exercise

without justification violates RFRA. We therefore

AFFIRM the order of the district court.

***

[Council list omitted]

SACK, Circuit Judge:

The plaintiffs, Rafiq Sabir and James Conyers,

are practicing Muslims who believe that they are

required under the precepts of their religion to

perform five daily congregational prayers with as

many other Muslims as are available and wish to

App-32

participate. Sabir and Conyers allege that while they

were incarcerated at the Federal Correctional

Institution in Danbury, Connecticut (“FCI Danbury”),

Warden D.K. Williams and Warden Herman Quay

enforced a policy that restricted prayer in groups of

more than two to the prison’s chapel, despite that

facility’s frequently unavailability. As a result, the

plaintiffs were forced to forgo their engagement in a

required religious practice to avoid disciplinary action.

The plaintiffs filed this suit against defendant

prison officials in the United States District Court for

the District of Connecticut, seeking injunctive relief

and damages on the grounds that FCI Danbury’s

communal prayer policy violated the Religious

Freedom Restoration Act (“RFRA”) and the Free

Exercise Clause of the First Amendment to the United

States Constitution. In August 2019, the district court

(Bolden, J.) granted the defendants’ motion to dismiss

the plaintiffs’ Second Amended Complaint in large

part, but declined to dismiss the plaintiffs’ RFRA

claims for damages against the defendants in their

individual capacities, holding that qualified immunity

was not available to Williams and Quay at the motionto-dismiss stage.

We agree with the district court that the

defendants-appellants are not entitled to qualified

immunity at this stage of the proceedings because the

allegations in the complaint and the documents

attached to it as exhibits do not establish that their

enforcement of the policy against Sabir and Conyers

was in service of a compelling interest, and it was

clearly established at the time of the violation that

App-33

substantially burdening an inmate’s religious exercise

without justification violates RFRA.

BACKGROUND

Factual Background

For the purposes of this appeal from the district

court’s denial of a motion to dismiss, we are required

“to accept as true those factual assertions set forth in

plaintiff[s’] complaint.” Charles W. v. Maul, 214 F.3d

350, 356 (2d Cir. 2000). In reviewing a motion to

dismiss, we “may consider [not only] the facts alleged

in the complaint, [but also] documents attached to the

complaint as exhibits, and documents incorporated by

reference in the complaint.” DiFolco v. MSNBC Cable

L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). According to

the complaint as thus augmented:

Plaintiffs Rafiq Sabir and James Conyers were

inmates at FCI Danbury, a low-security federal

prison, beginning in July 2014 and September 2016,

respectively. Defendant Herman Quay was the

Warden of FCI Danbury from July 2014 to December

2015; Defendant D.K. Williams was the Warden of

FCI Danbury at the time of the plaintiffs’ Second

Amended Complaint, dated June 1, 2018 (the “SAC”),

which was the operative pleading at the time of the

defendants’ motion to dismiss.

Individuals incarcerated at FCI Danbury have a

relatively high degree of autonomy: Many living

quarters remain unlocked, and inmates regularly

gather, with prison approval, in large groups for

activities ranging from inmate-led fitness classes to

sports and card games. FCI Danbury has several

recreational facilities, including “a recreation yard,

App-34

weight room, gymnasium, bathroom, wellness room,

hobbycraft [sic] room, music room, video viewing area

with game tables, the chapel facility, and several

offices.” SAC at 8, ¶ 29. The inmates also have access

to “the medical area, food services, education and

housing facilities, laundry, the barber shop, and the

prison work program area.” Id.

Sabir and Conyers are practicing Muslims. A

central aspect of their religious exercise is a prayer

known as a “salah,” which, according to the religion’s

tenets, adult Muslims are required to perform five

times each day. The plaintiffs possess the “sincerelyheld religious belief that if two or more Muslims are

together at a time of required prayer, they must pray

together behind one prayer leader” and cannot “break

up into smaller groups.” Id. at 6, ¶ 23. They explain

that performing group prayer with the largest possible

number of other Muslims “multiplies the blessings

and utility of prayer.” Id. at 5-6, ¶ 19.

The Federal Bureau of Prisons (“FBOP”) does not

have a formal policy categorically banning

congregational prayer within its facilities. Each

facility’s warden is, however, authorized to

temporarily restrict a specific religious practice if he

or she determines that the “practice jeopardizes the

facility’s safety and security.” Id. at 6-7, ¶ 24. At many

FBOP facilities—including those in which both Sabir

and Conyers were previously housed—prison officials

allowed congregational prayer without significant

restrictions.

In March 2014, FCI Danbury’s then-warden,

Maureen Baird, nonetheless instituted a policy

App-35

restricting prayer in groups of more than two people

to the prison’s chapel. The policy statement provided:

Congregate Prayer, outside of the Chapel, for

all faith groups will follow the following

guidelines:

a) Must get the approval of the location to

pray from work supervisor, program

supervisor, etc.

b) Prayer individually or in pairs is

permitted, however, group prayer of 3 or more

is restricted to the Chapel.

c) Prayers can be made at work detail sites,

school, or units during break times.

d) Prayer rug or clean towel is permitted to

cover the floor.

e) In case of institutional emergency or

instructed by staff prayers will be

terminated.

Id. at 8-9, ¶ 30 (alterations omitted). Although FCI

Danbury permitted congregational prayer in the

chapel, groups seeking to use the space could only do

so when chapel staff was present and the rooms were

not otherwise occupied or reserved. The facility was

“frequently unavailable” during the plaintiffs’ prayer

times. Id. at 9, ¶ 32.

In October 2014, Sabir was praying with two

other inmates in the auditorium when corrections

officers approached to inform them that group prayer

was only permitted in the chapel and that violating

the rule could result in discipline. Sabir and the others

explained to the officers that their religion required

App-36

them to perform congregational prayer five times per

day and that the chapel was frequently unavailable

during those times. The officers responded by

reiterating the terms of the prison’s group prayer

policy. As a result of this incident, Sabir was “fearful”

that he would be sanctioned or disciplined for

engaging in group prayer. Id. at 11, ¶ 41. Prison

officials also repeatedly informed Conyers that

congregational prayer outside of the chapel was not

allowed. He therefore felt compelled to refrain from

engaging in group prayer to avoid disciplinary action.

The plaintiffs allege that the wardens’ “enforcement of

the Policy prevent[ed] [them] from . . . engaging in

daily congregational prayer as mandated by [their]

sincerely-held religious beliefs.” Id. at 11, ¶¶ 41-42.

Sabir and Conyers have thus “been forced to choose

between acting in accordance with their sincere

religious beliefs and facing discipline at the prison,

including possible solitary confinement and loss of

other privileges.” Id. at 11, ¶ 44. According to the SAC,

“Defendants have offered no meaningful justification

for the [p]olicy” restricting group prayer. Id. at 9, ¶ 33.

Each plaintiff submitted an administrative

grievance asserting that the policy violated his right

to freely exercise his religion. Warden Quay denied

Sabir’s grievance in January 2015 but offered no

explanation beyond reiterating the content of the

policy, stating that “congregate prayer is not

restricted” because praying in pairs was allowed and

“congregate prayer is permitted in the Chapel.”

Response of H. Quay to Sabir (Jan. 27, 2015), J.A. 48.

Quay’s determination was subsequently upheld by

FBOP’s Regional Director, who wrote that FCI

Danbury’s congregate prayer policy was “a reasonable,

App-37

least restrictive alternative of accommodating prayer

by groups of three or more inmates in the chapel when

the schedule permits.” Response of J.L. Norwood to

Sabir (Mar. 11, 2015), J.A. 51. FBOP’s Administrator

of National Inmate Appeals later agreed, reiterating

the terms of the policy, and stating that it provided “a

reasonable and equitable opportunity to pursue your

religious beliefs and practices.” Response of Ian

Connors to Sabir (Sept. 27, 2016), J.A. 53.

In May 2017, Warden Williams denied Conyers’s

grievance, restating the policy and explaining that

that the prison’s Religious Services Department had

consulted with Muslim Imams and determined that

Muslims were not required to perform their five daily

prayers in groups of three or more. See Response of

D.K. Williams to Conyers (May 19, 2017), J.A. 56.

Williams’s determination was upheld by FBOP’s

Regional Director, who found that “the institution’s

policy on prayer does not ban group prayer.” Response

of M.D. Carvajal to Conyers (July 5, 2017), J.A. 58.

Instead, the Regional Director explained that “the

policy provides the necessary structure to promote

equity among all faith groups in regards to prayers in

the chapel area” and that “[t]his allowance offers you

a least restrictive alternative when congregational

prayer cannot be accommodated.” Id. The

Administrator of National Inmate Appeals concurred,

adding that the policy was “the least restrictive

alternative in order to afford inmates with more

opportunities to practice this religious observance

consistent with security and budgetary constraints.”

Response of Ian Connors to Conyers (Oct. 24, 2017),

J.A. 61.

App-38

After the initiation of this proceeding, Sabir and

Conyers were each transferred to another institution.

Procedural History

In May 2017, Sabir, acting pro se, initiated this

suit against Williams and the director of the FBOP,

alleging violations of the Free Exercise Clause of the

First Amendment, the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”), and the

Religious Land Use and Institutionalized Persons Act,

42 U.S.C. § 2000cc, et seq. (“RLUIPA”). The district

court dismissed Sabir’s suit for failure to pay a filing

fee, then reopened the case and dismissed it under the

screening provision of the Prison Litigation Reform

Act, 28 U.S.C. § 1915A.

In December 2017, the district court granted

Sabir’s motion to reopen the case and amend his

complaint. The court dismissed Sabir’s RLUIPA claim

because that statute applies only to state and local

governments, but it allowed his RFRA and Free

Exercise claims to proceed.

Sabir then filed the SAC, through newly obtained

counsel, in June 2018. The SAC added Conyers as an

additional plaintiff and named Quay as an additional

defendant. Sabir and Conyers asserted that FCI

Danbury’s communal prayer policy violated RFRA and

the Free Exercise Clause. They sought a declaration

that the policy was unlawful, injunctive relief

preventing the enforcement of the policy, and damages

from Williams and Quay in their individual capacities.

The defendants moved to dismiss the claims for

damages against Williams and Quay, and later moved

to dismiss the equitable claims as moot in light of

App-39

Sabir’s and Conyers’s respective transfers out of FCI

Danbury.

The district court granted in part and denied in

part the defendants’ motion to dismiss. See Sabir v.

Williams, No. 3:17-cv-749 (VAB), 2019 WL 4038331

(D. Conn. Aug. 27, 2019). It declined to dismiss the

plaintiffs’ RFRA claims for damages against the

defendants acting in their individual capacities,

concluding that the group prayer policy was “arguably

a substantial burden on the exercise of religion.” Id. at

*9. 1 The plaintiffs stated a claim by “detail[ing] the

religious importance of congregational prayer,”

showing “the burden the Policy has placed on [the

plaintiffs’] exercise of religion,” and “alleg[ing] that

FCI Danbury only applies this sort of burden to

religious activities, while other group activities

continued unencumbered.” Id.

The district court held that qualified immunity

was not available to Williams or Quay at the motionto-dismiss stage. The court explained that the policy

“may violate clearly established First Amendment

case law and the RFRA statute,” and, therefore,

On appeal, we consider only the plaintiffs’ claim for

individual-capacity damages under RFRA, not under the First

Amendment. Before the district court, the defendants argued

that a Bivens claim “is the only avenue for damages under the

First Amendment” and claimed that the “[p]laintiffs s[ought] to

impermissibly expand Bivens to include a new context . . . .”

Sabir, 2019 WL 4038331, at *7-8. In response, the plaintiffs

conceded that “they only seek money damages against the

wardens in their individual capacity based on the Religious

Freedom Restoration Act[;] therefore Plaintiffs need not, and do

not, look to Bivens to seek damages.” Id. at *8 (internal quotation

marks omitted).

1

App-40

decided that “it is plausible—at this stage—that

qualified immunity would not shield Defendants from

liability in their individual capacities.” Id. at *10-11.

The court found it “[s]ignificant[]” that in Salahuddin

v. Goord, 467 F.3d 263 (2d Cir. 2006) (“Salahuddin”),

the Second Circuit denied qualified immunity to

prison officials for religious liberties claims, even at

the later stage of summary judgment proceedings,

“because it was clearly established . . . that prison

officials may not substantially burden inmates’ right

to religious exercise without some justification . . . .”

Sabir, 2019 WL 4038331, at *11 n.3 (quoting

Salahuddin, 467 F.3d at 275-76).

The district court dismissed most of the plaintiffs’

equitable claims as moot in light of Sabir’s and

Conyers’s transfers. See id. at *5 (“[A]n inmate’s

transfer from a prison facility generally moots claims

for declaratory and injunctive relief against officials of

that facility.” (quoting Salahuddin, 467 F.3d at 272)).

The only surviving claim for equitable relief was

Sabir’s claim against FBOP’s Director, see id. at *6,

but in May 2020, Sabir voluntarily dismissed it. 2

DISCUSSION

On appeal, the wardens assert that the district

court erred in denying their motion to dismiss the

We have jurisdiction to consider this appeal of the court’s

partial denial of the defendants’ motion to dismiss under 28

U.S.C. § 1291 through the collateral order doctrine. See Locurto

v. Safir, 264 F.3d 154, 162 (2d Cir. 2001) (“A denial by a district

court of a claim of qualified immunity—to the extent that it turns

on an issue of law—is a collateral order subject to immediate

appeal.”).

2

App-41

plaintiffs’ individual-capacity damages claims because

the wardens are entitled to qualified immunity, even

at this early stage of the proceedings. We disagree.

They cannot point to assertions in the SAC or evidence

in its attachments that demonstrate that their

enforcement of the policy against Sabir and Conyers

was in service of a governmental interest. Because it

was clearly established at the time that substantially

burdening prisoners’ religious exercise without

justification violates RFRA, the wardens are not

entitled to qualified immunity.

I.

Standard of Review

“We review a district court’s denial of qualified

immunity on a motion to dismiss de novo, accepting as

true the material facts alleged in the complaint and

drawing all reasonable inferences in plaintiffs’ favor.”

Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2015) (internal

quotation marks omitted).

II. Qualified Immunity

A. Legal Analysis

We apply a two-step analysis to determine

whether qualified immunity bars a plaintiff’s claim

against government officials for civil damages related

to actions taken in the course of their official duties.

Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019).

“Pursuant to that analysis, ‘[q]ualified immunity

shields federal and state officials from money damages

unless [the] plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and

(2) that the right was “clearly established” at the time

of the challenged conduct.’” Id. (alterations in original)

(quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir.

App-42

2016)). When qualified immunity shields defendants

from liability, courts may “exercise their sound

discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009);

see also Francis, 942 F.3d at 140. 3 However, because

3 Before Pearson, courts were required to complete both steps

in every case, because “skip[ping] ahead” to the second step

without first holding that an official violated a plaintiff’s rights

might preclude “the law’s elaboration from case to case.” Saucier

v. Katz, 533 U.S. 194, 201 (2001). The Supreme Court has

continued to recognize this well-founded concern, even after

Pearson introduced discretion as to the order in which courts may

address the prongs. See Camreta v. Greene, 563 U.S. 692, 704-06

(2011) (recognizing “that our regular policy of avoidance

sometimes does not fit the qualified immunity situation because

it threatens to leave standards of official conduct permanently in

limbo” and explaining that merits rulings in immunity-barred

cases are “self-consciously designed . . . with this Court’s

permission” to “establish[] controlling law and prevent[]

invocations of immunity in later cases”). Camreta warned of a

“repetitive cycle” in which a court repeatedly declines to address

the merits because immunity exists, and the official continues to

engage in the challenged practice because he will remain immune

until the right is clearly established. Id. at 706 & n.5. This cycle

could happen “again, and again, and again,” id. at 706, thereby

allowing “palpably unreasonable conduct [to] go unpunished,”

Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,

dissenting).

Although this “repetitive cycle of qualified immunity defenses”

could be broken if the same merits questions “arise in a case in

which qualified immunity is unavailable,” the Court has warned

that “some kinds of constitutional questions do not often come up

in these alternative settings.” Camreta, 563 U.S. at 706 n.5

(citing Pearson, 555 U.S. at 236 and County of Sacramento v.

Lewis, 523 U.S. 833, 841 n.5 (1998)). Claims brought by

incarcerated individuals against officials at a specific institution

App-43

we conclude that the district court properly denied

qualified immunity to the defendants at the pleadings

stage, we must engage in both prongs of the analysis.

First, we decide that the plaintiffs have adequately

pled a violation of RFRA, and second, we conclude that

their rights were clearly established at the time of the

alleged violations.

B. Violation of RFRA

In the first step of the qualified immunity inquiry,

we must determine whether the SAC plausibly alleges

that the wardens’ enforcement of the group-prayer

policy against Sabir and Conyers violated RFRA. We

conclude that it does.

RFRA

prohibits

the

government

from

“substantially burden[ing] a person’s exercise of

religion” unless “application of the burden . . . (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.

§ 2000bb-1(a)-(b). To establish a prima facie RFRA

violation, the plaintiffs must demonstrate that they

sought to engage in the exercise of religion and that

the defendant-officials substantially burdened that

exercise. The government then faces an “exceptionally

likely fall into that category. As evidenced by the case at bar, a

prisoner’s equitable claims could be mooted at any moment by his

transfer to a new facility. See Salahuddin, 467 F.3d at 272. Thus,

these circumstances present a higher likelihood that prisoners’

rights do not become clearly established. Even if it were not

clearly established that the wardens violated RFRA, we would

therefore still address the merits question first to clearly

establish the law and prevent a vicious cycle of shielded

misconduct.

App-44

demanding” burden to show “that it lacks other means

of achieving its desired goal without imposing a

substantial burden on the exercise of religion by the

objecting parties . . . .” Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 728 (2014).

First, Sabir and Conyers’s performance of

congregational prayer is undoubtedly religious

exercise. The term “exercise of religion” extends

beyond “belief and profession” and encompasses “the

performance of . . . physical acts [such as] assembling

with others for a worship service.” Cutter v. Wilkinson,

544 U.S. 709, 720 (2005). “It is well established that

prisoners have a constitutional right to participate in

congregate religious services,” Salahuddin v.

Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (emphasis

added), and that same religious exercise is also

protected by RFRA, which Congress intended to cover

an even broader range of activity than the First

Amendment does, see Hobby Lobby Stores, Inc., 573

U.S. at 696. 4

Williams’s purported reliance on the advice of imams to

determine that Muslims do not need to perform the five daily

prayers in groups does not change this analysis. RFRA’s

definition of the “exercise of religion” broadly includes “any

exercise of religion, whether or not compelled by, or central to, a

system of religious belief.” Hobby Lobby Stores, Inc., 573 U.S. at

696 (quoting 42 U.S.C. § 2000cc-5(7)(A)). The “proper inquiry” is

whether Sabir’s and Conyers’ beliefs were “sincerely held and in

[their] own scheme of things, religious,” which the SAC

adequately alleges. Ford v. McGinnis, 352 F.3d 582, 598 (2d Cir.

2003) (emphasis and internal quotation marks omitted); see id.

(“[R]eligious authorities’ opinions that a particular practice is not

religiously mandated under Muslim law, without more, cannot

render defendants’ conduct reasonable.”).

4

App-45

Second, the wardens’ application of the groupprayer policy against Sabir and Conyers substantially

burdened that religious exercise. An incarcerated

plaintiff “easily satisfie[s]” his burden of proving that

a prison policy substantially burdens his religious

exercise when the policy “puts [him] to th[e] choice”

between “engag[ing] in conduct that seriously violates

[his] religious beliefs” or risking “serious disciplinary

action” for adhering to those beliefs. Holt v. Hobbs, 574

U.S. 352, 361 (2015) (internal quotation marks

omitted). 5 Sabir stopped engaging in congregate

prayer because he was “fearful” of being disciplined

after officers chastised his prayer group and

threatened “that violation of th[e] rule may result in

disciplinary action.” SAC at 10-11, ¶¶ 37-38; 41.

Officials

repeatedly

warned

Conyers

that

congregational prayer outside of the chapel was not

allowed, and “[r]ather than risk discipline for

engaging in congregational prayer . . . [he] refrained

from engaging in congregational prayer on many

occasions.” Id. at 11, ¶ 43. Both plaintiffs “have been

forced to choose between acting in accordance with

their sincere religious beliefs and facing discipline at

the prison, including possible solitary confinement

and loss of other privileges.” Id., ¶ 44. “Because the

[group prayer] policy puts [the plaintiffs] to this

choice, it substantially burdens [their] religious

exercise.” Holt, 574 U.S. at 361. Moreover, “the

5 Holt involved a challenge under RLUIPA to restrictions on

religious exercise and is relevant here because the statutory

provision in that case “mirrors RFRA and . . . thus allows

prisoners to seek religious accommodations pursuant to the same

standard as set forth in RFRA.” Holt, 574 U.S. at 357-58 (internal

quotation marks omitted).

App-46

availability of alternative means of practicing

religion”—such as praying in pairs—is insufficient to

eliminate that substantial burden. Id.

Third, once plaintiffs have demonstrated that

defendants substantially burdened their religious

exercise, the defendants must establish that the

“application of the burden to the [plaintiffs]” is the

“least restrictive means of furthering [a] compelling

governmental interest.” 42 U.S.C. § 2000bb-1(b).

RFRA thus places an “exceptionally demanding”

burden on the wardens to show that they “lack[ed]

other means of achieving [their] desired goal without

imposing a substantial burden on the exercise of

religion by the objecting parties.” Hobby Lobby Stores,

Inc., 573 U.S. at 728. And because RFRA expressly

requires government officials to demonstrate a

compelling interest, it follows that prison officials

necessarily violate RFRA when they substantially

burden a plaintiff’s exercise of religion without

demonstrating that they had any interest, compelling

or otherwise, in doing so. See Salahuddin, 467 F.3d at

275-76 (“[P]rison officials may not substantially

burden inmates’ right to religious exercise without

some justification . . . .”). The wardens chose to press

this appeal at the motion-to-dismiss stage; therefore,

our consideration is limited to any interests and

evidence of narrow tailoring contained in the

allegations of the complaint or, as relevant here, any

facts reflected in the attachments to it. See

Chamberlain v. City of White Plains, 960 F.3d 100, 110

(2d Cir. 2020). From these documents, we can discern

no asserted governmental interest—much less a

compelling one—for the requirement that Sabir and

App-47

Conyers engage in group prayer only in the prison

chapel.

Quay’s and Williams’s denials of the plaintiffs’

administrative grievances were attached to the

complaint and may therefore be considered in

reviewing their motion to dismiss, but they are

ultimately unhelpful to their position. In denying

Sabir’s grievance, Quay declared that “congregate

prayer is not restricted” despite recognizing that

“group prayer of 3 or more is restricted to the Chapel.”

Response of H. Quay to Sabir (Jan. 27, 2015), J.A. 48.

His confusing paraphrase of the policy does nothing to

demonstrate that a compelling interest is at stake, or

that the policy is the least restrictive means of

furthering any such interest. In denying Conyers’s

grievance, Williams also restated the policy and

suggested that the prison had determined through

consultations with religious leaders that performing

congregate prayer five times per day was not

necessary. At most, Williams’s defense of the policy

could suggest that Conyers’s religious beliefs were not

widely held, but the administrative denial again fails

to offer any governmental interest for the policy’s

enforcement against Conyers or explain how this

enforcement was narrowly tailored to serve any such

interest.

The wardens contend that other attachments to

the complaint adequately reflect the governmental

interests served by their enforcement of the policy

against Sabir and Conyers. Specifically, they point to

subsequent statements by high-ranking FBOP

officials upholding the wardens’ denials. One response

from FBOP’s Regional Director offers the conclusory

App-48

statement that FCI Danbury’s policy was “a

reasonable,

least

restrictive

alternative

of

accommodating prayer” consistent with “the orderly

running of the institution” and with “staff

supervision” and “space” constraints. Response of J.L.

Norwood to Sabir (Mar. 11, 2015), J.A. 51. Another

response by FBOP’s Administrator of National Inmate

Appeals similarly declares that the policy was “the

least restrictive alternative” that would allow for

group prayer “consistent with security and budgetary

constraints.” Response of Ian Connors to Conyers (Oct.

24, 2017), J.A. 61.

Even taking into account these subsequent

attempts by nondefendant FBOP officials to justify the

policy’s existence more broadly, we cannot identify any

governmental interests on which Quay and Williams

relied when they enforced the policy against Sabir and

Conyers. “[P]rison officials must have been pursuing

the interest . . . when limiting [the plaintiffs’] religious

exercise,” and we have explained that this

requirement “ensures that prison officials actually

had, not just could have had, a legitimate reason for

burdening protected activity.” Salahuddin, 467 F.3d

at 277 (emphasis added). Subsequent statements from

regional and national supervisory officials shed no

light on the wardens’ actual reasons for enforcing the

policy against Sabir and Conyers. For the same

reason, a panel of this Court similarly refused to

“impute[] the penological interest articulated by [one

official] onto [another].” Barnes v. Fedele, 813 F. App’x

696, 701 (2d Cir.) (summary order), cert. denied, 141

S. Ct. 884 (2020). Here, “nothing in the record sets

forth [the wardens’] motivation or thinking,” and “[i]t

is possible, after all, that [the FBOP officials’]

App-49

‘understanding’ of the policy . . . was not aligned with”

that of the wardens. Id. The wardens cannot “point[]

to anything in the [complaint or the evidence in the

attachments] to show that they relied on” compelling

interests, and we cannot “manufacture facts out of

thin air.” Salahuddin, 467 F.3d at 275 (emphasis

added); see Barnes v. Furman, 629 F. App’x 52, 57

(2015) (summary order) (“[B]ecause defendants have

not identified any penological interests supporting the

policy, we cannot assess the reasonableness of their

actions.”).

Even if we could impute the FBOP officials’

reasoning to the wardens, it would not suffice. Under

RFRA, it is not enough to offer “very broad terms”;

rather, RFRA demands “a more focused inquiry” that

“requires the Government to demonstrate that the

compelling interest test is satisfied through

application of the challenged law to . . . the particular

claimant whose sincere exercise of religion is being

substantially burdened.” Hobby Lobby Stores, Inc.,

573 U.S. at 726 (internal quotation marks omitted).

“This requires us to ‘loo[k] beyond broadly formulated

interests’ and to ‘scrutiniz[e] the asserted harm of

granting specific exemptions to particular religious

claimants . . . .’” Id. at 726-27 (quoting Gonzales v. O

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

418, 431 (2006)). The FBOP officials’ statements do

not explain how the wardens’ enforcement of this

policy against Sabir and Conyers served an interest in

“the orderly running of the institution,” or “security

and budgetary constraints.” Responses of J.L.

Norwood and Ian Connors, supra at J.A. 51, 61. They

offer only “broadly formulated interests,” which are

App-50

insufficient to satisfy RFRA. 6 Hobby Lobby Stores,

Inc., 573 U.S. at 726.

Further, FBOP officials offered only conclusory

assertions that the policy was the “least restrictive

alternative,” Responses of J.L. Norwood and Ian

Connors, supra at J.A. 51, 61, and even if these claims

were attributable to the wardens, we could not credit

them in our review since the plaintiffs plausibly allege

that the policy is more restrictive than necessary. See

Williams v. Annucci, 895 F.3d 180, 192 (2d Cir. 2018)

(“Taking the [government] at its word under such

circumstances would involve ‘a degree of deference

that is tantamount to unquestioning acceptance.’”

(quoting Holt, 574 U.S. at 364)). Indeed, it seems

highly unlikely that the policy is narrowly tailored

considering the fact that, according to the SAC,

comparable secular activities—including inmate-led

fitness classes and card games—do not face similar

restrictions. See Williams, 895 F.3d at 193

(“[U]nexplained disparate treatment of ‘analogous

nonreligious conduct’ leads us to suspect that a

narrower policy that burdens [the plaintiffs] to a lesser

degree is in fact possible.”); Hobby Lobby Stores, Inc.,

573 U.S. at 730 (noting that the government “itself has

6 This not to say that the plaintiffs would necessarily fail to

state a claim under RFRA if the wardens, in their responses to

the plaintiffs’ grievances, had identified a sufficiently specific

interest furthered by the policy. So long as the plaintiffs plausibly

allege that any purported interests are pretextual—as they have

done here by asserting that there is no meaningful justification

for the policy and pointing to comparable secular activities that

are not restricted—the legitimacy of the officials’ justification for

the policy would be an issue of fact incapable of resolution at the

motion-to-dismiss stage.

App-51

demonstrated that it has at its disposal an approach

that is less restrictive” because it “has already

established an accommodation” for others). 7

Based on the pleadings and other material

available to us on review, we thus conclude that Sabir

and Conyers have plausibly alleged that the wardens’

enforcement of the group-prayer policy against them

violated RFRA.

C. Whether the Right was “Clearly Established”

Having determined that the plaintiffs pled a

RFRA violation, we must address the second prong of

the qualified immunity analysis: whether “the right

[at issue] was clearly established at the time of the

challenged conduct.” Francis, 942 F.3d at 139

(internal quotation marks omitted). We conclude that

the plaintiffs’ rights under RFRA were clearly

established at the time of the alleged violations.

1.

Legal Standard

Although the scope of qualified immunity is

considered broad enough to protect “all but the plainly

incompetent or those who knowingly violate the law,”

it is not available when an officer’s actions are not

objectively reasonable in light of clearly established

law. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017)

(internal quotation marks omitted). “To determine

7 This “underinclusiveness” also counsels against a finding that

the policy serves a compelling governmental interest. Williams,

895 F.3d at 189; see also id. at 191 (“Such unexplained disparate

treatment of ‘analogous nonreligious conduct’ leads us to

question whether the [government’s] interest . . . is as compelling

as it suggests . . . .”).

App-52

whether the relevant law was clearly established, we

consider the specificity with which a right is defined,

the existence of Supreme Court or Court of Appeals

case law on the subject, and the understanding of a

reasonable officer in light of preexisting law.” Terebesi

v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014). Precedent

“directly on point” is not required for law to be clearly

established, District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018), and “[i]t is not necessary, of course,

that the very action in question has previously been

held unlawful,” Abbasi, 137 S. Ct. at 1866 (internal

quotation marks omitted). Thus, “the absence of a

decision by this Court or the Supreme Court directly

addressing the right at issue will not preclude a

finding that the law was clearly established so long as

preexisting law clearly foreshadows a particular

ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92

(2d Cir. 2015) (internal quotation marks and brackets

omitted).

2

Qualified Immunity at the Pleadings Stage

The Supreme Court has “repeatedly . . . stressed

the importance of resolving immunity questions at the

earliest possible stage in litigation.” Hunter v. Bryant,

502 U.S. 224, 227 (1991). “But there is an obvious, if

rarely expressed, corollary to that principle: The

immunity question cannot be resolved before the

earliest possible stage, i.e., prior to ascertainment of

the truth of the plausible factual allegations on which

a finding of qualified immunity is premised.”

Chamberlain, 960 F.3d at 110 (internal quotation

marks and citation omitted).

The wardens chose to press their qualified

immunity defense at the pleadings stage, and they

App-53

therefore must face the “more stringent standard

applicable to this procedural route.” McKenna v.

Wright, 386 F.3d 432, 436 (2d Cir. 2004). “Not only

must the facts supporting the defense appear on the

face of the complaint [or the evidence in its

attachments], but . . . the motion may be granted only

where it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim that would

entitle him to relief.” Id. (internal quotation marks

and citation omitted). On a motion to dismiss, the

plaintiffs are “entitled to all reasonable inferences

from the facts alleged, not only those that support

[their] claim, but also those that defeat the immunity

defense.” Id.

For this reason, we have explained that

“advancing qualified immunity as grounds for a

motion to dismiss is almost always a procedural

mismatch.” Chamberlain, 960 F.3d at 111. Although it

is possible for a qualified immunity defense to succeed

on a motion to dismiss, see Liberian Cmty. Ass’n of

Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir.

2020), such a defense “faces a formidable hurdle . . .

and is usually not successful,” Field Day, LLC v.

County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)

(internal quotation marks omitted); see also

Chamberlain, 960 F.3d at 110 (“[A]s a general rule, the

defense of qualified immunity cannot support the

grant of a [Rule] 12(b)(6) motion.” (internal quotation

marks omitted)).

3.

Application

A reasonable officer should have known, based on

clearly established law, that denying a Muslim inmate

the ability to engage in group prayer without any

App-54

justification or compelling interest, as alleged in the

SAC, violates RFRA.

In 2006, we held in Salahuddin that it was clearly

established that prison officials cannot substantially

burden inmates’ religious exercise without offering

any justification. 467 F.3d at 275-76. There, we

concluded that prison officials violated inmates’

religious freedom under both RLUIPA and the First

Amendment by requiring Sunni Muslims and Shi’ite

Muslims to pray and fast jointly for Ramadan. See id.

at 270, 275. Defendants had “not pointed to anything

in the record to show that they relied on legitimate

penological justifications” and “our review of the

record [did not] reveal any such evidence.” Id. at 275.

“Without some support in the record, we [could not]

find that [prison] officials were worried that separate

services would endanger inmates, or were short on

space for separate services, or had some other reason

for mandating the joint services.” Id. “Although the

facts at trial might [have] show[n] otherwise,” even at

the summary judgment stage in Salahuddin, the lack

of evidence of the policy’s justification “establish[ed]

that [the plaintiff’s] free-exercise rights were

substantially burdened by a joint-worship policy not

justified by . . . [a] compelling governmental interest

. . . .” Id.

In addition to showing that violations of the

plaintiff’s constitutional and statutory rights had

occurred, the lack of justification for the policy’s

enforcement in the record made clear that “[q]ualified

immunity [was] not appropriate” even at the summary

judgment stage “because it was clearly established at

the time of the alleged violations that prison officials

App-55

may not substantially burden inmates’ right to

religious exercise without some justification.” Id. at

275-76. “[W]e [could not] say as a matter of law that it

was objectively reasonable for any defendant to

believe that the facts as they [stood] on summary

judgment showed no violation of a clearly established

right.” Id. at 276.

In the case at bar, we are at an even earlier stage

of litigation than we were in Salahuddin. We are

limited here to the allegations in the complaint and

the evidence in the attachments to it. The wardens

cannot point to any justification in that material for

their imposition of a substantial burden on Sabir’s and

Conyers’s religious exercise. 8 To repeat yet again, as

in Salahuddin, “although the facts at trial” or

summary judgment “might show otherwise,” we

cannot “manufacture [such] facts out of thin air.” Id.

at 275. Because it was clearly established at the time

of the alleged violations of Sabir and Conyers’s RFRA

rights that the wardens could “not substantially

burden inmates’ right to religious exercise without

some justification,” “[q]ualified immunity is not

Nor can the officials seriously dispute that it was clearly

established that preventing a prisoner from engaging in

congregational prayer constitutes a substantial burden on the

prisoner’s religious exercise. As we explained above, we have

consistently recognized that policies restricting access to group

prayer impose a burden on prisoners’ free exercise rights. See

Salahuddin v. Coughlin, 993 F.2d at 308; Young v. Coughlin, 866

F.2d 567, 570 (2d Cir. 1989).

8

App-56

appropriate at this stage” of the proceedings. Id. at

275-76. 9

We reject the wardens’ argument that

Salahuddin’s holding is an “abstract legal principle”

that “cannot establish law for purposes of qualified

immunity.” Appellants’ Br. at 17. There are, of course,

some contexts in which a higher degree of specificity

is required to establish the law for purposes of

qualified immunity than in others. For example, the

Fourth Amendment’s prohibition of “unreasonable

searches and seizures” is an “abstract right[]” because

“it may be difficult for an officer to know whether a

search or seizure will be deemed reasonable given the

precise situation encountered.” Abbasi, 137 S. Ct. at

1866; see also Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(per curiam) (“Such specificity is especially important

in the Fourth Amendment context, where the Court

9 Our decision should not, of course, be read to suggest that the

district court should automatically grant summary judgment to

defendants on qualified immunity grounds upon the introduction

of any evidence that their enforcement of the policy served a

compelling interest. On a motion for summary judgment, any

“unchallenged and unresolved factual allegations” will be

“viewed in the light most favorable to” Sabir and Conyers.

Salahuddin, 467 F.3d at 275. It may be that the qualified

immunity issue can only be resolved at trial if, for instance, it

appears that a justification offered by the defendants may be

pretextual. Id. at 277 (holding that officials must prove they were

“pursuing the interest . . . when limiting [the plaintiff’s] religious

exercise,” so as to “ensure[] that prison officials actually had, not

just could have had, a legitimate reason for burdening protected

activity”). For example, a purported interest in security may be

pretextual if comparable secular activities posing identical

security concerns are not restricted. See Williams, 895 F.3d at

191-92.

App-57

has recognized that it is sometimes difficult for an

officer to determine how the relevant legal doctrine . . .

will apply to the factual situation the officer

confronts.” (internal quotation marks and alteration

omitted)). No such concerns are present here. Based

on RFRA’s requirements, it is not “difficult for an

[official] to know whether” an unjustified substantial

burden on religious exercise “will be deemed

reasonable.” Abbasi, 137 S. Ct. at 1866. As the text of

the statute itself explains: “Government may

substantially burden a person’s exercise of religion

only if it demonstrates that application of the burden

to the person . . . is in furtherance of a compelling

governmental interest . . . .” 42 U.S.C. § 2000bb-1

(emphasis added); see also Okin v. Vill. of CornwallOn-Hudson Police Dep’t, 577 F.3d 415, 433-34 (2d Cir.

2009) (noting that courts “may examine statutory or

administrative provisions in conjunction with

prevailing circuit or Supreme Court law to determine

whether an individual had fair warning that his or her

behavior would violate the victim’s constitutional

rights.”). Put another way, if an official substantially

burdens a sincere religious exercise but cannot point

to evidence that the application of the burden was in

service of any interest—let alone a compelling one—

the official has violated RFRA.

Thus, the wardens are not entitled to dismissal of

the SAC on the basis of qualified immunity because

our case law, in conjunction with the text of RFRA,

clearly established at the time of the events at issue

that substantially burdening Sabir’s and Conyers’s

religious exercise with no justification, as was alleged

by the plaintiffs, violated RFRA.

App-58

CONCLUSION

We have considered the parties’ remaining

arguments on appeal and conclude that they are

without merit. For the reasons set forth above, we

affirm the district court’s order.

App-59

Appendix B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

________________

No. 3:17-cv-749 (VAB)

________________

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs,

v.

D.K. WILLIAMS, in her individual capacity and her

official capacity as Warden of FCI Danbury,

HERMAN QUAY, in his individual capacity, et al.,

Defendants.

________________

Filed: August 27, 2019

Document No. 82

________________

RULING ON MOTION TO DISMISS

Rafiq Sabir and James Conyers (collectively

“Plaintiffs”) have sued D.K. Williams and Herman

Quay in their individual and official capacities and

Hugh Hurwitz in his official capacity (collectively

“Defendants”) for declaratory and injunctive relief,

compensatotory, nominal, and punitive damages,

costs, and attorney’s fees for violations of the First

Amendment and Religious Freedom Restoration Act,

42 U.S.C. § 2000bb et seq (“RFRA”). Second Amended

Complaint, ECF No. 36 (“Second Am. Compl.”), at 13–

15.

App-60

Defendants have moved to dismiss the Second

Amended Complaint, Motion to Dismiss Second

Amended Complaint, ECF No. 54. Defendants have

since supplemented their motion to dismiss twice

because the Federal Bureau of Prisons transferred Mr.

Conyers to a lower security institution, see First

Motion to Supplement Motion to Dismiss, ECF No. 72,

and Mr. Sabir to another federal facility based on his

alleged participation in a hunger strike, see Second

Motion to Supplement Motion to Dismiss, ECF No. 76.

For the foregoing reasons, the Court DENIES the

motion to dismiss, GRANTS the first supplemental

motion to dismiss, and DENIES the second

supplemental motion to dismiss.

I.

FACTUAL

GROUND

AND

PROCEDURAL

BACK-

According to Plaintiffs, “[a] central tenent of Islam

is the obligation for adult Muslims to pray—perform

salah—five times each day.” Second Am. Compl. at

¶ 1. And “[m]any Muslims also believe that it is vital

to perform salah in a group setting if there are other

Muslims in the vicinity during prayer times.” Id. The

Friday early afternoon payer allegedly is the most

important and “many Muslims believe must be prayed

in a congregation.” Id. at ¶ 19. For these practitioners,

“engaging in congregational prayer with the

maximum number of practicing Muslims possible is

required because such prayers multiplies the

blessings and utility of prayer.” Id.

According to Plaintiffs, the Danbury Federal

Correctional Institution (“FCI Danbury”) is comprised

of three institutions: (1) “Federal Prison Camp

App-61

Danbury, a minimum-security prison housing

approximately 194 persons;” (2) “Federal Satellite

Low Danbury, a low-security all-female facility

housing approximately 115 persons; and (3) “FCI

Danbury, a low-security [Federal Board of Prisons]

facility housing approximately 836 incarcerated

persons.” Id. at ¶ 27. Plaintiffs allege that the FCI

Danbury facility has several recreational facilities

that “includes a recreation yard, weight room,

gymnasium, bathroom, wellness room, hobbycraft,

music room, video viewing area with game tables, the

chapel facilities, and several offices.” Id. at ¶ 29.

Moreover, Plaintiffs allege that “the medical area, food

services, educational and housing facilities, laundry,

the barber shop, and the prison work program area”

are all accessible to incarcerated persons. Id.

Both Plaintiffs state that they are practicing

Muslims that “share the sincerely-held belief that

their religion requires them to engage in daily

congregational prayer whenever possible.” Id. at ¶ 2.

Mr. Sabir claims that he has been a practicing Muslim

for forty years and resided at FCI Danbury from June

2014 until July 12, 2019. Id. at ¶ 12; Declaration of

Cheryl Magnusson, Ex. A, ECF No. 76-1. Mr. Conyers

claims that he has been a practicing Muslim for

twenty-one years and resided at FCI Danbury from

September 2016 until June 20, 2019. Second Am.

Compl. at ¶ 13; Declaration of Cheryl Magnusson, Ex.

A., ECF No. 72-1. Plaintiffs allege that “approximately

150 of the persons incarcerated at FCI Danbury

currently identify as Muslim.” Compl. at ¶ 28.

While the Federal Bureau of Prisons allegedly

does not have a formal policy banning congregational

App-62

prayer, Plaintiffs allege that “the warden of each

correctional faciltiy within [the Federal Bureau of

Prisons] is tasked with determining whether any

specific religious practice jeopardizes the facility’s

safety and security.” Id. at ¶ 24. Plaintiffs allege that

“the warden is authorized to temporarily restrict the

practice and/or identify an alternative practice.” Id.

A. Factual Allegations

On March 24, 2014, Maureen Baird, then-Warden

of FCI Danbury, allegedly “issued a policy that

categorically limited the ability of Plaintiffs and other

Muslim incarcerated pesons to engage in

congregational prayer.” Id. at ¶¶ 3 (citing FCI

Danbury Institution Supplement No. DAN 5360.09F

§ 3(b)(2)); ¶ 30 (citing the text of the “Policy”). The

Policy prohibits prayer in groups of more than two in

all parts of FCI Danbury, except the chapel facility. Id.

Due to limited chapel availability, Plaintiffs allege

that “the Policy effectively bans congregational prayer

in FCI Danbury, making it impossible for Plaintiffs

and other Muslim incarcerated person to perform

salah in accordance with their sincerely held religious

beliefs.” Id. at ¶ 3.

In October 2014, while engaged in prayer with

several other incarcerated persons in FCI Danbury’s

auditorium, Mr. Sabir alleges that a corrections officer

dispersed the group and warned Mr. Sabir that he

would face discipline if he violated the prison policy by

engaging in congregational prayer. Id. at ¶ 5. Mr.

Sabir alleges that he and his fellow inmates

“conducted themselves peacefully, respectfully, and

cooperatively, and they did not interfere with other

incarcerated persons or the functioning and operation

App-63

of FCI Danbury.” Id. at ¶ 36. When told that further

congregational prayer would result in discipline, Mr.

Sabir and other incarcerated persons allegedly

“informed the corrections officers that their religion

demanded they engage in congressional prayer five

times a day and that the chapel facility was not

available for them during all those times.” Id. at ¶ 40.

But Plaintiffs allege that corrections officers merely

reiterated the terms of the Policy. Id. Since the

incident, Mr. Sabir alleges that he has been “fearful

that if he engages in daily congregational prayer he

will be subjected to discipline and sanction.” Id. at

¶ 41.

In Spring 2017, Plaintiffs allege that “officials at

FCI Danbury circulated a flyer to the incarcerated

persons which cited to the Policy and stated that

‘group prayer of 3 or more is restricted to the Chapel’

and ‘Staff Will be Enforcing this Policy.’” Id. at ¶ 46.

In April 2018, Plaintiffs allege that “another

group of Muslim incarcerated persons were

threatened with discipline for engaging in

congregational prayer in violation of the Policy.” Id. at

¶ 5. Plaintiffs allege that several staff members

approached “several Muslim incarcerated persons who

were engaged in congregational prayer and informed

them that they would be issued disciplinary write-ups

and face other sanctions if they continued to engage in

congregational prayer.” Id. at ¶ 45.

Plaintiffs also allege that “at least two other

Muslim incarcerated persons at FCI Danbury have

filed grievances against the Policy and its restriction

on congregational prayer.” Id. at ¶ 46.

App-64

Due to these and other incidents, Plaintiffs allege

that “Plaintiffs and other Muslim incarcerated

persona at FCI Danbury are unable to adhere to their

sincerely-held religious beliefs and engage in daily

congregational prayer,” which “imposes a substantial

burden on Plaintiff’s exercise of religion.” Id. at ¶ 6.

Plaintiffs allege that FCI Danbury, a low-security

facility, otherwise allows incarcerated persona a high

degree of personal autonomy. Id. at ¶ 28. Indeed,

Plaintiffs allege that “[m]any of the housing units do

not have locks on the doors of the living quarters.” Id.

Plaintiffs also allege that incarcerated persons

“routinely gather in large groups for prison-approved

activities such as inmate-led fitness classes, card

games, and sports, some of which can involve over 20

incarcerated persons at a time.” Id.

Although FCI Danbury permits congregational

prayer in the chapel facility, Plaintiffs allege that

there is limited access to the facility, which “is only

open when chapel staff are present and the facility’s

rooms are not already occupied or reserved by other

individuals.” Id. at ¶ 32. Plaintiffs also allege that the

prison staff apply the Policy strictly in recreational

areas but not in other areas, with the application of

the Policy varying widely based on the staff members

working at that time. Id. at ¶¶ 47, 50.

During his time at Federal Medical Center

Devens, Mr. Sabir alleges that the Warden permitted

open congregational prayer throughout the facility

and without restriction. Id. at ¶ 25. Mr. Conyers

alleges that incarcerated persons at other Federal

Bureau of Prisons facilities, “including Federal

Medical Center Butner, Federal Prison Camp at Fort

App-65

Dix,” permitted daily congregational prayer. Id. at

¶ 26.

Plaintiffs maintain a “sincerely-held religious

belief that if two or more Muslims are together at a

time of required prayer, they must pray together

behind one prayer leader; and that it is not possible to

break up into smaller groups.” Id. at ¶ 23. Due to their

inability to perform congregational prayer, Plaintiffs

allege that they “have been forced to choose between

acting in accordance with their sincere religious

beliefs and facing discipline at the prison, including

possible solitary confinement and loss of other

privileges,” which the Plaintiffs allege has caused

them mental and physical stress. Id. at ¶ 44.

Plaintiffs allege that they have exhausted all

grievance processes and administrative remedies

available to them. Id. at ¶¶ 51–54.

B. Procedural History

On May 8, 2017, Mr. Sabir, then proceeding pro

se, filed a Complaint in this case. Complaint, ECF

No. 1.

That same day, Mr. Sabir moved to proceed in

forma pauperis and to appoint counsel. Motion for

Leave to Proceed in forma pauperis, ECF No. 2;

Motion to Appoint Counsel, ECF No. 3.

On May 25, 2017, the Court denied the motion to

appoint counsel and motion for leave to proceed in

forma pauperis. Order, ECF No. 5.

On June 5, 2017, Mr. Sabir moved for class action

status. Motion for Class Action Status, ECF No. 6.

App-66

On June 29, 2017, the case was dismissed because

Mr. Sabir failed to pay the filing fee. Order Dismissing

Case, ECF No. 7.

On July 21, 2017, Mr. Sabir moved to re-open the

case. Motion to Reopen Case, ECF No. 9.

On October 19, 2017, the Court granted the

motion to re-open the case, but dismissed the case in

an initial review order. Order, ECF No. 11.

On November 30, 2017, Mr. Sabir moved to

amend his Complaint. Motion to Amend, ECF No. 15.

On December 19, 2017, the Court granted Mr.

Sabir’s motion to re-open the case and amend his

Complaint, allowing Mr. Sabir’s First Amendment

and Religious Freedom Restoration Act claims to

proceed against Defendants in their official capacities

for injunctive and declaratory relief. Order, ECF

No. 16.

On June 1, 2018, Plaintiffs filed a Second

Amended Complaint. Second Am. Compl.

On July 5, 2018, the Court held a telephonic

status conference and issued a scheduling order.

Minute Entry, ECF No. 48; Scheduling Order, ECF

No. 49.

On September, 2018, Defendants moved to

dismiss the Second Amdended Complaint. Motion to

Dismiss, ECF No. 54.

On November 2, 2018, Plaintiffs filed a

memorandum in opposition to the motion to dismiss.

Memorandum in Opposition to Motion to Dismiss,

ECF No. 60 (“Mem. in Opp. to MTD”).

App-67

On November 16, 2018, Defendants replied to

Plaintiffs memorandum in opposition. Reply to

Response, ECF No. 61 (“Reply”).

On June 21, 2019, Defendants supplemented

their motion to dismiss because the Federal Bureau of

Prisons transferred Mr. Conyers to a lower security

institution. First Motion to Supplement Motion to

Dismiss, ECF No. 72.

On June 25, 2019, the Court held a hearing

regarding Defendants’ motion to dismiss. Minute

Entry, ECF No. 73.

On July 12, 2019, Defendants supplemented their

motion to dismiss because the Federal Bureau of

Prisons transferred Mr. Sabir to another federal

facility based on his alleged participation in a hunger

strike. Second Motion to Supplement Motion to

Dismiss, ECF No. 76.

On August 2, 2019, Plaintiffs filed a

memorandum

in

opposition

to

Defendants

supplmental motion to dismsiss. Memorandum in

Opposition to Motion to Supplement Pending Motion,

ECF No. 79.

On August 15, 2019, Defendants filed a Reply to

Plaintiffs’ Memorandum in Opposition. Reply to

Response, ECF No. 80.

II. STANDARD OF REVIEW

A complaint must contain a “short and plain

statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a). A court will

dismiss any claim that fails “to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

App-68

In reviewing a complaint under Rule 12(b)(6), the

court applies a “plausibility standard” guided by “two

working principles.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009).

First, “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory

statements, do not suffice.” Id.; see also Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“While a

complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations . . .

a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” (internal citations

omitted)). Those “[f]actual allegations must be enough

to raise a right to relief above the speculative level,”

and assert a cause of action with enough heft to show

entitlement to relief and “enough facts to state a claim

to relief that is plausible on its face.” Id. Second, “only

a complaint that states a plausible claim for relief

survives a motion to dismiss.” Iqbal, 556 U.S. at 679.

The complaint therefore must contain “factual

amplification . . . to render a claim plausible.” Arista

Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)

(quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d

Cir. 2009)).

At this stage, a court takes all factual allegations

in the complaint as true. Iqbal, 556 U.S. at 678. A

court also will view the factual allegations in the light

most favorable to the plaintiff, and a court will draw

all inferences in favor of the plaintiff. See Cohen v.

S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013);

see also York v. Ass’n of the Bar of the N.Y.C., 286 F.3d

App-69

122, 125 (2d Cir. 2002) (“On a motion to dismiss for

failure to state a claim, we construe the complaint in

the light most favorable to the plaintiff, accepting the

complaint’s allegations as true.”), cert. denied, 537

U.S. 1089 (2002).

A court considering motions to dismiss under Rule

12(b)(6) limits its review “to the facts as asserted

within the four corners of the complaint, the

documents attached to the complaint as exhibits, and

any documents incorporated in the complaint by

reference.” McCarthy v. Dun & Bradstreet Corp., 482

F.3d 184, 191 (2d Cir. 2007).

III. DISCUSSION

A. Mr. Conyers’ Declaratory and Injunctive

Relief Claims

As an initial matter, Defendants have

supplemented their motion to dismiss asking the

Court to find Mr. Conyers’ declaratory and injunctive

relief claims moot because he is no longer at the FCI

Danbury facility. See First Motion to Supplement

Motion to Dismiss, ECF No. 72. Plaintiffs do not

object. See Memorandum in Opposition to Motion to

Supplement Pending Motion, ECF No. 80.

The Court agrees.

In the Second Circuit, “an inmate’s transfer from

a prison facility generally moots claims for declaratory

and injunctive relief against officials of that facility.”

Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).

In doing so, the Second Circuit calls for courts to “moot

all injunctive and declaratory claims” for individuals

no longer incarcerated in the facility at issue. Id.

App-70

Here, Defendants have filed a declaration that the

Bureau of Prisons transferred Mr. Conyers to another

facility. See Declaration of Cheryl Magnusson, ECF

No. 72-1, at ¶ 4. And Plaintiffs do not oppose the

dismissal of Mr. Conyers’s official capacity claims.

Plaintiff’s Opposition to Defendants’ Supplements to

Motion to Dismiss, ECF No. 79. The Court therefore

finds that Mr. Conyers’ claims for declaratory and

injunctive relief are moot as to all Defendants in their

official capacities.

Accordingly, the Court will dismiss Mr. Conyers’

claims for declaratory and injunctive relief.

B. Mr. Sabir’s Declaratory and Injunctive Relief

Claims

Defendants have also filed a second supplemental

motion to dismiss asking the Court to find Mr. Sabir’s

declaratory and injunctive relief claims moot because

he is no longer at the FCI Danbury facility. See Second

Motion to Supplement Motion to Dismiss, ECF No. 76.

In response, Plaintiffs do not oppose the Court

dismissing their claims for injunctive and declaratory

relief against Warden Williams but argue that

declaratory and injunctive relief against Director

Hurwitz in his official capacity is not moot because Mr.

Sabir could be restricted from prayer at his new

facility. Memorandum in Opposition to Motion to

Supplement Pending Motion, ECF No. 80, at 3.

Plaintiffs argue that if the conditions at Mr. Sabir’s

new facility are similar to those at FCI Danbury, then

his claims are not rendered moot by simply

transferring him to a new facility. Id. at 4–5. Plaintiffs

also note that Defendants have not designated to them

App-71

or the Court where Mr. Sabir will end up, nor have

they argued that group prayer would be available at

Mr. Sabir’s new facility. Id. at 7–8.

Because it is not clear that Mr. Sabir’s new facility

will accommodate his prayer request and a declaration

from Director Hurwitz recognizing the right to

congregative prayer as unlawful would affect the

entire federal prison system, Plaintiffs argue that Mr.

Sabir’s claims are not moot because of his transfer to

a new facility. Id. at 7–10.

In reply, Defendants argue that Plaintiffs have

not met their burden in showing that an exception to

the mootness doctrine applies to this case. Reply to

Response, ECF No. 80, at 2–4. Defendants then argue

that while they believe Mr. Sabir waived his claim, the

Court should nevertheless dismiss his claims because

there is no evidence he will ever be subjected to FCI

Danbury’s religious congregation policy again. Id. at

4–5.

Defendants then argue that an order restricting

Director Hurwitz from enjoining FCI Danbury from

prohibiting congregational prayer for Mr. Sabir would

have no effect on him or his present claims because of

the change of facility. Id. at 5–6.

The Court disagrees.

While “[i]t is settled in this Circuit that a transfer

from a prison facility moots an action for injunctive

relief against the transferring facility,” see Prins v.

Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (citations

omitted), transfer does not automaticaly render claims

against other prison officials moot, see Salahuddin,

467 F.3d at 272 (finding as moot all injunctive and

App-72

declaratory relief against all defendants at a

Plaintiff’s previous facility after a transfer). At the

same time, “federal courts lack jurisdiction to decide

questions that cannot affect the rights of litigants in

the case before them.” Davis v. N.Y., 316 F.3d 93, 99

(2d Cir. 2002) (citations omitted). And a case is moot

where “it can be said with assurance that there is no

reasonable expectation that the alleged violation will

recur, [and] interim relief or events have completely

and irrevocably eradicated the effects of the alleged

violation.” Id. (quoting Associated Gen. Contractors of

Conn. v. City of New Haven, 41 F.3d 62, 66–67 (2d Cir.

1994)).

Here, Mr. Sabir’s claims for injunctive and

declaratory relief against Director Hurwitz are not

moot becuase there is nothing to indicate that his

alleged freedom of expression grievance will not

continue at his new facility. When calling for a

mootness determination, “party seeking to have a case

dismissed as moot bears a heavy burden,” see Lillbask

ex. Rel. Mauclaire v. Conn. Dep’t. of Educ., 397 F.3d

77, 84 (2d Cir. 2005), and must show that “there is no

reasonable expectation that the wrong will be

repeated,” see United States v. W. T. Grant Co., 345

U.S. 629, 633 (1953). See, e.g. Friends of the Earth v.

Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) (“The

heavy burden of persua[ding] the court that the

challenged [voluntarily ceased] conduct cannot

reasonably be expected to start up again lies with the

party asserting mootness.” (citation omitted)).

While Plaintiffs do not oppose the Court

dismissing their claims for injunctive and declaratory

relief against Warden Williams, see Second Motion to

App-73

Supplement Motion to Dismiss, ECF No. 76, at 3, they

continue to argue the declaratory and injunctive relief

claims against Director Hurwitz, see id. They argue

that the Federal Bureau of Prisons “has no formal

policy banning prayer in its facilities,” see Compl. at

¶ 4, but still permits individual facilities to enforce

policies that have “a chilling effect on the ability of

Plaintiffs and other Muslim incarcerated persons to

practice their faith in a manner consistent with their

sincerely-held religious beliefs,” see id. at ¶ 46.

Moreover, Defendants have not disclosed Mr.

Sabir’s permanent facility once his transfer is

completed. See Declaration of Cheryl Magnusson, ECF

No. 76-1, at ¶ 5. As a result, the Court cannot find that

the alleged freedom of expression violation would not

occur at Mr. Sabir’s new facility or that future

transfers will not bring Mr. Sabir back to FCI

Danbury. The Court therefore finds that Defendants

have failed to meet their burden to show that there is

a reasonable expectaiton that Mr. Sabir’s alleged

constitutional violations will not be repeated. 1

Accordingly, the Court will dismiss Mr. Sabir’s

declaratory and injunctive releief claims saginst

Defendants Williams and Quay. But the Court will not

dismiss Mr. Sabir’s declaratory and injunctive relief

claims against Director Hurwitz, at least right now.

See Salahuddin, 467 F.3d at 272 (finding as moot all

injunctive and declaratory relief against all

1 Of course, if Mr. Sabir has no viable claim at his new facility,

Mr. Hurwitz can raise the issue of mootness again at a later stage

of this proceeding.

App-74

defendants at a Plaintiff’s previous facility after a

transfer). 2

C. Monetary Damages Claims

The Supreme Court has stated that “officialcapacity suits generally represent only another way of

pleading an action against an entity of which an officer

is an agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991)

(citation and internal quotation marks omitted). In an

official capacity suit, “the real party in interest . . . is

the governmental entity and not the named official.”

Id. By contrast, individual capacity suits “seek to

impose individual liability upon a government officer

for [her] actions under color of [] law.” Id.

“Absent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit.” Dep’t

of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999)

(citation omitted). Sovereign immunity, however, does

not shield federal officials sued in their individual

capacities. Lewis v. Clarke, 137 S. Ct. 1285, 1291

(2017) (“[S]overeign immunity does not erect a barrier

2 If either Mr. Sabir or Mr. Conyers returns to FCI Danbury or

transfers to facility with similar restrictions on congregative

prayer, Plaintiffs then could return to this Court to resume their

declaratory and injunctive relief claims without first exhausting

administrative remedies or re-filing. See Dietz v. Bouldin, 136 S.

Ct. 1885, 1892 (2016) (recognizing that “district courts have the

inherent authority to manage their dockets and courtrooms with

a view toward the efficient and expedient resolution of cases”);

Craig v. Univ. of Conn. Health Ctr., No. 3:13-cv-00281-WWE,

2014 WL 4364530, at *2 (D. Conn. Sept. 3, 2014) (“In this

instance, because part of plaintiff’s complaint will survive on the

merits, efficiency dictates that plaintiff not be forced to re-file the

action. Such result would burden both parties.”).

App-75

against suits to impose individual and personal

liability.” (internal quotation marks omitted)).

Defendants argue that Plaintiffs seeks to

impermissibly expand Bivens to include a new context,

while there are multiple existing administrative and

judicial avenues to challenge FCI Danbury’s prayer

policy. Memorandum of Law in Support of Defendants’

Motion to Dismiss Plaintiff’s Second Amended

Complaint, ECF No. 55 (“Mem. in Supp. of MTD.”), at

6–8. Defendants argue that the Religious Freedom

Restoration Act, Board of Prisons administrative

remedy program, and other avenues of judicial relief

caution against expanding Bivens to recognize a new

First Amendment damages remedy. Id. at 8–11.

Defendants further argue that special factors

counsel against court recognition of an implied cause

of action under the First Amendment. Id. at 11. First,

Congress has the primary role of regulating federal

prisons and protecting religious rights—which

Congress has exercised with the Religious Freedom

Restoration Act, the Religious Land Use and

Institutionalized Persons Act, and Prison Litigious

Reform Act. Id. at 11–12. While Defendants agree that

Bivens is the proper avenue to address individual

wrongdoing, they argue that Congress should handle

any shortcomings in agency policy. Id. at 12–13.

Defendants also argue that because Congress has

delegated management of federal prisons to the Board

of Prisons, asserting a Bivens remedy would implicate

separation of powers and potential systemwide costs

of individual lawsuits also counsel against expanding

the Bivens doctrine to include First Amendment

damages. Id. at 13–15.

App-76

Defendants further assert that the United States

has not waived its sovereign immunity from suits for

damages based on alleged employee constitutional

violations. Id. at 26. To the extent Plaintiffs assert

damages claims in their official capacities, the United

states claims that those claims must fail. Id. at 23.

In response, Plaintiffs argue that the Court has

already held that Mr. Sabir stated a plausible claim

against Defendants on both First Amendment and

Religious Freedom Restoration Act grounds.

Plaintiff’s Memorandum of Law in Opposition to

Defendants’ Motion to Dismiss, ECF No. 60 (“Mem. in

Opp. to MTD.”), at 4. Plaintiffs argue that the Second

Amended Complaint only acts to bolster their claims

and should survive the motion to dismiss because the

same plausibility standard also applies now. Id. at 5.

Because Plaintiffs allege punishment for engaging in

congregative prayer in violation of the FCI Danbury

Policy, they assert that the allegations are enough to

survive a motion to dismiss. Id. at 6.

Moreover, Plaintiff asserts that they only seek

money damages against the wardens in their

individual capacity based on the Religious Freedom

Restoration Act therefore “Plaintiffs need not, and do

not, look to Bivens to seek damages.” Id. at 7.

In reply, Defendants argue that the Court should

dismiss Plaintiffs’ First Amendment claim as a Bivens

claim for money damages. Reply Memorandum in

Support of Defendant’s Motion to Dismiss, ECF No. 61

(“Reply Mem.”), at 1. Because Bivens is the only

avenue for damages under the First Amendment,

Defendants argue that the Court should dismiss the

First Amendment damages claim. Id. Even if there is

App-77

an implied remedy under the Constitution,

Defendants argue that qualified immunity is

appropriate because there is no recognized right for

federal inmates to congregate during prayer with the

maximum number of practicing Muslims possible. Id.

at 2.

Defendants also argue that qualified immunity

bars Plaintiffs’ damages claim under the Religious

Freedom Restoration Act because no Supreme Court

or Second Circuit decision has ever recognized the

right for inmates to pray with the maximum number

of practicing Muslims possible. Id. Defendants

contend that any other formulation of the right

asserted in this case is at too high a level of generality

to deal with this conduct in the specific context of this

case. Id. at 3. And Defendants argue that Plaintiffs

improperly construed the initial screening order as

evidence of the Complaint’s plausibility. Id. at 10.

The Court disagrees, at least for now.

1.

Religious Freedom Restoration Act

The RFRA states that the “[g]overnment shall not

substantially burden a person’s exercise of religion

even if the burden results from a rule of general

applicability [unless] . . . application of the burden . . .

(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. § 2000bb-1. Congress enacted RFRA “in order

to provide very broad protection for religious liberty.”

Holt v. Hobbs, 135 S. Ct. 853, 859 (2015) (quoting

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693

(2014)). RFRA places a more demanding burden on the

App-78

government “to ‘sho[w] that it lacks other means of

achieving its desired goal without imposing a

substantial burden on the exercise of religion by the

objecting part[y].’” Id. at 864 (quoting Burwell, 573

U.S. at 728). The United States Supreme Court has

held that RFRA is unconstitutional as applied to state

law, see City of Boerne v. Flores, 521 U.S. 507, 519

(1997), but it continues to apply to the federal

government and its officers, see Sossamon v. Tex., 563

U.S. 277, 281 (2011).

Here, FCI Danbury’s policy of limiting group

prayer of three or more persons to the chapel is

arguably a substantial burden on the exercise of

religion. As the Court has previously stated,

“[c]onstruing his allegations liberally, Mr. Sabir has

stated a plausible claim that the group prayer policy

at FCI Danbury substantially burdens his ability to

practice his Muslim religion.” Ruling on Motion to

Reopen and Amend Complaint, ECF No. 16, at 11.

Further, Mr. Sabir’s Second Amended Complaint has

supplemented his claim in three ways.

First, the operative allegations detail the religious

importance of congregational prayer. See Second Am.

Compl. at ¶ 19 (“engaging in congregational prayer

with the maximum number of practicing Muslims

possible is required because such prayers multiplies

the blessings and utility of prayer”). Second, Plaintiffs

established the burden the Policy has placed on his

exercise of religion. Id. at ¶ 44 (recalling how Plaintiffs

“have been forced to choose between acting in

accordance with their sincere religious beliefs and

facing discipline at the prison, including possible

solitary confinement and loss of other privileges”).

App-79

Third, Plaintiffs alleged that FCI Danbury only

applies this sort of burden to religious activities, while

other group activities continued unencumbered. Id. at

¶ 28 (recounting how incarcerated people “routinely

gather in large groups for prison-approved activities

such as inmate-led fitness classes, card games, and

sports, some of which can involve over 20 incarcerated

persons at a time”).

Courts have interpreted RFRA to include broad

religious protections that allow for damages against

federal officials in their individual capacity. Indeed, as

the Supreme Court has stated, Congress sought “to

provide very broad protection for religious liberty.”

Burwell, 573 U.S. at 693. The statute permits any

“person whose religious exercise has been burdened in

violation of [the statute]” to “assert that violation as a

claim or defense in a judicial proceeding and obtain

appropriate relief against a government.” 42 U.S.C.

§ 2000bb-1(c). And the Second Circuit has held that

“RFRA authorizes the recovery of money damages

against federal officers sued in their individual

capacities.” Tanvir v. Tanzin, 894 F.3d 449, 463 (2d

Cir. 2018).

Accordingly, Mr. Sabir may assert claims for

monetary damages against Defendants in their

individual capacities under RFRA.

2.

Qualified Immunity

“A federal official performing administrative or

discretionary functions may be entitled to qualified

immunity rather than absolute immunity.” King v.

Simpson, 189 F.3d 284, 289 (2d Cir. 1999) (citation

omitted). Qualified immunity shields government

App-80

officials ‘insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Id.

(citing Scotto v. Almenas, 143 F.3d 105, 110 (2d Cir.

1998)).

Qualified immunity shields federal officials from

money damages “unless a plaintiff pleads facts

showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.”

Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Courts “have discretion to decide which of the two

prongs of qualified-immunity analysis to tackle first.”

Id. (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

Defendants argue that there is no clearly

established right to pray in all areas of a federal prison

with the maximum number of practicing Muslims

possible. Defendants assert that there is no Supreme

Court or Second Circuit decision placing federal prison

wardens on notice that limiting group prayer violates

the First Amendment or Religious Freedom

Restoration Act. Mem. in Supp. of MTD. at 17.

Moreover, district courts have not established a right

to engage in group prayer anywhere within the

correctional facility. Id. at 18. In the absence of clear

legal authority putting them on notice, Defendants

argue that the individual officials in this case are

entitled to qualified immunity. Id. at 19.

Defendants further argue that their conduct did

not violate a constitutional or statutory right. Because

the wardens acted in a supervisory capacity,

App-81

Defendants assert that there was no personal

involvement or an affirmative causal link between any

Defendant’s actions and Plaintiffs’ injuries. Id. at 22–

23. Defendants therefore argue that personal liability

cannot flow from implementation of preexisting prison

policy. Id. at 23–25. Because Plaintiffs can only allege

one instance of the Policy having impacted their

ability to pray in a group, Defendants assert that

Plaintiffs have not alleged a plausible claim that the

Policy hindered performance of their religious

obligations. Id. at 26.

In response, Plaintiffs argue that weighing the

qualified immunity defense is premature, and better

addressed at a later stage of this litigation. Mem. in

Opp. to MTD. at 7. Even then, qualified immunity does

not apply to Defendants Williams and Quay because

they violated clearly established First Amendment

and Religious Freedom Restoration Act rights in

implementing the Policy. Id. at 8–9. According to

Plaintiffs, Defendants were on notice that

substantially burdening Plaintiffs’ religion without

sufficient justification violates clearly established

constitutional and statutory rights. Id. at 9. Because

the contours of the question of how Defendants

violated Plaintiffs rights is a factual one, Plaintiffs

argue that the Court should not make a final qualified

immunity determination until summary judgment. Id.

at 11.

In addition, Plaintiffs argue that the burden

placed on the exercise of their religious beliefs was not

objectively reasonable. Id. at 12. Because the burden

placed on the exercise of Plaintiffs’ sincerely-held

religious beliefs is inconsistent with other authorized

App-82

group activities, Plaintiffs argue that the Court should

find that no reasonable prison official should have

maintained the Policy.

Finally, Plaintiffs argue that, at the pleading

stage, the Complaint should survive a motion to

dismiss based on lack of personal involvement because

the Defendant Quay was Warden when Mr. Sabir filed

his administrative grievance, Defendant Williams was

Warden when Mr. Conyers filed his administrative

grievance, and Defendant Williams was Warden when

the flyer was circulated restricting group prayer to the

chapel. Id. at 14. Because a person who denies a

prisoner’s grievance is personally involved in the

deprivation of rights, the Court should afford

Plaintiffs the opportunity to seek further evidence of

their claims. Id. at 14–15.

In the Second Circuit, “a defendant presenting an

immunity defense on a Rule 12(b)(6) motion instead of

a motion for summary judgment must accept the more

stringent standard applicable to this procedural

route.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.

2004). At this stage, the Court must take all factual

allegations in the Complaint as true. Iqbal, 556 U.S.

at 678. And the Court will, as it must at this stage of

the case, view the factual allegations in the light most

favorable to the plaintiff and draw all inferences in

favor of the plaintiff. See York, 286 F.3d at 125 (“On a

motion to dismiss for failure to state a claim, we

construe the complaint in the light most favorable to

the plaintiff, accepting the complaint’s allegations as

true.”).

Here, Plaintiffs have plausibly alleged conditions

that deprived him of his freedom to exercise his

App-83

Muslim religion. Specifically, Plaintiffs allege that

“Plaintiffs and other Muslim incarcerated persona at

FCI Danbury are unable to adhere to their sincerelyheld religious beliefs and engage in daily

congregational prayer,” which “imposes a substantial

burden on Plaintiff’s exercise of religion.” Compl. at

¶ 6. The freedom of exercise, however, “often involves

not only belief and profession but the performance of

. . . physical acts such as assembling with others for a

worship service.” Cutter v. Wilkinson, 544 U.S. 709,

721 (2005) (quoting Employment Div., Dep’t of Human

Res. of Or. v. Smith, 494 U.S. 872, 877 (1990))

(alterations omitted). While Plaintiffs can pray in the

chapel, Plaintiffs allege that facility “is only open

when chapel staff are present and the facility’s rooms

are not already occupied or reserved by other

individuals.” Compl. at ¶ 32. And those restrictions on

the access to the facility and exercise of Plaintiffs

religion may violate clearly established First

Amendment case law and the RFRA statute.

As a result, it is plausible—at this stage—that

qualified immunity would not shield Defendants from

liability in their individual capacities. A court still

“must decide whether the facts that a plaintiff has

alleged or shown make out a violation of a

constitutional right,” see Pearson, 555 U.S. at 232

(citing Anderson v. Creighton, 483 U.S. 635, 640

(1987)), and summary judgment is more appropriate

for such a determination, see Walker v. Schult, 717

F.3d 119, 130 (2d Cir. 2013) (“Although federal

officials’ claims of qualified immunity should be

decided as early as possible in a case, it would be

premature to dismiss the case now on this basis.

Rather, as we have noted previously, qualified

App-84

immunity is often best decided on a motion for

summary judgment when the details of the alleged

deprivations are more fully developed” (citation

omitted)); see also Castro v. United States, 34 F.3d 106,

112 (2d Cir. 1994) ( “Although a defense of qualified

immunity should ordinarily be decided at the earliest

possible stage in litigation, and it is a defense that

often can and should be decided on a motion for

summary judgment, some limited and carefully

tailored discovery may be needed before summary

judgment will be appropriate.” (internal citations and

quotation marks omitted)). 3

Accordingly, the Court denies the motion to

dismiss as to Plaintiffs’ individual capacity claims. See

Behrens v. Pelletier, 516 U.S. 299, 307–08 (1996)

(affirming that a defendant may raise the qualified

immunity defense at successive stages).

IV. CONCLUSION

For the foregoing reasons, the Court DENIES the

motion to dismiss, GRANTS the first supplemental

Significantly, the Second Circuit in Salahuddin addressed

qualified immunity arguments relating to a religious liberty

claim at the summary judgment stage and, even at that later

stage, found the granting of a motion for summary judgment on

qualified immunity grounds inappropriate. See Salahuddin, 467

F.3d at 275–76 (“Qualified immunity is not appropriate at this

stage because it was clearly established at the time of the alleged

violations that prison officials may not substantially burden

inmates’ right to religious exercise without some justification and

because we cannot say as a matter of law that it was objectively

reasonable for any defendant to believe that the facts as they

stand on summary judgment showed no violation of a clearly

established right. Accordingly, these issues remain to be resolved

in further proceedings.”).

3

App-85

motion to dismiss, and DENIES

supplemental motion to dismiss.

the

second

SO ORDERED at Bridgeport, Connecticut, this

27th day of August 2019.

/s/ Victor A. Bolden

VICTOR A. BOLDEN

UNITED STATES DISTRICT JUDGE

App-86

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________

No. 19-3575

________________

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs-Appellees,

v.

D.K. WILLIAMS, in her individual capacity

and official capacity as Warden of FCI Danbury,

HERMAN QUAY, in his individual capacity,

Defendants-Appellants,

MARK S. INCH, Director of Federal Bureau of Prisons,

THOMAS R. KANE, Director of Federal Bureau of

Prisons, HUGH J. HURWITZ, in his individual capacity

as Director of the Federal Bureau of Prisons,

Defendants.

________________

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 29th day of

December, two thousand twenty-two.

Decided: December 29, 2022

Document No. 127

________________

App-87

ORDER

Appellants Herman Quay and D.K. Williams,

filed a petition for rehearing en banc. The active

members of the Court have considered the request for

rehearing en banc.

IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

App-88

Appendix D

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

________________

No. 3:17-cv-749 (VAB)

________________

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs,

v.

D.K. WILLIAMS, in her individual capacity and her

official capacity as Warden of FCI Danbury,

HERMAN QUAY, in his individual capacity, et al.,

Defendants.

________________

Filed: June 1, 2018

Document No. 36

________________

SECOND AMENDED COMPLAINT

Plaintiffs Dr. Rafiq Sabir and Mr. James J.

Conyers (“Plaintiffs”), by and through the undersigned

counsel, pursuant to this Court’s Orders of December

19, 2017 (ECF No. 16) and May 14, 2018 (ECF No. 34),

file this Second Amended Complaint against

Defendants and allege as follows:

PRELIMINARY STATEMENT

1. A central tenet of Islam is the obligation for

adult Muslims to pray—perform salah—five times

each day. These prayers, which take place during

App-89

specific parts of the day (i.e., dawn, early afternoon,

late afternoon, post-sunset, and evening) are a

fundamental aspect of the Islamic faith. Performing

salah is one of the Five Pillars of Islam; for the vast

majority of Muslims it is considered a foundation of

their religious life and identity. Many Muslims also

believe that it is vital to perform salah in a group

setting if there are other Muslims in the vicinity

during prayer times.

2. Plaintiffs are incarcerated persons currently

housed at Federal Correctional Institution Danbury

(“FCI Danbury”), a low-security prison. Plaintiffs are

Muslim and share the sincerely-held belief that their

religion requires them to engage in daily

congregational prayer whenever possible. Yet,

Defendants have, without legitimate justification,

imposed a policy that substantially restricts and

effectively bars Plaintiffs—and other Muslim

incarcerated persons housed at FCI Danbury—from

engaging in this important religious practice.

3. In March 2014, Maureen Baird, who was at that

time the warden of FCI Danbury, issued a policy that

categorically limited the ability of Plaintiffs and other

Muslim incarcerated persons to engage in

congregational prayer. See FCI Danbury Institution

Supplement no. DAN 5360.09F § 3(b)(2) (Mar. 28,

2014) (the “Policy”), attached hereto as Attachment A.

Subsequent wardens, including Defendants Herman

Quay and D.K. Williams, kept the Policy in effect.

Under the terms of the Policy, prayer in groups of

more than two is banned in all parts of the FCI

Danbury complex except for the chapel facility. Given

that incarcerated persons have very limited access to

App-90

the chapel facility, the Policy effectively bans

congregational prayer in FCI Danbury, making it

impossible for Plaintiffs and other Muslim

incarcerated persons to perform salah in accordance

with their sincerely-held religious beliefs.

4. Defendants have failed to provide any valid

security or other penological interest to support the

Policy. The Federal Bureau of Prisons (“FBOP”) has

no formal policy banning congregational prayer in its

facilities, and both Plaintiffs have been housed in

other FBOP facilities that allowed incarcerated

persons to engage in group prayer openly and without

restriction. In fact, even after then-warden Baird

enacted the Policy, certain incarcerated persons at

FCI Danbury have at times been allowed to engage in

congregational prayer when not in the chapel facility.

Plaintiffs are not aware of any security incidents or

concerns that have arisen as a result of any of these

congregational prayers.

5. The Policy, however, remains in effect and

many corrections officers and other prison officials at

FCI Danbury do strictly enforce its terms. For

example, in October 2014, Plaintiff Sabir was engaged

in congregational prayer with several other

incarcerated persons in FCI Danbury’s auditorium

facility. A corrections officer dispersed the group and

warned Plaintiff Sabir that he would face discipline if

he violated the Policy and again engaged in

congregational prayer. Similarly, in April 2018

another group of Muslim incarcerated persons were

threatened with discipline for engaging in

congregational prayer in violation of the Policy.

App-91

6. As a result of these and other actions Plaintiffs

and other Muslim incarcerated persons at FCI

Danbury are unable to adhere to their sincerely-held

religious beliefs and engage in daily congregational

prayer. Defendants’ generalized prohibition of

congregational prayer imposes a substantial burden

on Plaintiffs’ exercise of religion. Because the Policy

neither furthers a compelling governmental interest

nor represents the least restrictive means of

furthering a compelling governmental interest, it

violates Plaintiffs’ rights under the First Amendment

of the United States Constitution and the Religious

Freedom Restoration Act (“RFRA”).

7. Plaintiffs bring this action seeking a court order

enjoining Defendants’ effective ban on congregational

prayer at FCI Danbury and further enforcement of the

Policy. Defendants have acted and continue to act

under color of law to deprive Plaintiffs of their

statutory and constitutional rights. Plaintiffs are

suffering irreparable injury and will continue to suffer

a real and immediate threat of irreparable injury as a

result of the existence, operation, and implementation

of the challenged Policy. Plaintiffs also seek a

declaratory judgment that the Policy violates their

statutory and constitutional religious freedom rights,

and damages, an award of costs and attorneys’ fees,

and such other and further relief as this court deems

just and proper.

JURISDICTION AND VENUE

8. This Court has jurisdiction over Plaintiffs’

claims pursuant to 28 U.S.C. §§ 1331 and 1343.

App-92

9. This Court has jurisdiction to issue declaratory

relief pursuant to the Declaratory Relief Act, 28 U.S.C.

§§ 2201 and 2202. Injunctive relief is authorized by

Rules 57 and 65 of the Federal Rules of Civil

Procedure and the Court’s inherent equitable powers.

10. As detailed below, Plaintiffs have exhausted

administrative remedies pursuant to 28 U.S.C.

§ 2675(a) and 42 U.S.C. § 1997e(b).

11. Venue lies in this district pursuant to 28

U.S.C. § 1391(b)(2).

PARTIES

12. Plaintiff Dr. Rafiq Sabir is a practicing

Muslim and has identified as a member of the Sunni

Muslim community for nearly 40 years. He is and was,

at all times relevant hereto, an incarcerated person in

the custody of FBOP. Dr. Sabir was transferred to FCI

Danbury in July 2014 and since that time has been

confined at FCI Danbury, excluding from

approximately March 15, 2015 to July 2016 when he

was transported to and confined in the Federal

Medical Center Devens (“FMC Devens”) and

Metropolitan Detention Center Brooklyn, for surgery

and medical treatment during his recovery from

surgery.

13. Plaintiff James Conyers is a practicing

Muslim who converted to Islam approximately 21

years ago. He is and was, at all times relevant hereto,

an incarcerated person in the custody of FBOP. Mr.

Conyers was transferred to FCI Danbury in

September 2016 and has been confined at that facility

since that time.

App-93

14. Defendant D.K. Williams is the current

Warden of FCI Danbury and is legally responsible for

the operation of FCI Danbury and for the welfare of all

incarcerated persons in that prison. She is sued in her

individual and official capacities.

15. Defendant Herman Quay was the Warden of

FCI Danbury from July 2014 until December 2015. He

is sued in his individual capacity.

16. Defendant Hugh J. Hurwitz1 is the current

Acting Director of FBOP and is legally responsible for

the operation of all prisons within FBOP and for the

welfare of all its incarcerated persons throughout

FBOP. He is sued in his official capacity.

FACTUAL ALLEGATIONS

A. The Importance of Congregational Prayer

17. Within Islam there are a number of

foundational tenets, known as the Five Pillars, to

which all members of the faith are expected to adhere.

One of those tenets is daily prayer or salah. With

extremely limited exceptions, most Muslims who have

reached the age of puberty are expected to pray five

times each day.

18. The five daily prayer times are measured

according to the movement of the sun: (i) predawn/sunrise (fajr), (ii) early afternoon (dhuhr),

(iii) late afternoon (asr), (iv) post-sunset (maghrib),

1 Pursuant to Federal Rule of Civil Procedure 25(d), Defendant

Hurwitz is substituted in his official capacity for former Director

of the FBOP Thomas Kane.

App-94

and (iv) night (isha). During the month of Ramadan,

an additional nightly prayer is required.

19. The most important prayer of the week is the

Friday early afternoon prayer (Ju’muah service),

which many Muslims believe must be prayed in

congregation. As for the other daily prayers, many

Muslims sincerely believe that observing prayer in

congregation is also mandatory whenever possible

(i.e., when they are in the presence or vicinity of other

Muslims during prayer times), as it has more spiritual

and social benefits than individual observance. For

these believers, engaging in congregational prayer

with the maximum number of practicing Muslims

possible is required because such prayer multiplies

the blessings and utility of prayer.

20. When Muslims engage in congregational

prayer, participants stand in straight rows behind the

person who leads the prayer, known as the imam.

21. When salah is performed in a group setting,

there is a congregational prayer that takes

approximately five minutes to perform. There are

additional individual supplementary prayers made

either immediately before or after the congregational

prayer that generally take an additional two to five

minutes.

22. The prayers follow a prescribed sequence of

actions and words and the congregants do not

converse among themselves during the prayers. Often,

a large portion of the communal prayers are silent.

The spoken portions of prayers can be performed in a

manner that does not disturb others in the nearby

vicinity.

App-95

23. For Plaintiffs Sabir and Conyers—as well as

many other Muslim incarcerated persons housed at

FCI Danbury—it is their sincerely-held religious

belief that if two or more Muslims are together at a

time of required prayer, they must pray together

behind one prayer leader, and that it is not

permissible to break up into smaller groups.

B. FCI Danbury’s Restrictions on Congregational

Prayer

24. FBOP has no formal policy that categorically

bans congregational prayer in its facilities. Rather, the

warden of each correctional facility within FBOP is

tasked with determining whether any specific

religious practice jeopardizes the facility’s safety and

security. If so, the warden is authorized to temporarily

restrict the practice and/or identify an alternative

practice. 2

25. A number of FBOP facilities permit

incarcerated persons to engage in congregational

prayer openly and without restriction. When confined

at FMC Devens, Plaintiff Sabir was permitted to

engage in congregational prayer at locations

2 FBOP policy states that “The Warden may periodically review

religious practices to determine whether a religious practice

remains within the scope of best correctional practice and

religious accommodation. If upon review, the Warden determines

that a religious practice jeopardizes institution safety, security

and good order, the practice may be temporarily restricted.”

FBOP Program Statement P5360.009(7)(a) (Dec. 31, 2004). The

policy also provides “[w]hen necessary, Wardens may identify

alternative practices and implement the least restrictive

alternative consistent with the security and orderly running of

Bureau institutions. Id. P5360.009(7)(d).

App-96

throughout that facility. He is not aware of any

situations in which Muslim congregational prayer

interfered with or disturbed the orderly function at

FMC Devens.

26. Likewise, Plaintiff Conyers has been housed

in a number of FBOP facilities, including Federal

Medical Center Butner, Federal Prison Camp

Montgomery, and both the Federal Correctional

Institution and the Federal Prison Camp at Fort Dix.

In those facilities, he was generally permitted to

engage in daily congregational prayer. He is not aware

of any situations in which Muslim congregational

prayer interfered with or disturbed the orderly

function at those facilities.

27. FBOP’s Danbury facility houses three

separate institutions: (i) Federal Prison Camp

Danbury, a minimum-security prison housing

approximately 194 incarcerated persons; (ii) Federal

Satellite Low Danbury, a low-security all-female

facility housing approximately 115 persons; and

(iii) FCI Danbury, a low-security male FBOP facility

housing approximately 836 incarcerated persons. 3

Upon information and belief, approximately 150 of the

persons incarcerated at FCI Danbury currently

identify as Muslim.

28. As a low-security facility, incarcerated persons

in FCI Danbury have a high degree of personal

autonomy. Many of the housing units do not have

3 See FBOP Population Statistics, https://www.bop.gov/about/

statistics/population_statistics.jsp (select “Danbury” from

“Facility” drop-down menu and press “Generate Report” button)

(last visited June 1, 2018).

App-97

locks on the doors of the living quarters—including GUnit, where Plaintiff Conyers is housed, and H-unit,

where Plaintiff Sabir is housed—and even in those

units where locks are available, they are rarely used.

Incarcerated persons at FCI Danbury routinely gather

in large groups for prison-approved activities such as

inmate-led fitness classes, card games, and sports,

some of which can involve over 20 incarcerated

persons at a time.

29. The primary recreation area of FCI Danbury

includes a recreation yard, weight room, gymnasium,

bathroom, wellness room, hobbycraft room, music

room, video viewing area with game tables, the chapel

facility, and several offices (together, “the recreation

area”). Other areas accessible to incarcerated persons

include the medical area, food services, education and

housing facilities, laundry, the barber shop, and the

prison work program area (together, the “other

areas”).

30. On March 24, 2014, then-warden Maureen

Baird enacted the Policy, which severely restricted the

ability of incarcerated persons to engage in

congregational prayer. The Policy specifically

provides:

Congregate Prayer, outside of the Chapel, for all

faith groups [sic] will follow the following guidelines:

a) Must get the approval of the location to pray

from work supervisor, program supervisor, etc.

b) Prayer individually or in pairs is permitted,

however, group prayer of 3 or more is restricted to

the Chapel.

App-98

c) Prayers can be made at work detail sites,

school, or units during break times.

d) Prayer rug or clean towel is permitted to cover

the floor.

e) In cases of institutional emergency or

instructed by staff [sic] prayers will be

terminated.

FCI Danbury Institution Supplement DAN 5360.09F

(Mar. 28, 2014).

31. The Policy prohibits congregational prayer in

most parts of the FCI Danbury complex even though

incarcerated persons are allowed to engage in other

group activities in those spaces. FCI Danbury officials

authorize many group activities in which large

numbers of incarcerated persons gather. For example,

card games in the recreation area often involve six to

seven players, with another six to seven spectators

watching the games. Group sports are permitted,

including basketball, indoor hockey, soccer, volleyball,

and softball. These games often involve between 10

and 20 incarcerated persons. Incarcerated persons at

FCI Danbury are also regularly authorized to

participate in and lead fitness classes, which can

include as many as 20 individuals.

32. Although the Policy permits congregational

prayer in FCI Danbury’s chapel facility, incarcerated

persons have sporadic access to the chapel facility. The

chapel facility is only open when chapel staff are

present and the facility’s rooms are not already

occupied or reserved by other individuals. While FCI

Danbury officials have reserved a room in the chapel

facility for the weekly Ju’muah service, it is frequently

App-99

unavailable during other prayer times throughout the

week. In addition, Muslim incarcerated persons are

often required to be in other parts of the prison at

prayer time for work duties, classes, medical reasons,

or other reasons.

33. Defendants have offered no meaningful

justification for the Policy. Plaintiffs are not aware of

any incidents of congregational prayer interfering

with or disturbing the orderly function of FCI

Danbury notwithstanding the fact that Muslim

incarcerated persons engage in congregational prayer

(i) for the weekly Ju’muah service, (ii) in the chapel

facility when it is available, and (iii) in other areas of

FCI Danbury where the Policy is inconsistently

enforced. See Section D, infra.

C. Defendants’ Enforcement of the Policy Prevents

Plaintiffs from Practicing their Faith Consistent

with Their Sincerely-Held Religious Beliefs

34. Defendants’ enforcement of the Policy has

infringed on Plaintiffs and other Muslim incarcerated

persons’ ability to engage in congregational prayer.

35. For example, in October 2014, Plaintiff Sabir

was engaged in congregational prayer with two other

incarcerated persons in the auditorium at FCI

Danbury.

36. At all times before, during, and after the group

prayer, Dr. Sabir and his fellow incarcerated persons

conducted themselves peacefully, respectfully, and

cooperatively, and they did not interfere with other

incarcerated persons or the functioning and operation

of FCI Danbury.

App-100

37. Towards the conclusion of the group prayer

and while Dr. Sabir performed additional individual

prayers, certain incarcerated persons who had

participated in the congregational prayer were

approached by a corrections officer.

38. The corrections officer informed the

incarcerated persons that they had been observed by

surveillance cameras performing congregational

prayer and that such activity is only permitted in the

chapel facility. The corrections officer also informed

the incarcerated persons that violation of this rule

may result in disciplinary action.

39. Following that exchange, Dr. Sabir and

another corrections officer joined the conversation.

The corrections officer informed the group that the

Policy restricted congregational prayer to two people

throughout the FCI Danbury complex, unless inside

the chapel facility.

40. Dr. Sabir and the other incarcerated persons

informed the corrections officers that their religion

demanded they engage in congregational prayer five

times a day and that the chapel facility was not

available for them during all those times. In response,

the corrections officers reiterated the terms of the

Policy.

41. Even though it is Dr. Sabir’s sincerely-held

religious belief that he should participate in

congregational prayer whenever possible, Defendants’

enforcement of the Policy prevents him from doing so.

As a result of the October 2014 incident, he is fearful

that if he engages in daily congregational prayer he

will be subjected to discipline and sanction.

App-101

42. Defendants’ enforcement of the Policy also

prevents Plaintiff Conyers from engaging in daily

congregational prayer as mandated by his sincerelyheld religious beliefs.

43. Since coming to FCI Danbury, Mr. Conyers

has been repeatedly informed that congregational

prayer outside of the chapel facility is not permitted.

Rather than risk discipline for engaging in

congregational prayer—even though the practice is

mandated by his religious beliefs—Mr. Conyers has

refrained from engaging in congregational prayer on

many occasions.

44. Because of their inability to perform daily

prayer in congregation, Plaintiffs have been forced to

choose between acting in accordance with their sincere

religious beliefs and facing discipline at the prison,

including possible solitary confinement and loss of

other privileges. This choice has caused the Plaintiffs

mental and physical distress.

45. Defendants continue to enforce the Policy at

FCI Danbury. Upon information and belief, in April

2018, FCI Danbury staff approached several Muslim

incarcerated persons who were engaged in

congregational prayer and informed them that they

would be issued disciplinary write-ups and face other

sanctions if they continued to engage in

congregational prayer.

46. Defendants’ enforcement of the Policy has a

chilling effect on the ability of Plaintiffs and other

Muslim incarcerated persons to practice their faith in

a manner consistent with their sincerely-held

religious beliefs. In spring 2017, officials at FCI

App-102

Danbury circulated a flyer to the incarcerated persons

which cited to the Policy and stated that “group prayer

of 3 or more is restricted to the Chapel” and “Staff Will

be Enforcing This Policy.” Upon information and

belief, in recent months at least two other Muslim

incarcerated persons at FCI Danbury have filed

grievances against the Policy and its restrictions on

congregational prayer.

D. Defendants’ Inconsistent Application of the Policy

Demonstrates that Congregational Prayer Does

Not Jeopardize the Safety or Security of FCI

Danbury

47. The Policy is not applied equally throughout

FCI Danbury, depending on which members of staff

are on duty at the time and the area of the prison.

Within the recreation area, the Policy is generally

strictly enforced by FCI Danbury staff members.

Throughout the other areas, the Policy is applied

inconsistently, often depending on which staff

members are present at the time. Some counselors,

case managers, and unit managers strictly enforce the

Policy in these areas, while others turn a blind eye.

48. For example, in some housing units,

corrections officers allow Muslim incarcerated persons

to pray in congregation during morning prayers.

Similarly, Muslim incarcerated persons have been

permitted to engage in congregational prayer in an

outdoor space adjacent to the chapel facility.

49. Plaintiffs are not aware of any security issues

occurring during these congregational prayer

sessions. Because incarcerated persons who identify

as Muslim are often spread out in different parts of the

App-103

FCI Danbury complex, the groups are often small

(usually around three to six people). The prayers

usually last five minutes or less.

50. The lack of clarity about Defendant’s

enforcement of the Policy continues to chill Plaintiffs

and other Muslim incarcerated persons from

practicing in a manner consistent with their sincerelyheld religious beliefs. Plaintiffs can never be assured

of their ability to engage in daily congregational

prayer, even though the actions of FCI Danbury staff

make clear that the practice does not jeopardize the

facility’s safety and security.

E. Plaintiffs Have Exhausted All Administrative

Remedies

51. Plaintiff Sabir fully exhausted his

administrative remedies. The documents reflecting

this exhaustion are attached hereto as Attachment B.

52. During the grievance process, Dr. Sabir

informed FCI Danbury and other FBOP officials that

the Policy violates his sincerely-held religious beliefs,

and that FCI Danbury could allow him and other

Muslim incarcerated persons to engage in daily

congregational prayer without jeopardizing the

facility’s safety. FCI Danbury and FBOP officials

denied his grievance and the subsequent appeals, and

failed to provide any meaningful justification for the

Policy.

53. Plaintiff Conyers has also fully exhausted his

administrative remedies. The documents reflecting

this exh

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