06-4315-pr
Redd v. Wright
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
(Argued: April 6, 2009 Decided: March 9, 2010)
Docket No. 06-4315-pr
----------------------------------------------------x
Kevin Redd,
Plaintiff-Appellant,
-- v. --
Lester Wright, Chief Medical Director for the NYS Dept. of
Correctional Service, Hans Walker, Superintendent, C. Coynel,
Nurse Administrator, John W. Burge, Superintendent,
Defendants-Appellees.
-----------------------------------------------------x
B e f o r e : WALKER, LEVAL, HALL, Circuit Judges.
1 Appeal from the summary judgment dismissal of plaintiff-
2 appellant’s claims against employees of the New York State
3 Department of Corrections, alleging violations of the First,
4 Eighth, and Fourteenth Amendments, as well as the Religious Land
5 Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42
6 U.S.C. § 2000cc, based on his confinement in tuberculosis hold
7 following his refusal to submit to tuberculosis testing. We
8 AFFIRM on the basis of the doctrine of qualified immunity the
9 district court’s dismissal of plaintiff’s claims. We further
10 AFFIRM the district court’s denial of leave to amend to add an as
1
1 applied Eighth Amendment claim.
2 AFFIRMED.
3 MATTHEW J. FEDOR (David F.
4 Abernathy, Andrea L. D’Ambra,
5 on the brief), Drinker, Biddle
6 & Reath LLP, Philadelphia, PA,
7 for Appellant.
8
9 MARTIN A. HOTVET, Assistant
10 Solicitor General (Barbara D.
11 Underwood, Andrew D. Bing,
12 Julie S. Mereson, on the
13 brief), for Andrew M. Cuomo,
14 Attorney General of the State
15 of New York, Albany, N.Y., for
16 Defendants-Appellees.
17
18 JOHN M. WALKER, JR., Circuit Judge:
19 The plaintiff-appellant Kevin Redd appeals from a grant of
20 summary judgment to the defendants-appellees, employees of the
21 New York Department of Correctional Services (DOCS), by the
22 United States District Court for the Northern District of New
23 York (Magnuson, Judge). Pursuant to 42 U.S.C. § 1983, Redd
24 claimed violations of the First, Eighth, and Fourteenth
25 Amendments, as well as the Religious Land Use and
26 Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §
27 2000cc, arising out of his confinement by DOCS under a
28 tuberculosis (“TB”) hold policy. The district court held that
29 his First Amendment and RLUIPA claims were precluded by the
30 qualified immunity doctrine and that his Eighth and Fourteenth
31 Amendment claims failed as a matter of law. This appeal
32 challenges all of those holdings and the denial of his motion to
2
1 amend the complaint to add an as applied Eighth Amendment claim.
2
3 BACKGROUND
4 DOCS administers "purified protein derivative" ("PPD") tests
5 routinely to all inmates to detect “latent” TB infections. Under
6 the policy that DOCS established in 1996 that is relevant to this
7 appeal, if an inmate refused the PPD test, the inmate first was
8 counseled about the importance of the test, and then, if the
9 inmate persisted in his refusal, he was placed in TB hold,
10 resulting in "keeplock status" in his cell. The inmate was then
11 offered the PPD test daily for one week, weekly for one month and
12 monthly thereafter. An inmate refusing these offers was kept in
13 TB hold for one year during which three chest x-rays were taken
14 at the beginning, middle, and end of the year. After one year
15 and three negative chest x-rays, the inmate could be released
16 into the general population, and thereafter would be evaluated
17 each year by physical examination.
18 Under the 1996 Policy, inmates in keeplock status under TB
19 hold were permitted one hour of exercise per day and three
20 showers per week. Although not allowed telephone use or personal
21 visits, they were permitted legal visits. Thus, the inmates’
22 contact with other inmates and correctional personnel was
23 limited, which, according to DOCS, "reduce[d] the possibility of
24 the spread of [active TB]." Wright Decl. at 3, ¶ 7. Inmates in
3
1 TB hold were not placed in respiratory isolation, however; they
2 remained part of the general prison population, though confined
3 to their cells. Inmates who submitted to a PPD test were
4 immediately released from TB hold, and those who tested positive
5 for latent TB were neither required to undergo annual chest
6 x-rays nor subjected to repeat PPD testing.
7 On April 9, 2001, DOCS placed Redd, an inmate at the Auburn
8 Correctional Facility, in TB hold after he refused to undergo a
9 PPD test on religious grounds. The 1996 Policy, unlike the
10 current policy adopted in 2004, did not contain a religious
11 objector exception.
12 Prison officials rejected Redd’s offer to submit to sputum
13 testing and instead applied the 1996 Policy of TB hold and three
14 chest x-rays, performing the first chest x-ray on Redd one month
15 after he was placed in TB hold. His second and third chest
16 x-rays were performed on November 6, 2001 and May 6, 2002.
17 Because all three x-rays were negative, Redd was released from TB
18 hold in May of 2002, "approximately 5-10 days" after his third
19 chest x-ray and approximately thirteen months and one week after
20 his TB hold was initiated.1
21 On April 9, 2004, Redd filed this suit, pro se, pursuant to
22 42 U.S.C. § 1983, asserting constitutional and statutory claims
1
Redd was subsequently placed in TB hold twice more for
brief periods upon refusing PPD testing on religious grounds, but
these subsequent holds are not the subject of Redd’s complaint.
4
1 arising from his placement in TB hold. The complaint named as
2 defendants: Dr. Lester Wright, Chief Medical Director for DOCS;
3 Hans Walker, Auburn’s Superintendent at the commencement of
4 Redd's confinement in TB hold; John Burge, Walker’s successor;
5 and Nurse Administrator C. Coynel. Redd sued each defendant in
6 his or her individual capacity, claiming that the defendants
7 violated: 1) the First Amendment and the Religious Freedom
8 Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4,
9 by requiring him to submit to a PPD test over his religious
10 objection; 2) the Eighth Amendment by implementing a policy that
11 authorized a potentially indefinite period of confinement in TB
12 hold; and 3) the Fourteenth Amendment by denying him release from
13 TB hold after one year. Redd’s complaint sought only monetary
14 damages.
15 I. District Court Proceedings
16 After taking Redd's deposition, the defendants moved for
17 summary judgment. The defendants argued that confining Redd in
18 TB hold under the 1996 Policy did not violate any rights that
19 were clearly established and thus, “[b]ased upon th[e] timeline
20 of relevant case law,” the defendants were entitled to qualified
21 immunity and summary judgment. Defs’ Mem. in Supp. of Mot. for
22 Summ. J. at 10.
23 The district court granted the defendants’ motion for
24 summary judgment in its entirety, applying the two-step analysis
5
1 for claims of qualified immunity as then required by Saucier v.
2 Katz, 533 U.S. 194 (2001). The district court first considered
3 whether, viewed in the light most favorable to Redd, the facts
4 alleged supported Redd's claim that his constitutional rights
5 were violated. With respect to Redd's First Amendment religion
6 claim, the district court determined that, following Selah v.
7 Goord, 255 F. Supp. 2d 42, 55 (N.D.N.Y. 2003), and Reynolds v.
8 Goord, 103 F. Supp. 2d 316, 339 (S.D.N.Y. 2000), confining Redd
9 to TB hold unreasonably burdened his right to free exercise of
10 religion and, therefore, that the 1996 Policy was
11 unconstitutional as applied to Redd. Redd v. Wright, No. 9:04-
12 CV-00401 (N.D.N.Y. filed Aug. 9, 2006). The district court also
13 concluded in a footnote that the 1996 Policy violated the RLUIPA,
14 which "imposes a standard of strict scrutiny upon burdens on the
15 free exercise of religion of incarcerated persons in state
16 prisons." Id. at 7 n.9.2
17 Having concluded that Redd’s First Amendment/RLUIPA claim
2
Redd’s complaint identified RFRA as the statutory basis
for his religious freedom claim. The district court construed
the complaint to allege a violation of RLUIPA. Redd does not
challenge this construction of his claim, and the differences
between RFRA and RLUIPA are immaterial for purposes of this
appeal. This court has previously applied case law decided under
RFRA to issues that arise under RLUIPA. See Westchester Day Sch.
v. Village of Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007); see
also Koger v. Bryan, 523 F.3d 789, 802 (7th Cir. 2008) (“RLUIPA
did not announce a new standard, but shored up protections
Congress had been attempting to provide since 1993 by means of
the RFRA, and which had seen frequent litigation in the prison
context.”).
6
1 survived the first step of the Saucier test, the district court
2 then considered whether Redd's First Amendment and/or RLUIPA
3 rights were clearly established at the time of the alleged
4 violation. The district court found that, during the period that
5 Redd was in TB hold, because neither this court nor the Supreme
6 Court had held that application of the 1996 Policy to religious
7 objectors violated the Free Exercise Clause or RLUIPA, and
8 because there was a conflict among state and lower federal courts
9 on the issue, the rights at issue were not clearly established.
10 Therefore, the district court held that the defendants were
11 entitled to qualified immunity on the First Amendment/RLUIPA
12 claims. Id. at 18.
13 With regard to Redd's Eighth and Fourteenth Amendment
14 claims, the district court found no constitutional violation.
15 The district court held that the alleged deprivations were
16 insufficient to constitute cruel and unusual punishment under
17 applicable precedent and that Redd had not shown that the
18 defendants were “deliberately indifferent to his health or
19 safety” in applying the 1996 Policy to him. Id. at 8. The
20 district court also rejected Redd's argument that, by holding him
21 longer than twelve months, the defendants violated his Fourteenth
22 Amendment due process rights, reasoning that Redd had no
23 “protected interest in immediate release from TB hold after one
24 calendar year.” Id. at 12. The district court alternatively
7
1 applied the three-factor test in Mathews v. Eldridge, 424 U.S.
2 319 (1976), concluding that the “length and conditions” of Redd's
3 confinement did not violate due process because the 1996 Policy
4 “provide[d] adequate procedural protection for any state
5 infringement on [Redd's] liberty interest.” Redd, at 15.
6 Finally, the district court rejected an additional claim first
7 raised in Redd’s opposition to summary judgment that he had been
8 unconstitutionally denied regular showers or exercise, despite
9 their requirement under the 1996 Policy. The district court
10 denied this claim because it was not included in the complaint.
11 The district court also refused Redd leave to amend, stating that
12 “[t]o permit [Redd] to amend his Complaint at this stage, over
13 two years after instituting the action, would be unfairly
14 prejudicial to Defendants.” Id. at 9-10.
15 This appeal followed.
16 DISCUSSION
17 I. Standard of Review
18 This court reviews a grant of summary judgment de novo,
19 Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.
20 2004), “constru[ing] the facts in the light most favorable to the
21 non-moving party and . . . resolv[ing] all ambiguities and
22 draw[ing] all reasonable inferences against the movant.” Id.
23 (internal quotation marks omitted). Summary judgment may not be
24 granted if any genuine issue exists with respect to material
8
1 facts. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).
2 “A dispute regarding a material fact is genuine if the evidence
3 is such that a reasonable jury could return a verdict for the
4 nonmoving party.” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626
5 (2d Cir. 1998) (internal quotation marks omitted).
6 II. Redd’s RLUIPA and First Amendment Claims
7 Redd’s religious-liberty claims derive from two independent
8 sources: § 3 of RLUIPA, 42 U.S.C. § 2000cc-1, and the Free
9 Exercise Clause of the First Amendment. Under RLUIPA, a
10 plaintiff must demonstrate that the state has imposed a
11 substantial burden on the exercise of his religion; however, the
12 state may overcome a RLUIPA claim by demonstrating that the
13 challenged policy or action furthered a compelling governmental
14 interest and was the least restrictive means of furthering that
15 interest. 42 U.S.C. § 2000cc-1(a). Under the First Amendment,
16 the law is less generous to plaintiff prisoners; a generally
17 applicable policy will not be held to violate a plaintiff’s right
18 to free exercise of religion if that policy “is reasonably
19 related to legitimate penological interests.” O’Lone v. Estate
20 of Shabazz, 482 U.S. 342, 349 (1987) (internal quotation marks
21 omitted).
22 As a result of the Supreme Court’s decision in Pearson v.
23 Callahan, 129 S. Ct. 808 (2009), overruling Saucier v. Katz, 533
24 U.S. 194 (2001), we are no longer required to determine whether
9
1 Redd’s rights were violated under the First Amendment and RLUIPA
2 if we determine that the rights claimed by Redd were not “clearly
3 established” at the time of the alleged violation. Id. at 818.
4 The task of framing the right at issue with some precision is
5 critical in determining whether that particular right was clearly
6 established at the time of the defendants’ alleged violation.
7 Redd claims that the right at issue here should be
8 characterized as the right “not to be subjected to punishment or
9 more burdensome confinement as a consequence of his religious
10 beliefs,” Redd Br. 26. As the defendants note, however, the
11 Supreme Court has expressly cautioned against framing the
12 constitutional right at too broad a level of generality. Wilson
13 v. Layne, 526 U.S. 603, 615 (1999). And we have interposed a
14 “reasonable specificity” requirement on defining the contours of
15 a constitutional right for qualified immunity purposes. Dean v.
16 Blumenthal, 577 F.3d 60, 67-68 (2d Cir. 2009). Redd’s
17 characterization of his right is not “reasonably specific”
18 because it fails to account for the 1996 Policy in particular.
19 We agree with the defendants that the right at issue here is
20 Redd’s right under the First Amendment and RLUIPA to a religious
21 exemption from the 1996 Policy.
22 At the time Redd was confined in TB hold, it had not been
23 clearly established by either the Supreme Court or this court
24 that the 1996 Policy, or a substantially equivalent policy, was
10
1 nor reasonably related to a legitimate penological interest nor
2 that such terms are not the least restrictive means of furthering
3 a compelling governmental interest. For those reasons, the
4 defendants are entitled to qualified immunity with respect to
5 Redd’s First Amendment and RLUIPA claims. Redd can point to no
6 relevant case law declaring the 1996 Policy, or any substantially
7 similar policy, invalid under either the First Amendment or
8 RLUIPA. Redd cites other prisoners’ rights cases in which we
9 have held generally that prisoners are guaranteed “freedom from
10 discriminatory punishment inflicted solely because of his
11 beliefs, whether religious or secular.” See Sostre v. McGinnis,
12 442 F.2d 178, 189 (2d Cir. 1971) (en banc), abrogated on other
13 grounds by Procunier v. Martinez, 416 U.S. 396 (1974), and
14 Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir. 1978), as recognized
15 by Davidson v. Scully, 694 F.2d 50 (2d Cir. 1982); see also
16 Salahuddin v. Goord, 467 F.3d 263, 275-76 (2d Cir. 2006) (holding
17 it “clearly established . . . that prison officials may not
18 substantially burden inmates’ right to religious exercise without
19 some justification”). But this case, unlike the cases cited by
20 Redd, does not involve punishment that targets an inmate for
21 engaging in a religious practice or “solely because of his
22 beliefs.” The deprivation in this case was motivated not by
23 animus but by a legitimate “public health concern[].” Wright Br.
24 22-23.
11
1 A right may be clearly established, even in the absence of
2 directly applicable Supreme Court or circuit case law, if this
3 case law has foreshadowed a particular ruling on the issue,
4 Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000). Redd argues
5 that Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996), and the
6 testimony of Dr. Wright provided in Reynolds v. Goord, 103 F.
7 Supp. 2d 316, foreshadowed a ruling that his right was “clearly
8 established.” In particular, Redd argues that the defendants
9 should have known that they were violating his rights because (1)
10 Jolly rejected the defendants’ argument that the PPD test was a
11 legitimate method of protecting inmates from tuberculosis, and
12 (2) Dr. Wright testified in Reynolds that the PPD test was not a
13 legitimate way of preventing the spread of TB infection.
14 Redd’s reliance on Jolly and Dr. Wright’s testimony is
15 misplaced. Although Redd is correct that Jolly rejected the
16 state’s contention that the mandatory PPD test is a reasonable
17 way of preventing the spread of TB in prisons, that court
18 nevertheless recognized that administering an effective TB
19 screening program might be a compelling state interest and that
20 this interest might justify a TB hold policy. Jolly, 76 F.3d at
21 477-78.3 Thus, Jolly did not foreshadow a ruling that the 1996
3
Jolly did not involve a First Amendment claim, but a
claim under RFRA. Id. at 471. RFRA, like RLUIPA, imposed a
“compelling interest” test distinct from and more rigorous than
the “reasonableness” test applied to First Amendment claims. For
purposes of this case, we may assume that a ruling as to the
12
1 Policy would be facially invalid under either the First Amendment
2 or RLUIPA. Moreover, the factual predicate that led the court to
3 grant a preliminary injunction in Jolly – Jolly’s confinement for
4 three and a half years, id. at 478 – significantly differs from
5 the facts in this case, in which Redd was in TB hold for less
6 than one year and two months. Although Jolly did not foreclose
7 the possibility that a one year confinement in TB hold could
8 violate an inmate’s free exercise rights, Jolly specifically
9 declined to draw a line as to the length of confinement beyond
10 which a constitutional violation would occur. See id. at 478 n.5
11 (leaving open the question whether “a shorter period of
12 confinement” would violate an inmate’s free exercise rights).
13 Nor did Dr. Wright’s testimony in Reynolds foreshadow a
14 ruling that DOCS lacked a compelling state interest in
15 implementing a TB hold policy, putting aside for the moment
16 whether expert testimony alone can perform the foreshadowing role
17 we envisioned in Tellier. Dr. Wright’s testimony focused on the
18 rationality of a TB hold policy as a means of containing the
19 spread of TB; nowhere did he address the compelling interest in
20 administering an effective TB program or compiling health
21 information on inmates. See Reynolds, 103 F. Supp. 2d at 340.
22 Accordingly, neither Jolly nor Dr. Wright’s testimony “clearly
validity or invalidity of the 1996 Policy under RFRA would also
establish the policy’s validity or invalidity under RLUIPA. See
supra note 2.
13
1 foreshadow[ed]” a holding by this court that the 1996 Policy, as
2 applied in this case, violated Redd’s free exercise rights under
3 RLUIPA’s “compelling interest” standard, much less under the
4 First Amendment’s reasonableness test. The district court,
5 therefore, did not err in granting qualified immunity to the
6 defendants on Redd’s claims under the First Amendment and RLUIPA.
7 III. Redd’s Eighth Amendment Claim
8 Redd challenges the district court’s conclusion that the
9 1996 Policy did not violate his Eighth Amendment rights. Redd’s
10 Eighth Amendment claim is comprised of two distinct challenges.
11 First, Redd argues that the 1996 Policy continued to facially
12 violate the Eighth Amendment, even though DOCS had amended the
13 policy as a result of the court’s holding in Jolly. Second, Redd
14 argues that, even assuming the 1996 Policy did not facially
15 violate the Eighth Amendment, the defendants violated the Eighth
16 Amendment in its application to him because they failed to
17 provide him with regular showers and exercise as required by the
18 policy. We hold that the facial challenge is barred by the
19 doctrine of qualified immunity and that the as applied challenge
20 was insufficiently pleaded.
21 A. Redd’s Facial Challenge
22 Redd first claims that, despite DOCS revision of the TB hold
23 policy in an attempt to cure the constitutional infirmities
24 acknowledged by the Jolly court, the 1996 Policy continued to be
14
1 facially in violation of the Eighth Amendment. Specifically,
2 Redd argues that the Jolly court found the previous 1991 Policy
3 to violate the Eighth Amendment both because “[(1)] it resulted
4 in the denial of all meaningful opportunity for exercise[,] and
5 [(2) it resulted in] an indefinite period of restrictive
6 confinement.” Redd Br. 38. In issuing a stay of the preliminary
7 injunction, the district court in Jolly imposed two requirements
8 on Jolly’s continued confinement – “one hour of exercise per day
9 and three showers per week.” 76 F.3d at 473. In considering
10 Jolly’s appeal, we noted that DOCS had subsequently implemented
11 these requirements in the 1996 Policy, and further observed that
12 whether the revised policy continued to violate the Eighth
13 Amendment was an “interesting constitutional question.” Id. at
14 480. By leaving this question open, we did not clearly establish
15 that the revised policy continued to violate inmates’ Eighth
16 Amendment rights by denying them “all meaningful opportunity for
17 exercise.” Id. at 480-81.
18 Redd further argues that the 1996 Policy continued to
19 violate the Eighth Amendment despite its revisions because,
20 “[g]iven its permissive language, and the absence of any
21 requirement for timely scheduling of the three x-rays that must
22 be taken six months apart[,] . . . this Policy improperly
23 allow[ed] limitless confinement, in violation of Jolly.” Redd
24 Br. 39. Wholly apart from the failure of this argument to state
15
1 a facial challenge to the 1996 Policy, Jolly does not clearly
2 establish or foreshadow that the policy would violate the Eighth
3 Amendment, whether facially or as applied. Instead, the Jolly
4 court left open exactly what conditions of confinement, including
5 the length of confinement, might satisfy the Eighth Amendment
6 under the 1996 Policy. See 76 F.3d at 480-81 (finding that the
7 conditions applied to Redd under the amended policy did not
8 preclude a claim for prospective relief under the Eighth
9 Amendment when those conditions followed “on the heels of . . .
10 extreme and prolonged confinement”). Thus, it cannot reasonably
11 be said that the defendants acted in violation of clearly
12 established Eighth Amendment law by implementing the 1996 Policy,
13 even if the permissive nature of the policy continued to raise
14 “interesting constitutional question[s].” Id. at 480.
15 B. Redd’s As Applied Challenge
16
17 Redd attempts to raise an as applied challenge, independent
18 of the policy itself, under the Eighth Amendment on the ground
19 that he was denied the regular showers and exercise required by
20 the policy. This claim, however, was not properly before the
21 district court. Nowhere in the complaint does Redd expressly or
22 even implicitly allege that the defendants violated his Eighth
23 Amendment rights by not following the 1996 Policy. The district
24 court did not abuse its discretion in denying Redd permission to
16
1 introduce a new claim after two years of litigation. See
2 Peterson v. Ins. Co. of N. Am., 40 F.3d 26, 31 (2d Cir. 1994).
3 V. Redd’s Due Process Claim
4 Finally, Redd argues that the defendants violated his right
5 to due process by confining him in TB hold “without sufficient
6 procedural safeguards.” Redd’s alleged due process right was not
7 clearly established at the time of the violation, and therefore
8 the defendants are entitled to qualified immunity on this claim.
9 First, as previously discussed, it was not clearly established
10 that Redd had a right to be released from TB hold after one year.
11 Insofar as any other Second Circuit decision addresses a due
12 process claim in the context of a prisoner’s heightened level of
13 confinement, see, e.g., Colon v. Howard, 215 F.3d 227 (2d Cir.
14 2000) (holding that confinement in normal special housing unit
15 for 305 days is a sufficient departure from ordinary incidents of
16 prison life to require procedural due process protections), no
17 such case is sufficiently similar to have put the defendants on
18 notice that their application of the 1996 Policy violated any
19 clearly established due process right. Thus, the defendants are
20 entitled to qualified immunity with respect to Redd’s claim based
21 on the procedures for curtailing the duration of confinement.
22 Nor was it clearly established that Redd was entitled to
23 some kind of notice that religious objectors could be exempt from
24 the 1996 Policy or that the defendants’ failure to advise Redd of
17
1 a potential exemption from the PPD test was a violation of his
2 due process rights. Finally, Redd’s claim that the 1996 Policy
3 was not justified by a compelling interest in maintaining a
4 successful TB control program, though labeled as a due process
5 argument, is redundant of Redd’s properly rejected First and
6 Eighth Amendment challenges.
7 CONCLUSION
8 For the foregoing reasons, we AFFIRM the district court’s
9 grant of summary judgment on Redd’s First, Eighth and Fourteenth
10 Amendment, and his RLUIPA claims, as well as the district court’s
11 denial of leave to amend.
18