Sharp v. Johnson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-2174
_____________

SHAWN C. SHARP,
Appellant
v.

SUPERINTENDENT JOHNSON; DEPUTY
SUPERINTENDENT KRYSEVIG;
DEPUTY SUPERINTENDENT DICKSON; DEPUTY
SUPERINTENDENT STICKMAN, PROGRAM
MANAGER RHODA A. WINSTEAD; CHAPLAIN
FATHER TURSA, CHAPLAIN TANKO IBRAHIYM,
SUPERINTENDENT CONNER BLAIN; DEPUTY
SUPERINTENDENT PAUL STOWITZKY; DEPUTY
SUPERINTENDENT JOHN MILLER, CAPTAIN
COLEMAN; LIEUTENANT FISHER; MAJOR
MELVIN LOCKETT; LIEUTENANT MATCUS;
LIEUTENANT BLAKEY; JEAN A. MEARS;
CHAPLAIN GEORGE J. MONECK; CHAPLAIN
IHMAM MUHAMMED,
_____________

1
 On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-00-cv-02156
Magistrate Judge: The Honorable Amy Reynolds Hay

Argued November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit
Judges

(Filed: February 9, 2012)

Anderson T. Bailey (Argued)
Thomas S. Jones
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219
Counsel for Appellant

Kemal A. Mericli (Argued)
Scott A. Bradley
Office of Attorney General of Pennsylvania
564 Forbes Avenue
Manor Complex
Pittsburgh, PA 15219

Susan J. Forney
2
Office of Attorney General of Pennsylvania
15th Floor
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee
_____________________

OPINION
_____________________

SMITH, Circuit Judge.
Plaintiff Shawn Sharp, an inmate in the custody of
the Pennsylvania Department of Corrections (“DOC”),
brought this civil rights action in November 2000 claiming
that two prison facilities (SCI-Pittsburgh and SCI-Greene)
unlawfully denied his request to accommodate his particular
religious group. 1 After years of motions practice, in which

1
Eleven defendants testified at the bench trial in this matter.
They were Philip Johnson, William Stickman, Joel Dickson,
Mark Krysevig, Rhoda Winstead, Father William Terza and
Imam Tanko Ibrahiym, who were assigned to SCI-Pittsburgh
during all times relevant to the respective allegations made by
Sharp, and William Stickman, Brian Coleman, Jean Mears,
Father George Moneck and Imam Abu Bakr Muhammad,
who were assigned to SCI-Greene. All of these individuals
are Appellees in this matter. The remaining seven defendants
did not testify at trial and include Conner Blain, Lieutenant
Blakey, Lieutenant Fisher, Melvin Lockett, Lieutenant
Matcus, John Miller and Paul Stowitzky.
3
several of Sharp’s claims were dismissed, Sharp’s remaining
two claims proceeded to a three-day bench trial before the
Magistrate Judge. 2 They were: (1) a claim pursuant to 42
U.S.C. § 1983 that Defendants’ policies and practices violated
Sharp’s right to practice his religion as guaranteed by the
First and Fourteenth Amendments (the “First Amendment
Action”); and (2) a claim pursuant to the Religious Land Use
and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc
(2000) (the “RLUIPA Action”). The Magistrate Judge
entered judgment in favor of Defendants and issued a
memorandum setting forth her findings of fact and
conclusions of law. We will affirm.

I. BACKGROUND

Sharp is serving a life term of imprisonment following
his conviction for first degree murder. He was incarcerated at
SCI-Pittsburgh from September 18, 1998 to May 23, 2001.
Sharp was transferred to SCI-Greene and was incarcerated
there from May 23, 2001 to June 13, 2006, when he was
transferred to SCI-Dallas.

2
The parties consented to have the Magistrate Judge conduct
all proceedings in this case, including entry of final judgment,
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

4
 A. SCI-PITTSBURGH

1. RELIGIOUS SERVICES OFFERED AND
POLICIES FOR REQUESTING RELIGIOUS
ACCOMMODATIONS

SCI-Pittsburgh recognizes and accommodates several
different religions and religious groups, namely Christians,
Jews, and Muslims. With respect to Christianity, SCI-
Pittsburgh offers Catholic, Protestant, and Jehovah’s
Witnesses services. As to Islam, SCI-Pittsburgh offers
Nation of Islam, Moorish Science Temple, and Sunni Muslim
services.

An inmate practicing a religion not covered by the
aforementioned groups may request an accommodation. DC-
Administrative 819 (“DC-ADM 819”) sets forth the DOC’s
policy for requesting recognition of a religion and obtaining
services for that group. The version of DC-ADM 819 that
was in effect from March 2, 1998 until July 15, 2002 stated,
in pertinent part, that:

Requests to engage in religious practices . . .
which are not being accommodated by the
[DOC], must be initiated by the inmate via an
‘Inmate Religious Accommodation Request
Form’ . . . . The form shall be completed by the
requesting inmate and submitted to the Facility
Chaplaincy Program Director for review by
appropriate staff.

5
The Inmate Religious Accommodation Request Form, also
known as DC-52, stated that “[i]f more than one inmate is
filing a request, each inmate must submit a form. If this is a
group request, information must be submitted to the Facility
Chaplaincy Program Director, who will compile information
about the group request.” After the inmate submits this form,
the prison’s chaplain director must obtain publications from
the faith group regarding the goals, beliefs and practices of
that group. The chaplain then circulates a recommendation
form to certain prison officials, each of whom makes a
written recommendation as to whether the request should be
granted or denied. The chaplain then forwards the prisoner’s
request, the compiled religious information, and the staff
recommendations to the Administrator of Religion and
Family Services at the DOC central office, who ultimately
determines whether to approve or deny the request.

2. SHARP’S INCARCERATION AND ACCOMMODATION
REQUEST AT SCI-PITTSBURGH

Sharp is a member of the faith group known as Ahlus
Sunnati Wal Jama‘ah, whose members are frequently referred
to as Sunni Muslims. There are different subsets within the

6
broader Sunni Muslim group. Sharp identifies himself as a
member of the Habashi sect. 3

The Islamic Chaplains testified that Muslims at the
prison typically take part in Jumah and Taleem. Jumah is a
group prayer service held on Fridays that every Muslim is
obligated to attend if possible. Taleem is a religious study
period that is generally held on a weekly basis though there is
no religious obligation to attend. Defendant Tanko Ibrahiym,
the Islamic Chaplain at SCI-Pittsburgh from 1998 to 2004 and
a self-identified Sunni Muslim, led Jumah services and

3
Testimony from Imam Muhammad and exhibits introduced
at trial provided general background information regarding
the Habashi sect. Pursuant to this information, the Habashis
are followers of Abdullah Alharrari Alhabashi, an Ethiopian
who settled and taught in Lebanon. The Habashi are
offspring of the Al-Ashari community, which was founded by
Abu-Hasan Al-Ashari around the year 860 A.D.
One of the purported differences between the Habashi
sect of Sunni Islam and other Sunni sects is the direction of
prayer. As a precondition for a Muslim’s prayers to be valid,
those prayers must be offered toward the Qiblah, which is the
direction to the Kabah, the holy shrine in Mecca. Thus, the
direction of a Muslim’s prayer is dependent on the orientation
between that person’s current location and the Kabah. Imam
Muhammad estimated that 99.9% of Muslims in the United
States pray in a northeast direction. Habashis, however,
contend that the Kabah is southeast from the United States,
and they pray in that direction.

7
Taleem classes for Sunni Muslims at the prison. Sharp
regularly attended these services and classes.

At some point, Sharp informed Imam Ibrahiym that he
believed there were ideological differences between Sharp’s
Habashi sect and the recognized Sunni group at SCI-
Pittsburgh. Sharp believed that the Habashi could not be
accommodated within the Sunni Muslim community at SCI-
Pittsburgh. Imam Ibrahiym disagreed with Sharp’s assertion
that the Habashi were not being accommodated and advised
that if Sharp was a Sunni Muslim, as he claimed to be, then
there was no reason why Sharp could not attend the services
and programs that were offered to the Sunni Muslims at SCI-
Pittsburgh.

On October 14, 1999, Sharp, on behalf of a purported
group of Habashi members, submitted a typed document
titled “Religious Accommodation Request for Ahlus Sunnati
wal Jama’ah,” requesting recognition and accommodation of
the Habashi sect. In particular, Sharp sought space for
separate Jumah services and Taleem classes on behalf of his
purported group of 30 inmates. Although the document
submitted was not the DC-52 form required by DC-ADM
819, it contained similar substantive information.

Imam Ibrahiym discussed this group request with
Defendant Father William Terza, who was the Facility
Chaplain Program Director and was responsible for
overseeing the chaplaincy program at SCI-Pittsburgh. Father
Terza informed Sharp that his request was improperly
submitted because it did not include an individual request on
the proper DC-52 form, as required by DC-ADM 819. Father
8
Terza told Sharp that once he submitted the proper form,
Father Terza would circulate it to the appropriate SCI-
Pittsburgh staff members for their recommendation and then
forward it to the DOC central office for a decision. The
District Court found that Sharp never submitted the proper
individual request form to Father Terza.

On November 28, 1999, a meeting was held between
Defendant Mark Krysevig, who was the Deputy
Superintendent at SCI-Pittsburgh, Defendant Rhoda
Winstead, who was the Corrections Classification Program
Manager (the “CCPM”) at SCI-Pittsburgh, Imam Ibrahiym,
Father Terza and several inmates, including Sharp, to discuss
SCI-Pittsburgh’s Ramadan services. Specifically, discussions
were held to determine how Ramadan, a month-long Muslim
observance, would be accommodated among the various
Muslim groups and inmates who wished to participate. At
this meeting, Sharp again — this time orally — raised his
request for a group accommodation of his Habashi sect.

On November 30, 1999, Sharp was placed in
administrative custody (i.e., the restrictive housing unit)
because, according to Defendants, Sharp’s efforts to organize
a separate religious group were creating a threat to
institutional security. In particular, the prison officials found
that Sharp was a danger to others, that he was attempting to
establish himself as the leader of a group of inmates, and that
he threatened disruption and violence if his religious group
was not recognized. Defendants Krysevig and William
Stickman, who was the Deputy Superintendent for Facility
Management at SCI-Pittsburgh, believed that Sharp was more
interested in placing himself in a leadership position over a
9
group of inmates than obtaining a genuine religious
accommodation. Several inmates complained to Krysevig
that Sharp was being disrespectful of their beliefs, and
Krysevig was concerned that these other inmates might
retaliate against Sharp. In sum, Sharp was placed in
administrative custody for “fomenting unrest in group
activity.”

On December 1, 1999, Sharp filed Grievance No. PIT-
0997-99 (the “Pittsburgh Grievance”) questioning why no
determination had been issued with respect to his group
request for accommodation. On December 20, 1999,
Winstead denied the Pittsburgh Grievance in writing, stating,
in pertinent part:

At the meeting you mention on November 28,
1999 it was verified that all staff mentioned
received a copy of your proposal [i.e., Sharp’s
request for an accommodation].

In accordance with DC-ADM 819-3 for
religious accommodations, you were to submit
the proper form requesting such an
accommodation for you as an individual. Any
other inmates requesting an accommodation
must be filed individually. Your form should be
forwarded to the chaplaincy coordinator. Your
form was improperly filed.

The SCI-Pittsburgh Defendants testified that Sharp
never submitted a form requesting religious accommodations
for himself as an individual. Sharp claims that he and other

10
Habashi members submitted handwritten, individual requests
for accommodation to Imam Ibrahiym. Imam Ibrahiym’s trial
testimony on this issue was, at best, unclear. Imam Ibrahiym
testified that he never received a DC-52 form from Sharp or
any other of the inmates that practice Habashi. Later, Imam
Ibrahiym testified that he received written requests for
accommodation from Sharp, though the nature of these
purported requests was unclear. 4

Sharp appealed the denial of the Pittsburgh Grievance
to Defendant Philip Johnson, who was Superintendent of SCI-
Pittsburgh. On January 5, 2000, Johnson dismissed Sharp’s
appeal as untimely.

Sharp further claims that, while he was in
administrative custody, Defendants proposed that he sign a
behavioral modification contract that included a condition
that he agree not to practice his religion in exchange for
release into the general population. SCI-Pittsburgh had a
Program Review Committee (“PRC”) that would periodically
meet with inmates confined to administrative custody and
review their restricted status. Defendants Krysevig and Joel
Dickson, who was the Deputy Superintendent at SCI-

4
The Magistrate Judge did not find Sharp’s claim that he
submitted a handwritten, individual request to Imam Ibrahiym
credible because Sharp could not produce a copy of this
request at trial despite producing copies of all the other
important documents in the case. The Magistrate Judge also
found Sharp’s claim belied by his grievance requests, which
refer to group requests, not an individual request.

11
Pittsburgh, were on Sharp’s PRC. 5 Because the PRC had
“serious reservations” about releasing Sharp into the general
population absent modification of his behavior, the PRC
offered him the opportunity to agree to a behavioral
modification contract. Behavioral modification contracts
were informal agreements between the institution and the
inmate setting the terms of the inmate’s release from
administrative custody. If the inmate fails to comply with the
terms of the contract, he can be returned to administrative
custody. The PRC proposed a behavioral modification
contract to Sharp, the general terms of which were to include
promises by Sharp to cease fomenting unrest and to refrain
from showing disrespect for the religious beliefs and practices
of others, in exchange for release from administrative
custody. Sharp was to draft the specific language of the
contract. Both Krysevig and Dickson testified that the PRC
never made restrictions on Sharp’s practice of his religion a
condition of his release from administrative custody. Sharp
never submitted a draft to — nor reached an agreement with
— the PRC. 6

On May 23, 2001, the DOC transferred Sharp from
SCI-Pittsburgh to SCI-Greene.

5
Defendant Melvin Lockett, who was a Unit Manager at SCI-
Pittsburgh, was the third member of Sharp’s PRC.
6
Collectively, Defendants Johnson, Krysevig, Dickson,
Stickman, Winstead, Terza, and Ibrahiym are the “SCI-
Pittsburgh Defendants.”

12
 B. SCI-GREENE

1. RELIGIOUS SERVICES OFFERED AND
POLICIES FOR REQUESTING RELIGIOUS
ACCOMMODATIONS

SCI-Greene recognizes and accommodates several
different religions and religious groups, namely Christians,
Jews, Native Americans and Muslims. With respect to
Christianity, SCI-Greene offers Catholic, Protestant,
Jehovah’s Witness and Yoke Fellowship services. As to
Islam, SCI-Greene offers Nation of Islam and Sunni services.
Effective July 15, 2002, the DOC issued a revised DC-ADM
819. This revised policy stated, in pertinent part, that requests
for religious accommodation were to be made as follows:

a. Each inmate must use a DC-52, Inmate
Religious Accommodation Request Form . . .
to submit his/her request for accommodation to
the FCPD [Facility Chaplaincy Program
Director].

***

c. The inmate shall obtain written information
from his/her outside faith group, including any
publications that describe the goals, beliefs, and
practices of the group and supply this
information to the FCPD for review.

d. The Religious Accommodation Review
Committee shall review each inmate’s request
for a religious accommodation within 45 days
13
of receipt and forward a recommendation to the
affected Regional Deputy Secretary.

e. The Regional Deputy Secretary shall, within
15 days of receiving the recommendation from
the Director of the Bureau of Inmate
Services/designee, approve/disapprove the
request and notify the Director of the Bureau of
Inmate Services of the decision.

f. The Director, Bureau of Inmate Services
shall, within 10 days, inform the Facility
Manager and the FCPD of the requesting
facility of the determination and ensure copies
of all final determinations are provided to all
Deputy Secretaries and Facility managers. The
FCPD shall be responsible for informing the
affected inmate of the outcome of his/her
request no later than 10 working days from the
date that the determination of
approval/disapproval is received.

g. If an inmate is informed by the FCPD that
the request will not be accommodated, the
inmate may then file a grievance in accordance
with Department policy DC-804, “Inmate
Grievances.” Grievances may only be
submitted after the inmate has received
notification of the decision on the requested
accommodation.

14
(emphasis in original). The DOC did not make any
substantive changes to the DC-52 Inmate Religious
Accommodation Request Form.

Defendant Imam Abu Bakr Muhammad, who was the
Muslim Chaplain at SCI-Greene, testified that he is a Sunni
Muslim. Imam Muhammad provided Taleem and led the
weekly Jumah prayer services for Muslim inmates.

2. SHARP’S INCARCERATION AND
ACCOMMODATION REQUESTS AT SCI-GREENE

On September 30, 2002, more than a year after being
transferred to SCI-Greene, Sharp submitted a DC-52 form
requesting an individual religious accommodation of his
Habashi sect pursuant to DC-ADM 819. 7 Sharp’s request
sought, among other things, Jumah services and Taleem
study, library space with books teaching his beliefs, prayer
time at sunset during Ramadan with others who shared his
beliefs, an outside coordinator on a weekly basis, and a
community bank account.

Defendant Father George Moneck, who was the
Director of Chaplaincy at SCI-Greene, reviewed Sharp’s
request and recommended that the DOC central office deny it.
Father Moneck further commented on the form that Sharp
“can practice his religion privately. [SCI-Greene] cannot
7
Sharp identified the formal name of his religion as “Islam as
taught by the Ashariy Community of Ahlus Sunnah wal
Jama’ah,” but he noted that it is commonly referred to as
Habashi.

15
accommodate another Muslim sect. [Sharp] is most welcome
to join the Sunni or the Nation of Islam communities.”

Father Moneck circulated the vote form to the other
staff members, who all recommended that Sharp’s request be
denied. Defendant Jean Mears, who was SCI-Greene’s
CCPM, generally reviewed inmates’ requests for religious
accommodation. Mears, however, was unavailable when
Sharp’s request was circulated. Michael Bruno, who was
SCI-Greene’s acting CCPM at the time, reviewed and
recommended that the DOC central office deny Sharp’s
request. Bruno is not a defendant in this action. Stickman,
who was promoted to Superintendent at SCI-Greene in 2002, 8
generally participated in reviewing inmates’ requests for
religious accommodation. Stickman, however, was
unavailable and did not participate in the review of Sharp’s
request. Defendant Paul Stowitzky, who was SCI-Greene’s
acting superintendent at the time, reviewed and recommended
that the DOC central office deny Sharp’s request. 9

8
This is the same Defendant who was the Deputy
Superintendent at SCI-Pittsburgh during Sharp’s incarceration
at that prison.
9
Two others voted to recommend that Sharp’s request be
denied: the Major-of-the-Guard and the Deputy
Superintendent for Centralized Services. The record is not
clear who these individuals are, and they do not appear to be
named as defendants.

16
 Father Moneck submitted Sharp’s request and the
staff’s recommendations to the DOC’s central office for a
final determination. On December 18, 2002, the central
office denied Sharp’s request. Father Moneck informed
Sharp that his request was denied because he was “able to
attend existing Islamic services or practice [his] religion
privately in [his] cell.”

On December 26, 2002, Sharp submitted Grievance
No. 39662 (the “Greene Grievance”), challenging the denial
of his request for an accommodation. Mears conducted the
initial review and denied Sharp’s grievance because, in her
estimation, Sharp was not denied the right to practice his faith
or prohibited from maintaining his beliefs and praying in his
cell. Sharp appealed the denial of his grievance to Stickman.
This appeal was dismissed as untimely. Sharp did not submit
any other requests for religious accommodation at SCI-
Greene.

Sharp complained to Defendant Brian Coleman, who
was the Security Captain at SCI-Greene, about the content of
certain sermons given by Imam Muhammad. Sharp
specifically complained that Imam Muhammad made derisive
comments about the Habashi sect and Sharp in particular.
Coleman informed Mears of Sharp’s complaint. Mears and
Father Moneck reviewed the videotape of Imam
Muhammad’s sermons and found nothing inflammatory.

Sharp claimed that Coleman ordered his cell to be
searched in order to confiscate Sharp’s religious materials.
Coleman denied this and testified that he had never ordered a

17
search of an inmate’s cell specifically to retrieve religious
materials.

Sharp also claimed that Imam Muhammad would not
allow him to participate in Ramadan services unless Sharp
signed an agreement that he would not practice his Habashi
faith. Imam Muhammad denied this and testified that,
although he did develop an agreement form for inmates
wishing to participate in Ramadan, this form did not require
the inmates to profess or practice a specified religion. 10

On June 13, 2006, the DOC transferred Sharp from
SCI-Greene to SCI-Dallas.

10
Collectively, Defendants Coleman, Mears, Moneck,
Muhammad, Stowitzky, and Stickman are the “SCI-Greene
Defendants.” Collectively, the SCI-Pittsburgh and Greene
Defendants are the “Defendants.”
The Magistrate Judge dismissed, among others, the
following defendants prior to trial: Blaine, Miller, Fisher,
Lockett, Matcus, and Blakey. On appeal, Sharp has not
expressly challenged the dismissal of these parties. In fact,
Sharp’s supplemental brief only references these individuals
in the case caption. Consequently, Sharp has abandoned any
issues with respect to these individuals on appeal. See, e.g.,
Kost v. Kozakiewicz, 1 F.3d 176, 182-83 (3d Cir. 1993);
Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).

18
 C. PROCEDURAL BACKGROUND

On November 2, 2000, Sharp filed his complaint. 11
The case underwent years of motions practice and several of
Sharp’s claims were dismissed prior to trial. 12 Sharp’s First
Amendment and RLUIPA Actions proceeded to a bench trial
before the Magistrate Judge.

On April 7, 2008, the Magistrate Judge entered
judgment in favor of Defendants and set forth her findings of
fact and conclusions of law in a comprehensive
memorandum. The Magistrate Judge found against Sharp on
the First Amendment Action because, among other things:
Sharp failed to comply with the DOC’s regulations regarding

11
Counsel was appointed and represented Sharp for much of
the pre-trial proceedings, but Sharp’s counsel, apparently at
Sharp’s request, sought to withdraw prior to trial. Thereafter,
Sharp proceeded pro se, including at trial.
12
By Order dated December 28, 2004, the Magistrate Judge
granted Defendants’ motion to dismiss and/or for summary
judgment with respect to Sharp’s claims for: compensatory
damages under the Religious Freedom Restoration Act, 42
U.S.C. § 2000bb; lost and/or destroyed property; and lost
wages and employment opportunities.
By Order dated December 28, 2005, the Magistrate
Judge granted Defendants’ motion for summary judgment,
dismissing Sharp’s claims asserting violations of his rights
under the Eighth Amendment and Fourteenth Amendment’s
Due Process Clause.

19
individualized submissions (SCI-Pittsburgh); Sharp failed to
meet his burden of demonstrating that denial of his request
had no rational connection to any legitimate penological
interest (SCI-Greene); the Defendants did not have any
personal involvement in the denial of Sharp’s requests to
support a § 1983 action (SCI-Pittsburgh and Greene); and
Defendants were entitled to qualified immunity (SCI-
Pittsburgh and Greene). The Magistrate Judge found against
Sharp on the RLUIPA Action because, among other things:
Sharp was not entitled to any relief under the statute;
Defendants were entitled to qualified immunity; and in any
event, Sharp’s claim failed on the merits.

20
 Sharp appealed. 13

II. DISCUSSION

The District Court had jurisdiction under 28 U.S.C. §
1331. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.

We apply a clearly erroneous standard when reviewing
the findings of fact from a bench trial and a plenary standard
to the conclusions of law. Trustees of Nat’l Elevator Indus.
Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d
188, 191 (3d Cir. 2003).

13
On April 21, 2008, Sharp filed a pro se notice of appeal.
After the initial briefs were submitted, we requested
supplemental briefing and appointed counsel to represent
Sharp.
Defendants’ motion to strike Section VI of Sharp’s
supplemental reply brief (“Section VI”) is currently pending
before us. Defendants assert that Section VI contains
arguments regarding issues not raised in Sharp’s
supplemental brief. Sharp argues that these issues were
raised in his informal brief, and that two of the three issues
raised are a response to Defendant’s supplemental opposition
brief. We conclude that Section VI improperly exceeded the
scope of Defendants’ supplemental opposition brief.
Accordingly, we grant Defendants’ motion to strike Section
VI in that we have given that portion of the brief no
consideration in our decision.

21
 A. THE RLUIPA ACTION

Sharp’s RLUIPA Action sought injunctive relief and
money damages against Defendants in both their official and
individual capacities. The Magistrate Judge held that Sharp’s
claims for injunctive relief were mooted by his transfer from
SCI-Pittsburgh and SCI-Greene to SCI-Dallas, and that
RLUIPA does not permit recovery against Defendants in their
official or individual capacities. On appeal, Sharp is
challenging only the Magistrate Judge’s denial of his
RLUIPA claim against Defendants in their individual
capacities. The issue of whether RLUIPA permits actions
against State officials in their individual capacities is one of
first impression for this Court. For the reasons discussed
below, we conclude that RLUIPA does not permit such
actions.

RLUIPA permits plaintiffs to “obtain appropriate relief
against a government.” 42 U.S.C. § 2000cc-2.
“[G]overnment,” in pertinent part, is defined as:

(i) a State, county, municipality, or other
governmental entity created under the
authority of a State;

(ii) any branch, department, agency,
instrumentality, or official of an entity
listed in clause (i); and

(iii) any other person acting under color of
State law[.]
22
42 U.S.C. § 2000cc-5(4)(A) (emphasis added).

Sharp argues that the express language of RLUIPA, in
particular the separate references to an “official” and “any
other person acting under color of State law,” supports his
position that Congress intended the statute to permit relief
against government employees in their individual capacities.
In particular, Sharp asserts that, by the “any other person
acting under color of State law” language, Congress
purposefully tracked its § 1983 language. Sharp concludes
that because § 1983 permits recovery against a government
employee in her individual capacity, so too must RLUIPA.
Sharp, however, overlooks the constitutional underpinnings
of RLUIPA. In fact, the Courts of Appeals for the Fourth,
Fifth, Seventh and Eleventh Circuits — the only circuits we
are aware of that have addressed this issue in precedential
opinions — have rejected arguments similar to Sharp’s and
held that RLUIPA does not permit actions against
government employees in their individual capacities. See,
e.g., Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009);
Rendelman v. Rouse, 569 F.3d 182, 186-89 (4th Cir. 2009);
Sossamon v. Lone Star State of Texas, 560 F.3d 316, 327-29
(5th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1271-75 (11th
Cir. 2007), abrogated on other grounds, Sossamon v. Texas,
131 S. Ct. 1651, 1654 (2011) (abrogating Smith as to the
claim against government employees in their official
capacities).

23
 Congress enacted RLUIPA pursuant to its spending
power under Article I of the Constitution. 14 When Congress
enacts legislation pursuant to its spending power, it may
attach conditions on the receipt of federal funds and
essentially create a contract between the federal government
and the State recipient. Smith, 502 F.3d at 1273; see also
Nelson, 570 F.3d at 887 (citing Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S. 1, 17 (1981)). As a result, the statute
may, as a condition of the funding, “subject the grant
recipient to liability in a private cause of action, but the
spending power cannot be used to subject individual
defendants, such as state employees, to individual liability in
a private cause of action.” Smith, 502 F.3d at 1274; see also
Sossamon, 560 F.3d at 329.

Thus, non-recipients of the funds, including
individuals who are state officials, generally cannot be subject
to private liability for monetary damages. See, e.g., Nelson,
570 F.3d at 888-89 (stating that permitting suits against
government officials in their individual capacity would “raise
serious questions regarding whether Congress had exceeded
its authority under the Spending Clause”); Rendelman, 569
F.3d at 189 (concluding that the RLUIPA’s definition of
“government” did not clearly convey Congress’s intent to
impose a condition of individual liability pursuant to the

14
Although Congress enacted RLUIPA pursuant to both its
spending power and the Commerce Clause, see, e.g., 42
U.S.C. § 2000cc-1(b), the parties have conceded that only
Congress’s authority under the spending power is implicated
here.

24
Spending Clause); Sossamon, 560 F.3d at 329
(“Congressional enactments pursuant to the Spending Clause
do not themselves impose direct liability on a non-party to the
contract between the state and the federal government.”);
Smith, 502 F.3d at 1273-74 (drawing an analogy to the court’s
Title IX jurisprudence, which does not permit suits against
individuals because Title IX was enacted pursuant to the
Spending Clause).

Moreover, when Congress desires to impose a
condition under the Spending Clause, it is Congress’s burden
to affirmatively impose the condition in clear and
unmistakable statutory terms. See, e.g., Pennhurst State Sch.
& Hosp., 451 U.S. at 17. In Pennhurst State School &
Hospital, the Supreme Court stated that

[t]he legitimacy of Congress’s power to
legislate under the spending power thus rests on
whether the State voluntarily and knowingly
accepts the terms of the “contract.” . . . There
can, of course, be no knowing acceptance if a
State is unaware of the conditions or is unable
to ascertain what is expected of it. Accordingly,
if Congress intends to impose a condition on the
grant of federal moneys, it must do so
unambiguously.

Id. (internal citations omitted).

Here, the Magistrate Judge correctly concluded that
RLUIPA does not permit an action against Defendants in
their individual capacities. Pennsylvania, not Defendants,

25
was the direct recipient of any federal funds. Thus, RLUIPA
cannot impose direct liability on Defendants, who were not
parties to the contract created between Pennsylvania and the
federal government. 15

Further, RLUIPA does not unambiguously signal
Congress’s intent to impose a condition of individual liability.
The Supreme Court’s recent decision in Sossamon v. Texas
— which reviewed the related issue of whether States, by
accepting federal funds, waived sovereign immunity under
RLUIPA — is particularly instructive. In Sossamon, the
Court held that States did not consent to waive their sovereign
immunity with respect to RLUIPA suits for damages against
State employees in their official capacities. See 131 S. Ct. at
1655. The Court reasoned that RLUIPA’s authorization of
“‘appropriate relief against a government,’ § 2000cc-2(a),
[was] not an unequivocal expression of state consent” to
waive sovereign immunity to suits for money damages. Id. at
1658-59. Rather, the Court found RLUIPA’s “appropriate

15
Sharp’s reliance on Sabri v. United States, 541 U.S. 600
(2004), for the proposition that Congress may regulate the
actions of third parties under the Spending Clause, is
misplaced. In Sabri, Congress enacted the statute at issue, 18
U.S.C. § 666(a)(2), pursuant to its powers under the Spending
and the Necessary and Proper Clauses to protect its
expenditures against local bribery and corruption. Sabri, 541
U.S. at 602, 605-07. Here, however, Congress did not enact
RLUIPA to protect its own expenditures, but rather it enacted
RLUIPA to protect the religious rights of institutionalized
persons. Thus, Sabri is inapposite.

26
relief” language to be “open-ended and ambiguous about
what types of relief it includes,” thereby precluding any
finding that the States consented to waive sovereign
immunity. Id. at 1659. Similarly here, it cannot be said that
RLUIPA’s “appropriate relief” language unambiguously
signaled Congress’s intent to impose a condition of individual
liability.

Accordingly, the Magistrate Judge did not err when
she entered judgment against Sharp and for Defendants on the
RLUIPA Action.

B. THE FIRST AMENDMENT ACTION

We will affirm the judgment for Defendants on the
First Amendment Action because the Magistrate Judge did
not err in concluding that Defendants were protected by
qualified immunity (discussed in greater detail infra Section
II.B.2). The Magistrate Judge, however, did err in placing the
burden on Sharp to demonstrate that the denial of his request
had no rational connection to any legitimate penological
interest. Although this error ultimately does not affect our
holding, we discuss it next to provide clarity and avoid future
confusion.

1. THE MAGISTRATE JUDGE ERRED IN PLACING THE
BURDEN OF PROOF REGARDING THE PENOLOGICAL
INTEREST FACTOR ON SHARP

Inmates do not completely forego their constitutional
rights because of their incarcerated status, but those rights are
necessarily limited. Waterman v. Farmer, 183 F.3d 208, 213
(3d Cir. 1999) (citing Jones v. N.C. Prisoners’ Labor Union,
27
433 U.S. 119, 125 (1977)). An inmate retains his First
Amendment rights that are “not inconsistent with his status as
a prisoner or with the legitimate penological objectives of the
corrections system.” Pell v. Procunier, 417 U.S. 817, 822
(1974); see also Turner v. Safley, 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court recognized that
subjecting the day-to-day judgments of prison officials to a
strict scrutiny analysis would impede the officials’ ability to
anticipate and solve security and administrative problems.
482 U.S. at 89. Instead, the Court found that “when a prison
regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.” Id. The Court listed four factors that
are relevant in determining the reasonableness of a particular
prison regulation: (1) there must be a “valid, rational
connection” between the prison regulation and the legitimate,
neutral governmental interest put forward to justify it (the
“First Turner Factor”); (2) whether the inmate has alternative
means of exercising the right at issue; (3) the burden that the
accommodation would impose on prison resources; and (4)
whether any ready alternatives to the regulation exist that
would fully accommodate the inmate’s rights at de minimis
cost to valid penological objectives (Turner factors 2-4 are
the “Other Turner Factors”). Id. at 89-91 (quoting Block v.
Rutherford, 486 U.S. 576, 586 (1984)). 16 Turner does not

16
Note that the prisons do not have to use the least restrictive
means possible to further legitimate penological interests.
Turner, 482 U.S. at 90.

28
expressly state which party, the inmate or the prison, bears
the burden of proving these factors.

After Turner, we developed a two-step analysis for
determining whether a prison’s regulation is reasonably
related to a penological interest. First, the prison has the
burden of demonstrating the First Turner Factor. See
Waterman, 183 F.3d at 218 n.9; Wolf v. Ashcroft, 297 F.3d
305, 308 & n.2 (3d Cir. 2002). This burden is slight, and in
certain instances, the connection may be a matter of common
sense. Wolf, 297 F.3d at 308. Second, if the prison meets its
burden under the First Turner Factor, then we consider the
Other Turner Factors. See Waterman, 183 F.3d at 218 n.9;
Wolf, 297 F.3d at 308 & n.2; see also Jones v. Brown, 461
F.3d 353, 360 (3d Cir. 2006).

After our decisions in Waterman and Wolf, the
Supreme Court, in Overton v. Bazzetta, stated that where an
inmate challenges regulations, the burden “is not on the State
to prove the validity of prison regulations but on the prisoner
to disprove it.” 539 U.S. 126, 132 (2003). Notably, Overton
did not expressly state that the burden for the First Turner
Factor is on the inmate.

In Jones v. Brown, we interpreted Overton as placing
the “ultimate burden of persuasion with regard to the
reasonableness of a regulation” on the inmate but continued
to require that the prison “put forward the legitimate
governmental interest alleged to justify the regulation and
demonstrate that the policy drafters could rationally have seen
a connection between the policy and [that interest].” Jones,
461 F.3d at 360-61 (citations and quotation marks omitted
29
(alteration in original)). Other Third Circuit decisions have
followed Jones. See, e.g., Fontroy v. Beard, 559 F.3d 173,
177 (3d Cir. 2009) (“Although the Inmates bear the ultimate
burden of showing that the DOC’s new mail policy is
unconstitutional, it is the DOC Officials’ burden to
demonstrate that a rational connection exists between the
policy and a legitimate penological interest.”); Monroe v.
Beard, 536 F.3d 198, 207 (3d Cir. 2008) (stating that the
party challenging the regulation bears the burden of showing
that it is unreasonable, but that the prison must come forward
with a legitimate interest justifying the regulation).

Here, the Magistrate Judge erred in concluding that
Overton overruled, sub silentio, our Jones line of cases that
placed the burden for the First Turner Factor on the prison.
See Sharp v. Johnson, No. 00 civ. 2156, 2008 WL 941686, at
*12 (W.D. Pa. Apr. 7, 2008) (placing the burden on Sharp to
“negative every conceivable legitimate penological interest
which might support [Defendants’] denial of the
accommodation”). First, Overton’s burden language does not
support the Magistrate Judge’s conclusion that the burdens of
production and persuasion for all Turner factors fall on those
challenging the regulations. See, e.g., Overton, 539 U.S. at
132. In other words, Overton did not tie its burden language
to the Turner factors; rather, it made a statement about the
general burden of persuasion where a prisoner is challenging
a regulation.

Second, Jones is binding Third Circuit precedent, and
it interpreted Overton’s burden language to mean that the
“ultimate burden of persuasion” — not the burden to prove
the First Turner Factor — is on the inmate. Jones, 461 F.3d
30
at 360-61. In fact, the Supreme Court’s plurality opinion in
Beard v. Banks, 548 U.S. 521 (2006) (“Banks”) supports
Jones’s interpretation of Overton. In Banks, an inmate
challenged the prison’s policy of restricting certain
periodicals and photographs. Banks, citing Overton, stated
that the prisoner “bears the burden of persuasion” when he is
challenging a regulation, 548 U.S. at 529, and that “Turner
requires prison authorities to show more than a formalistic
logical connection between a regulation and a penological
objective.” 17 548 U.S. at 535. 18

17
This is consistent with Turner, where the Court stated that
“there must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put
forward to justify it.” Turner, 482 U.S. at 89 (quotation
marks omitted) (emphasis added). Commonsense dictates
that only the prison officials, not the inmates, would be
putting forth a legitimate governmental interest to support the
regulation.
18
Defendants’ assertion that Banks is inapposite because it
was presented to the Supreme Court in a different procedural
posture (i.e., a motion for summary judgment) than the instant
matter is not persuasive. Banks stated that Turner, not
Federal Rule of Civil Procedure 56, requires prison
authorities to demonstrate the connection between a
regulation and its penological interest. See, e.g., 548 U.S. at
535. Thus, Banks is applicable to the instant matter.

31
 Third, contrary to Defendants’ assertion, we see no
internal inconsistency in our jurisprudence on the placement
of the burden for the First Turner Factor. In Newman v.
Beard, a case cited by Defendants, we upheld the dismissal of
the inmate’s First Amendment claim on a 12(b)(6) motion
because the inmate did not allege that the regulation at issue
served no legitimate penological objectives or was not
reasonably related to rehabilitation. 617 F.3d 775, 781 (3d
Cir. 2010). Newman involved a pleading deficiency, not a
determination as to the burden of proof at trial.

In Williams v. Morton, the other case cited by
Defendants for the proposition that our jurisprudence is
inconsistent, we granted summary judgment for the prison
officials and stated that the inmates “have the burden of
disproving the validity of the regulation.” 343 F.3d 212, 218
(3d Cir. 2003). This is essentially the same burden statement
set forth in Overton, which we interpreted in Jones to mean
the general burden of persuasion. In fact, the prison
administrators in Williams set forth a number of legitimate
penological interests to support their regulation. See, e.g.,
343 F.3d at 218 (listing simplified food service, prison
security, and budgetary constraints as legitimate penological
interests supporting the prison’s refusal to serve Halal meat).
Neither Newman nor Williams stated that they were deviating
from the established Third Circuit precedent set forth in Jones
and its progeny. We are satisfied that our jurisprudence on
this issue is consistent.

Finally, policy concerns favor placing the burden of
the First Turner Factor on prison officials. According to the
Magistrate Judge, for Sharp to meet his burden of proving the
32
First Turner Factor, he would have to accomplish the
herculean task of negating “every conceivable legitimate
penological interest which might support” the denial of his
accommodation. Defendants argue that a prisoner seeking a
religious accommodation would merely have to show no
impact on security, orderly administration of the prison, or
expenditures. Defendants, however, ignore the fact that
within these three broad categories are numerous sub-
categories of potential penological interests that an inmate
would also have to negate (e.g., the interests within
expenditures would include: additional guard salary/overtime,
purchase of religious books, space concerns within the library
and prayer areas, additional chaplain expenses, and potential
speaker fees). Placing this burden on prisoners unnecessarily
creates inefficiencies and would invite speculation into the
often subjective motivations of prison officials.
Consequently, policy implications favor placing the burden
on the prison officials.

Accordingly, the Magistrate Judge erred in placing the
burden for the First Turner Factor on Sharp. This error,
however, was not fatal to the judgment on the First
Amendment Action because Defendants were entitled to
qualified immunity.

2. QUALIFIED IMMUNITY

As an initial matter, the Magistrate Judge did not err in
determining that Defendants did not waive their qualified
immunity defense. We review a lower court’s decision
regarding the waiver of an affirmative defense for abuse of
discretion. See, e.g., Cetel v. Kirwan Fin. Group, Inc., 460
33
F.3d 494, 506 (3d Cir. 2006); see also Eddy v. V.I. Water &
Power Auth., 256 F.3d 204, 210 (3d Cir. 2001). 19 Qualified
immunity is an affirmative defense and generally must be
included in a responsive pleading or may be considered
waived. See, e.g., Leveto v. Lapina, 258 F.3d 156, 161 (3d
Cir. 2001) (stating that qualified immunity is an affirmative
defense); see also Fed. R. Civ. P. 8(c). Although it is true
that parties should generally assert affirmative defenses early
in the litigation, there is no firm rule. See Cetel, 460 F.3d at
506. Thus, affirmative defenses may be raised at any time,
even after trial, so long as the plaintiff suffers no prejudice.
See Cetel, 460 F.3d at 506 (citing Charpentier v. Godsil, 937
F.2d 859, 863-64 (3d Cir. 1991)). A party may raise qualified
immunity as a defense at trial, especially where the facts are
not clear. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir.
2002) (stating that fact issues may require a trial before
determining whether qualified immunity is appropriate);
Eddy, 256 F.3d at 210 n.3 (stating in dicta that qualified
immunity may be raised at trial).

Here, Defendants, who pled qualified immunity as an
affirmative defense, placed Sharp on notice of their intent to
raise that defense at trial. Defendants’ delay in asserting
qualified immunity was understandable because trial
testimony was necessary to develop the contours of Sharp’s

19
A court abuses its discretion when its decision “rests upon a
clearly erroneous finding of fact, an errant conclusion of law
or an improper application of law to fact.” Oddi v. Ford
Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) (quoting
Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127
(3d Cir.1993)).
34
claims and to determine certain factual issues, including the
number of Habashi adherents at SCI-Pittsburgh and Greene.
Sharp, who was proceeding pro se at trial, did not incur any
unnecessary legal fees as a result of Defendants’ delay, and
he has not identified any substantial prejudice caused by the
delay. If anything, Sharp may have benefited from the delay
because he was afforded the opportunity to introduce
evidence at trial demonstrating that qualified immunity was
improper under the circumstances. Consequently, the
Magistrate Judge did not abuse her discretion by permitting
Defendants to raise their qualified immunity defense at trial.

The Magistrate Judge also did not err in holding that
Defendants were protected by qualified immunity because
they did not violate Sharp’s clearly established rights. We
review the grant of qualified immunity de novo as it raises a
purely legal issue. See Burns v. PA Dep’t of Corr., 642 F.3d
163 (3d Cir. 2011). The qualified immunity doctrine
“protects government officials 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.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (citations and quotation marks omitted); see also Ray
v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).
“Qualified immunity balances two important interests — the
need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson, 555 U.S. at 231. Qualified
immunity protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986); see also Ray, 626 F.3d at 173-74. Thus, so
35
long as an official reasonably believes that his conduct
complies with the law, qualified immunity will shield that
official from liability. See Pearson, 555 U.S. at 244.

In Saucier v. Katz, the Supreme Court established a
two-part analysis for determining when qualified immunity is
applicable: (1) whether the official’s conduct violated a
constitutional or federal right; and (2) whether the right at
issue was “clearly established.” 533 U.S. 194, 201 (2001),
overruled in part by Pearson, 555 U.S. at 236 (relaxing the
Saucier analysis by no longer requiring courts to determine
the Saucier prongs in sequential order); see also Ray, 626
F.3d at 174.

A right is clearly established for qualified immunity
purposes where its contours are “sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Saucier, 533 U.S. at 202; see also
Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006). In
determining whether a right has been clearly established, the
court must define the right allegedly violated at the
appropriate level of specificity. Williams, 455 F.3d at 191
(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). In some
cases, even though there may be no previous precedent
directly on point, an action can still violate a clearly
established right where a general constitutional rule already
identified in the decisional law applies with obvious clarity.
Williams, 455 F.3d at 191 (citing Hope v. Pelzer, 536 U.S.
730, 741 (2002)).

At issue here is whether Sharp had a clearly
established right under the First Amendment to separate
36
religious services in accordance with the Habashi sect of
Sunni Islam when Sunni Islamic services were already
available. The Supreme Court has stated that “[a] special
chapel or place of worship need not be provided for every
faith regardless of size; nor must a chaplain, priest, or
minister be provided without regard to the extent of the
demand.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). We
echoed this when we said, “The requirement that a state
interpose no unreasonable barriers to the free exercise of an
inmate’s religion cannot be equated with the suggestion that
the state has an affirmative duty to provide, furnish, or supply
every inmate with a clergyman or religious services of his
choice.” Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir.
1970). Although we later stated that “an opportunity to
worship as a congregation by a substantial number of
prisoners may be a basic religious experience and, therefore, a
fundamental exercise of religion by a bona fide religious
group,” Small v. Lehman, 98 F.3d 762, 768 (3d Cir. 1996), 20
we have never indicated, let alone clearly established, that a
single prisoner or a non-substantial number of like-minded
prisoners are entitled to place on the state the burden of

20
Small held that the Religious Freedom Restoration Act of
1993 (“RFRA”), 42 U.S.C. § 2000bb, applies to prisoners’
claims. 98 F.3d at 768. Subsequent to our decision in Small,
the Supreme Court in City of Boerne v. Flores declared the
RFRA unconstitutional. 521 U.S. 507 (1997). Although
Small has been overruled in part by Boerne, Small’s finding
that communal worship by a substantial number of prisoners
may be a fundamental aspect of the exercise of religion is still
good law in the Third Circuit.

37
furnishing separate religious services for them. 21 Given this
precedent, a reasonable official would not have understood
the denial of Sharp’s request, whether made by Sharp on
behalf of either himself or a small number of inmates, to
violate a constitutional right. 22

21
Cf. Smith v. Kyler, 295 F. App’x 479, 483-84 (3d Cir.
2008) (determining an inmate’s Free Exercise rights were not
violated by a DOC policy prohibiting group worship in the
absence of an approved faith group leader); Boretsky v.
Corzine, No. 08 civ. 2265, 2011 WL 2610370, at *13 (D.N.J.
June 30, 2011) (holding that a Jewish inmate’s restriction
from congregational services as well as communal activities
did not violate his constitutional rights); Palmer v. Rustin,
No. 10 civ. 0042, 2011 WL 2489820, at *9 (W.D. Pa. June
21, 2011) (dismissing a claim based on denial of right to
attend Muslim services); Gould v. Beard, No. 07 civ. 0055,
2010 WL 845566, at *6 (W.D. Pa. Jan. 16, 2010) (holding
that a prisoner did not have a right to communal Nation of
Islam services); Morris-El v. Menei, No. 00 civ. 200J, 2006
WL 1455592, at *2-6 (W.D. Pa. May 22, 2006) (denying
claim that failure to provide Moorish Science services
violated the inmate’s right to Free Exercise).
22
Sharp further argues that, pursuant to Grant v. City of
Pittsburgh, the Magistrate Judge erred by not conducting a
careful examination of the record and detailing a factual
description of each defendant’s actions. 98 F.3d 116 (3d Cir.
1996) (denying qualified immunity because the district court
did not analyze the specific conduct of each defendant). This
is a red herring. Although the Magistrate Judge did state in a
38
 Accordingly, Defendants are entitled to qualified
immunity as to Sharp’s First Amendment Action. 23

conclusory fashion that “the evidence shows that the
Defendants acted reasonably,” she only did so after making
factual findings as to the involvement of each SCI-Pittsburgh
and Greene Defendant with respect to Sharp’s First
Amendment Action. Thus, the Magistrate Judge did conduct
a proper examination of the record.
23
Sharp’s informal brief also expressly asserted that the
Magistrate Judge erred when she: (1) determined that he
waived his retaliation claim; and (2) dismissed his due
process claim. We disagree.
Prior to trial, the Magistrate Judge found that Sharp’s
amended complaint did not include any retaliation claims in
the section identified as “Legal Claims.” The Magistrate
Judge was unsure whether this omission was intentional.
Thus, the Magistrate Judge directed Sharp to “identify any
retaliation claim he intends to pursue in a separate paragraph
within the section of his [second amended complaint] wherein
he sets forth his legal claims.” Sharp, who was represented
by counsel at that time, filed his second amended complaint,
but did not include retaliation claims in the legal claims
section. Sharp never sought to amend his second amended
complaint to include a retaliation claim. Because Sharp
omitted his retaliation claim in his second amended
complaint, the Magistrate Judge did not err in concluding that
Sharp waived this claim.
The Magistrate Judge also did not err in granting
Defendants’ motion for summary judgment on Sharp’s due
39
 III. CONCLUSION

For the reasons set forth above, we will affirm the
judgment in favor of Defendants.

process claim. Sharp claims that his confinement in
administrative custody for thirty months violated his
Fourteenth Amendment Due Process rights. Sharp, however,
failed to demonstrate that he was not afforded proper due
process protections. We have previously upheld the
constitutionality of the DOC’s policy statement 802, which
sets forth the policies and procedures for confining inmates to
administrative custody and the PRC’s periodic review of their
status. See Shoats v. Horn, 213 F.3d 140, 145-46 (3d Cir.
2000). Sharp has not argued that the DOC’s policy statement
802 has been substantively amended since Shoats or that the
DOC failed to follow this policy.
Accordingly, the Magistrate Judge did not err in
determining that he waived his retaliation claim or in
dismissing his due process claim.

40