Kevin Redd, Plaintiff-appellant,lester Wright, Chief Medical Director,for The Nys Dept. Of Correctional Ser-,vice, Hans Walker, Superintendent, C.,coynel, Nurse Administrator, John W.,burge, Superintendent, Defendants-,appellees.

• Decision Date: 09 March 2010
• Docket Number: Docket No. 06-4315-pr.
• Citation: 597 F.3d 532
• Parties: Kevin REDD, Plaintiff-Appellant, Lester WRIGHT, Chief Medical Director for the NYS Dept. of Correctional Service, Hans Walker, Superintendent, C. Coynel, Nurse Administrator, John W. Burge, Superintendent, DefendantsAppellees.
• Court: U.S. Court of Appeals — Second Circuit

597 F.3d 532

Kevin REDD, Plaintiff-Appellant, Lester WRIGHT, Chief Medical Director for the NYS Dept. of Correctional Service, Hans Walker, Superintendent, C. Coynel, Nurse Administrator, John W. Burge, Superintendent, DefendantsAppellees.

Docket No. 06-4315-pr.

United States Court of Appeals,

Second Circuit.

Argued April 6, 2009.

Decided March 9, 2010.

Matthew J. Fedor (David F. Abernathy Andrea L. DAmbra, on the brief), Drinker, Biddle & Reath LLP, Philadelphia, PA for Appellant.

Martin A. Hotvet, Assistant Solicitor General (Barbara D. Underwood, Andrew D. Bing, Julie S. Mereson, on the brief) for Andrew M. Cuomo, Attorney General of the State of New York, Albany, N.Y for Defendants-Appellees.

Before: WALKER, LEVAL, HALL, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

The plaintiff-appellant Kevin Redd appeals from a grant of summary judgment to the defendants-appellees, employees of the New York Department of Correctional Services (DOCS), by the United States District Court for the Northern District of New York (Magnuson, Judge). Pursuant to 42 U.S.C. § 1983, Redd claimed violations of the First, Eighth, and Fourteenth Amendments, as well as the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C § 2000cc, arising out of his confinement by DOCS under a tuberculosis ("TB") hold policy. The district court held that his First Amendment and RLUIPA claims were precluded by the qualified immunity doctrine and that his Eighth and Fourteenth Amendment claims failed as a matter of law. This appeal challenges all of those holdings and the denial of his motion to amend the complaint to add an as applied Eighth Amendment claim.

BACKGROUND

DOCS administers "purified protein derivative" ("PPD") tests routinely to all inmates to detect "latent" TB infections. Under the policy that DOCS established in 1996 that is relevant to this appeal, ("Public Policy") if an inmate refused the PPD test, the inmate first was counseled about the importance of the test, and then, if the inmate persisted in his refusal, he was placed in TB hold, resulting in "keeplock status" in his cell. The inmate was then offered the PPD test daily for one week, weekly for one month and monthly thereafter. An inmate refusing these offers was kept in TB hold for one year during which three chest x-rays were taken at the beginning, middle, and end of the year. After one year and three negative chest xrays, the inmate could be released into the general population, and thereafter would be evaluated each year by physical examination.

Under the 1996 Policy, inmates in keeplock status under TB hold were permitted one hour of exercise per day and three showers per week. Although not allowed telephone use or personal visits, they were permitted legal visits. Thus, the inmates' contact with other inmates and correctional personnel was limited, which, according to DOCS, "reduce[d] the possibility of the spread of [active TB]." Wright Decl. at 3, 11 7. Inmates in TB hold were not placed in respiratory isolation, however; they remained part of the general prison population, though confined to their cells. Inmates who submitted to a PPD test wereimmediately released from TB hold, and those who tested positive for latent TB were neither required to undergo annual chest x-rays nor subjected to repeat PPD testing.

On April 9, 2001, DOCS placed Redd, an inmate at the Auburn Correctional Facility, in TB hold after he refused to undergo a PPD test on religious grounds. The 1996 Policy, unlike the current policy adopted in 2004, did not contain a religious objector exception.

Prison officials rejected Redd's offer to submit to sputum testing and instead applied the 1996 Policy of TB hold and three chest x-rays, performing the first chest xray on Redd one month after he was placed in TB hold. His second and third chest x-rays were performed on November (i, 2001 and May 6, 2002. Because all three x-rays were negative, Redd was released from TB hold in May of 2002, "approximately 5-10 days" after his third chest x-ray and approximately thirteen months and one week after his TB hold was initiated.¹

On April 9, 2004, Redd filed this suit, pro se, pursuant to 42 U.S.C. § 1983, asserting constitutional and statutory claims arising from his placement in TB hold. The complaint named as defendants: Dr. Lester Wright, Chief Medical Director for DOCS; Hans Walker, Auburn's Superintendent at the commencement of Redd's confinement in TB hold; John Burge, Walker's successor; and Nurse Administrator C. Coynel. Redd sued each defendant in his or her individual capacity, claiming that the defendants violated: 1) the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4, by requiring him to submit to a PPD test over his religious objection; 2) the Eighth Amendment by implementing a policy that authorized a potentially indefinite period of confinement in TB hold; and 3) the Fourteenth Amendment by denying him release from TB hold after one year. Redd's complaint sought only monetary damages.

I. District Court Proceedings

After taking Redd's deposition, the defendants moved for summary judgment. The defendants argued that confining Redd in TB hold under the 1996 Policy did not violate any rights that were clearly established and thus, "[b]ased upon th[e] timeline of relevant case law, " the defendants were entitled to qualified immunity and summary judgment. Defs' Mem. in Supp. of Mot. for Summ. J. at 10.

The district court granted the defendants' motion for summary judgment in its entirety, applying the two-step analysis for claims of qualified immunity as then required by Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The district court first considered whether, viewed in the light most favorable to Redd, the facts alleged supported Redd's claim that his constitutional rights were violated. With respect to Redd's First Amendment religion claim, the district court determined that, following Selah v. Goord, 255 F.Supp.2d 42, 55 (N.D.N.Y.2003), and Reynolds v. Goord, 103 F.Supp.2d 316, 339 (S.D.N.Y.2000), confining Redd to TB hold unreasonably burdened his right to free exercise of religion and, therefore, that the 1996 Policy was unconstitutional as applied to Redd. Redd v. Wright, No. 9:04-CV00401 (N.D.N.Y. filed Aug. 9, 2006). The district court also concluded in a footnote that the 1996 Policy violated the RLUIPA, which "imposes a standard of strict scrutiny upon burdens on the free exercise of religion of incarcerated persons in state prisons." Id. at 7 n. 9.²

Having concluded that Redd's First Amendment/RLUIPA claim survived the first step of the Saucier test, the district court then considered whether Redd's First Amendment and/or RLUIPA rights were clearly established at the time of the alleged violation. The district court found that, during the period that Redd was in TB hold, because neither this court nor the Supreme Court had held that application of the 1996 Policy to religious objectors violated the Free Exercise Clause or RLUIPA, and because there was a conflict among state and lower federal courts on the issue, the rights at issue were not clearly established. Therefore, the district court held that the defendants were entitled to qualified immunity on the First Amendment/RLUIPA claims. Id. at 18.

With regard to Redd's Eighth and Fourteenth Amendment claims, the district court found no constitutional violation. The district court held that the alleged deprivations were insufficient to constitute cruel and unusual punishment under applicable precedent and that Redd had not shown that the defendants were "deliberately indifferent to his health or safety" in applying the 1996 Policy to him. Id. at 8. The district court also rejected Redd's argument that, by holding him longer than twelve months, the defendants violated his Fourteenth Amendment due process rights, reasoning that Redd had no "pro tected interest in immediate release from TB hold after one calendar year." Id. at 12. The district court alternatively applied the three-factor test in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), concluding that the "length and conditions" of Redd's confinement did not violate due process because the 1996 Policy "provide[d] adequate procedural protection for any state infringement on [Redd's] liberty interest." Redd, at 15. Finally, the district court rejected an additional claim first raised in Redd's opposition to summary judgment that he had been unconstitutionally denied regularshowers or exercise, despite their-requirement under-the 1996 Policy. The district court denied this claim because it was not included in the complaint. The district court also refused Redd leave to amend, stating that "[t]o permit [Redd] to amend his Complaint at this stage, over-two years after instituting the action, would be unfairly prejudicial to Defendants." Id. at 910.

This appeal followed.

DISCUSSION

I. Standard of Review

This court reviews a grant of summary judgment de novo, Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004), "constru[ing] the facts in the light most favorable to the non-moving party and... resolv[ing] all ambiguities and draw[ing] all reasonable inferences against the movant." Id. (internal quotationmarks omitted). Summary judgment may not be granted if any genuine issue exists with respect to material facts. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Stuart v Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998) (internal quotation marks omitted).

II. Redd's RLUIPA and First Amendment Claims

Redd's religious-liberty claims derive from two independent sources: § 3 of RLUIPA, 42 U.S.C. § 2000cc-l, and the Free Exercise Clause of the First Amendment. Under RLUIPA, a plaintiff...