Opinion
1:20-cv-00084
09-09-2022
AGRON HASBAJRAMI, Plaintiff v. RICH GLOGAU, Defendant
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
ECF No. 45
I. Recommendation
It is respectfully recommended that the Defendant's Motion to Dismiss/Motion for Summary Judgment (ECF No. 45) be GRANTED because (1) Plaintiff failed to exhaust his administrative remedies as to certain aspects of his claims; (2) Plaintiffs First Amendment and Fifth Amendment claims support no private right of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); and (3) the Defendant is entitled to qualified immunity on Plaintiffs claim under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq.
II. Report
A. Procedural History
Plaintiff Agron Hasbajrami (Hasbajrami), an inmate in the custody of the Federal Bureau of Prisons (BOP), commenced this pro se civil rights action against Rich Glogau (Glogau), the supervisory chaplain at the BOP's Federal Correctional Institution at McKean (FCI-McKean). See ECF No. 4. Hasbajrami's original complaint alleged that Glogau violated the RFRA and his rights guaranteed by the First and Fifth Amendment to the U.S. Constitution when he failed to open the prison chapel for a group service on the Islamic religious holiday of Eid-al-Adha. ECF No. 4. Glogau moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 30.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. This motion is on referral to the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
On December 2, 2021, the undersigned issued a Report and Recommendation recommending that the Court dismiss Hasbajrami's claims without prejudice and allow Hasbajrami the opportunity to file an amended complaint, at least with respect to his RFRA claim. ECF No. 41. Hasbajrami did not file objections to the Report and Recommendation but, instead, filed a motion for leave to file an amended and supplemental complaint. ECF No. 42. The District Court granted that motion and directed the Clerk of Court to docket Hasbajrami's motion as his amended complaint. ECF No. 43. Based upon Hasbajrami's having filed an amended complaint, the Court declined to adopt the Report and Recommendation and denied Glogau's motion to dismiss as moot. Id.
Glogau has moved to dismiss Hasbajrami's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 45, 46. As to certain claims, he has moved in the alternative for summary judgment under Rule 56, arguing that Hasbajrami failed to exhaust his available administrative remedies. Id. Glogau attached several exhibits to his motion in support of his request for partial summary judgment. Id. The Court ordered Hasbajrami to respond to the motion and notified the parties that the “pending motion may be treated, either in whole or in part, as a motion for summary judgment” in accordance with the Court of Appeals' direction in Renchenskiv. Williams, 622 F.3d 315 (3d Cir. 2010). ECF No. 47. Hasbajrami filed a brief in opposition to the motion arguing that his allegations supported his federal claims, but he submitted no exhibits or legal argument in response to Glogau's request for partial summary judgment based on Hasbajrami's failure to exhaust administrative remedies. ECF No. 48. Glogau later filed a brief addressing the Supreme Court's recent decision in Egbert v. Boule, 142 S.Ct. 1793 (2022) (discussing new Bivens claims). ECF No. 49.
In summary, Glogau's motion seeks partial summary judgment under Rule 56 as to some of his claims based on Hasbajrami's failure to exhaust administrative remedies, and dismissal of Hasbajrami's remaining claims under Rule 12(b)(6) on the grounds that his allegations fail to state a claim and, alternatively, that Glogau is entitled to qualified immunity.
B. Allegations and Claims of the Amended Complaint
Hasbajrami's amended complaint is the operative pleading before the Court. ECF No. 44. It alleges the following facts, which the Court accepts as true for purposes of Glogau's motion to dismiss.
Hasbajrami is a practicing Muslim. ECF No. 44, ¶ 3. Glogau is FCI-McKean's supervisory chaplain and responsible for “chaplaincy operations.” Id., ¶ 1. At the beginning of each year, Glogau posts a “Religious Holidays of Work Proscription, Public Fast, & Ceremonial Meals Calendar.” Id., ¶ 2; ECF No. 4-3. Inmates sign-up to attend religious services, meals, and ceremonies based on this calendar. Inmates who sign-up are excused from work on the date of the observance. Id., ¶ 6. On each Friday night, a call-out sheet is posted in the prison unit listing the weekend schedule. ECF No. 44, ¶ 7. In 2019, Hasbajrami signed up for the Ramadan, Eid-ul-fitr, and Eid-al-Adha holiday lists. Id., ¶¶ 4-5.
On Friday, August 9, 2019, Hasbajrami was placed on the “call-out” schedule to attend the Eid-al-Adha holiday on Sunday, August 11, 2019. Id., ¶ 8. Eid-al-Adha, according to Hasbajrami, is a significant Islamic holy day. Id., ¶ 21. To him, it is “one of the holiest events in the Islamic faith.” Id. The day has three requirements: “(1) the community prayer, (2) the sermon by the imam (leader), and (3) the feast.” Id., ¶ 21. “If one of these components is missing, then the Eid-al-Adha is incomplete and the blessings that come with these acts are nullified and can never be made up or replaced.” Id.
Glogau was not present when Hasbajrami showed up to the chapel on the morning of August 11, 2019; the chapel was closed and Hasbajrami could not perform “the Eid Prayer in congregation as his religion requires him to do.” Id., ¶ 9. Glogau is not scheduled to work on Sunday mornings, but, according to Hasbajrami, “he had nine (9) months to arrange the Eid Prayer in his absence, through other executive staff.” Id., ¶ 11.
The amended complaint alleges that Hasbajrami and other Muslim inmates were also denied participation in the communal Eid-al-Adha prayer on July 31, 2020. Id., ¶ 13. Finally, the amended complaint alleges that Glogau tried to reschedule the 2021 Eid-al-Adha prayer by one day due to conflict with a staff basketball game, but he abandoned this plan when Muslim inmates complained. Id., ¶ 14. The inmates, including Hasbajrami, were allowed congregate prayer on Eid-al-Adha on July 20, 2021, as scheduled. Id.
Hasbajrami's amended complaint can be construed as asserting three legal claims: (1) violation of the RFRA based on the unavailability of the chapel for the Eid-al-Adha prayer in August 2019 and July 2020, and Glogau's proposed (and later rescinded) one-day rescheduling of the 2021 Eid-al-Adha prayer; (2) violation of his rights under the First Amendment's Free Exercise Clause based on the same alleged conduct; and (3) an equal protection claim under the Fifth Amendment because Glogau allegedly allowed other religious groups to observe their holy days in the chapel. Id., ¶ 19.
Neither Hasbajrami's original complaint nor his amended complaint expressly asserted a claim under the RFRA. However, construing his factual allegations liberally, the Court concluded that his pleadings fairly raised this statutory claim.
C. Standard of Review
1. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kostv. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). A complaint should only be dismissed under Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts in the complaint. See California Pub. Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, SIL F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, while the foregoing principles apply to all complaints in federal court, pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If the court can reasonably read the factual allegations of a pro se complaint to state a valid claim on which the litigant could prevail, it should do so despite the plaintiff s failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
2. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the district court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070,1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartier, 986 F.2d 682, 685 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party may also rely on the lack of evidence to support an essential element of the opposing party's claim as a basis for the entry of summary judgment because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Because Hasbajrami is proceeding pro se, the court will “apply the applicable law, irrespective of whether [he] has mentioned it by name.” Holley v. Dep 't of Veteran's Affairs, 165 F.3d 244,247-48 (3d Cir. 1999). On a motion for summary judgment, however, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion ...” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). Put another way,pro se status does not relieve a non-moving party of his “obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Id. (quoting Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21, 2012).
D. Discussion
1. Hasbajrami Failed to Exhaust His Administrative Remedies as to Glogau's Alleged Acts and Omissions in August 2020 and August 2021.
The Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the PLRA), requires a prisoner to exhaust any available administrative remedies before he may commence a lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). Proper exhaustion under the PLRA requires that an inmate “complete the administrative review process in accordance with the applicable procedural rules.” Downey v. Pennsylvania Dep't of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing Woodford, 548 U.S. at 88). Individual prisons provide these procedural rules. Jones v. Bock, 549 U.S. 199, 218 (2007); Spruill v. Gillis, 312 F.3d 218, 222 (3d Cir. 2004) (determining whether “a prisoner has ‘properly' exhausted a claim.. .is made by evaluating the prisoner's compliance with the prison's administrative regulations governing inmate grievances”). Thus, “prison grievance procedures supply the yardstick” for the district court to measure procedural default. Spruill, 372 F.3d at 230-31. This includes the strict compliance with deadlines for submissions of grievances and appeals. Woodford, 548 U.S. at 95. A procedurally defective administrative grievance, even if pursued to final review, precludes action in federal court. Fennell v. Cambria Cty. Prison, 607 Fed.Appx. 145, 149 (3d Cir. 2015).
The BOP has a four-step administrative-remedies process federal inmates must complete to satisfy the PLRA's exhaustion requirement. 28 C.F.R. §§ 542.10-542.19. First, an inmate must informally present an issue of concern to the staff, who will try to resolve the issue. 28 C.F.R. § 542.13(a). Second, if the inmate is dissatisfied with the informal resolution of the issue, the inmate must submit a formal, written Administrative Remedy Request (Request) on a BP-9 form for resolution by the Warden within 20 days following the date on which the basis for the Request occurred. 28 C.F.R. § 542.14. Third, an inmate who is not satisfied with the Warden's response may submit an appeal on a BP-10 form to the Regional Director within 20 days from the date that the Warden signed the response. 28 C.F.R. § 542.15. Fourth, an inmate who is not satisfied with the Regional Director's response may submit a final appeal on a BP-11 form to the General Counsel at the Central Office of Appeals within 30 calendar days of the Regional Director's signed response. Id.
Failure to exhaust administrative remedies under the PLRA is an affirmative defense that defendants must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). In support of the defense in this case, Glogau submitted a declaration from Dawn Nechupas, a legal assistant employed by the BOP's Federal Detention Center in Philadelphia. ECF No. 46-1. She has access via computer programs to the BOP's data on inmates, including their administrative remedy requests. Id. In the ordinary course of its operations, the BOP keeps a computerized index of all administrative remedy requests and appeals filed by inmates. Id., ¶ 4. Using this database, she accessed the computerized index covering each Request filed by Hasbajrami. Id., ¶ 5. Nechupas affirmed, “My search of the [BOP] administrative remedy index for all administrative remedy requests and appeals filed by [Hasbajrami] reflects he has not filed any administrative remedies regarding prayer services on July 31, 2020, or July 20, 2021.” Id., ¶ 6.
Dawn Nechupas' declaration satisfies the requirements of 28 U.S.C. § 1746 for use in federal court.
The Court's review of Hasbajrami's request index leads to the same finding. ECF No. 46-2. Hasbajrami submitted an administrative remedy request concerning only the alleged denial of Eid-al-Adha prayer in 2019. ECF No. 4-4. Hasbajrami has acknowledged Glogau's argument that he has failed to exhaust his administrative remedies as to the alleged denial of Eid-al-Adha prayer in July 2020 and the abandoned proposal to reschedule the prayer in July 2021. ECF No. 48, p. 2. But he has not disputed that he failed to grieve the latter matters or presented evidence to support a contrary finding. Thus, no genuine issue of material fact exists regarding Hasbajrami's failure to exhaust his administrative remedies concerning Glogau's alleged actions or omissions in 2020 or 2021. Accordingly, Glogau is entitled to judgment as a matter of law on any legal claims based on the alleged denial of Eid-al-Adha prayer in July 2020 and the proposal to reschedule the prayer in July 2021. Muhammad v. Sec 'y Pa. Dep 't of Corr., 621 Fed.Appx. 725, 727 (3d Cir. 2015).
The exhibits submitted by Glogau provide an index of the administrative requests/grievances filed by Hasbajrami along with a description of the subject matter of each. The record does not include the actual requests/grievances. Hasbajrami has not contested the completeness of the index or the accuracy of the dates of submission of the requests/grievances identified in Glogau's exhibits. This record demonstrates that Hasbajrami filed no request/grievance within twenty days after July 31,2020, as required by BOP grievance procedures, ECF No. 46-2, pp. 20-21, or within twenty days after July 20, 2021. Id., pp. 28-30. Given the absence of any requests/grievances within the relevant timeframe, any ambiguity in the record regarding the subject matter of Hasbajrami's earlier requests/grievances is not material.
Glogau does not argue that the exhaustion defense bars Hasbajrami's claim based on the alleged denial of Eid-al-Adha prayer on August 11, 2019. Instead, he argues that the allegations of the amended complaint fail to state a federal constitutional or statutory claim and, alternatively, that he is entitled to qualified immunity. As discussed below, Hasbajrami's allegations fail to state a First Amendment claim or Fifth Amendment claim as a matter of law. Further, it is unnecessary to determine whether these allegations state a RFRA claim because the right asserted by Hasbajrami was not clearly established on August 11, 2019, which entitles Glogau to dismissal of the RFRA claim based on qualified immunity.
2. The Amended Complaint does not support a First or Fifth Amendment claim authorized by Bivens or its progeny.
Hasbajrami argues that Glogau's failure to open the chapel on August 11, 2019, violated his rights under the Free Exercise Clause of the First Amendment. He also argues that this failure violated his right to equal protection as guaranteed by the Fifth Amendment because Glogau allegedly made the chapel available for a Christian service in the afternoon on the same day. ECF No. 44, ¶ 19. Glogau argues that no Bivens remedy is authorized for either claim. ECF No. 46, p. 15. Glogau is correct.
The Supreme Court recognized an implied right of action for damages against federal officials who violate Fourth Amendment rights in Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Since Bivens, however, the Supreme Court has extended this implied right of action to few other constitutional claims. See Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment gender discrimination claim by fired federal employee); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment claim based on failure to provide needed medical care to federal prisoner). The Supreme Court has said that further “expanding the Bivens remedy is now a ‘disfavored' judicial activity,” instructing federal courts to exercise caution before extending the remedy to claims that are meaningfully different than “the three Bivens claims the Court has approved in the past....” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857, 1860 (2017). The Supreme Court recently emphasized, “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” Egbert, 142 S.Ct. at 1800 (denying Bivens claims for Fourth Amendment excessive force and First Amendment retaliation claims).
The Court must first ask whether the claim at issue arises “in a new Bivens context.” Ziglar, 137 S.Ct. at 1859. A claim presents a new context if it differs “in a meaningful way” from the three cases in which the Court implied a Bivens action. Id. If it does, then the Court considers whether there are any “special factors counselling hesitation” in extending the Bivens remedy. Id. at 1857-58. The Supreme Court has explained, “This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1798.
Here, Hasbajrami's Free Exercise claim presents a new Bivens context because the Supreme Court has never implied a cause of action against federal officials for such a violation. See Mackv. Warden Loretto FCI, 839 F.3d 286, 304-05 (3d Cir. 2016). This observation alone would end the inquiry. Moreover, no Bivens action is appropriate for Free Exercise claims because the RFRA provides an alternative, comprehensive remedial scheme for substantial burdens on religious exercise. Ziglar, 137 S.Ct. at 1858 (“[I]f there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”); Mack, 839 F.3d at 305; Ferguson v. Owen, 2022 WL 2643539, at *10 (D.D.C. July 8, 2022). Thus, Hasbajrami has no First Amendment cause of action under Bivens.
Hasbajrami also has no Bivens remedy under the Fifth Amendment. The Supreme Court has expressly stated that claims about abuse of pretrial detainees under the Fifth Amendment present a new Bivens context. Ziglar, 137 S.Ct. at 1864 (distinguishing such claims from Carlson's Eighth Amendment claim for deliberate indifference to medical care). And while the Supreme Court has recognized a Bivens action under the Fifth Amendment's equal protection component for gender discrimination, Davis, 442 U.S. at 228, Hasbajrami's religious discrimination claim presents a new context. Pauley, 2019 WL 4600195, at *5-10 (W.D. Pa. Sept. 23, 2019), aff'd, 2022 WL 1552125 (3d Cir. May 17, 2022); Al-Kassar v. United States Dep't of Just., 2022 WL 2439972, at *3 (S.D. Ill. July 5, 2022).
In addition, the availability of an alternative remedial scheme counsels against recognizing a new Bivens claim in this context. Wilkie v. Robbins, 551 U.S. 537 (2007). It does not matter whether the “existing remedies do not provide complete relief.” Egbert, 142 S.Ct. at 1804 (citing Bush v. Lucas, 462 U.S. 367, 388 (1983)). Agency regulations that create an internal grievance procedure may constitute this alternative remedial structure, foreclosing a Bivens action. Id. (determining that a regulation requiring the Border Patrol to accept grievances and investigate misconduct foreclosed a Bivens remedy because “[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy”). The Supreme Court has said, in dicta, that the PLRA's provisions for exhaustion of administrative remedies “would apply to Bivens suits,” assuming the prison operated such a system. Ziglar, 137 S.Ct. at 1865 (citing Porter, 534 U.S. at 524). Indeed, the BOP has an internal system for prisoners to raise issues about their confinement. The availability of this administrative process, which Hasbajrami used for his 2019 issue about Eid-al-Adha, counsels hesitation in extending Bivens here. See Pauley, 2019 WL 4600195, at *9 (citing cases). Thus, Hasbajrami has no claim under the Fifth Amendment via Bivens.
3. Glogau is entitled to qualified immunity on Hasbajrami's remaining RFRA claim.
Hasbajrami's remaining claim is a RFRA claim based on Glogau's failure to open the prison chapel to him and other Muslim inmates for community prayer on August 11, 2019. Hasbajrami alleges that Glogau's conduct substantially burdened his exercise of religion because of the important role community prayer plays in his Eid-al-Adha observance. ECF No. 44, ¶ 7. Glogau argues that his one-time failure to open the chapel did not “rise to the level of a substantial burden,” and, alternatively, that he is entitled to qualified immunity because his omission did not “violate any clearly established constitutional or statutory right.” ECF 46, p. 2.
a. The RFRA
Under the RFRA, the federal “government shall not substantially burden a person's exercise of religion” unless “application of the burden ... is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that... interest.” 42 U.S.C. § 2000bb-l(b)(l-2). The RFRA authorizes a cause of action and the recovery of money damages against government officials who violate its proscription. Tanzin v. Tanvir, 141 S.Ct. 486, 489-93 (2020). Once a plaintiff demonstrates that he has a sincere religious belief and that government action has substantially burdened the plaintiff's religious exercise, the burden shifts to the government official to demonstrate that “application of the burden” to the plaintiff “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-l(a), (b). The RFRA directs that it “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.” 42 U.S.C. § 2000cc-3(g). Furthermore, “burdens on religious exercise need not be intentional, only substantial,” to be actionable under the RFRA. Mack, 839 F.3d at 305.
“Whether a burden is ‘substantial' under RFRA is a question of law, not a question of fact.” Real Alternatives, Inc. v. Sec'y Dep't of Health & Hum. Servs., 867 F.3d 338, 356 (3d Cir. 2017) (citation omitted). “The RFRA does not explain what constitutes a ‘substantial burden' on the exercise of religion.” Norwood v. Strada, 249 Fed.Appx. 269, 271 (3d Cir. 2007). For guidance, courts have examined the identical statutory language in the context of cases interpreting the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).Under that analogous statute, courts have recognized that a “substantial burden” “exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.” Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007). See also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burdened.. .when a government.. .prevents participation in conduct motivated by a sincerely held religious belief'). Given the identical language used in the RLUIPA and the RFRA and the similar objectives of those statutes, courts have applied the judicial definition of “substantial burden” under the RLUIPA in cases interpreting the RFRA. Mack, 839 F.3d at 304 n.103 (holding that the definitions of “substantial burden” in RFRA and RLUIPA are “analogous”).
RLUIPA does not apply to the actions of employees of federal prisons. Instead, it covers state governments or entities, their officials, or persons acting under color of state law. See Garr aw ay v. Lappin, 490 Fed.Appx. 440, 443 n.2 (3d Cir. 2012) (per curiam) (citations omitted); Rogers v. United States, 696 F.Supp.2d 472, 486 (W.D. Pa. 2010) (citing 42 U.S.C. § 2000cc-5(4)) (other citations omitted).
Under the RLUIPA, “Congress defined ‘religious exercise' capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.'” Holt v. Hobbs, 574 U.S. 352, 358 (2015) (quoting § 2000cc-5(7)(A)). Indeed, the “RLUIPA bars inquiry into whether a particular belief or practice is ‘central' to a prisoner's religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). Still, the RLUIPA's scope is not endless because the statute's text commands that not any or all burdens on religion are covered, only “substantial” ones. Washington, 497 F.3d at 281 (citing Civil Liberties for Urb. Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (noting that “[a]pplication of the substantial burden provision to a regulation inhibiting or constraining any religious exercise.. .would render meaningless the word ‘substantial'”)). The inmate “bears the burden to show that a prison institution's policy or official practice has substantially burdened the practice of that inmate's religion.” Id. at 277-78.
Under RLUIPA it is error to conclude the government has not substantially burdened a prisoner's religion because of “the availability of alternative means of practicing religion.” Holt, 574 U.S. at 361-62. “RLUIPA's ‘substantial burden' inquiry asks whether the government has substantially burdened religious exercise..not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Id.
Glogau does not challenge the sincerity of Hasbajrami's religious belief or that the Eid-al-Adha prayer is part of the exercise of his religion. Instead, he argues that his failure to open the chapel for the Eid-al-Adha prayer on a single occasion did not substantially burden Hasbajrami's religious exercise. As discussed below, neither the Supreme Court, the Court of Appeals for the Third Circuit, nor a robust consensus of the other courts of appeals directly addresses whether a single failure to accommodate or facilitate all or part of an important religious observance constitutes a substantial burden on the exercise of religion. Given this lack of clear guidance in appellate caselaw, this Court need not resolve the issue of “substantial burden” in this case. The absence of clear guidance governing Glogau's conduct on August 11, 2019 demonstrates that the statutory right Hasbajrami is asserting in this action was not clearly established on that date. Glogau is, therefore, entitled to qualified immunity on the claim.
b. Qualified Immunity Principles
“[G]ovemment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). While qualified immunity is more commonly addressed as an affirmative defense to constitutional claims, several courts of appeals have held that it is also properly raised as a defense to federal statutory claims under the RFRA. See Lebron v. Rumsfeld, 670 F.3d 540, 557 (4th Cir. 2012); Weinberger v. Grimes, 2009 WL 331632, at *5 (6th Cir. Feb. 10, 2009); Padilla v. Yoo, 678 F.3d 748, 757, 768-69 (9th Cir. 2012); Davila v. Gladden, 111 F.3d 1198, 1209-12 (11th Cir. 2015), cert, denied sub nom. Davila v. Haynes, 557 U.S. 820 (2015); Walden v. Ctrs. for Disease Control and Prevention, 669 F.3d 1277, 1285 (11th Cir. 2012) (“The defense of qualified immunity applies not only to constitutional claims, but also to claims brought for alleged violations of RFRA.”); Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (per curiam) (holding, in the alternative, federal officials were entitled to qualified immunity against claims brought for violating RFRA); see also Tanzin, 141 S.Ct. at 492 n.* (noting in dicta, “Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA.”). However, the Court of Appeals for the Third Circuit has yet to squarely address the issue. See Pauley on behalf of Asatru/Odinist Faith Cmty. v. Samuels, 2019 WL 4600195, at *11 (W.D. Pa. Sept. 23, 2019), affd, 2022 WL 1552125 (3d Cir. May 17, 2022). Nevertheless, because the clear weight of authority holds that the qualified immunity defense is available in a RFRA action and Glogau has properly raised the defense in his motion, the Court will address whether qualified immunity shields him from liability based on the conduct alleged in the amended complaint.
“Qualified immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). This doctrine protects public officials “from undue interference with their duties and from potentially disabling threats of liability.” Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). The availability of the qualified immunity affirmative defense turns on two separate but related issues: (1) whether the plaintiff has alleged sufficient facts to “make out a violation of a constitutional [or statutory] right,” and (2) “whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
When conducting this two-part inquiry, a court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis” to address first “in light of the circumstances of the particular case at hand.” Pearson, 555 U.S. at 236. If a court finds that a claimed right was not clearly established at the time of the events alleged, it need not definitively decide whether a constitutional or statutory violation occurred. Id. Indeed, beginning with the first prong ‘“createfs] a risk of bad decisionmaking,' specifically in those instances where a court decides a rather nuanced ... claim early on in litigation where the factual basis for the claims have not been fully developed through discovery.” Rogers v. United States, 696 F.Supp.2d 472, 502 (W.D. Pa. 2010) (citing Pearson, 555 U.S. at 236-37).
Because of the novel facts of this case and the absence of controlling caselaw addressing a reasonably analogous set of facts, the Court will proceed to the second step of the qualified immunity analysis-whether the RFRA right asserted by Hasbajrami was clearly established at the time of Glogau's alleged misconduct. Id.
“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘ [t]he contours of [a] right [are] sufficiently clear' that every ‘reasonable official would [have understood] that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.'” Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 8 (2021) (emphasis supplied) (quoting Brosseau v. Haugen, 543 U.S. 194,198 (2004) (per curiam)) (internal quotation marks omitted). Thus, in this case, the Court may not define the right in broad terms, such as “a right not to have one's religious exercise substantially burdened.” “Rather, the right at issue must be framed ‘in a more particularized, and hence more relevant, sense.” Estep v. Mackey, 639 Fed.Appx. 870, 873 (3d Cir. 2016) (quoting Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)); Wilson v. Layne, 526 U.S. 603, 615 (1999) (the court must first identify the right “at the appropriate level of specificity”). In other words, the right must be defined based on the facts and circumstances faced by the government official as alleged by the plaintiff. See Rivas-Villegas, 142 S.Ct. at 8; al-Kidd, 563 U.S. at 742; Estep, 639 Fed.Appx. at 873.
Once the court has identified the asserted right at the appropriate level of specificity, it then looks first to Supreme Court decisions to determine whether the right was clearly established at the time of the conduct at issue. See Mammaro v. N.J. Div. of Child Protection and Permanency, 814 F.3d 164, 169 (3d Cir. 2016). Absent factually similar Supreme Court precedent, a court may rely on a “‘robust consensus of cases of persuasive authority' in the Courtfs] of Appeals.” Taylor v. Barkes, 575 U.S. 822, 826 (2015) (per curiam). Because district court decisions are “not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case,” they are generally insufficient to support a clearly established right in the qualified immunity context. Camreta v. Greene, 563 U.S. 692, 708 n.7 (2011) (quoting 18 J. Moore et al., Moore's Federal Practice § 134.02[l] [d], p. 134-26 (3d ed.2011)); Booker v. SC. Dep'tof Corr., 855 F.3d 533, 538 n.l (4th Cir. 2017).
Here, Hasbajrami's claim is premised on a prison official's one-time failure to make a worship location available for communal prayer on a high Islamic religious holiday and turns on whether such a failure placed a substantial burden on the inmate's exercise of his religious belief. Thus, the right asserted is an inmate's right to access to a chapel or other place of worship when the inmate's sincerely held religious belief requires communal prayer or worship. Having defined the right with the requisite specificity, the Court must next determine whether clearly established law existed in August 2019 to put Glogau on notice that his failure to provide or facilitate access to the prison chapel for the Eid-al-Adha holiday was unlawful.
Glogau argues that the right at issue is “whether a prison official's failure to make the chapel available on a single occasion to accommodate an inmate's religious ceremony or practice amounts to a substantial burden on the inmate's exercise of religion.” ECF No. 46, p. 13. Hasbajrami describes the right as a right of a Muslim inmate to have access to the chapel on an Islamic holy day. ECF No. 48, p. 4.
This Court has not found, nor has Hasbajrami identified, a decision of the Supreme Court or the Court of Appeals for the Third Circuit holding that a prison official's failure to make a worship location available for communal prayer on a significant religious holiday substantially burdens an inmate's exercise of his religion under RFRA, RLUIPA, or the First Amendment. While the Supreme Court has spoken on the meaning of a “substantial burden” upon religion, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 691 (2014), and addressed aspects of the RFRA, Gonzalez v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), and the RLUIPA, see Holt, 574 U.S. at 352, it has not addressed a right analogous to the one asserted in this case or articulated principles that otherwise constitute clearly established law on such a right. No Third Circuit opinion is directly on point, and the few district court opinions that address religious prayer and practice generally are not sufficiently similar to the present case or sufficiently consistent to create clearly established law relevant to this case. For example, in Ellis v. United States, 2009 WL 3166517, at *5 (W.D. Pa. June 3, 2009), report and recommendation adopted in relevant part, 2009 WL 3166516 (W.D. Pa. Sept. 28, 2009), the court held that the inmate plaintiff had established a prima facie RFRA claim when prison officials' omission of his name from a call-out list caused him to miss community prayer and a sermon for Eid-al-Adha. However, the court's holding did not expressly determine whether the officials' omission constituted a substantial burden, and the defense of qualified immunity was not addressed. See id. Instead, the court considered the specific facts of the case, as well as Defendants' failure to defend the prison policy at issue, to find that Ellis had established a prima facie case under RFRA. Id.
Even if Ellis is construed as factually on point with the present case, as a district com! decision, it would not support the existence of a clearly established right. See Camreta, 563 U.S. at 708 n.7; Booker, 855 F.3d at 538 n.l.
Furthermore, even among the district courts, there is no clear consensus regarding what constitutes a substantial burden on religious exercise in contexts analogous to the facts of the present case. For example, in contrast to the holding in Ellis, the district court in Jefferson v. Betti held that a Muslim inmate did not experience a substantial burden on his religious exercise when no group prayer services were available at his prison for two-and-a-half-weeks. 2021 WL 4316953, at *7-8 (M.D. Pa. Aug. 31, 2021), report and recommendation adopted, 2021 WL 4306132 (M.D. Pa. Sept. 22, 2021). Although the court's analysis in Betti somewhat conflated the substantial burden test with the defendants' assertion of a legitimate reason for its contested policy, the case nevertheless illustrates that the district courts have not consistently applied appellate precedent concerning the “substantial burden” analysis. The differing interpretations of appellate precedent among the district courts in cases involving generally analogous facts further illustrate the absence of clearly established law on this issue.
Betti was decided after Glogau's alleged failure to open the prison chapel in this case. Therefore, it does not speak to the state of the law at the time of his actions. Nevertheless, Betti does reflect the ongoing lack of consensus among the federal court regarding whether such acts or omissions constitute a substantial burden on religious exercise.
There is also no decision of the Court of Appeals for the Third Circuit applying the “substantial burden” analysis to facts sufficiently analogous to those of this case such that a reasonable prison official in Glogau's shoes would have known his conduct was unlawful. The decisions in which our Court of Appeals has addressed the issue of substantial burden involved facts dissimilar from those of the present case. For instance, the Court of Appeals has, on multiple occasions, addressed whether prison policies limiting the number of books inmates can possess substantially burdened their religious exercise. See e.g., Klem, 497 F.3d at 275, 280-81 (DOC policy limiting inmates to 10-books substantially burdened petitioner's practice of the Children of the Sun religion, which required “read[ing] four different Afro-centric books per day .. . and teaching others about the African people.”); Warren v. Pennsylvania, 316 Fed.Appx. 109 (3d Cir. 2008) (Plaintiffs Islamic practice was substantially burdened by DOC's 10-book limitation because “[i]n addition to the Koran, he needed books to learn how to pray, purify, fast, and perform other religious rituals and to better understand Allah.”). But even in the context of book limitations, the Court of Appeals has made clear that the “substantial burden” analysis is fact specific. See Heleva v. Kramer, 330 Fed.Appx. 406 (3d Cir. 2009) (although DOC book policy prohibited Plaintiff from receiving two religious books for 8-months, “[he] not demonstrate that the prison policy resulted in a substantial burden under RLUIPA and Washington”).
Other federal courts of appeal have held that a one-time or otherwise short denial or interference with worship does not violate clearly established law. See Camacho v. Shields, 368 Fed.Appx. 834, 835 (9th Cir. 2010) (per curiam) (single interruption of inmate's prayers not a substantial burden under RLUPIA and defendants were entitled to qualified immunity because “no clearly established right...was violated”); Kramer v. Pollard, 497 Fed.Appx. 639, 643 (7th Cir. 2012) (“permitting prison administrators to deny group worship where no volunteer or chaplain is readily available to lead services, a reasonable government official would not have known the official was violating clearly established law”); Williams v. Bragg, 537 Fed.Appx. 468, 468-69 (5th Cir. 2013) (per curiam) (cancellation of “weekly Muslim congregational prayer services on May 20, 2011, and on several other occasions” was not a “substantial burden” under RFRA) (citations omitted); Green v. McKaskle, 788 F.2d 1116, 1126 (5th Cir. 1986) (occasionally preventing an inmate from attending Baptist services, including the deprivation of another service on the same day, did not violate the First Amendment); White v. Labrado, 51 Fed.Appx. 929, 929 (5th Cir. 2002) (per curiam) (no substantial burden under RFRA to deny two weeks of Jewish religious services); Terrero v. United States, 275 Fed.Appx. 843, 843-46 (11th Cir. 2008) (per curiam) (failure to provide a practicing Jew “with the means of celebrating the seven-day Jewish festival of Sukkot”).
Where qualified immunity has been denied, the case typically involved a denial of worship or religious observance that was material in duration. See Lovelace v. Lee, 472 F.3d 174, 187-89 (4th Cir. 2006) (denying qualified immunity on RLUIPA claim when a prisoner's religious exercise rights were substantially burdened when an officer intentionally excluded him from special Ramadan meals during nearly the entire holy month and, during twenty-four of the thirty days of Ramadan, excluded him from participating in daily group prayers).
In addition to the duration of the denial, the Court believes the “substantial burden” inquiry should also consider whether the denial or failure to accommodate worship occurred on a date of particular religious significance to the plaintiff. Indeed, if the Court were to reach the merits of Hasbajrami's RFRA claim, it would regard the significance of the Eid-al-Adha holiday to Hasbajrami as support for a finding of “substantial burden.” Nevertheless, the absence of clearly established law on the issue entitles Glogau to qualified immunity.
Decisions discussing whether denial of access to religious dietary observances constitute a substantial burden on religious exercise also appear to be insufficiently analogous to the facts of this case to support clearly established law. Furthermore, the holdings of these cases are not sufficiently consistent to represent a robust consensus on the issue. See e.g, Norwood, 249 Fed.Appx. at 271 (court denied plaintiffs claim because of insufficient evidence, while opining that “[r]equiring a prisoner to eat food forbidden by his religion's dietary regimen may ‘substantially burden' one's religious practice,” though “it [wa]s incredible that in such a short time period Norwood would have been forced to abandon one of the precepts of his religion, or that he would have felt substantial pressure to modify his beliefs.); Banks v. Sec 'y Pa. Dep 't of Corr., 601 Fed.Appx. 101, 104-05 (3d Cir. 2015) (court held that district court erred in finding no genuine issue of material fact regarding Banks' substantial burden issue, while avoiding independently determining whether a DOC policy substantially burdened Banks' by preventing him from being able to afford “special foods ... for the celebration of Eid al-Fitr and Eid al-Adha” under RLUIPA); Small v. Wetzeli, 528 Fed.Appx. 202 (3d Cir. 2013) (plaintiffs claim “that the prison's Ramadan Guidelines place a substantial burden on his religious observance because they prohibit a Muslim who breaks fast on one day from fulfilling his or her duty to continue with nightly prayer and participate in an Eid-al-Fitr feast nonetheless” was moot under RLUIPA/ See also Ellis, 2009 WL 3166517, at *5 (“Plaintiffs alleg[ations] that Defendants deprived him of his ‘dietary regulations' by denying Halal meat for the ceremonial meal Plaintiff and other Sunni inmates intended to have in recognition of the Eid-ul-Adha holy day in January 2006” failed because “the denial of a single ceremonial meal is not a substantial burden on the exercise of one's religion”); Rogers v. United States, 696 F.Supp.2d 472, 487-88 (W.D. Pa. 2010) (same); Rogers v. US, 2011 WL 3290208, at *5 (W.D. Pa. Jun. 17, 2011) (prison official entitled to qualified immunity because in January 2006, there was no clearly established first amendment right to providing Halal meat for inmates' Eid celebration); Logan v. Lockett, 2009 WL 799749, at *7 (W.D. Pa. Mar. 25, 2009) (no clearly established law). Cf Jupiter v. Johnson, 2011 WL 4527803 (M.D.Pa. Apr. 26, 2011) (“A prisoner who is consistently not provided meals in accordance with his religious beliefs is substantially burdened in the exercise of his religion.”); Sutton v. City of Philadelphia, 21 F.Supp.3d 474, 490 (E.D. Pa. 2014) (citing premise stated in Jupiter, 2011 WL 4527803).
As the foregoing cases reveal, no Supreme Court precedent or robust consensus among the courts of appeal placed Glogau on notice that his failure in August 2019, to open the prison chapel for the Eid-al-Adha holiday was unlawful. See Hope, 536 U.S. at 739 (emphasizing that “qualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful”). Accordingly, Glogau is entitled to qualified immunity because Hasbajrami's asserted right was not clearly established at the time of Glogau's challenged conduct.
E. Conclusion
For the foregoing reasons, it is respectfully recommended that the Court grant Glogau's motion to dismiss Hasbajrami's amended complaint and motion for partial summary judgment. It is also recommended that the Court deny Hasbajrami leave to file a second amended complaint as further amendment would be futile. The unavailability of a Bivens remedy to support Hasbajrami's First and Fifth Amendment claims is a legal impediment that cannot be cured by amendment, and the absence of clearly established law to support the illegality of Glogau's conduct in August 2019 establishes Glogau's entitlement to qualified immunity on Hasbajrami's RFRA claim as a matter of law. Having previously allowed Hasbajrami to file an amended complaint, the Court's denial of a further opportunity to amend is appropriate, particularly where legal impediments to the claims asserted make such amendment futile. Nottingham v. Att'y Gen. Pennsylvania, 2022 WL 2964804, at *2 (3d Cir. July 27, 2022).
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, any party may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).