Bader v. Wrenn

United States Court of Appeals
For the First Circuit

No. 11-1634

SETH BADER,

Plaintiff, Appellant,

v.

WILLIAM L. WRENN, COMMISSIONER,
NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Boudin and Lipez,

Circuit Judges.

Michael J. Sheehan for appellant.
Laura E. B. Lombardi, Assistant Attorney General, Civil
Bureau, with whom Michael A. Delaney, Attorney General, was on
brief for appellee.

March 29, 2012
 BOUDIN, Circuit Judge. Seth Bader, an inmate serving a

life sentence for murder without the possibility of parole, is

currently held at New Hampshire's Northern Correctional Facility

located in Berlin, New Hampshire ("NCF-Berlin"). Transferred there

from the New Hampshire State Prison in Concord ("NHSP-Concord"), he

sued unsuccessfully under the Religious Land Use and

Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et

seq., seeking a transfer back to NHSP-Concord. The papers and

district court hearing reveal the following.

Before he was transferred to NCF-Berlin in December 2010,

Bader--an Orthodox Jew--was confined for 12 years at NHSP-Concord

and regularly participated in Jewish religious activities. He

attended Sabbath services in the prison roughly twice a month,

which included prayers, blessings, and the lighting of candles

meant to be performed in a group setting. The regular group

participating the Sabbath celebration included at least three

inmates as well as an outside volunteer. New Hampshire prison

regulations require group worship services to be led by the prison

chaplain or an approved outside volunteer.

At NHSP-Concord, Bader also regularly participated in the

group celebration of Jewish holidays, including Passover, Purim,

Yom Kippur, Rosh Hashanah and Chanukah. A local rabbi would attend

many of these holiday celebrations each year to help ensure that

they were properly celebrated and to assist with the rituals.

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Aside from these regular group celebrations, Bader also followed

dietary restrictions and met individually with a rabbi who visited

the prison on a regular basis. The rabbi helped Bader pray with

the proper accouterments,1 and also provided counsel and assistance

regarding personal and family matters.

On November 26, 2010, Major John Fouts, who serves as the

director of security at NHSP-Concord, directed a search of the

workplace facilities at the prison where Bader was assigned. At

Bader's workstation, officers found classical music CDs and a

floppy disk that Major Fouts believed to be for personal use.

Bader was "written up" for a disciplinary violation--later

dismissed when it was determined that all of the alleged contraband

was given to Bader by staff or was in his possession with their

approval.

Nevertheless, with the agreement of the warden, Bader was

transferred to NCF-Berlin about a week after the incident. Major

Fouts testified that Bader was not transferred because of this

charge alone, but because Fouts' investigation uncovered

"indications that [Bader] had undue influence in other areas of the

prison." Fouts said he was concerned, for example, that Bader was

1
The Tefillin, also called phylacteries, are a set of boxes
containing sacred texts inscribed on parchment that Jews may strap
to their body as part of morning prayer. Rabbi Krinsky, the rabbi
who has visited Bader in prison, testified that the placement of
these articles is quite difficult and that he regularly assists
members of his congregation with the placement.

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accessing material from other parts of the workplace in an

inappropriate way, was using the prison's educational facilities

beyond what was required and was developing relationships with

staff that Bader might exploit later.

At NCF-Berlin, Bader asked the prison chaplain about

Jewish services and was told that none were currently offered, as

none had been requested. The chaplain then made efforts, largely

fruitless, to locate outside volunteers to lead such services.

Prior to Bader's lawsuit, which he began several months after his

transfer to NCF-Berlin, he had not met with a rabbi or any other

volunteer; he had not celebrated any Sabbath services; and with no

rabbinical visits, his ability to pray with the Tefillin was

curtailed.

Bader acknowledges that between the February 2011 hearing

held before the magistrate judge and the filing of his brief on

appeal in September 2011, a Jewish cantor apparently conducted an

"abbreviated" Seder service at Passover and two rabbinical students

met with Bader and another inmate for 15 or 20 minutes in August

2011. But, as of the time of the lawsuit, only one other

practicing Jewish inmate was housed at NCF-Berlin, thereby

depriving Bader of a congregation with whom to worship.2

2
The rabbi who testified for Bader at the hearing, when asked
whether group worship was important for faith reasons, responded
that a quorum of ten was important for certain prayers, and
continued, "I don't know if it matters if it's five or seven
or . . . four or three, but certainly just doing it with many

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 NCF-Berlin is located in the less populated northern part

of the state, resulting in a lack of volunteers willing to visit

both to conduct services and to minister to Bader personally.

Berlin is about two hours' drive north from Concord. Rabbi Krinsky

and one of two regular volunteers at NHSP-Concord testified at the

hearing that they were unable to travel to Berlin to lead services

or otherwise minister to Bader because of the travel required.

Bader brought suit under RLUIPA against William Wrenn,

Commissioner of the New Hampshire Department of Corrections,

challenging his transfer; he sought preliminary and permanent

injunctive relief requiring his return to NHSP-Concord, as well as

attorneys' fees and costs under 42 U.S.C. § 1988(b). RLUIPA

provides in pertinent part that

[n]o government shall impose a substantial
burden on the religious exercise of a person
residing in or confined to an
institution . . . even if the burden results
from a rule of general applicability, unless
the government demonstrates that imposition of
the burden on that person--(1) is in
furtherance of a compelling governmental
interest; and (2) is the least restrictive
means of furthering that compelling
governmental interest.

42 U.S.C. § 2000cc-1(a).

After the preliminary injunction hearing, which adduced

the evidence already described, the magistrate judge recommended

voices."

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that the injunction be denied. Centrally, the magistrate judge

concluded that

"[t]he government action in transferring Bader
to [NCF-Berlin] did not prevent him from
receiving [religious] services. The
volunteers themselves have been unable to
travel to [NCF-Berlin] . . . . [T]hat failure
of volunteers to appear, as long as their
visits are not prohibited by an action of the
government, does not give rise to a RLUIPA
claim."

Bader v. Wrenn, No. 11-cv-043, at 45 (D.N.H. Mar. 14, 2011).3

Bader filed a motion to re-open in order to contest the

report's recitation of Major Fouts' testimony on the subject of his

transfer. Bader said that he relied upon the magistrate judge's

representation that she would not make findings based upon the

surprise (and in part hearsay) testimony of Major Fouts. Bader

sought to call four witnesses in order to rebut the testimony; but,

in a second report, the magistrate judge made clear that her

recommendation did not depend on any finding that Bader constituted

a security risk so the justification vel non for the transfer was

beside the point.

The district court accepted the magistrate judge's

recommendation and denied Bader's motion for a preliminary

3
In the recommended findings, the magistrate judge reiterated
that "[w]hile the location of [NCF-Berlin] has contributed to the
dearth of volunteers available to perform religious services Bader
could attend, it is the lack of volunteers, and not the transfer
itself, that caused the substantial burden to Bader's religious
practice." Id. at 48.

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injunction. This appeal followed. The district court's denial of

relief is effectively final, for its outcome turns on an issue of

statutory interpretation that we review de novo. United States v.

Troy, 618 F.3d 27, 35 (1st Cir. 2010). The issue is whether RLUIPA

constrains prison transfers based on disadvantages at the

transferee prison that are not themselves of the government's

creation.

As a general rule and subject to the compelling interest

and least restrictive means qualifications, RLUIPA protects

prisoners whose religious exercise has been substantially burdened

by an unintended or incidental effect of a religiously-neutral

government action or rule of general application. See Smith v.

Ozmint, 578 F.3d 246, 251 (4th Cir. 2009). As we explained in

Kuperman v. Wrenn, 645 F.3d 69, 79 (1st Cir. 2011), "RLUIPA

provides greater protection to inmates' free-exercise rights than

does the First Amendment."

Bader's problems at NCF-Berlin derive from a lack of

outside clergy, volunteer visitors, and practicing co-religionists

in the prison. Bader does not charge that the government precludes

visits from rabbis or volunteers or deliberately limits the number

of Jewish prisoners; officials at NCF-Berlin appear to have done

what they can to encourage visitors. Nor does Bader point to any

adverse rules or administrative practices within the prison itself

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that are different from those at NHSP-Concord or unreasonably

constrain Bader's religious practice.

Although local conditions and not prison restrictions are

the immediate cause, Bader could answer that--working backward--his

transfer was an anterior cause that contributed to placing him in

this position. But that causal chain of events continues backward

to the murder of his ex-wife, the actions of the state legislature

in fixing sentences, and of the police, prosecutor, judge and jury

entailed in Bader's prosecution, conviction and sentencing for that

murder. See State v. Bader, 808 A.2d 12 (N.H. 2002), cert. denied,

538 U.S. 1014 (2003).

RLUIPA's language could be read to embrace any antecedent

but-for, government-related event that bears on what happens to a

prisoner after his confinement. For example, had Bader started his

sentence at NCF-Berlin, he could argue that he is burdened by the

failure of the state to transfer him to NHSP-Concord, or its

failure to transfer other Jewish prisoners to NCF-Berlin and to

hire a rabbi there. He could argue that the state's refusal to

allow him parole after 10 years burdens his ability to practice his

faith.

So despite RLUIPA's highly general language ("[n]o

government shall impose a substantial burden . . .") and the

admonition to read it broadly, 42 U.S.C. § 2000cc-3(g), it has to

be glossed to provide some focus for determining just how far the

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responsibility of the "government" extends. Nothing in the

mischiefs that led to its enactment suggests that it was meant to

govern the siting of prisons, general policies of assigning

prisoners or determining transfers, or the failure to assign

prisoners by religion.

Rather, Congress' hearings on RLUIPA's predecessor

enactments concerned meals meeting religious requirements;

accommodations for fasting prisoners; and bans on devotional

candles, religious texts or religious ornaments. Cutter v.

Wilkinson, 544 U.S. 709, 716 n.5 (2005) (citing Protecting

Religious Freedom After Boerne v. Flores: Hearing before the

Subcomm. on the Constitution of the H. Comm. on the Judiciary,

105th Cong. (1998)). The focus of RLUIPA's sponsors was similarly

on internal prison rules and procedures limiting religious

practice.4

Almost all of the cases under the current statute involve

problems of this conventional type. Examples include:

prohibitions on inmates preaching to fellow
inmates, Spratt v. R.I. Dep't of Corr., 482
F.3d 33, 35 (1st Cir. 2007);

regulations on the length of facial hair,
Kuperman, 645 F.3d at 71;

4
Senators Hatch and Kennedy issued a joint statement shortly
before RLUIPA's passage, which said that "prison officials
sometimes impose frivolous or arbitrary rules" and also noted that
"some institutions restrict religious liberty in egregious and
unnecessary ways." 146 Cong. Rec. S7774-75 (daily ed. Jul. 27,
2000).

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 preclusion of inmates in administrative
segregation from attending weekly prayer
services, Crawford v. Clarke, 578 F.3d 39, 41
(1st Cir. 2009);

numerical limits on the possession of books,
Washington v. Klem, 497 F.3d 272, 274 (3d Cir.
2007); and

policies regarding food service during a
religious fast, Lovelace v. Lee, 472 F.3d
174, 181 (4th Cir. 2006).

In sum, we conclude that Bader's disadvantages in the

Berlin prison depend importantly on proximate actions and decisions

not attributable to the government and are too attenuated from the

transfer decision to be considered government imposed burdens under

RLUIPA. This would be a different case, and one governed by the

First Amendment's Free Exercise Clause, if the Concord prison had

transferred Bader for the purpose of restricting his religious

opportunities or in retaliation for the exercise of his First

Amendment rights. Hannon v. Beard, 645 F.3d 45, 47-49 (1st Cir.

2011), cert. denied, 132 S. Ct. 1105 (2012).

Our reading of RLUIPA is reinforced by the implications

of Bader's claim. There are several million prisoners in the

United States; many would likely prefer some other prison in the

jurisdiction and many could plausibly claim that transfers would be

more conducive to the practice of their religion. The prospect of

litigation as to the comparative benefits and burdens of different

prisons is immense. Meachum v. Fano, 427 U.S. 215, 225 (1976),

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effectively cautioned the judiciary against becoming easily

enmeshed in assignment and transfer decisions.

That Bader's transfer was legal under RLUIPA does not

mean that it is wise or charitable to keep Bader indefinitely in

Berlin, New Hampshire. Time has now passed since the incident

occurred that concerned Major Fouts; and Bader's sincerity about

his plight has not been disputed by the state. New Hampshire would

do well to consider whether Bader can now be safely transferred

back to the Concord prison and assigned to other tasks.

Affirmed.

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