F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 24, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RU SSELL M . BO LES,
Plaintiff-Appellee,
v. No. 05-1570
GA RY D. NEET,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 03-cv-557-PSF-O ES)
Submitted on the briefs: *
John W . Suthers, A ttorney General, James X . Quinn, Assistant Attorney General,
Office of the Colorado Attorney General, Denver, Colorado, for
Defendant-Appellant.
Sheldon E. Friedman, Isaacson Rosenbaum P.C., Denver, Colorado, for
Plaintiff-Appellee.
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
EBEL, Circuit Judge.
Plaintiff Russell M . Boles is an Orthodox Jew serving time at the Freemont
C orrectional Facility in C añon City, Colorado. He sued the warden, Gary D.
Neet, under 42 U.S.C. § 1983 and the First Amendment after W arden Neet denied
his request to wear certain religious garments while being transported to a
hospital. W arden Neet moved for summary judgment based on qualified
immunity, but the district court denied the motion, and he now appeals that
determination. W e exercise jurisdiction over this interlocutory appeal under
28 U.S.C. § 1291 and the Cohen 1 collateral order doctrine and AFFIRM .
I.
The relevant facts are not disputed. In M arch 2001, while he was
incarcerated at FCF, Boles was scheduled to have eye surgery at an off-site
hospital. On the day of his scheduled surgery, however, prison officials told him
that prison regulations prohibited him from leaving the facility wearing his
yarmulke and tallit katan. 2 He refused to remove the garments and forwent
1
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See
Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 515 (10th Cir. 1998) (“[T]he
denial of a motion to dismiss based on qualified or absolute immunity is
immediately appealable under the Cohen collateral order doctrine.”).
2
Tallit katan, a hebrew expression referring to an undergarment bearing
fringes or “tzitzit,” is worn by some of the Jewish faith to fulfill the
(continued...)
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having the surgery. On April 17, 2001, Boles sent a letter to W arden Neet
requesting permission to wear his religious garments during transport to the
hospital. W arden Neet responded by letter dated A pril 30, 2001, denying Boles’s
request based on the prison’s transport regulation, AR 300-37 RD. That
regulation provides that inmates classified “medium custody and above are [to be]
transported in orange jumpsuits and transport shoes when being transported to a
non-secure area, i.e. hospital.” Aplt. App. at 179. Referring to this regulation,
W arden Neet told Boles, “[a]lthough your religion may require you to wear
certain items, those items w ill not be allowed during transport out of this
facility.” Id. at 163. Nonetheless, Boles remained steadfast in refusing to take
off his yarmulke and tallit katan. As a result, his eye surgery was delayed until
November 2002, by which point the prison regulations had been amended
specifically to allow Jewish inmates to wear those items during transport.
Proceeding pro se in the district court, Boles sued W arden Neet under
42 U.S.C. § 1983 claiming that his actions violated Boles’s First Amendment
right to freely exercise his religion. 3 W arden N eet filed a motion to dismiss
2
(...continued)
comm andment appearing in the Bible at the book of Numbers, ch. 15, verse 37.
Boles alleges that under the Kitzer Shulchan Arukh, a code of Jewish law , he is
forbidden to walk a distance of four cubits (between 12 and 16 feet) during
daylight hours w ith his head uncovered and not wearing tzitzit.
3
Boles also brought claims under the Religious Land Use and
Institutionalized Persons Act and the Eighth and Fourteenth Amendments, but
(continued...)
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follow ed by a motion for summary judgment, arguing that Boles’s First
Amendment claim was barred by W arden Neet’s qualified immunity from civil
damages liability. By order dated November 30, 2005, the district court denied
both motions, concluding that there was a material issue of fact concerning
whether W arden Neet’s conduct “was a reasonable restriction on plaintiff’s free
exercise of his religious practices.” Aplt. App. at 248. M ore specifically, the
court held that regulation AR 300-37 RD did not justify W arden Neet’s actions.
[N]othing in the policy prohibits the inmate from also wearing a head
covering, such as a yarmulke, or an undergarment, such as a tallit
katan. If there is a security issue associated with such garments, it is
not apparent from the regulations.
Id. Also central to the court’s decision was its broad interpretation of the
constitutional right involved, which the court framed as the free exercise of
religion. The court concluded that whether W arden Neet violated that right could
not be decided on summary judgment.
W hile a defendant charged with a constitutional violation receives
qualified immunity when the right asserted is not clearly established,
the right that has been established does not have to [be] so fact
specific that it is identical to what is alleged in the case at issue, as
defendant appears to argue here. To overcome a motion to dismiss
the plaintiff must articulate a constitutional right which the defendant
violated. To unreasonably limit plaintiff’s free exercise of religion is
a violation.
3
(...continued)
those claims have been dismissed, and the propriety of their dismissal is not
before us.
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Id. at 245 (quotation omitted). On appeal, W arden Neet argues that in framing
the constitutional right so broadly, the district court impermissibly removed the
defense of qualified immunity. He also argues that prison inmates like plaintiff
enjoy no clearly established constitutional right to wear religious garments either
on the prison grounds or in transport outside of the facility. Accordingly, he
contends that he is entitled to qualified immunity with respect to plaintiff’s First
Amendment claim.
II.
The doctrine of qualified immunity shields government officials performing
discretionary functions from liability for 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). W hen the district court denies a motion asserting the qualified immunity
defense, we review its decision de novo. Tonkovich v. Kan. Bd. of Regents, 159
F.3d 504, 516 (10th Cir. 1998). Our review is guided by the Supreme Court’s
instructions concerning the proper sequence in which to analyze the requisites of
a qualified immunity defense. Saucier v. Katz, 533 U.S. 194, 200 (2001). First,
we must consider whether the plaintiff’s factual allegations show that the
official’s conduct violated a constitutional right. See id. at 201. If the assumed
facts do not establish a constitutional violation, the defendant is entitled to
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summary judgment. If, on the other hand, a violation can be shown, “the next,
sequential step is to ask whether the right was clearly established.” Id.
A. Did Boles Allege a Constitutional Violation?
In taking the first step of the Saucier analysis, we are mindful of the
delicate balance that has been recognized between prisoners’ constitutional
guarantees and the legitimate concerns of prison administrators. In O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court acknowledged that
although “[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights,” id. at 348 (quotation omitted),
convicted prisoners nonetheless “retain protections afforded by the First
Amendment, including its directive that no law shall prohibit the free exercise of
religion,” id. (citation omitted). The Court emphasized, however, that in
evaluating a challenged prison regulation, appropriate deference must be afforded
to prison administrators “who are actually charged with and trained in the running
of the particular institution under examination.” Id. at 349 (quotation omitted).
Accordingly, the Court distinguished prison regulations from other laws alleged
to violate fundamental constitutional rights, holding that the former must be
judged under a less restrictive reasonableness test: “‘[W ]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.’” Id. (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)).
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The same year it decided O’Lone, the Court decided Turner, which, in part,
struck down as unreasonable a prison regulation banning inmate marriages. It
was clear after Turner that the question of whether a prison regulation reasonably
curtails constitutional rights requires close examination of the facts of each case,
the specific regulation under review, and the alleged justifications for it. To
assist the low er courts in making the reasonableness determination, the C ourt
identified the follow ing factors: 4
(1) whether a rational connection exists between the prison policy
regulation and a legitimate governmental interest advanced as its
justification; (2) whether alternative means of exercising the right are
available notwithstanding the policy or regulation; (3) what effect
accommodating the exercise of the right would have on guards, other
prisoners, and prison resources generally; and (4) whether ready,
easy-to-implement alternatives exist that would accommodate the
prisoner’s rights.
Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing Turner,
482 U.S. at 89-91). As other courts have pointed out, the first Turner factor is
actually more of an “element” than a factor in the sense that it “is not simply a
consideration to be weighed but rather an essential requirement.” Salahuddin v.
Goord, 467 F.3d 263, 274 (2d Cir. 2006); see also Sutton v. Rasheed, 323 F.3d
4
Although plaintiff is not challenging a prison regulation per se, but rather
W arden Neet’s individual actions, Turner is no less applicable. As the Second
Circuit usefully recognized in Salahuddin v. Goord, 467 F.3d 263, 274 n.4
(2d Cir. 2006), “[a]n individualized decision to deny a prisoner the ability to
engage in religious exercise is analyzed in the same w ay as a prison regulation
denying such exercise.”
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236, 253 (3d Cir. 2003) (“The first factor is foremost in the sense that a rational
connection is a threshold requirement . . . .”) (quotation omitted). To satisfy the
first Turner factor, “the prison administration is required to make a minimal
showing that a rational relationship exists between its policy and stated goals.”
Beerheide, 286 F.3d at 1186.
This framew ork established in Turner and O’Lone, which seeks to balance
prisoners’ constitutional rights against the valid concerns of prison
administrators, is sharply at odds w ith the test formulated three years later in
Employment Division, Departm ent of Human Resources v. Smith, 494 U.S. 872
(1990). There the Supreme Court held that the free exercise clause does not
exempt an individual from complying with “a valid and neutral law of general
applicability” even if the law impinges on that individual’s religious practices.
Id. at 879. Smith was not a prison case and it did not purport to limit or overrule
Turner and O’Lone, but many courts have questioned its effect, if any, on the
standard for evaluating prisoner free exercise claims articulated in those cases.
Some courts that have addressed the issue have concluded that “the proper
standard to apply in prisoner cases challenging restrictions on the free exercise of
religion is supplied by the Supreme Court’s decision in Turner, not by [Smith].”
Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001); see also Ward v. Walsh,
1 F.3d 873, 877 (9th Cir. 1993) (seeing no reason to depart from Turner); Salaam
v. Lockhart, 905 F.2d 1168, 1171 n.7 (8th Cir. 1990) (holding that Smith did not
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affect analysis). Other courts have recognized the possible implications of Smith
in the prison context, but have gone on to utilize the Turner/O’Lone balancing
framew ork because the defendant did not argue for Sm ith’s applicability. Levitan
v. Ashcroft, 281 F.3d 1313, 1318-19 (D.C. Cir. 2002) (collecting cases);
Salahuddin, 467 F.3d at 274 n.3; Hakim v. Hicks, 223 F.3d 1244, 1247 n.13 (11th
Cir. 2000). W e are aware of only one case in which the court analyzed a
prisoner’s free exercise claim under Smith, and even in that case, the court also
held that the challenged regulation passed scrutiny under O’Lone. See Hines v.
S.C. Dep’t of Corrs., 148 F.3d 353, 357 (4th Cir. 1998). This court has yet to
address the issue squarely, but like our sister circuits we have continued to
employ the Turner/O’Lone balancing framew ork in prison cases even after Smith.
See Beerheide, 286 F.3d at 1184-86; Kikumura v. Hurley, 242 F.3d 950 (10th Cir.
2001). In this case, both parties appear to agree that the Turner/O’Lone standard
governs as neither of them has argued for Smith’s application. Accordingly,
without deciding the issue, we will apply the Turner/O’Lone balancing framew ork
to Boles’s First Amendment claim.
W ith this backdrop we return to the first Saucier question: has plaintiff
alleged facts showing the violation of a constitutional right? To meet his burden
at this stage, Boles had to show that W arden Neet’s conduct substantially
burdened his sincerely-held religious beliefs. Salahuddin, 467 F.3d at 274-75.
If so, W arden Neet then bore “the relatively limited burden of identifying the
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legitimate penological interests that justif[ied] the impinging conduct.” Id. at
275. W e think Boles made the requisite showing at step one. His Amended
Complaint alleged that according to the code of Jewish Law , “Jewish males are
required to wear a head covering at all times,” Aplt. App. at 44, and that
“observant Jews may not walk even as much as four cubits (approximately six
feet) without wearing [the Tallit Katan],” id. He further alleged that the
observance of these commandments is of “cosmic or life and death importance,”
id., and does not interfere with prison security, see id. at 45.
Therefore, the burden shifted to W arden Neet to identify the legitimate
penological interests served by his decision to forbid Boles from wearing his
religious garments. W arden Neet has identified nothing, however, and we could
find no evidence in the record of any penological objectives served by his
actions. 5 On appeal, W arden N eet cites several cases upholding against
constitutional challenges prison regulations restricting the use of religious
clothing out of concern that the clothing could be used to smuggle contraband.
See Muhammad v. Lynaugh, 966 F.2d 901, 902-03 (5th Cir. 1992) (upholding
5
A lthough Warden N eet submitted an unredacted version of regulation AR
300-37RD to the district court, all but a sliver of it was returned in response to his
motion to seal the document and was not included in the record on appeal.
Perhaps the full regulation sets forth legitimate security or other concerns
underlying the prison’s religious garment and transport regulations. Since
W arden Neet did not include it in the appellate record, however, we have no way
of knowing.
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regulation restricting M uslim inmates’ wearing of K ufi caps); Young v. Lane,
922 F.2d 370, 376 (7th Cir. 1991) (yarmulkes); Benjamin v. Coughlin, 905 F.2d
571, 579 (2d Cir. 1990) (Rastafarian crowns); Butler-Bey v. Frey, 811 F.2d 449,
451 (8th Cir. 1987) (fezes); Rogers v. Scurr, 676 F.2d 1211, 1216 (8th Cir. 1982)
(prayer caps and robes). But in each of those cases, the court made its decision
based on the prison’s evidence that its regulation responded to valid security
concerns. In M uhammad, for example, the Fifth Circuit upheld a regulation
restricting the use of Kufi caps only after “a lengthy evidentiary hearing,”
966 F.2d at 901, at w hich senior corrections officers testified that prison security
was the impetus behind the challenged regulation. “They testified that weapons,
such as shanks and razor blades, could easily be secreted inside a Kufi cap.” Id.
at 902. The court was “persuaded that the evidence introduced at the hearing
established that the regulations restricting the use of K ufi caps . . . bear a
reasonable relationship to the legitimate penological interest of prison security.”
Id. Likewise, in Butler-Bey, the Eighth Circuit noted with approval the testimony
of prison officials that smuggling contraband was a problem at the prison and that
religious headgear could be used for smuggling. 811 F.2d at 451.
W arden Neet cannot base his entitlement to qualified immunity purely on
the outcome of these other cases. W hile his actions may have been motivated by
a legitimate concern that Boles’s religious garments could be used to smuggle
contraband into and out of the prison, he points to nothing in the record to that
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effect, and our own review of the record failed to reveal such evidence. As the
Salahuddin court noted when faced with similar circumstances, “[n]either the
district court nor this court can manufacture facts out of thin air.” 467 F.3d at
275. W ithout record support, we cannot conclude that W arden Neet’s actions
were justified by security concerns or any other valid penological objectives. W e
recognize that W arden Neet may adduce additional facts in support of a later
summary judgment motion or at trial. At this stage of the litigation, however, the
uncontroverted factual allegations viewed in the light most favorable to Boles
show that W arden Neet placed substantial burdens on Boles’s free exercise rights
with no valid penological justification. Boles therefore met his burden at the first
step of the Saucier analysis.
B. Was the Constitutional Right Clearly Established?
Turning to step two, W arden Neet argues that even if Boles alleged a
constitutional violation, he is entitled to qualified immunity because an inmate’s
unrestricted right to wear religious garments was not clearly established at the
time of the alleged violation. Boles counters that the proper focus should be on
whether it was clearly established that inmates retain the constitutional right of
free exercise, not on the right’s narrow application to religious garments.
The parties’ disagreement about how broadly to define the constitutional
right is understandable. A s w e have previously noted, striking the right balance is
crucial to the qualified immunity analysis. See M elton v. City of Okla. City, 879
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F.2d 706, 729 n.37 (10th Cir. 1989), vacated in part en banc, 928 F.2d 920 (10th
Cir. 1991). “Too general a formulation would ‘convert the rule of qualified
immunity that our cases plainly establish into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract rights.’” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 639 (1987)). On the other hand, defining
the constitutional right too narrowly “would render the defense available to all
public officials except in those rare cases in which a precedential case existed
which was on all fours factually with the case at bar.” Id. (quotations omitted).
In sum, “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson,
483 U.S. at 640.
Our task is to evaluate W arden Neet’s assertion of qualified immunity in
the context of the circumstances that he faced without being too constrained by
the particular facts of the case. See Melton, 879 F.2d at 729. Fortunately, the
analysis in this case is uncomplicated. In support of his summary judgment
motion, W arden Neet argued that his decision to deny Boles’s request to wear
religious garments during transport was based solely on prison regulations in
effect at the time.
21. . . . I uniformly applied the religion and transport regulations
as they existed at the time.
22. I did not discriminate against inmate Russell Boles based on
his religion. I applied existing regulations to Boles and all
offenders uniformly.
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Neet Aff., Aplt. App. at 159. W e appreciate W arden Neet’s position that he did
not intend to violate Boles’s constitutional rights, but he is not immune from
liability simply because he acted in accordance with prison regulations. 6 The
Supreme Court clearly established in Turner that prison regulations cannot
arbitrarily and capriciously impinge on inmates’ constitutional rights. To be
valid, a regulation must be “reasonably related to legitimate penological
interests.” 482 U.S. at 89. Therefore, W arden Neet’s actions w ere reasonable
and he is entitled to qualified immunity only if the regulation that he relied on
was reasonably related to a legitimate penological interest. Since, as we have
already held, there is nothing in the record to indicate as much, he has not
established the defense of qualified immunity.
The district court’s order is AFFIRMED.
6
W e recognize that one of the relevant factors in evaluating the
reasonableness of W arden Neet’s actions is whether he relied on a regulation or
official policy that explicitly sanctioned his conduct. See Roska v. Peterson,
328 F.3d 1230, 1251 (10th Cir. 2003). But the regulation at issue here, AR 300-
37 RD, at most only implicitly sanctioned his conduct. It states that inmates are
to be transported in orange jumpsuits and transport shoes. In our view , whether it
implicitly forbids the wearing of other items depends on the purpose behind the
regulation. If its purpose is to easily identify escaped convicts and prohibit them
from moving quickly on foot, reading into the regulation a prohibition against
yarmulkes and religious undergarments makes no sense. On the other hand, if the
purpose is preventing the smuggling of contraband, the implicit prohibition
against wearing religious garments may make sense. W arden Neet failed to make
a showing either way.
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