Boles v. Neet

• Decision Date: 24 May 2007
• Docket Number: No. 05-1570.,05-1570.
• Citation: 486 F.3d 1177
• Parties: Russell M. BOLES, Plaintiff-Appellee, v. Gary D. NEET, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

486 F.3d 1177

Russell M. BOLES, Plaintiff-Appellee, v. Gary D. NEET, Defendant-Appellant.

No. 05-1570.

United States Court of Appeals, Tenth Circuit.

May 24, 2007.

Submitted on the briefs:^*

John W. Suthers, Attorney General, James X. Quinn, Assistant Attorney General, Office of the Colorado Attorney General, Denver, CO, for Defendant-Appellant.

Sheldon E. Friedman, Isaacson Rosenbaum P.C., Denver, CO, for Plaintiff-Appellee.

Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff Russell M. Boles is an Orthodox Jew serving time at the Freemont Correctional Facility in Cañon City, Colorado. He sued the warden, Gary D. Neet, under 42 U.S.C. § 1983 and the First Amendment after Warden Neet denied his request to wear certain religious garments while being transported to a hospital. Warden Neet moved for summary judgment based on qualified immunity, but the district court denied the motion, and he now appeals that determination. We exercise jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291 and the Cohen¹ collateral order doctrine and AFFIRM.

I.

The relevant facts are not disputed. In March 2001, while he was incarcerated at FCF, Boles was scheduled to have eye surgery at an off-site hospital. On the day of his scheduled surgery, however, prison officials told him that prison regulations prohibited him from leaving the facility wearing his yarmulke and tallit katan.² He refused to remove the garments and forwent having the surgery. On April 17, 2001, Boles sent a letter to Warden Neet requesting permission to wear his religious garments during transport to the hospital. Warden Neet responded by letter dated April 30, 2001, denying Boles's request based on the prison's transport regulation, AR 300-37 RD. That regulation provides that inmates classified "medium custody and above are [to be] transported in orange jumpsuits and transport shoes when being transported to a non-secure area, i.e. hospital." Aplt.App. at 179. Referring to this regulation, Warden Neet told Boles, "[a]lthough your religion may require you to wear certain items, those items will not be allowed during transport out of this facility." Id. at 163. Nonetheless, Boles remained steadfast in refusing to take off his yarmulke and tallit katan. As a result, his eye surgery was delayed until November 2002, by which point the prison regulations had been amended specifically to allow Jewish inmates to wear those items during transport.

Proceeding pro se in the district court, Boles sued Warden Neet under 42 U.S.C. § 1983 claiming that his actions violated Boles's First Amendment right to freely exercise his religion.³ Warden Neet filed a motion to dismiss followed by a motion for summary judgment, arguing that Boles's First Amendment claim was barred by Warden Neet's qualified immunity from civil damages liability. By order dated November 30, 2005, the district court denied both motions, concluding that there was a material issue of fact concerning whether Warden Neet's conduct "was a reasonable restriction on plaintiff's free exercise of his religious practices." Aplt. App. at 248. More specifically, the court held that regulation AR 300-37 RD did not justify Warden Neet's actions.

[N]othing in the policy prohibits the inmate from also wearing a head covering, such as a yarmulke, or an undergarment, such as a tallit katan. If there is a security issue associated with such garments, it is not apparent from the regulations.

Id. Also central to the court's decision was its broad interpretation of the constitutional right involved, which the court framed as the free exercise of religion. The court concluded that whether Warden Neet violated that right could not be decided on summary judgment.

While a defendant charged with a constitutional violation receives qualified immunity when the right asserted is not clearly established, the right that has been established does not have to [be] so fact specific that it is identical to what is alleged in the case at issue, as defendant appears to argue here. To overcome a motion to dismiss the plaintiff must articulate a constitutional right which the defendant violated. To unreasonably limit plaintiff's free exercise of religion is a violation.

Id. at 245 (quotation omitted). On appeal, Warden Neet argues that in framing the constitutional right so broadly, the district court impermissibly removed the defense of qualified immunity. He also argues that prison inmates like plaintiff enjoy no clearly established constitutional right to wear religious garments either on the prison grounds or in transport outside of the facility. Accordingly, he contends that he is entitled to qualified immunity with respect to plaintiff's First Amendment claim.

II.

The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When the district court denies a motion asserting the qualified immunity defense, we review its decision de novo. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998). Our review is guided by the Supreme Court's instructions concerning the proper sequence in which to analyze the requisites of a qualified immunity defense. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we must consider whether the plaintiff's factual allegations show that the official's conduct violated a constitutional right. See id. at 201, 121 S.Ct. 2151. If the assumed facts do not establish a constitutional violation, the defendant is entitled to summary judgment. If, on the other hand, a violation can be shown, "the next, sequential step is to ask whether the right was clearly established." Id.

A. Did Boles Allege a Constitutional Violation?

In taking the first step of the Saucier analysis, we are mindful of the delicate balance that has been recognized between prisoners' constitutional guarantees and the legitimate concerns of prison administrators. In O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the Supreme Court acknowledged that although "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights," id. at 348, 107 S.Ct. 2400 (quotation omitted), convicted prisoners nonetheless "retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion," id. (citation omitted). The Court emphasized, however, that in evaluating a challenged prison regulation, appropriate deference must be afforded to prison administrators "who are actually charged with and trained in the running of the particular institution under examination." Id. at 349, 107 S.Ct. 2400 (quotation omitted). Accordingly, the Court distinguished prison regulations from other laws alleged to violate fundamental constitutional rights, holding that the former must be judged under a less restrictive reasonableness test: "`[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Id. (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).

The same year it decided O'Lone, the Court decided Turner, which, in part, struck down as unreasonable a prison regulation banning inmate marriages. It was clear after Turner that the question of whether a prison regulation reasonably curtails constitutional rights requires close examination of the facts of each case, the specific regulation under review, and the alleged justifications for it. To assist the lower courts in making the reasonableness determination, the Court identified the following factors:⁴

(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights.

Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir.2002) (citing Turner, 482 U.S. at 89-91, 107 S.Ct. 2254). As other courts have pointed out, the first Turner factor is actually more of an "element" than a factor in the sense that it "is not simply a consideration to be weighed but rather an essential requirement." Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir.2006); see also Sutton v. Rasheed, 323 F.3d 236, 253 (3d Cir.2003) ("The first factor is foremost in the sense that a rational connection is a threshold requirement. . . .") (quotation omitted). To satisfy the first Turner factor, "the prison administration is required to make a minimal showing that a rational relationship exists between its policy and stated goals." Beerheide, 286 F.3d at 1186.

This framework established in Turner and O'Lone, which seeks to balance prisoners' constitutional rights against the valid concerns of prison administrators, is sharply at odds with the test formulated three years later in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). There the Supreme Court held that the free exercise clause does not exempt an individual from complying with "a valid and neutral law of general applicability" even if the law impinges on that individual's religious practices. Id. at 879, 110 S.Ct. 1595. Smith was not a prison case and it did not purport to limit or overrule Turner and O'Lone, but many courts have questioned its effect, if any, on the standard...