Terry Coley v. Luther Smith

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14472 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cv-00090-LGW-JEG

TERRY COLEY,

Plaintiff - Appellant,

versus

LUTHER SMITH, Food Service Administrator,
CHAPLAIN RAYMOND ORTIZ,

Defendants - Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
________________________

(August 23, 2011)

Before EDMONDSON, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
Plaintiff Terry Coley appeals the district court’s order granting Luther Smith

and Raymond Ortiz (collectively, “Defendants”) summary judgment grounded on

qualified immunity. Plaintiff, a federal inmate, filed this Bivens action alleging

that Defendants violated Plaintiff’s First Amendment rights by failing to obtain

certain food so that Plaintiff could have a religious ceremonial meal on a

religiously significant date. Because Plaintiff has failed to meet his burden of

showing a clearly established right, we affirm the district court’s decision.

I. BACKGROUND

Plaintiff is an observant Muslim serving a 188-month sentence at the

Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”). Plaintiff had

requested certain food items so that he and other Nation of Islam (“NOI”) inmates

at FCI Jesup could partake of the ceremonial Eid-ul-Fitr feast on 3 October 2008.

Plaintiff says this date was important because the feast is supposed to occur within

three days of the completion of Ramadan.

2
Defendants agreed, pursuant to Bureau of Prisons policy, to obtain the food

for the feast.1 By 3 October, Defendants had procured some -- but not all -- of the

food items Plaintiff had requested. Objecting to the sufficiency of the meal that

was offered, Plaintiff and some of the other NOI inmates did not partake of the

feast on that day. The meal was ultimately rescheduled for 20 October 2008, at

which point Plaintiff and other NOI inmates did participate in the meal (despite

that it was no longer within the religiously significant time).

Plaintiff -- proceeding pro se -- filed this lawsuit in June 2009, claiming

Defendants violated his right to the free exercise of his religion. Invoking the

defense of qualified immunity, Defendants filed a motion to dismiss -- which the

district court converted to a motion for summary judgment. The district court

concluded that Plaintiff had not shown the violation of a clearly established right,

and so the court granted summary judgment for Defendants. Plaintiff now

appeals.

II. DISCUSSION

1
Defendant Luther Smith was the Food Service Administrator at FCI Jesup;
Defendant Raymond Ortiz was the Chief Chaplain.
3
We review de novo a district court’s order granting summary judgment

based on qualified immunity, resolving all issues of material fact in favor of the

non-moving party. Bryant v. Jones, 575 F.3d 1281, 1294 (11th Cir. 2009). To

overcome Defendants’ qualified-immunity defense, Plaintiff bears the burden of

showing both that Defendants’ conduct amounted to a constitutional violation and

that the right violated was already “clearly established” at the time of Defendants’

conduct. Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010). Failure to

make either showing will defeat Plaintiff’s claim. Here, we move directly to the

question of whether Plaintiff’s right was already clearly established at the

pertinent time.

A “clearly established” right is one whose contours are fixed “so clearly that

a reasonable official would have understood his acts were unlawful.” Dolihite v.

Maughon, 74 F.3d 1027, 1040-41 (11th Cir. 1996). A judicial precedent is not

always required to establish clearly a right: in some situations, “the words of a . . .

federal constitutional provision may be so clear and the conduct so bad that case

law is not needed to establish that the conduct cannot be lawful.” Vinyard v.

Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002). But this case is not such a case:

the words of the First Amendment’s free exercise clause -- which say that

“Congress shall make no law respecting an establishment of religion” -- do not

4
clearly require Defendants to provide Plaintiff with all of the exact food he

requested for a religious meal on a specific date.

So, we next turn to the question of whether Plaintiff’s rights were clearly

established by a precedent already existing at the time Defendants acted. Id. at

1351. For officials to have fair warning that their acts are unlawful, “there need

not be a case ‘on all fours,’ with materially identical facts”; a right can be clearly

established even by factually distinct cases, “so long as the prior decisions gave

reasonable warning that the conduct at issue violated constitutional rights.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004)

(internal quotation marks and citation omitted) (involving a First Amendment

violation). But, the decisions that we look at for this analysis are only “decisions

of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court

of the state where the case arose.” Jenkins by Hall v. Talladega City Bd. of Educ.,

115 F.3d 821, 826 n.4 (11th Cir. 1997) (en banc).

Plaintiff has not identified -- nor have we found -- any decision of the

United States Supreme Court, this Court, or the Supreme Court of Georgia that

could have put Defendants on notice that failing to provide Plaintiff with the exact

food he requested, on a specific date of religious significance, must violate

Plaintiff’s federal rights. Plaintiff has failed to show not only that any case

5
involved similar facts to those at issue here, but failed to show even that

“statements of general principle from [the controlling] precedents” would

obviously apply here and could have given Defendants reasonable warning that

their conduct was unlawful. Holloman, 370 F.3d at 1278. Plaintiff has therefore

failed to meet his burden of showing a clearly established right; he cannot

overcome Defendants’ qualified immunity. The district court did not err in

granting summary judgment for Defendants.

AFFIRMED.