Amicus Curiae Brief — Damon Landor, Petitioner v. Louisiana Department of Corrections and Public Safety, et al.

No. 23-1197

IN THE

Supreme Court of the United States

________________

DAMON LANDOR,

Petitioner,

v.

LOUISIANA DEPARTMENT OF CORRECTIONS

AND PUBLIC SAFETY, ET AL.,

Respondents.

________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

________________

BRIEF OF AMICI CURIAE RIGHTS BEHIND

BARS, HUMAN RIGHTS DEFENSE CENTER,

PENNSYLVANIA INSTITUTIONAL LAW

PROJECT, AND SOUTHERN CENTER FOR

HUMAN RIGHTS IN SUPPORT OF

PETITIONER

________________

Lauren A. Weber

Elizabeth R. Moulton

ORRICK, HERRINGTON &

Counsel of Record

SUTCLIFFE LLP

ORRICK, HERRINGTON &

401 Union Street

SUTCLIFFE LLP

Suite 3300

405 Howard Street

Seattle, WA 98101

San Francisco, CA 94105

(415) 773-5700

Elizabeth A. Bixby

emoulton@orrick.com

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 3

ARGUMENT ............................................................. 6

I.

The PLRA’s Exhaustion Requirement

Makes Obtaining Injunctive Relief For

Many Religious Practices—Which Are

Often Seasonal Or Short-Term In

Nature—Difficult Or Impossible. ...................... 6

II. Prison Officials Possess A Unique Power

To Moot Out Cases Involving Incarcerated

Plaintiffs When Relief Is Limited To

Injunctions. ....................................................... 12

III. Mandatory Pre-Service Screening Under

The PLRA Significantly Extends The

Time Before Incarcerated Plaintiffs Can

Seek Relief, Making Injunctive Relief Less

Meaningful. ....................................................... 17

IV. The PLRA Imposes Unusual Restrictions

On Injunctive Relief, And Many States

Also Have Analogs For Those Rules. ............... 19

CONCLUSION ........................................................ 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Knight,

No. 1:22-cv-287, 2024 WL 5497922,

(W.D. Mich. Dec. 9, 2024) ..............................14, 15

Alloway v. Hodge,

72 F. App’x 812 (10th Cir. 2003) .........................22

Booker v. Graham,

974 F.3d 101 (2d Cir. 2020) .................................14

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)............................................3, 5

Cardinal v. Metrish,

564 F.3d 794 (6th Cir. 2009)................................15

DeMarco v. Davis,

914 F.3d 383 (5th Cir. 2019)................................10

Fattah v. Doe,

No. 3:10-cv-1607 (M.D. Penn.).............................18

Fed. Bureau of Investigation v. Fikre,

601 U.S. 234 (2024)..............................................13

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023) ................................14

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000)..............................................13

Ga. Advocacy Office v. Jackson,

33 F.4th 1325 (11th Cir. 2022) ............................23

iii

Hall v. United States,

566 U.S. 506 (2012)................................................5

Harris v. Escamilla,

736 F. App’x 618 (9th Cir. 2018) .........................14

Heyward v. Cooper,

88 F.4th 648 (6th Cir. 2023) ........................8, 9, 14

Holt v. Hobbs,

574 U.S. 352 (2015)........................................3, 4, 5

Mississippi ex rel. Hood v. AU Optronics

Corp.,

571 U.S. 161 (2014)................................................5

Jones v. Bock,

549 U.S. 199 (2007)........................................17, 19

Lopez v. Smith,

203 F.3d 1122 (9th Cir. 2000)..............................18

Mayweathers v. Newland,

258 F.3d 930 (9th Cir. 2001)................................22

Meachum v. Fano,

427 U.S. 215 (1976)..............................................12

Merrick v. Inmate Legal Servs.,

No. cv-13-01094, 2018 WL 10344753

(D. Ariz. Mar. 15, 2018) .......................................11

Moore v. Calderon,

No. 1:20-cv-00397 (E.D. Cal.) ..............................18

Muhammad v. King,

No. 1:23-cv-1306, 2024 WL 1340548

(W.D. Mich. Mar. 29, 2024) .................................10

Olim v. Wakinekona,

461 U.S. 238 (1983)..............................................12

iv

Pearson v. Woznak,

No. 3:21-cv-206, 2024 WL 2136048

(W.D. Penn. Feb. 7, 2024) ....................................18

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542 (2010)..............................................16

Ross v. Blake,

578 U.S. 632 (2016)................................................6

Ruiz v. Estelle,

161 F.3d 814 (5th Cir. 1998)................................20

Tanzin v. Tanvir,

592 U.S. 43 (2020)........................................4, 5, 10

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

582 U.S. 449 (2017)..............................................14

United States v. W.T. Grant Co.,

345 U.S. 629 (1953)..............................................13

Williams v. Hall,

No. 1:20-cv-01171 (W.D. Tenn.) ..........................18

Woodford v. Ngo,

548 U.S. 81 (2006)..............................................6, 7

Zajrael v. Harmon,

677 F.3d 353 (8th Cir. 2012)................................14

Statutes

18 U.S.C. § 3626 ........................................................19

18 U.S.C. § 3626(a)(1)(A) .............................. 19, 20, 21

18 U.S.C. § 3626(a)(2) .........................................22, 23

18 U.S.C. § 3626(b)(2) ...............................................21

18 U.S.C. § 3626(c)(1) ................................................20

v

28 U.S.C. § 1915A .....................................................17

42 U.S.C. § 1988 ........................................................16

42 U.S.C. § 1997e(a) ....................................................6

42 U.S.C. § 2000cc-2(a) ...............................................4

42 U.S.C. § 2000cc-2(e) ...............................................5

42 U.S.C. § 2000cc-3(g) ...............................................3

42 U.S.C. § 2000cc-5(7)(A) ..........................................3

Prison Litigation Reform Act of 1995 .......... 4-6, 17-23

Religious Freedom Restoration Act of

1993 ..................................................................4, 16

Religious Land Use and

Institutionalized Persons Act of

2000 ................................................. 3-12, 14-19, 24

Alaska Stat. § 09.19.200(a) .......................................21

Cal. Pen. Code § 11189 et seq. ..................................13

Conn. Gen. Stat. § 18-102 .........................................13

Mich. Comp. Laws § 600.5517(1) ..............................21

42 Pa. Cons. Stat. § 6601 ..........................................21

42 Pa. Cons. Stat. § 6604(a) ......................................21

71 Pa. Cons. Stat. § 732-204(e) .................................21

71 Pa. Cons. Stat. § 732-301 .....................................21

Wash. Rev. Code § 72.70.010 ....................................13

Regulations & Rules

15 C.C.R. § 3483(g) ......................................................7

vi

15 C.C.R. § 3485(g) ......................................................8

Fed. R. Civ. P. 65(a)(1) ..............................................18

Other Authorities

11A Charles A. Wright & Arthur Miller,

Federal Practice and Procedure

§ 2941 (3d ed. 2020) .............................................22

Alison Brill, Rights Without Remedy:

The Myth of State Court Accessibility

After the Prison Litigation Reform

Act, 30 Cardozo L. Rev. 645 (2008) ...............20, 21

Andrea Fenster & Margo Schlanger,

Slamming the Courthouse Door: 25

Years of Evidence for Repealing the

Prison Litigation Reform Act (Apr.

26, 2021),

https://tinyurl.com/y8fv4r8h................................17

Allison M. Freedman, Rethinking the

PLRA: The Resiliency of Injunctive

Practice and Why It’s Not Enough,

32 Stan. L. & Pol’y Rev. 317 (2021).....................20

Emma Kaufman, The Prisoner Trade,

133 Harv. L. Rev. 1815 (2020) .............................13

Letter from Rights Behind Bars, to

Governor Jim Justice, et al. (Nov. 1,

2023), https://tinyurl.com/mrwef2w4 ..................11

Michele C. Nielsen, Mute and Moot:

How Class Action Mootness

Procedure Silences Inmates, 63

UCLA L. Rev 760 (2016)......................................16

vii

Margo Schlanger, Inmate Litigation,

116 Harv. L. Rev. 1555 (2003) .............................21

Catherine T. Struve, Allowing the

Courts to Step in Where Needed:

Applying the PLRA’s 90-Day Limit

on Preliminary Relief, 19 U. St.

Thomas L. J. 407 (2023) ................................22, 23

Tamika D. Temple, Mooted and Booted:

How the Mootness Doctrine Has

Been Used to Silence Violations of

Prisoners’ Constitutional Rights, 45

T. Marshall L. Rev. 117 (2021) ............................15

Tex. Dep’t of Crim. Justice, Inmate

Grievance Program (Oct. 2023),

https://tinyurl.com/2j6rdk8w .................................7

INTEREST OF AMICI CURIAE 1

Rights Behind Bars (RBB) uses litigation to advocate for people in prisons and jails to live in humane

conditions. RBB also contributes to a legal ecosystem

in which such advocacy is more effective and seeks to

create a world in which incarcerated people do not

face large structural obstacles to advocating for themselves in the courts. RBB helps incarcerated people

advocate for their own interests more effectively and

through such advocacy pushes towards a world in

which people in prisons and jails are treated humanely. Since its founding in 2019, RBB has acted as

counsel to more than 100 incarcerated people in the

courts of appeals and this Court. RBB’s experience

representing incarcerated plaintiffs gives it unique

insight into the barriers such plaintiffs face for obtaining meaningful injunctive relief when prisons and

jails violate their constitutional rights—even in

plainly meritorious cases like Petitioner Damon Landor’s.

The Human Rights Defense Center is a 501(c)(3)

non-profit organization that advocates on behalf of

the human rights of people held in U.S. detention facilities. This includes people in state and federal prisons, local jails, immigration detention centers, civil

commitment facilities, Bureau of Indian Affairs jails,

juvenile facilities, and military prisons. HRDC is one

1 No counsel for a party authored this brief in whole or in

part. No party, counsel for a party, or any person other than

amici, their members, or their counsel made a monetary contribution intended to fund the preparation or submission of this

brief.

2

of the few national opponents to the private prison industry and is the foremost advocate on behalf of the

free speech rights of publishers to communicate with

prisoners and the right of prisoners to receive publications and communications from outside sources.

HRDC also does significant work around government

transparency and accountability issues, which includes public records litigation throughout the country. HRDC publishes and distributes self-help

reference books for prisoners, and engages in litigation, media campaigns and outreach, public speaking

and education, and testimony before legislative and

regulatory bodies.

The Pennsylvania Institutional Law Project

(PILP) is a civil legal aid organization that protects

and advances the constitutional and civil rights of

people incarcerated and detained in Pennsylvania

through litigation, advocacy, and legal advice. PILP

strives to ensure that the thousands of clients it

serves every year are treated with dignity. PILP pursues humane conditions of confinement, safety from

violence, adequate medical and mental health care,

access to the courts, accommodations for disabilities,

and religious liberty for all incarcerated people. As

part of its commitment to ensuring that incarcerated

people can observe their religion as they are entitled

to under the law, PILP has litigated numerous religious liberty cases and provided legal help to countless incarcerated individuals from various religious

faiths.

The Southern Center for Human Rights (SCHR)

is a Georgia-based nonprofit law firm dedicated to advancing equality, dignity, and justice for people

3

impacted by the criminal legal system. Through litigation and advocacy, SCHR has worked for almost 50

years to defend the civil and human rights of incarcerated people, ensure humane conditions of confinement in jails and prisons, and end degrading law

enforcement practices. In light of its experience,

SCHR has a unique perspective on the issues raised

in this case, including the constitutional rights of people in prisons and jails, and an interest in ensuring

that those rights are protected in any context.

Amici submit this brief to explain the many barriers incarcerated plaintiffs face in obtaining injunctive relief. These barriers make monetary damages

effectively the only meaningful relief available for

many incarcerated plaintiffs to vindicate their rights

to religious exercise through the Religious Land Use

and Institutionalized Persons Act of 2000 (RLUIPA).

INTRODUCTION AND SUMMARY OF

ARGUMENT

Congress enacted RLUIPA “in order to provide

very broad protection for religious liberty” for incarcerated people in the custody of “state or local government[s].” Holt v. Hobbs, 574 U.S. 352, 356 (2015)

(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 693 (2014)). Congress ordered that RLUIPA

“shall be construed in favor of a broad protection of

religious exercise, to the maximum extent permitted

by the terms of this chapter and the Constitution.”

42 U.S.C. § 2000cc-3(g). It protects all forms of “religious exercise,” “includ[ing] any exercise of religion,

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

of religious belief.” Id. § 2000cc-5(7)(A). RLUIPA’s

4

text thus expressly “underscore[s] its expansive protection” for “religious exercise by institutionalized

persons.” Holt, 573 U.S. at 357-58.

Congress authorized courts to provide “appropriate relief against a government” for violations of

RLUIPA. 42 U.S.C. § 2000cc-2(a). As this Court recognized in addressing the identical remedial provision in RLUIPA’s “sister statute,” the Religious

Freedom Restoration Act of 1993 (RFRA), Holt, 574

U.S. at 356, monetary damages are “the only form of

relief that can remedy some RFRA violations,” Tanzin

v. Tanvir, 592 U.S. 43, 51 (2020). But the courts of

appeals, including the Fifth Circuit here, have held

that RLUIPA’s “appropriate relief” provision lacks a

damages remedy. See Pet. 23-24 (collecting cases).

That precedent leaves most incarcerated plaintiffs seeking to vindicate their religious rights with

only the possibility of injunctive relief, because RFRA

protects only federal prisoners, see Holt, 574 U.S. at

357, and not the much larger population of people in

the custody of state or local facilities. Meaningful injunctive relief is all but impossible for incarcerated

plaintiffs to obtain under RLUIPA, however, largely

because of the Prison Litigation Reform Act of 1995

(PLRA) and the application of mootness doctrines to

incarcerated plaintiffs’ claims. The PLRA applies to

prisoner-filed litigations in federal court, and nearly

all RLUIPA cases are filed in or removed to federal

court. As amici explain below, incarcerated plaintiffs

face a variety of barriers that make it exceedingly difficult to obtain effective injunctive relief for violations

of their religious rights. Among other things, the

PLRA requires incarcerated plaintiffs to exhaust

5

byzantine grievance procedures before suing over

their conditions of confinement, prisons possess a

unique ability to moot out the availability of injunctive relief by transferring prisoners, and preliminary

injunctions under the PLRA automatically expire after 90 days rather than lasting through a trial on the

merits. Thus, by interpreting RLUIPA to lack a damages remedy, the courts of appeals have contravened

Congress’s dictate to provide “appropriate relief” for

violations of incarcerated people’s religious liberties

by cabining its remedial provision.

The courts of appeals have gone astray with that

interpretation, including because courts must “presume that ‘Congress is aware of existing law when it

passes legislation.’” Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 170 (2014) (quoting Hall

v. United States, 566 U.S. 506, 516 (2012)). Here, the

PLRA forms part of RLUIPA’s legislative backdrop.

Indeed, RLUIPA expressly mentions the PLRA. See

42 U.S.C. § 2000cc-2(e). And Congress must have

meant more than merely authorizing the occasional

grant of injunctive relief when it said that plaintiffs

could “obtain appropriate relief” for violations of

RLUIPA—especially given that RLUIPA’s protections

are intended to be “very broad” and “expansive.” Holt,

574 U.S. at 356, 358 (quoting Burwell, 573 U.S. at

693). So RLUIPA’s remedial provision must “permit[]

litigants, when appropriate, to obtain money damages.” Tanzin, 592 U.S. at 52. This Court should reverse the Fifth Circuit’s contrary decision.

6

ARGUMENT

I.

The PLRA’s Exhaustion Requirement Makes

Obtaining Injunctive Relief For Many

Religious Practices—Which Are Often

Seasonal Or Short-Term In Nature—

Difficult Or Impossible.

One significant hurdle facing incarcerated plaintiffs who seek injunctive relief for even the most blatant of RLUIPA violations is the PLRA’s exhaustion

requirement. The PLRA dictates that an incarcerated

plaintiff challenging their conditions of confinement

(including violations of their rights under RLUIPA)

cannot bring a lawsuit “until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). In practice, this requirement makes obtaining injunctive relief for many religious practices—which are often seasonal or short-term—

essentially impossible, thus diminishing RLUIPA’s

express protections for religious liberty.

This Court has observed the “mandatory” nature

of the PLRA’s exhaustion requirement, strictly enforcing it and “rejecting every attempt to deviate …

from its textual mandate.” Ross v. Blake, 578 U.S.

632, 639-40 (2016). And this Court has held that satisfying the exhaustion requirement requires steadfast

adherence to the grievance procedure of the particular facility: A prisoner must complete “‘all steps’” in

the grievance process to exhaust their claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006).

Those grievance processes are often lengthy.

Some prison grievance procedures do not set a time

7

limit at all for the prison to respond. Even for those

that do set time limits, completing the full process can

take months. For example, in Texas—the state with

the largest prison population—the multi-step grievance process takes, at best, several months to complete, and can easily take more than five months. As

an initial step in the process, the prisoner must document an informal attempt to resolve their grievance

with a staff member. See Tex. Dep’t of Crim. Justice,

Inmate Grievance Program (Oct. 2023), https://tinyurl.com/2j6rdk8w. Then, once the prisoner files a

formal grievance, the unit grievance investigator has

40 days to respond to an initial grievance filing involving religious liberties, and can request another 40

days beyond that. Id. After receiving a response from

the unit grievance investigator, a prisoner must then

file a Step 2 grievance. Id. The agency has 40 days to

respond to a Step 2 grievance involving religious liberties, and can extend that timeline by another 40

days. Id. Only once the prisoner receives a response

to their Step 2 grievance is their claim considered

fully exhausted. Woodford, 548 U.S. at 88 (to properly

exhaust administrative remedies, prisoners must

“complete the administrative review process in accordance with the applicable procedural rules”).

California—the state with the second-largest

prison population—employs a similarly lengthy grievance process. At the first step in the process, officials

have 60 days to provide an initial response to a grievance (unless the grievance involves sexual abuse or

an imminent danger to personal safety or institutional security—neither of which would typically apply in a RLUIPA case). 15 C.C.R. § 3483(g). Then, the

prisoner must appeal their grievance, and the Office

8

of Appeals is allowed another 60 days to respond. 15

C.C.R. § 3485(g). So, as in Texas, a prisoner in California faces a span of at least several months before

they can fully exhaust their claims.

These months-long delays pose a nearly insurmountable hurdle to obtaining timely, effective injunctive relief for RLUIPA violations. Many religious

practices are short-term or seasonal. Consider a Muslim pretrial detainee who discovers just before the

first day of Ramadan that the jail refuses to alter

mealtimes so that he may—as per the Ramadan fasting requirements—receive breakfast before sunup

and dinner after sundown. Ramadan only lasts 29 or

30 days (depending on the lunar calendar that year).

By the time the detainee has fully exhausted his

grievance, Ramadan will have long since ended; he

has no hope of obtaining injunctive relief in time to

protect his religious liberties for this year’s Ramadan

period. And as a pretrial detainee, he is unlikely to be

able to seek injunctive relief for Ramadan in future

years, either: it is only speculative that he will remain

in the jail (rather than be transferred to prison postconviction or released through bail, plea bargaining,

or acquittal) through the following year’s Ramadan

period. The combination of mootness and ripeness will

thus likely doom any claim for injunctive relief. In

short, without damages, the detainee will be unable

to obtain any relief at all—despite a blatant violation

of his rights under RLUIPA.

This is no mere hypothetical example: Prison officials routinely violate Muslim prisoners’ religious liberties when it comes to Ramadan. Take the case of

Heyward v. Cooper, involving a Muslim man

9

incarcerated in Ohio. 88 F.4th 648, 652 (6th Cir.

2023). Prison officials burdened Mr. Heyward’s sincerely held religious beliefs during Ramadan in a multitude of ways. They prevented him from communally

breaking his fast, denied him dates with which to

break his fast, served him food prepared by non-Muslims, and fed him a calorically inadequate diet. Id. Yet

due to the slowness of the exhaustion and requisite

pre-screening processes, see infra § III—especially

when combined with the general slowness of federal

litigation—Mr. Heyward’s RLUIPA claim about violations during Ramadan in 2018 did not reach the Sixth

Circuit until 2023. Heyward, 88 F.4th at 656. By that

point, his RLUIPA claim was moot: “Without a time

machine, we cannot go back and fix alleged wrongs

during Ramadan in 2018,” and Mr. Heyward had also

been transferred in the interim. Id. at 656 (cleaned

up); see infra § II (discussing the impact of prison

transfers on claims for injunctive relief). With no

claim ripe for review, Mr. Heyward’s religious rights

were left violated without remedy.

Similar seasonal or short-term religious practices

abound across religions. For example, Passover—during which Jewish people must follow particular dietary requirements, such as avoiding food made from

leavened grains or agents—lasts a mere eight days.

Hindus observe the festival of Navratri, which requires observers to follow certain dietary restrictions

during a partial fast, lasts just nine days. And during

the 40-day Lent period, Roman Catholics must abstain from meat on all Fridays and Ash Wednesday.

Given the seasonal nature of these practices and the

delay imposed by the exhaustion requirement, obtaining injunctive relief for their denial becomes all but

10

impossible. So without the availability of damages,

there can be no “appropriate relief” under RLUIPA at

all for these types of practices.

Of course, the slowness of the mandatory exhaustion process is not only a problem for seasonal religious practices; it precludes incarcerated plaintiffs

from obtaining injunctive relief for even routine or

daily religious practices. Take, for example, the case

of Muhammad v. King. Officials at a Michigan prison

forbade Mr. Muhammad, a practicing Muslim, from

wearing a kufi head covering as per his religious beliefs—even though Jewish prisoners were allowed to

wear yarmulkes. Muhammad v. King, No. 1:23-cv1306, 2024 WL 1340548, at *1 (W.D. Mich. Mar. 29,

2024). Mr. Muhammad began the grievance process

the day after his kufi was confiscated. Id. at *1-2. Despite Mr. Muhammad’s diligence, the grievance process did not come to a close for more than three

months. See Exhibit B in Support of Motion for Summary Judgment, Muhammad, No. 1:23-cv-1306, at 11

(W.D. Mich. May 9, 2025), Dkt. 35-3. By the time he

could file suit, he had already been transferred—thus

mooting his claims under RLUIPA. 2024 WL

1340548, at *1; see Complaint, Muhammad, No. 1:23cv-1306, at 1 (W.D. Mich. Dec. 15, 2023), Dkt. 1.

Injunctive relief is even less of an answer for religious practices that follow one-off events or are unpredictable in nature—as this Court recognized in

Tanzin. 592 U.S. at 51 (“For certain injuries … effective relief consists of damages, not an injunction.”).

That may look like prison officials unexpectedly seizing and destroying religious books. See DeMarco v.

Davis, 914 F.3d 383, 390 (5th Cir. 2019) (plaintiff’s

11

Bible and religious materials “were allegedly destroyed, leaving damages as his only recourse”). Or it

may look like jail officials refusing to provide an unmonitored line to a newly incarcerated Christian

seeking to make confession—but by the time a court

considers the merits of his RLUIPA claim, he cannot

seek injunctive relief because he has been transferred

to prison. Merrick v. Inmate Legal Servs., No. cv-1301094, 2018 WL 10344753, at *2, 4 (D. Ariz. Mar. 15,

2018).

This issue becomes particularly acute when it

comes to religious practices around death. Consider

the recent case of an indigenous person incarcerated

at Mount Olive Correctional Complex in West Virginia. See Letter from Rights Behind Bars, to Governor Jim Justice, et al. 7 (Nov. 1, 2023),

https://tinyurl.com/mrwef2w4. Upon the death of a

loved one, this prisoner’s religion requires that he “cut

and bury his own hair.” Id. Yet when his beloved

grandmother passed away, Mount Olive barred him

from engaging in this practice—for no other reason

than prison officials’ view that it was “just not right.”

Id. By barring him from burying his hair, the prison

rendered him unable to properly grieve according to

the tenets of his religion—in clear violation of

RLUIPA.

But injunctive relief—again, with the delay imposed by the exhaustion requirement—could do nothing to remedy this impingement on the prisoner’s

religious practices. Even if he had immediately filed a

grievance, by the time the grievance process came to

a close, the religiously-required time to bury his hair

would have long since passed. And because the death

12

of future loved ones is too speculative to predict, the

doctrines of standing and ripeness likely foreclose him

from obtaining future injunctive relief, too. More to

the point, though, is that getting to properly grieve a

hypothetical future death does not remedy his past inability to properly grieve his beloved grandmother in

accordance with his religious beliefs. Only damages

can come close to appropriately recognizing that

loss—damages that Congress authorized by empowering courts to provide “appropriate relief.”

II. Prison Officials Possess A Unique Power To

Moot Out Cases Involving Incarcerated

Plaintiffs When Relief Is Limited To

Injunctions.

Further compounding the difficulty of obtaining

injunctive relief for RLUIPA violations is the unique

power of prison officials to moot out claims for injunctive relief by transferring incarcerated plaintiffs midlitigation. Because defendants facing only prospective

injunctive relief can moot these cases at any time,

RLUIPA rarely provides the broad protections that

Congress promised for religious liberty.

Prisoners have no constitutional right to be

housed in any particular prison. Prison officials may

transfer prisoners between prisons within the same

state or even out-of-state for any reason, at any time.

Meachum v. Fano, 427 U.S. 215, 224-25, 228-29

(1976) (no constitutional right to be held within a particular state prison); Olim v. Wakinekona, 461 U.S.

238, 247-48 (1983) (no constitutional right to be held

in prison in the same state as conviction, even if an

interstate transfer “involves long distances and an

13

ocean crossing”). Nearly all states—empowered by

various interstate corrections compacts—either export or import (or both) prisoners out-of-state. Emma

Kaufman, The Prisoner Trade, 133 Harv. L. Rev.

1815, 1839-54 (2020); see, e.g., Cal. Pen. Code. § 11189

et seq. (codifying national Interstate Corrections Compact); Wash. Rev. Code § 72.70.010 (codifying Western

Corrections Compact); Conn. Gen. Stat. § 18-102 (codifying New England Interstate Corrections Compact).

Though most states only export a small percentage of

their total prison population, see Kaufman, supra, at

1819, this unfettered ability to move prisoners between prisons or even between states creates serious

problems for incarcerated plaintiffs seeking injunctive relief.

Of course, government officials possess the theoretical ability to moot out cases in many other contexts by suspending challenged conduct after being

sued. But in other contexts, government officials face

a “formidable burden” in overcoming the “voluntary

cessation” exception to mootness. Fed. Bureau of Investigation v. Fikre, 601 U.S. 234, 241 (2024) (quoting

Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189-90 (2000)). Thus, in

most cases, the government “must prove no reasonable expectation that it will return to its old ways” in

order to “show that a case is truly moot.” Id. (cleaned

up) (quoting United States v. W.T. Grant Co., 345 U.S.

629, 632 (1953)). Otherwise, “a federal court’s constitutional authority” could be “readily manipulated.”

Id.

Not so when it comes to prison transfers, however.

In contrast to the “heavy burden” the government

14

normally faces in “making [it] ‘absolutely clear’” that

it will not resume its unlawful ways, Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449, 457

n.1 (2017), the courts of appeals have unanimously

held that an incarcerated plaintiff’s transfer to another facility moots their claims for injunctive and declaratory relief (subject to a few narrow exceptions)—

no demonstration of true mootness from the government necessary. As a result, a transfer that is wholly

within the discretion of the defendants will moot a

plaintiff’s claims under RLUIPA entirely—even if the

plaintiff might well be transferred back to their original facility after their suit gets dismissed. See, e.g.,

Heyward, 88 F.4th at 656-57 (plaintiff’s “RLUIPA

claim is moot because [he] has transferred facilities”);

Firewalker-Fields v. Lee, 58 F.4th 104, 113-14 (4th

Cir. 2023) (“Because Firewalker-Fields was transferred out of Middle River … any injunctive relief and

therefore any claim under RLUIPA is moot.”); Booker

v. Graham, 974 F.3d 101, 107 (2d Cir. 2020)

(“Booker’s RLUIPA claims are moot because he was

transferred out of Auburn.”); Harris v. Escamilla, 736

F. App’x 618, 621 (9th Cir. 2018) (“Harris has been

moved to a new prison facility … [his] claims under

RLUIPA are therefore moot.”); Zajrael v. Harmon,

677 F.3d 353, 355 (8th Cir. 2012) (claim for relief under RLUIPA was moot because plaintiff was transferred mid-litigation).

Such transfers can happen remarkably quickly,

further obliviating the prospect of injunctive relief.

That was true in Ali v. Knight, where a Muslim prisoner who brought a RLUIPA claim for forcing him to

work with haram food as part of his prison job was

transferred within weeks of filing suit—before the

15

district court could even screen his complaint. No.

1:22-cv-287, 2024 WL 5497922, at *1, *6 (W.D. Mich.

Dec. 9, 2024); Change of Address, Ali v. Knight, No.

1:22-cv-287 (W.D. Mich. May 20, 2022), Dkt. 8. As a

result, his RLUIPA claims were dismissed as moot.

2024 WL 5497922, at *1, *6. Likewise, in Cardinal v.

Metrish, the plaintiff sued under RLUIPA after the

warden transferred him to a prison that “d[id] not

serve kosher meals,” where he “refused to eat” because of his religious beliefs. 564 F.3d 794, 797 (6th

Cir. 2009). But because the warden transferred the

plaintiff to yet another facility roughly a week after

the first transfer, his RLUIPA claim became moot. Id.

at 798-99.

Certainly, amici do not assume that every midlitigation prison transfer takes place because the

prison wishes to moot out the incarcerated plaintiff’s

lawsuit. But in some cases, prison officials do use

their unfettered transfer ability to strategically moot

out prisoner claims, and though some circuits have indicated that intentional mooting-through-transfer

might provide an exception to mootness, it is exceedingly difficult for prisoners to prove that their transfer was motivated by litigation strategy. See generally

Tamika D. Temple, Mooted and Booted: How the

Mootness Doctrine Has Been Used to Silence Violations of Prisoners’ Constitutional Rights, 45 T. Marshall L. Rev. 117, 128-38 (2021). And even assuming

a class action were otherwise appropriate—which

may not be true for many RLUIPA claims, especially

those brought by religious minorities who would not

be able to satisfy the numerosity requirement—those

are no cure to this problem; prison and jail officials

still have many options available to strategically moot

16

out claims even in the class action context. See

Michele C. Nielsen, Mute and Moot: How Class Action

Mootness Procedure Silences Inmates, 63 UCLA L.

Rev 760, 771-91 (2016) (describing prison officials’ use

of transfers, temporary policy revisions, delays, Rule

68 offers, and targeting of named plaintiffs to moot

out named plaintiffs’ claims and undercut the ability

to obtain class certification).

Moreover, the looming prospect of mootness ensures that incarcerated plaintiffs almost always lack

the legal representation necessary to vindicate their

rights. For other civil-rights actions, Congress authorized fee-shifting “to ensure that federal rights are adequately enforced.” Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542, 550 (2010). 42 U.S.C. § 1988 provides

that the prevailing party may recover “a reasonable

attorney’s fee as part of the costs” in actions to enforce

certain laws, including the Civil Rights Act of 1964,

RFRA, and RLUIPA. Under § 1988, courts calculate

such fees using the lodestar method, where a prevailing attorney receives an award that “approximates

the fee” the attorney “would have received if he or she

had been representing a paying client who was billed

by the hour in a comparable case.” Perdue, 559 U.S.

at 551. Thus, attorneys who dedicate the time to

achieve victories for their clients in civil-rights cases

receive fees sufficient to justify the risk of taking on

such cases.

But attorneys have almost no financial incentives

to take meritorious civil-rights cases on behalf of incarcerated plaintiffs given the ease with which prisons can moot the cases. An attorney could spend more

than a year litigating a strong RLUIPA claim only to

17

have the defendant prison transfer the plaintiff and

moot the case, preventing any award of fees to the attorney. Unsurprisingly then, “an overwhelming share

of incarcerated people” proceed pro se. Andrea Fenster & Margo Schlanger, Slamming the Courthouse

Door: 25 Years of Evidence for Repealing the Prison

Litigation Reform Act (Apr. 26, 2021), https://tinyurl.com/y8fv4r8h. In 2020, for instance, just 7.6%

of incarcerated civil-rights plaintiffs had lawyers, versus 89.8% of non-incarcerated plaintiffs. Id.

If this Court gives effect to the “appropriate relief”

provision by reading it to allow damages, however,

the threat of mootness—and the consequent inability

to enforce the broad protection Congress granted via

RLUIPA—all but disappears.

III. Mandatory Pre-Service Screening Under

The PLRA Significantly Extends The Time

Before Incarcerated Plaintiffs Can Seek

Relief, Making Injunctive Relief Less

Meaningful.

Beyond the exhaustion requirement, the PLRA

“also departed in a fundamental way from the usual

procedural ground rules by requiring judicial screening to filter out nonmeritorious claims.” Jones v. Bock,

549 U.S. 199, 213 (2007). District courts must “screen

inmate complaints ‘before docketing, if feasible, or, …

as soon as practicable after docketing,’ and dismiss

the complaint if it is ‘frivolous, malicious, … fails to

state a claim upon which relief may be granted, or …

seeks monetary relief from a defendant who is immune from such relief.’” Id. (quoting 28 U.S.C.

§ 1915A). This extra procedural step causes

18

significant delays in PLRA cases. Incarcerated plaintiffs cannot serve defendants until the court completes screening, Lopez v. Smith, 203 F.3d 1122, 1130

(9th Cir. 2000) (en banc), and courts cannot grant preliminary injunctions without notice to defendants,

Fed. R. Civ. P. 65(a)(1). Thus, mandatory screening

makes it harder for incarcerated plaintiffs to obtain

meaningful injunctive relief—especially for violations

of their exercise of seasonal religious practices—and

weakens RLUIPA’s protections in the absence of any

potential damages remedy.

There is no deadline for screening. In practice,

mandatory pre-service screening often takes months

or even years. See, e.g., Pearson v. Woznak, No. 3:21cv-206, 2024 WL 2136048, at *1 (W.D. Penn. Feb. 7,

2024) (screening took more than 16 months); Moore v.

Calderon, No. 1:20-cv-00397, Dkts. 1, 19 (E.D. Cal.)

(screening took more than 12 months); Williams v.

Hall, No. 1:20-cv-01171, Dkts. 1, 7 (W.D. Tenn.)

(screening took more than eight months); Fattah v.

Doe, No. 3:10-cv-1607, Dkts. 1, 17 (M.D. Penn.)

(screening took more than four months). Delays can

become even more acute when district judges refer the

initial screening to magistrate judges, who prepare

reports and recommendations that district judges

must then review. In Pearson, for instance, it took

more than a year for the district judge to accept the

magistrate judge’s report and recommendation. See

No. 3:21-cv-206, Dkts. 9, 25 (W.D. Penn.).

By the time a district court completes pre-service

screening, the relevant religious season likely has

long since passed, particularly given the hurdles that

incarcerated plaintiffs must first navigate while

19

exhausting their administrative remedies, supra § I.

And defendants need not even respond to a complaint

until after the court finishes the screening process.

See Jones, 549 U.S. at 213. The combination of the

PLRA’s mandatory-screening and exhaustion requirements thus ensures that incarcerated plaintiffs

almost always have to wait months or even years between taking the first step in the litigation process—

filing a grievance with the prison—and getting the opportunity to address the merits of their claims in

court. Such delays make injunctive relief less meaningful even when incarcerated plaintiffs can obtain it,

whereas plaintiffs could be compensated with interest

for delays in obtaining monetary damages.

IV. The PLRA Imposes Unusual Restrictions On

Injunctive Relief, And Many States Also

Have Analogs For Those Rules.

Finally, incarcerated plaintiffs seeking injunctive

relief also must contend with PLRA-specific rules that

restrict the availability and reach of such relief. As

with the other barriers to relief discussed above, the

PLRA’s idiosyncratic rules for injunctive relief contribute to vitiating RLUIPA’s protections for religious

liberty when incarcerated plaintiffs cannot seek damages.

To start, in “any civil action with respect to prison

conditions,” injunctive relief must be narrowly tailored under 18 U.S.C. § 3626. Section 3626(a)(1)(A)

requires that “[p]rospective relief … shall extend no

further than necessary to correct the violation of the

Federal right of a particular plaintiff or plaintiffs. The

court shall not grant or approve any prospective relief

20

unless the court finds that such relief is narrowly

drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the

Federal right.” Moreover, courts must “give substantial weight to any adverse impact on public safety or

the operation of a criminal justice system caused by

the relief,” id.—a thumb on the scale that plaintiffs in

other contexts do not have to contend with. And under

the PLRA, courts “shall not enter or approve a consent

decree unless it complies with the limitations on relief

set forth in subsection (a).” Id. § 3626(c)(1).

The latter provision proved most consequential to

incarcerated plaintiffs. Before the PLRA’s enactment,

“consent decrees to remedy constitutional violations

and inhumane conditions had dominated the prison

landscape.” Alison Brill, Rights Without Remedy: The

Myth of State Court Accessibility After the Prison Litigation Reform Act, 30 Cardozo L. Rev. 645, 660-61

(2008). Now, however, the PLRA “expressly restrict[s]

the prospective relief which may be afforded by a consent decree to the same extent and in the same manner as it restricts the prospective relief which may be

afforded by a judgment entered pursuant to adversarial litigation without agreement.” Ruiz v. Estelle, 161

F.3d 814, 825 (5th Cir. 1998).

The PLRA thus “curb[s] courts’ most powerful remedial tool” and “make[s] it more difficult for courts

to approve settlement agreements that call for the

court to retain jurisdiction for enforcement purposes.”

Allison M. Freedman, Rethinking the PLRA: The Resiliency of Injunctive Practice and Why It’s Not

Enough, 32 Stan. L. & Pol’y Rev. 317, 319 (2021). For

21

a court to maintain jurisdiction, the court cannot

simply “endorse the forms of relief that the parties

propose”; instead, “[e]very civil action requires a detailed court finding or is subject to dismissal.” Brill,

supra, at 659. Indeed, § 3626(b)(2) provides for

“[i]mmediate termination of prospective relief” if the

relief was granted “in the absence of” the requisite

findings by the court under (a)(1)(A). Some states

have also enacted their own versions of

§ 3626(a)(1)(A) or other statutes similar to the PLRA,

thus extending barriers to relief for incarcerated

plaintiffs. See, e.g., Alaska Stat. § 09.19.200(a) (mirroring

§ 3626(a)(1)(A));

Mich.

Comp.

Laws

§ 600.5517(1)

(same);

42

Pa.

Cons.

Stat.

§§ 6601, 6604(a) (same); see also Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1635 n.272

(2003) (identifying more than 40 states with statutes

“that specially regulate[] inmate access to state

court”). 2

What’s more, for any incarcerated plaintiff who

succeeds in running the legal gauntlet necessary to

2 Some states have enacted laws that impose even more onerous restrictions on injunctive relief than the PLRA does. Pennsylvania, for example, forbids “the entry of a consent decree in

any action against the Commonwealth or any agency without the

approval of the Governor and notice to the General Assembly.”

71 Pa. Cons. Stat. § 732-204(e); see also id. § 732-301 (forbidding

Pennsylvania’s General Counsel from agreeing to consent decrees “without the approval of the Governor and the Attorney

General and notice to the General Assembly”). In amici’s experience, these statutes guarantee that Pennsylvania will never enter into court-enforceable settlement agreements involving

injunctive relief for individual incarcerated plaintiffs, no matter

how meritorious their claims.

22

obtain preliminary injunctive relief under the PLRA,

the injunction “shall automatically expire on the date

that is 90 days after its entry, unless the court makes

the findings required under subsection (a)(1) for the

entry of prospective relief and makes the order final

before the expiration of the 90-day period.”

§ 3626(a)(2). In most other cases, by contrast, preliminary injunctions typically remain “effective until a

decision has been reached at a trial on the merits.”

11A Charles A. Wright & Arthur Miller, Federal Practice and Procedure § 2941 (3d ed. 2020).

The circuits do not agree on the import of

§ 3626(a)(2). At best for incarcerated plaintiffs,

§ 3626(a)(2) requires them “to continue to prove that

preliminary relief is warranted” every 90 days. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir.

2001); see also Alloway v. Hodge, 72 F. App’x 812, 817

(10th Cir. 2003) (following Mayweathers in a nonprecedential decision). In other words, under the more favorable

interpretation

of

subsection

(a)(2),

incarcerated plaintiffs must justify and obtain “successive preliminary injunctions” to maintain the status quo as litigation proceeds. Catherine T. Struve,

Allowing the Courts to Step in Where Needed: Applying the PLRA’s 90-Day Limit on Preliminary Relief,

19 U. St. Thomas L. J. 407, 426 (2023).

On the other hand, the Eleventh Circuit drew the

“startling” conclusion that “if a [PLRA] plaintiff needs

preliminary relief to last all the way to final judgment, the plaintiff must litigate the case through a

trial on the merits and all the way to its conclusion

before Day 90.” Id. at 409 (emphasis added). Georgia

Advocacy Office v. Jackson held that § 3626(a)(2)

23

creates “a 90-day test period during which the necessity of permanent injunctive relief can be evaluated.”

4 F.4th 1200, 1210 (11th Cir. 2021). Thus, “the entry

of a permanent injunction [after a trial on the merits]

is necessary to prevent a preliminary injunction from

expiring by operation of law after 90 days under the

PLRA’s ‘unless’ clause.” Id. at 1211.

The prospect of needing to conduct a full trial on

the merits within 90 days of the entry of a preliminary

injunction (presumably at an early stage of the case)

presents serious concerns for incarcerated plaintiffs,

which Jackson did not address. Although the Eleventh Circuit later vacated the Jackson opinion because the parties settled before the mandate issued,

33 F.4th 1325, 1326 (11th Cir. 2022), the case illustrates some of the pitfalls that incarcerated plaintiffs

must navigate in seeking injunctive relief.

24

CONCLUSION

Because of the numerous barriers to injunctive relief detailed above, money damages are effectively the

only way to vindicate religious liberties for incarcerated plaintiffs. Holding that money damages are not

available would thwart the text of RLUIPA, which authorizes courts to provide meaningful relief to plaintiffs. This Court should reverse the decision below.

Respectfully submitted,

Lauren A. Weber

ORRICK, HERRINGTON &

SUTCLIFFE LLP

401 Union Street

Suite 3300

Seattle, WA 98101

Elizabeth A. Bixby

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

September 3, 2025

Elizabeth R. Moulton

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

405 Howard Street

San Francisco, CA 94105

(415) 773-5700

emoulton@orrick.com