14‐581
Barnes v. Furman, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 22nd day of October, two thousand fifteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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ARRELLO BARNES,
Plaintiff‐Appellant,
v. 14‐581
FURMAN, FEDELE, KERBEIN, ROBERT MURPHY,
CORRECTION OFFICER, HOWARD MATASAR, T.
STANLEY, P. CORCORAN, CHAPPIUS, JR., M.
McGINNIS, A. BARLETT, NAPOLI, JOHN NUTTAIL,
EVERETTE, LITWILDER, BRIAN FISHER, THOMAS
EAGEN,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: Arrello Barnes, pro se, Attica, New York.
FOR DEFENDANTS‐APPELLEES: Denise A. Hartman, Martin A. Hotvet,
Assistant Solicitors General, for Barbara D.
Underwood, Solicitor General, and Eric T.
Schneiderman, Attorney General of the State of
New York, Albany, New York.
Appeal from the United States District Court for the Western District of
New York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in
part and VACATED in part, and the case is REMANDED.
Plaintiff‐appellant Arrello Barnes, proceeding pro se, appeals from the
judgment of the district court entered February 12, 2014 in favor of various prison
officials in the New York State Department of Correctional Services (ʺDOCSʺ)
dismissing his complaint alleging claims under 42 U.S.C. § 1983 and the Religious Land
Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (ʺRLUIPAʺ). Barnes
alleges that prison officials: 1) denied him kosher meals for a three or four‐month
period in 2004 because he then identified as ʺHebrew Israelite,ʺ not ʺJewishʺ; and 2)
confiscated his religious head covering ‐‐ a Tsalot‐Kob1 ‐‐ in 2007 because he then
identified as ʺJewish,ʺ not ʺRastafarian.ʺ Barnes also seeks injunctive and declaratory
relief to permit the wearing of Tsalot‐Kobs by Hebrew Israelite and Jewish inmates.
1 A Tsalot‐Kob is ʺa hemispheric head cap that can be made of cloth, knitted or
crochetedʺ and ʺmeasures approximately 12ʺ long at its longest point in order to cover all
[dread]locks.ʺ Appelleesʹ Add. at 6.
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By decision and order also filed February 12, 2014, the district court
granted defendantsʹ motion for summary judgment and denied Barnesʹs cross‐motion
for summary judgment. The district court held that Barnesʹs kosher meals claim failed
as a matter of law and that defendants were entitled to qualified immunity for
confiscating Barnesʹs religious head covering. We assume the partiesʹ familiarity with
the underlying facts, the procedural history, and the issues on appeal.
We review de novo the district courtʹs grant of summary judgment, with
the view that ʺ[s]ummary judgment is appropriate only if the moving party shows that
there are no genuine issues of material fact and that the moving party is entitled to
judgment as a matter of law.ʺ Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
Cir. 2003). On summary judgment, the court must consider ʺnot whether . . . the
evidence unmistakably favors one side or the other but whether a fair‐minded jury
could return a verdict for the plaintiff on the evidence presented.ʺ Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
We also review de novo the district courtʹs ruling that defendants are
entitled to qualified immunity. See Lynch v. City of New York, 737 F.3d 150, 156 (2d Cir.
2013). Qualified immunity shields a government official from liability for civil damages
ʺif his conduct did not violate plaintiffʹs clearly established rights or if it would have
been objectively reasonable for the official to believe that his conduct did not violate
plaintiffʹs rights.ʺ Mandell v. Cty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). The Court
ʺmust look to both the clarity of the law establishing the right allegedly violated as well
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as whether a reasonable person, acting under the circumstances the[n] confronting a
defendant, would have understood that his actions were unlawful.ʺ Ford v. McGinnis,
352 F.3d 582, 596‐97 (2d Cir. 2003) (internal quotation marks omitted).
A. Denial of Kosher Meals
The district court held that defendantsʹ requirement that Barnes identify
as Jewish to receive kosher meals did not substantially burden his religious exercise.
But this was not Barnesʹs claim. Instead, Barnes sought relief with respect to an earlier
period of time, the three or four months from April 2004, when he was transferred to
Southport Correctional Facility, to early July 2004, when he began receiving kosher
meals while still registered as a Hebrew Israelite. His complaint is not that he was later
required to register as Jewish, but that he was denied kosher meals for three or four
months until the Central Office Review Committee approved his request that inmates
identifying as Hebrew Israelite should receive kosher meals. The district court did not
consider this claim.
Prisoners have a right to a diet consistent with their religious beliefs. Ford,
352 F.3d at 597; McEachin v. McGuinnis, 357 F.3d 197, 203‐4 (2d Cir. 2004). Here, Barnes
alleges that he was denied kosher meals for three or four months, a time period that is
not ʺso trivial that [it is] most properly ignored.ʺ McEachin, 357 F.3d at 203 n.6.
Defendants do not address whether the facts alleged demonstrate the
violation of Barnesʹs constitutional rights, instead urging us to proceed to the second
step of the qualified immunity analysis and arguing that their actions were objectively
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reasonable. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (ʺThe judges of the district
courts and the courts of appeals should be permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.ʺ). We elect to
do so and we agree that, on the record before us, defendants were entitled to qualified
immunity as a matter of law because it was objectively reasonable for them to believe,
at the time, that their denial of kosher meals to an inmate who self‐identified as a
Hebrew Israelite did not violate the inmateʹs rights.
In April 2004, when Barnes arrived at Southport, the Orientation Manual
provided that kosher meals were ʺavailable to Jewish inmates.ʺ Because Barnes was
registered as Hebrew Israelite and not Jewish, he was not given kosher meals. Barnes
wrote letters and filed a grievance requesting kosher meals, and on June 23, 2004, the
Central Office Review Committee granted the grievance, concluding that it was
ʺappropriateʺ for inmates self‐identifying as Hebrew Israelites to be given Kosher
meals. Barnes began receiving kosher meals shortly thereafter.
Hence, while Barnes was first denied kosher meals in accordance with
Southport policy because he had not registered as Jewish, the decision was reversed by
central DOCS authorities after Barnes complained. While it was clearly established in
2004 that inmates had the right to a diet consistent with their religious beliefs, see Kahane
v. Carlson, 527 F.2d 492, 495‐96 (2d Cir. 1975) (holding orthodox Jewish inmate was
entitled to kosher meals); Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992) (per curiam), it
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was not unreasonable for Southport officials to deny Barnes kosher meals because he
was registered as Hebrew Israelite in accordance with the prison policy limiting kosher
meals to Jewish inmates. Nor was it unreasonable for the prison officials to rely on
Barnesʹs registered religious designation in making its initial kosher meal
determination.2 See Jackson‐Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997) (holding
that DOCS may place reasonable limitations on an inmateʹs right to the free exercise of
religion, including a requirement that the inmate register his religious affiliation). Once
the Central Office determined that the policy should be changed, the Southport officials
granted Barnes kosher meals. Therefore, even assuming Barnesʹs rights were being
violated in 2004, under the circumstances defendants did not act unreasonably.
B. Confiscation of Religious Head Covering
To prevail on a First Amendment claim, a plaintiff must show that he has
a sincerely held religious belief, that it was substantially burdened, and that defendantsʹ
conduct was not reasonably related to some legitimate penological interest. See Holland
v. Goord, 758 F.3d 215, 220‐23 (2d Cir. 2014); Ford, 352 F.3d at 588‐94.3 Defendants may
assert a defense of qualified immunity to such a claim, but they must show that their
conduct ʺdoes not violate clearly established statutory or constitutional rights of which
2 We note that, at various times, Barnes was registered as Muslim, Hebrew
Israelite, Jewish, Rastafarian, Protestant, and Nation of Islam.
3 We have not decided whether the substantial burden test remains viable in our
Circuit following Employment Division v. Smith, 494 U.S. 872 (1990), but we need not decide the
issue here because defendants have not contested that Barnes satisfies this element, see Holland,
758 F.3d at 221.
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a reasonable person would have known.ʺ Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir.
2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Defendants confiscated Barnesʹs head covering because he was registered
as ʺJewishʺ and DOCS officials had determined that the appropriate head covering for
Jews was a yarmulke, based on advice from their ʺreligious advisors, the New York
State Board of Rabbis.ʺ Appelleesʹ Br. at 12‐13. Barnes contended that a Tsalot‐Kob was
more appropriate than a yarmulke because it fit over his extensive dreadlocks. At the
time, Tsalot‐Kobs were ʺonly authorized for members of the Rastafarian faith.ʺ
Appelleesʹ Add. at 6. Among the five permitted religious head coverings, the Tsalot‐
Kob was the only religious headwear limited to just one religious faith. Id. All others ‐‐
yarmulkes, kufis, fezzes, and khimars ‐‐ were permitted to be worn by any inmate,
regardless of religious registration, so long as they were being worn for religious
purposes. Id. DOCS has since changed its policy to remove the limitation that Tsalot‐
Kobs be worn by Rastafarians only. Id. at 11 (ʺIn an effort to ensure compliance with
RLUIPA, inmates will no longer be required to pick faith specific items for individual
worship only.ʺ).
Defendants do not dispute that the confiscation of Barnesʹs Tsalot‐Kob
religious head covering was unlawful and instead argue that they are entitled to
qualified immunity because there is no clearly established law permitting inmates to
wear ʺhead coverings of their choice.ʺ Appelleesʹ Br. at 31, 37. To determine whether a
right was clearly established, we consider ʺwhether the right in question was defined
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with reasonable specificity,ʺ ʺwhether the decisional law of the Supreme Court and the
applicable circuit court support the existence of the right in question,ʺ and ʺwhether
under preexisting law a reasonable defendant official would have understood that his
or her acts were unlawful.ʺ Dean v. Blumenthal, 577 F.3d 60, 68 (2d Cir. 2009) (per
curiam) (internal quotation marks omitted).
The district court erred in holding that defendants are entitled to qualified
immunity as a matter of law. Although we have never held that prison officials are
obligated to provide an inmate with ʺhead coverings of their choice,ʺ it has nonetheless
been well established that prisoners ʺretain some measure of the constitutional
protections afforded by the First Amendmentʹs Free Exercise Clause.ʺ Ford, 352 F.3d at
588 (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)). Prisonersʹ free exercise claims are
necessarily balanced against the interests of prison officials administering the prison
system. Id. In light of that concern, it has been clearly established that burdens on
prisonersʹ free exercise rights must be justified by a legitimate penological interest. See
id. at 594‐95; Salahuddin v. Goord, 467 F.3d 263, 275‐76 (2d Cir. 2006) (denying qualified
immunity for prison officials not separating Sunni and Shiʹite Ramadan services
because ʺit was clearly established at the time of the alleged violations that prison
officials may not substantially burden inmatesʹ rights to religious exercise without some
justificationʺ).
It was also clearly established before 2007 that prison officials could not
rely solely on the opinions of the New York Board of Rabbis in assessing the sincerity of
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Barnesʹs religious belief. See Ford, 352 F.3d at 590, 597‐98; Jackson v. Mann, 196 F.3d 316,
320‐21 (2d Cir. 1999) (holding that prison official could not deny inmate kosher meals
based on rabbiʹs determination that inmate was not Jewish under Judaic law); Jolly v.
Coughlin, 76 F.3d 468, 476 (2d Cir. 1996) (concluding that prison officials cannot impinge
on sincere religious belief simply by showing that ʺas an objective matter, the plaintiffʹs
belief is not accurate or logicalʺ). Therefore, it was well established by 2007 that the test
for whether a prisoner’s beliefs are entitled to free exercise protection turns on whether
they are ʺsincerely held,ʺ not the ecclesiastical question of the propriety of Jews wearing
head coverings other than yarmulkes.
Taken together, our earlier decisions have clearly established that prison
officials may not prohibit a sincere religious practice without some legitimate
penological interest. The only legitimate penological objectives defendants point to are
related to the requirement that inmates register their religious affiliation with prison
officials and the Department of Corrections, and that prison officials rely to some extent
on that designation. Defendants do not, however, provide any legitimate penological
reasons behind prison officialsʹ and chaplainsʹ former adherence to a policy that limited
Jewish inmatesʹ head coverings to yarmulkes only. Nor do the defendants offer a
legitimate penological reason for deferring to the New York State Board of Rabbis
where the sincerity of Barnesʹs belief was apparently uncontested. As the district court
noted, ʺʹthere is no legitimate reason for DOCS to afford members of only one religious
denomination the opportunity to adhere to a sincerely held religious beliefʹ relative to
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grooming or headwear.ʺ Barnes v. Fedele, No. 07‐CV‐6197 (W.D.N.Y. Feb. 12, 2014)
(quoting Amaker v. Goord, No. 06‐CV‐490A(SR), 2010 WL 2595286, at *12 (W.D.N.Y. Mar.
25, 2010)).
Even so, there remains the question of whether ʺʹreasonable persons in
[defendantsʹ] position would not have understood that their conduct was within the
scope of the established prohibition.ʹʺ LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998) (quoting In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996)). For qualified
immunity to apply on this basis, defendants must demonstrate that ʺno rational jury
could fail to concludeʺ that it was reasonable for them to believe that their conduct did
not violate the prisonerʹs constitutional rights. Id. at 74. When officials follow an
established prison policy, as defendants did here, their entitlement to qualified
immunity depends on ʺwhether a reasonable officer might have believed that the
challenged order was lawful in light of legitimate penological interests supportingʺ the
directive. Holland, 758 F.3d at 223; Salahuddin, 467 F.3d at 276 (ʺ[O]nce a prisoner shows
that a prison regulation impinges on a protected right, prison officials must show that
the disputed official conduct was motivated by a legitimate penological interest.ʺ).
While the individual corrections officers who confiscated Barnesʹs Tsalot‐Kob may very
well have been acting reasonably when following DOCS policy, a different analysis may
apply to those responsible for the policy. On this record, it is not apparent whether
there was a legitimate penological reason to limit only Tsalot‐Kobs to inmates registered
as Rastafarian.
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Therefore, we cannot say as a matter of law that it was objectively
reasonable for those defendants to believe that denying a Tsalot‐Kob to an inmate
registered as Jewish was constitutional. Moreover, because defendants have not
identified any penological interests supporting the policy, we cannot assess the
reasonableness of their actions. See Salahuddin, 467 F.3d at 276 (holding that where
prison officials did not ʺpoint[] to anything in the record to show that they relied on
legitimate penological justifications,ʺ court could not ʺmanufacture facts out of thin
airʺ). Accordingly, we remand to the district court for further proceedings and
development of the record.
3. Injunctive and Declaratory Relief
We affirm the district courtʹs holding that Barnesʹs requests for injunctive
and declaratory relief are moot. While an inmateʹs transfer ʺgenerally moots claims for
declaratory and injunctive relief against officials of that facility,ʺ but not claims against
higher‐ranking officials, Salahuddin, 467 F.3d at 272, Barnesʹs claims are nonetheless
moot because he has since changed his religious designation to Protestant and no longer
has dreadlocks.
We have considered all of Barnesʹs remaining arguments and find them to
be without merit. Accordingly, we AFFIRM in part, VACATE in part, and REMAND
for proceedings consistent with this decision.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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