Redd v. Wright, No. 06-4315 (2d Cir. 2010)

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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 : 1 WALKER, LEVAL, HALL, Circuit Judges. 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. 8 AFFIRM on the basis of the doctrine of qualified immunity the 9 district court s dismissal of plaintiff s claims. 10 We We further AFFIRM the district court s denial of leave to amend to add an as 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 applied Eighth Amendment claim. AFFIRMED. MATTHEW J. FEDOR (David F. Abernathy, Andrea L. D Ambra, 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. JOHN M. WALKER, JR., Circuit Judge: 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). 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. 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. 32 challenges all of those holdings and the denial of his motion to Pursuant to 42 U.S.C. § 1983, Redd The district court held that 2 This appeal 1 amend the complaint to add an as applied Eighth Amendment claim. 2 BACKGROUND 3 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. 11 offered the PPD test daily for one week, weekly for one month and 12 monthly thereafter. 13 TB hold for one year during which three chest x-rays were taken 14 at the beginning, middle, and end of the 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 The inmate was then An inmate refusing these offers was kept in After one year 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. 21 visits, they were permitted legal visits. 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]." Although not allowed telephone use or personal Thus, the inmates Wright Decl. at 3, ¶ 7. 3 Inmates in 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. 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 Inmates who submitted to a PPD test were 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. 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 22 His second and third chest On April 9, 2004, Redd filed this suit, pro se, pursuant to 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. 6 his or her individual capacity, claiming that the defendants 7 violated: 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 Redd sued each defendant in 1) the First Amendment and the Religious Freedom 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. 14 damages. 15 I. 16 Redd s complaint sought only monetary District Court Proceedings After taking Redd's deposition, the defendants moved for 17 summary judgment. 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. 22 Summ. J. at 10. 23 24 The defendants argued that confining Redd in Defs Mem. in Supp. of Mot. for The district court granted the defendants motion for summary judgment in its entirety, applying the two-step analysis 5 1 for claims of qualified immunity as then required by Saucier v. 2 Katz, 533 U.S. 194 (2001). 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. 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 The district court first considered With respect to Redd's First Amendment religion 10 religion and, therefore, that the 1996 Policy was 11 unconstitutional as applied to Redd. 12 CV-00401 (N.D.N.Y. filed Aug. 9, 2006). 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." 17 Redd v. Wright, No. 9:04The district court also Id. at 7 n.9.2 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. 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. The district court found that, during the period that 10 Therefore, the district court held that the defendants were 11 entitled to qualified immunity on the First Amendment/RLUIPA 12 claims. 13 Id. at 18. 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. 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. Id. at 8. The The district court alternatively 7 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. 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. Redd, at 15. 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. This appeal followed. 15 DISCUSSION 16 17 18 I. Standard of Review 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. 23 (internal quotation marks omitted). 24 granted if any genuine issue exists with respect to material 8 Id. Summary judgment may not be 1 facts. 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. 5 (2d Cir. 1998) (internal quotation marks omitted). 6 II. 7 Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 Redd s RLUIPA and First Amendment Claims 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. 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. 20 of Shabazz, 482 U.S. 342, 349 (1987) (internal quotation marks 21 omitted). 22 42 U.S.C. § 2000cc-1(a). Under the First Amendment, O Lone v. Estate 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. 11 Supreme Court has expressly cautioned against framing the 12 constitutional right at too broad a level of generality. 13 v. Layne, 526 U.S. 603, 615 (1999). 14 reasonable specificity requirement on defining the contours of 15 a constitutional right for qualified immunity purposes. 16 Blumenthal, 577 F.3d 60, 67-68 (2d Cir. 2009). 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 As the defendants note, however, the Wilson And we have interposed a Dean v. Redd s 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. 4 defendants are entitled to qualified immunity with respect to 5 Redd s First Amendment and RLUIPA claims. 6 relevant case law declaring the 1996 Policy, or any substantially 7 similar policy, invalid under either the First Amendment or 8 RLUIPA. 9 have held generally that prisoners are guaranteed freedom from For those reasons, the Redd can point to no Redd cites other prisoners rights cases in which we 10 discriminatory punishment inflicted solely because of his 11 beliefs, whether religious or secular. 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 20 Redd, does not involve punishment that targets an inmate for 21 engaging in a religious practice or solely because of his 22 beliefs. 23 animus but by a legitimate public health concern[]. 24 22-23. justification ). See Sostre v. McGinnis, But this case, unlike the cases cited by The deprivation in this case was motivated not by 11 Wright Br. 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). 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. 9 should have known that they were violating his rights because (1) Redd argues In particular, Redd argues that the defendants 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. 21 477-78.3 Jolly, 76 F.3d at 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. 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. 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 Moreover, the factual predicate that led the court to Although Jolly did not foreclose 10 which a constitutional violation would occur. 11 (leaving open the question whether a shorter period of 12 confinement would violate an inmate s free exercise rights). 13 See id. at 478 n.5 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. 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. 22 Accordingly, neither Jolly nor Dr. Wright s testimony clearly Dr. Wright s testimony focused on the See Reynolds, 103 F. Supp. 2d at 340. 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. 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 9 The district court, Redd challenges the district court s conclusion that the 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. 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. 19 doctrine of qualified immunity and that the as applied challenge 20 was insufficiently pleaded. Second, Redd We hold that the facial challenge is barred by the 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. 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. 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. Redd Br. 38. Specifically, In issuing a stay of the preliminary 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. 14 480. 15 that the revised policy continued to violate inmates Eighth 16 Amendment rights by denying them all meaningful opportunity for 17 exercise. 18 Id. at By leaving this question open, we did not clearly establish Id. at 480-81. 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. 24 Br. 39. Redd 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. 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. 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 . . . Instead, the Jolly See 76 F.3d at 480-81 (finding that the 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. 21 district court. 22 even implicitly allege that the defendants violated his Eighth 23 Amendment rights by not following the 1996 Policy. 24 court did not abuse its discretion in denying Redd permission to This claim, however, was not properly before the Nowhere in the complaint does Redd expressly or 16 The district 1 introduce a new claim after two years of litigation. 2 Peterson v. Ins. Co. of N. Am., 40 F.3d 26, 31 (2d Cir. 1994). 3 V. 4 See Redd s Due Process Claim Finally, Redd argues that the defendants violated his right 5 to due process by confining him in TB hold without sufficient 6 procedural safeguards. 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 Redd s alleged due process right was not 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. 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 Thus, the defendants are 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. 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. Finally, Redd s claim that the 1996 Policy CONCLUSION 7 8 9 For the foregoing reasons, we AFFIRM the district court s 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. 18

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