Redd v. Wright

     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


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 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


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 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


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 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.




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