Brandon v. Kinter

938 F.3d 21

• Court: Court of Appeals for the Second Circuit
• Decided: September 10, 2019
• Docket: 17-911-cv
• Status: Published

Opinion

17‐911‐cv Brandon v. Kinter

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2018

(Argued: April 9, 2019 Decided: September 10, 2019)

Docket No. 17‐911‐cv

CHAMMA K. BRANDON,

Plaintiff‐Appellant,

– v. –

SUZANNE KINTER, LAWRENCE BEDARD, ROBERT WEBB, JOSHUA WINGLER, THOMAS PERRY, ERIC BLAISE, KEVIN LAURIN, MARGARET CLANCY,

Defendants‐Appellees,

GLENN SCHROYER, JIM ALGER, CLINTON COUNTY JAIL,

Defendants.1

Before: WALKER, CALABRESI, and CHIN, Circuit Judges.

1 The Clerk of Court is respectfully directed to amend the official caption as listed above. 1 Appeal from the judgment of the United States District Court for the Northern District of New York (McAvoy, J.) granting Defendants’ motion for summary judgment. Plaintiff was a Muslim prisoner at the Clinton County Jail (CCJ). He sued Defendant CCJ and several of its employees for denial of his right to free exercise of religion in violation of the First Amendment, for deliberate indifference to his medical needs in violation of the Eighth Amendment, for violation of the Religious Land Use and Institutionalized Persons Act, and for conspiring with each other to take the above mentioned actions. Plaintiff alleged, inter alia, that Defendants (1) routinely served him meals that did not comply with his religious diet, and (2) retaliated against him for filing meal‐related grievances. The district court granted summary judgment to Defendants on all of Plaintiff’s claims. Plaintiff now appeals his First Amendment free exercise claim and his First Amendment retaliation claim against Defendants CCJ employees Suzanne Kinter, Lawrence Bedard, Robert Webb, Joshua Wingler, Thomas Perry, Eric Blaise, Kevin Laurin, and Margaret Clancy. The other claims and defendants are not before us on this appeal. We hold that Plaintiff introduced sufficient evidence to create a genuine dispute of material fact as to both of the appealed claims. But we permit Plaintiff to proceed on his claims against only those Defendants who were personally involved in each violation. As to Plaintiff’s free exercise claim, we, therefore, VACATE the district court’s decision and REMAND for Plaintiff to proceed against Defendants Kinter, Bedard, Laurin, Clancy, Perry, and Webb. And we AFFIRM the district court’s decision granting summary judgment on this claim to Defendants Blaise and Wingler. As to Plaintiff’s retaliation claim, we VACATE the district court’s decision and REMAND for Plaintiff to proceed against Defendants Kinter, Bedard, Laurin, Clancy, and Blaise. And we AFFIRM the district court’s decision granting summary judgment on this claim to Defendants Webb, Wingler, and Perry.

Sarah E. Hsu Wilbur, Thomas A. Zelante, Jr., and Jon Romburg, Seton Hall University School of Law, Newark, NJ, for Plaintiff‐Appellant.

2 Gregg T. Johnson, Lemire, Johnson & Higgins, Malta, NY, for Defendants‐Appellees.

GUIDO CALABRESI, Circuit Judge:

Chamma Brandon, a Muslim inmate at the Clinton County Jail (CCJ), sued

CCJ and several of its employees under 42 U.S.C. § 1983. Brandon claimed, inter

alia, that the defendants denied his right to the free exercise of religion under the

First Amendment by routinely serving him meals containing pork in violation of

his Muslim diet, and that they retaliated against him for filing meal‐related

grievances. The district court granted summary judgment to the defendants on all

counts. In relevant part, the district court held that the evidence showed only that

Brandon was served 10 noncompliant meals, which the court held was not a

substantial burden on his religious beliefs.2

We vacate in part and affirm in part the district court’s decision. First, as to

Brandon’s free exercise claim, we hold that there is sufficient evidence to create a

genuine dispute of material fact about the number of noncompliant meals Brandon

received. A reasonable jury could find that Brandon was served significantly more

2The district court also held that Brandon had not exhausted his retaliation claim. On appeal, the defendants have abandoned their exhaustion argument. 3 than 10 meals containing pork. While that, in itself, would be sufficient to justify

reversal, we further hold that the district court also erred in concluding that 10

noncompliant meals was not a substantial burden.

Second, as to Brandon’s retaliation claim, the defendants argue that no

reasonable jury could find that they retaliated against Brandon. We hold that a

genuine dispute exists as to facts underlying the alleged retaliation, and we

therefore vacate the district court’s dismissal of that claim.

Because liability under § 1983 requires personal involvement, we, however,

vacate and remand for Brandon to proceed against only those defendants who

were personally involved in the violations. And we affirm the dismissal of the

claims against those defendants as to whom there is no evidence of personal

involvement.

BACKGROUND

Brandon was incarcerated at CCJ on January 14, 2012. He avers that he

declared upon intake that he was a Muslim, but CCJ records do not contain any

declaration of religious status on that date. On March 2, 2012, Brandon was

released, re‐arrested, and returned to CCJ—all on the same day. There is no

4 dispute that, upon re‐arrest, Brandon declared that he was a Muslim and that he

did not eat pork. Brandon remained at CCJ until December 25, 2012.

The defendants‐appellees3 were all CCJ employees at the time of the events

in this case. Suzanne Kinter, the Jail Healthcare Coordinator, supervised CCJ

nurses and oversaw inmate medical treatment. Lawrence Bedard, the Food Service

Manager, supervised the cooks in the CCJ kitchen “to ensure that the food [wa]s

being prepared in compliance with the menu, recipes, and any special diets that

the inmates ha[d] on file with the kitchen.” J.A. 323. Lieutenant Kevin Laurin was

responsible for overseeing CCJ’s grievance program, supervising sergeants, and

managing the day‐to‐day activities of the jail. Sergeant Margaret Clancy4 was

responsible for supervising correctional officers, documenting reports, and

maintaining safety. The remaining defendants—Eric Blaise, Thomas Perry, Robert

Webb, and Joshua Wingler—were correctional officers (COs).

3 Glenn Schroyer, Jim Alger, and CCJ were defendants below but are not involved in this appeal. Brandon did not appeal the dismissal of the claims against Alger and CCJ. Although Brandon did name Schroyer in the appeal, his brief stated, “No claims are raised against Schroyer in this appeal.” Appellant’s Br. at 10. Accordingly, we dismissed the appeal against Schroyer on March 5, 2019. 4 The briefs and the record are inconsistent in the spelling of Clancy’s and Webb’s names. We use the

spelling as signed by the defendants in their own affidavits. 5 Religious Meals

Brandon’s Amended Complaint claims that the defendants denied him

religiously appropriate meals by repeatedly serving him meals containing pork.5

The allegedly noncompliant meals fall primarily into two categories. First,

Brandon claims that CCJ failed to notify the kitchen about his religious diet until

several months after he had informed the jail that he was a Muslim and did not

eat pork. He attests that, during the period in which the kitchen was unaware of

his diet, he was “routinely and continuously” served pork whenever it was

scheduled on the menu. J.A. 30. Second, Brandon claims that, even after the kitchen

was notified of his diet, he was still served pork on a number of occasions, which

are specifically identified by date in his Amended Complaint. See J.A. 28‐40. The

defendants dispute both sets of allegations.

While the parties agree that Brandon requested a Muslim diet on March 2,

2012, the record contains conflicting evidence as to when the CCJ kitchen was

notified of that dietary restriction. Laurin’s affidavit states that, after Brandon

made his March 2 request, a notification was placed in his file that he should be

5Brandon’s Amended Complaint was sworn under penalty of perjury. Therefore, his allegations in the complaint can be considered as evidence for summary judgment purposes. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). 6 provided with a no‐pork diet. Bedard’s response to Brandon’s interrogatories

similarly state that “[t]he Kitchen staff was notified of Plaintiff’s religious diet from

the booking officer on or about March 2, 2012.” J.A. 356.

Other evidence, however, indicates that the kitchen was not aware of

Brandon’s religious diet until September or October 2012. On September 27, in

response to a grievance filed by Brandon, Laurin noted that the kitchen “did not

have that [Brandon was] Muslim” and that it had now been so informed. J.A. 101.

Then, on October 5, Laurin wrote, “Brandon was not marked in the kitchen as

[M]uslim diet. That was corrected 10/5/12.” J.A. 389. Corroborating this account, a

CO not involved in the case noted on October 10 that “until recently they had

nothing stating that inmate Brandon was a no pork diet.” J.A. 114.

Brandon’s Amended Complaint states that, before the kitchen was notified

of his religious diet, he was “routinely and continuously” served meals containing

pork. J.A. 34. He introduced into evidence a schedule of CCJ’s menus by day from

January 8 to December 29, 2012. J.A. 470‐519. On these menus, Brandon identified

examples of items that he believed contained pork, such as, inter alia, grilled ham

and cheese sandwich, barbeque ribs, pepperoni pizza, baked ham‐steak, and

Italian sausage.

7 On May 28, 2012, Brandon filed his first grievance with CCJ, claiming that

his meals contained pork and thereby violated his religious diet. Brandon filed

additional complaints on June 21, July 4, and July 6, again alleging that his meals

did not comply with his religious beliefs. To these grievances, Kinter responded

that medical staff were not responsible for religious diets and that Brandon would

need to “ask security staff to submit [a] diet slip for pork.” J.A. 84 (emphasis

omitted). Brandon claims that he then spoke with the security staff, who told him

instead to ask the medical staff. He contends that neither group resolved his

complaints.

Brandon argues that he continued to be regularly served pork until the

kitchen was finally notified of his religious diet in September or October 2012.

Using the earlier September 27 date, see supra at 5, and the schedule of CCJ menus

for this time period, Brandon’s counsel calculates that he was served pork at least

63 times. Brandon’s Amended Complaint, however, does not include any specific

dates between July 6 and September 9 on which he alleges that he was served a

noncompliant meal. Nor does the record contain any religious meal‐related

grievances during this period.

8 After July 6, the next recorded incident in which Brandon claims to have

received pork occurred on September 9. Brandon attests that he was served ham

steak on that date. Brandon’s Amended Complaint claims that he was served pork

again on September 24 (BLT sandwich for lunch and salad with bacon strips for

dinner), October 9 (ham sandwich), October 10 (salad with ham strips), October

17 (pork inside “meatless” salad), October 29 (pork inside “vegetarian” bean

soup), November 5 (pork inside “meatless” salad), and December 25 (BBQ pork

ribs). Brandon concedes that, besides these dates, he generally received religiously

appropriate meals after October 5, the last date on which Laurin claims to have

notified the kitchen of Brandon’s religious diet.

Regarding several of the above incidents—those on October 17, October 29,

and November 5—Brandon attests that the meals were labeled “meatless” or

“vegetarian.” But, according to Brandon, when he inspected the meal, he

discovered small pieces of pork inside. He claims that, on each occasion, he

compared his meal to that given to other Muslim inmates and discovered that his

meal was the only one containing small pieces of meat. Based on the differences

only in his meals, Brandon concluded that he was being specifically targeted and

decided that he needed to inspect carefully each meal prior to eating it.

9 The defendants dispute Brandon’s allegations and argue that he was never

deprived of a religiously appropriate meal. Rather, they claim that each time

Brandon complained about pork in his meal, the meal either did not actually

contain pork or was replaced. According to the defendants, Brandon’s continued

grievances resulted not from continued violations, but from Brandon’s refusal to

accept the defendants’ explanations. There is some evidence to support the

defendants’ claim that, beginning in September, a number of the complained‐of

meals were either explained or replaced.6 There is also, however, contradictory

evidence in the form of Brandon’s sworn statements.

According to the defendants, six of the meals specifically grieved by

Brandon—those on September 9, September 24 (lunch and dinner), October 9,

October 10, and November 5—did not actually contain pork. On September 9,

Brandon complained that his ham steak contained pork. A CO not involved in this

case checked with the kitchen and informed Brandon that the ham steak was made

with turkey, not pork. He told Brandon that, because of the number of inmates

6The evidence on which the defendants rely does not cover all of the dates on which Brandon alleges that he was served pork. There is nothing in the record to indicate that Brandon was provided with a replacement meal or told that his meal did not contain pork on May 28, June 21, July 4, or October 29. 10 with religious restrictions, the kitchen did not use pork products in any of its

meals.

There is conflicting evidence in the record, however, suggesting that the

ham steak Brandon received actually did contain pork. For instance, on Brandon’s

grievance, the supervising CO wrote that “it is very likely that inmate Brandon

received pork on Sept. 9.” J.A. 114. Similarly, Laurin also noted, in response to a

later grievance, that Brandon had “not received pork or pork products . . . since

9/9/12.” J.A. 119 (emphasis added). Finally, Brandon avers that, on another

occasion, a different CO told him that the only meal at CCJ that contained pork

was the ham steak.

Regarding Brandon’s grievances on September 24, Laurin wrote that the

bacon in his meals was veggie bacon. Similarly, he wrote that the ham in Brandon’s

October 9 and October 10 meals was turkey ham. But the grievances also note that

Laurin met with Bedard to tell him “no more mistakes,” and “if there are

mistakes[,] they are to be corrected.” J.A. 109, 111.

Finally, the parties agree that, on November 5, Webb told Brandon that the

pepperoni inside his “meatless” macaroni salad was turkey, not pork. In

Brandon’s Amended Complaint, however, he gives reasons to doubt Webb’s

11 statement. He states that, unlike the other COs who responded to his prior

complaints, Webb claimed that the pepperoni was not pork without first going to

the kitchen to investigate. Brandon further attests that, when he asked for a

grievance form, Webb responded, “If you grieve this, I won’t get you a

replacement.” J.A. 38. Brandon then asked Webb to confirm with the kitchen that

the pepperoni was turkey. He claims that Webb made a show of pretending to call

the kitchen but refused to disclose to Brandon who in the kitchen had actually

confirmed that the pepperoni was not pork.

Of the remaining dates, the defendants claim that, while the meals on

October 17 and December 25 did initially contain pork, they were ultimately

replaced with religiously compliant meals. On October 17, Brandon attests that he

found small pieces of pork in his “meatless” salad. He acknowledges that he

received a peanut butter and jelly sandwich as a replacement.

According to Brandon, Clancy investigated the grievance the next day and

determined that a new chef unfamiliar with Brandon’s religious diet had included

pork in the meal by mistake. According to Brandon’s Amended Complaint, she

told him that “it was an honest mistake and [he] should leave it as that.” J.A. 36.

When Brandon asked her to state her findings on the grievance form, however,

12 she refused, stating, “No, because I don’t want this to later bite me in the ass.” J.A.

36. Brandon attests that he then heard her say to Blaise, “If he grieves another tray,

I’m going to lock his ass up!” J.A. 36.

Regarding the pork ribs that Brandon was served on December 25, a CO

noted on Brandon’s grievance form that “[y]our meal was addressed and changed

to accommodate your needs.” J.A. 177. Brandon attests, however, that when he

complained about the pork, Perry smiled at him and responded, “C’mon Brandon,

where’s your holiday spirit?” J.A. 39. Brandon states that he then engaged in a

shouting match with Perry over the meal until Perry threatened him with pepper

spray and restraints.

Significantly, the defendants make no claim that Brandon’s October 29 meal

was replaced or did not contain pork. Brandon avers that he discovered pieces of

ham in his “vegetarian” bean soup. As mentioned above, he compared his soup

with that of other Muslim inmates and discovered that only his soup contained

meat. According to the Amended Complaint, when Brandon complained about

the soup, a CO not involved in this case informed him that Bedard had admitted

to accidentally using the ladle from the regular bean soup to serve Brandon’s

vegetarian soup.

13 Removal from Medical Diet

Besides his religious diet, Brandon also had a special medical diet. On

January 14, 2012, Brandon reported that he was allergic to shellfish, and Dr. Glenn

Schroyer removed shellfish from his diet. On March 22, Brandon reported that

tomatoes gave him severe acid reflux, and Dr. Schroyer also removed tomatoes

from his diet. Lastly, on May 21, Dr. Schroyer concluded that Brandon had high

cholesterol and placed him on a low‐fat, low‐cholesterol diet.

In addition to the grievances mentioned above concerning his religious diet,

Brandon filed numerous other grievances complaining that his meals did not

comply with his medical diet. On several occasions, he also filed grievances

complaining that his meal‐related grievances, both medical and religious, had not

been answered. He attests that he requested the addresses of outside agencies,

such as the Citizen’s Policy and Complaint Review Council (CPCRC), in order to

seek assistance with his case. Brandon claims to have filed a total of 41 grievances

related to his meals, 8 of which were filed between September 27 and October 15.

Brandon’s Amended Complaint attests that, on October 15, Laurin ordered

him to attend an informal hearing. According to Brandon, Laurin was “irate” and

“ranting and raving” because Brandon had requested CPCRC’s address. J.A. 25.

14 Brandon claims that Laurin shouted, “No one will get into Clinton County’s

business!” J.A. 25. He further states that Laurin asked him, “If you was [sic] so

concerned with your health as you’re making it out to be, why are you buying

nutty bars and oatmeal creampies from [the] commissary?” J.A. 25. The record

indicates that Brandon had indeed occasionally purchased cookies and candies

high in fat content and Ramen containing tomato powder. Brandon avers that he

bought those items in case he could not eat the meals provided by the kitchen.

The next day, on October 16, Dr. Schroyer and Kinter informed Brandon

that, because he had made commissary purchases that did not comply with his

medical diet, they were removing his medical dietary restrictions. Brandon argues

that they only investigated his commissary purchases in retaliation for the

grievances he had filed. He claims that, after he told Kinter that he would refuse

to eat the meals that did not comply with his dietary needs, she responded, “You

can starve for all I care, since you want to knit [sic] pick and complain about

everything, you’ll get what we give you.” J.A. 26. Additionally, Laurin’s grievance

investigation report of the incident states, “As has been done in the past when a

large amount of grievances are filed on diets[,] the commissary receipts are

reviewed.” J.A. 203.

15 After October 16, Brandon was no longer given meals that were low‐fat,

low‐cholesterol, shellfish‐free, and tomato‐free. (His religious pork‐free diet,

however, remained in place.) Brandon filed multiple grievances complaining that

he needed his medical diet to be reinstated. On November 21, Dr. Schroyer and

Kinter reinstated Brandon’s medical diet, on the condition that he purchase from

the commissary only items that complied with that diet.

Assault

Finally, Brandon attests that, on November 17, 2012, Clancy and Blaise

placed another inmate, “Tiny,” into the cell next to Brandon’s. Tiny had been

transferred for attacking another inmate. According to Brandon’s Amended

Complaint, Clancy and Tiny were yelling at each other, and Brandon overheard

Clancy say, “[L]et[’]s see if he tries that shit on Brandon!” J.A. 48.

Brandon avers that, two days later, Blaise ordered Brandon to retrieve the

lunch trays from the front of each cell. Brandon informed Blaise that Tiny had

verbally assaulted him the previous night and that he “would rather not pick[ ]up

Tiny’s tray.” J.A. 48. Brandon claims that Blaise responded, “[D]on’t worry about

him, he’s a punk. Besides, from what I heard, I’m sure if I let him out, you’d kick

his ass.” J.A. 48. Brandon then proceeded to collect Tiny’s tray. While he was doing

16 so, Tiny became hostile and spat on him. Brandon avers that Blaise laughed and

stated, “I can’t believe he f***ing spit on you!” J.A. 48. Brandon further attests that,

when he asked for a grievance form, Blaise responded, “[G]ive me a break

Brandon, you know you had that coming.” J.A. 48‐49.

Procedural History

On August 15, 2014, Brandon filed the pro se Amended Complaint, alleging

that the defendants had denied his right to free exercise of religion under the First

Amendment, had been deliberately indifferent to his medical needs in violation of

the Eighth Amendment, had violated the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc, et seq., and had conspired with each other to do all

of the above. Because Brandon appeared pro se below, the district court also

liberally construed his Amended Complaint to raise a First Amendment retaliation

claim. But the district court did not articulate what it believed Brandon’s

retaliation claim to be. The defendants moved for summary judgment, and the

case was referred to a magistrate judge. Based on the magistrate judge’s Report

and Recommendation, the district court granted summary judgment to the

defendants on all of Brandon’s claims. Brandon appeals only the dismissal of his

free exercise claim and his retaliation claim.

17 Regarding Brandon’s free exercise claim, the court below found that there

was “evidence in the record to support a factfinder’s conclusion that plaintiff was

initially served a meal that contained pork, which is inconsistent with his religious

beliefs, on only ten occasions between March 28, 2012 and December 25, 2012.”

S.A. 51‐52. The court then concluded that being served 10 meals containing pork

was not a substantial burden on Brandon’s religious beliefs.

DISCUSSION

Standard of Review

We review a district court’s grant of summary judgment de novo. Rubens v.

Mason, 527 F.3d 252, 254 (2d Cir. 2008). Summary judgment may be granted “only

if the court concludes that the case presents ‘no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.’” Id.

(quoting Fed. R. Civ. P. 56(c)). A “genuine issue” exists—and summary judgment

is therefore improper—“where the evidence is such that a reasonable jury could

decide in the non‐movant’s favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d

Cir. 2008). In reviewing the district court’s grant of summary judgment, we must

“construe the facts in the light most favorable to the non‐moving party and must

resolve all ambiguities and draw all reasonable inferences against the movant.” Id.

18 Free Exercise Claim

Brandon argues that there is evidence in the record to show that the

defendants deprived him of at least 63 religiously compliant meals. The

defendants do not dispute that 63 noncompliant meals would be a substantial

burden; they argue instead that no reasonable jury could find that Brandon was

denied more than 10 religiously compliant meals. In the alternative, Brandon

argues that, even if the evidence shows only that he was deprived of 10 meals,

those 10 noncompliant meals would still satisfy the substantial burden

requirement. We agree with Brandon on both arguments and consider either to be

a sufficient, independent basis for reversal and remand.

1. Standard for First Amendment Free Exercise Claims

Prisoners have “long been understood to retain some measure of” their

rights under the Free Exercise Clause. Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir.

2003). These rights, however, must be balanced against the “interests of prison

officials charged with complex duties arising from administration of the penal

system.” Id. We therefore judge prisoners’ free exercise claims “under a

‘reasonableness’ test less restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights.” Id. First, a “prisoner must

19 show at the threshold that the disputed conduct substantially burdens his

sincerely held religious beliefs.”7 Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014).

If the prisoner satisfies these threshold requirements, a defendant can still avoid

liability by showing that his or her conduct is “reasonably related to legitimate

penological interests.” Id. at 222. The only element of Brandon’s free exercise claim

that is at issue in this appeal is whether the defendants’ actions placed a substantial

burden on his religious beliefs.8

Determining whether a plaintiff’s free exercise rights have been

substantially burdened “requires courts to distinguish important from

unimportant religious beliefs, a task for which we have already explained courts

are particularly ill‐suited.” Ford, 352 F.3d at 593. As a result, our Circuit’s

7 Our Circuit has not yet decided whether the substantial burden requirement remains good law after the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 887 (1990). The Supreme Court’s language in Smith “took issue with the premise that courts can differentiate between substantial and insubstantial burdens.” Ford, 352 F.3d at 592 (citing Smith, 494 U.S. at 887). Other circuits have disagreed over whether the substantial burden test continues to apply to free exercise claims in the aftermath of Smith. Id. (comparing Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003), with Levitan v. Ashcroft, 281 F.3d 1313, 1320‐21 (D.C. Cir. 2002)). Whenever the question has arisen in our Circuit, the panel has avoided answering it by noting either that the parties did not brief the issue or that the requirement, even if applied, would have been satisfied. See, e.g., Williams v. Does, 639 F. App’x 55, 56 (2d Cir. 2016) (summary order); Holland, 758 F.3d at 220; Ford, 352 F.3d at 588. Because neither party has briefed the issue here, we likewise assume, without deciding, that Brandon’s free exercise claim is subject to the substantial burden requirement. See Appellant’s Reply Br. at 19 (acknowledging that “it is not necessary for the Court to decide the issue in this case”). 8 The parties agree that Brandon’s beliefs are religious and sincerely held. Additionally, the defendants do

not assert any legitimate penological interest for denying Brandon religiously compliant meals. 20 precedents have been appropriately wary of making “conclusory judgments about

the unimportance of the religious practice to the adherent.” Id. While the

substantial burden requirement presupposes that “there will be cases in which it

comfortably could be said that a belief or practice is so peripheral to the plaintiff’s

religion that any burden can be aptly characterized as constitutionally de

minimis,” id., establishing a substantial burden is “not a particularly onerous

task,” McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004).

2. Number of Meals

Since “at least as early as 1975,” our Circuit has “generally found that to

deny prison inmates the provision of food that satisfies the dictates of their faith

does unconstitutionally burden their free exercise rights.” Id. at 203; see also Ford,

352 F.3d at 597 (holding that prisoners have a “clearly established” right “to a diet

consistent with [their] religious scruples”). Acknowledging this precedent, the

defendants nonetheless argue that Brandon introduced evidence showing that he

was denied only 10 religiously compliant meals and that 10 meals is too few to

constitute a substantial burden.

We disagree and hold that Brandon has introduced evidence to create a

genuine dispute of material fact that he was denied enough religiously compliant

21 meals to burden substantially his religious beliefs. We do so on two alternative

grounds, each of which would be sufficient on its own to justify reversal.

First, we hold that the court below erred in finding that the record contained

evidence that Brandon was served pork only 10 times. The magistrate judge

identified the following 10 incidents allegedly involving pork: June 21; July 4;

twice on September 24; October 9, 10, 17, and 29; November 5; and December 25.

In doing so, the magistrate judge appears to have overlooked the May 28 and

September 9 grievances. More problematically, he considered only those incidents

that were specifically identified by date in the record. The magistrate judge

thereby ignored the evidence that, before the kitchen was notified of Brandon’s

religious diet in September or October 2012, the defendants “routinely and

continuously” deprived Brandon of religiously compliant meals. J.A. 34.

Brandon introduced evidence—in the form of his sworn Amended

Complaint, his Affidavit in Opposition to Summary Judgment, and his Objection

to the Report and Recommendation9—on the basis of which a reasonable jury

9 We reject the defendants’ argument that Brandon’s Affidavit in Opposition is a “sham affidavit.” Appellee’s Suppl. Mem. at 4‐5. The defendants address their argument only to Brandon’s Affidavit, but we expand our discussion to include also his Objection to the Report and Recommendation, which has similar characteristics. It is true that “a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.” Hayes v. N.Y.C. Dep’t Corr., 84 F.3d 614, 619 (2d Cir. 1996). Therefore, “factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Id. 22 could find that he was denied many more than 10 religiously compliant meals. In

his Amended Complaint, Brandon avers, “From January 14th, 2012 through

October 8th, 2012, I was deprived of a right to practice religion . . . . [M]y religious

diet was routinely and continuously not complied with, prior to and after a

religious dietary notice was issued.” J.A. 34. He further states that the incidents

identified by date in the Amended Complaint “are just a few of many violations

mentioned while in the custody of CCJ. To repeat every incident would be

duplicious [sic] in nature.” J.A. 40.

Neither Brandon’s Affidavit in Opposition nor his Objection to the Report and Recommendation, however, contradict his prior deposition testimony. Brandon’s affidavit states that the “defendants failed/refused to issue Plaintiff a religious diet until October 5th, 2012.” Appellant’s Aff. at 11. His Objection then calculates, based on CCJ menus that are attached as exhibits, that Brandon was served pork 92 times between March 28 and December 25. J.A. 461. The defendants argue that these statements contradict Brandon’s deposition, in which he testified that he could not recall the number of times that he was served pork. Contrary to the defendants’ characterization, however, Brandon’s deposition does not contradict his Affidavit or Objection. Our Circuit has declined to disregard an affidavit as a “sham” in cases where “there is a readily apparent, plausible explanation” for the inconsistency, Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205‐06 (2d Cir. 2014), or where the deposition is “only arguably contradictory” to the affidavit, Hayes, 84 F.3d at 620. See also In re Fosamax Prod. Liab. Litig., 707 F.3d 189, 193‐94 (2d Cir. 2013) (per curiam). In this case, when asked during the deposition how many times he was served pork, Brandon answered “multiple” times but stated that he could not remember an exact number. Suppl. A. 39‐41. This is not inconsistent with the fact that he was “routinely and continuously” served pork, as it is not unreasonable that he might not remember exactly how many times over the course of many months such servings occurred. Nor is his deposition testimony inconsistent with the fact that he later provided a specific number in his Objection. He was able to calculate such a number after consulting the CCJ menus, and he stated at his deposition, “You have to apprise me of the menu and I can possibly answer that better.” Suppl. A. 40. Under these circumstances, we reject the defendants’ claim that the Affidavit or the Objection is a sham. We hold that the Affidavit and Objection can both be considered, alongside the Amended Complaint, in determining whether a genuine issue of material fact exists. 23 The inference that Brandon was “routinely and continuously” served pork

prior to September or October 2012 is supported by evidence in the record that the

kitchen was not notified of his religious diet until then. Based on Brandon’s

grievances and the defendants’ affidavits, there is a genuine dispute of material

fact as to whether the kitchen was notified of Brandon’s religious diet on March 2,

September 27, or October 5. Thus, on September 27, Laurin wrote that the kitchen

“did not have that [Brandon] w[as] Muslim” and had now been informed. J.A. 101.

Then, on October 5, Laurin wrote, “Brandon was not marked in the kitchen as

[M]uslim diet. That was corrected 10/5/12.” J.A. 389.

At summary judgment, we draw all inferences in favor of the non‐moving

party. Accordingly, we hold that a reasonable jury could find that the kitchen was

not notified of Brandon’s religious diet until the end of September or beginning of

October. A jury could then reasonably infer that, prior to being notified that

Brandon did not eat pork, the kitchen did not know to make any accommodations

for him and therefore served him pork whenever it was scheduled on the menu.

Brandon introduced into evidence the CCJ menus for 2012. Using these

menus, his counsel calculated that, between March 2 and September 27, he was

served at least 63 meals containing pork. While this number is an estimate based

24 on Brandon’s counsel’s assessment of which meal items likely contained pork, an

exact number is not required for Brandon’s claim to survive summary judgment.

It is sufficient that the menus, coupled with the evidence that the kitchen was not

alerted to Brandon’s religious diet until September or October, give rise to a

reasonable inference that Brandon was served many more than 10 meals

containing pork.

The court below therefore erred in holding that the evidence showed that

Brandon was denied only 10 religiously compliant meals. The defendants have not

disputed that 63 (or some comparable number of) meals would be a substantial

burden. Indeed, it is hard to imagine how they could sincerely argue to the

contrary. Accordingly, the error discussed above is sufficient to justify remand.

Because a genuine dispute exists, the factual question of how many noncompliant

meals Brandon was served is for the jury to decide.10

10The defendants do argue that some of the allegedly noncompliant meals did not actually contain pork and instead used substitutes such as turkey ham or veggie bacon. They argue that others were replaced after Brandon complained. Whether this is true or not is also a question of fact for the jury to decide. While there is some evidence in the record to support the defendants’ arguments, at least for some of the incidents identified, Brandon has also introduced evidence to the contrary. For instance, the defendants argue that the bacon served to Brandon on September 9 was veggie bacon, but Laurin’s own notes indicate that Brandon was served pork on September 9. J.A. 119. The defendants also argue that Brandon was given a replacement meal on October 17 and December 25, but Brandon’s sworn statements give a different account of both those incidents. Since a genuine dispute of material fact exists as to whether some of the allegedly noncompliant meals were either pork‐free or replaced, summary judgment on this ground is inappropriate. 25 While the above error by itself justifies a remand, we additionally hold, in

the interest of judicial economy, that the court below made a second error when it

concluded that no reasonable jury could find that the denial of 10 meals was a

substantial burden.

In the context of religious feasts and fasting, our Circuit has previously held

that a small number of noncompliant meals—even a single violation—can be a

substantial burden. Thus, in Ford v. McGinnis, we held that the plaintiff’s religious

beliefs were substantially burdened by his inability to participate in the Eid ul Fitr

feast. Ford, 352 F.3d at 593. In that case, the denial of a single feast constituted a

Similarly, in McEachin v. McGuinnis, we held that a 7‐day restrictive diet was

a substantial burden when it was imposed during Ramadan and therefore

interfered with the prisoner’s breaking of the fast. McEachin, 357 F.3d at 201; see

also Williams v. Does, 639 F. App’x 55, 56‐57 (2d Cir. 2016) (summary order)

(holding that serving a few meals prematurely during Ramadan was a substantial

burden and rejecting the lower court’s reasoning that the “burden was de minimis

because only a few of [the plaintiff’s] meals were delivered prematurely”).

26 Finally, in Holland v. Goord, our Circuit held that the defendants

substantially burdened the plaintiff’s religious beliefs by ordering him to drink

water during Ramadan in order to provide a urine sample for drug testing.

Holland, 758 F.3d at 221. Drinking water would have violated the plaintiff’s fast,

which the panel in Holland noted would have been a “grave sin.” Id. at 222. The

Holland panel rejected the district court’s conclusion that, because the plaintiff

could “make up a premature drink of water with one extra day of fasting,” the

burden was only de minimis. Id. (internal quotation marks omitted). In all four of

the aforementioned cases, the relatively small number of violative incidents did

not prevent us from finding that the prisoner’s religious beliefs were substantially

burdened.

The defendants attempt to distinguish these cases by noting that they all

involved meals or drinks that took place as part of a religious feast or during

Ramadan. The defendants argue that the feast or holiday endowed the meals with

special significance. They contrast Brandon’s case, in which none of the

noncompliant meals identified by date in the record occurred during Ramadan or

another holiday. The defendants’ emphasis on this distinction, however, is

misplaced. Their argument misunderstands the role of the holiday in the prior

27 panels’ analyses and would require this Court to draw precisely those lines that

we have held we are “particularly ill‐suited” to draw. Ford, 352 F.3d at 593.

The meals and drinks in McEachin, Williams, and Holland were violations of

Muslim law because they occurred during Ramadan. Drinking water or eating

prematurely, for example, is not prohibited except during fasts. This is why it was

important that the defendants’ conduct in those cases occurred during Ramadan.

Our holding was that Ramadan made the prisoner’s eating or drinking a sin; it

was not that Ramadan made that sin especially significant.

For Muslims who follow Islamic dietary laws, consuming pork is a sin at

any time, regardless of whether the consumption occurs during a holiday or not.

The Quran expressly commands against it. See, e.g., Quran 2:173. Accordingly,

when Muslim inmates are served meals containing pork, they are faced with the

choice of disobeying the commands of their faith or not eating. We have correctly

recognized that it is not generally the role of courts to distinguish between

important and unimportant religious beliefs. Ford, 352 F.3d at 593. And we should

be reluctant to draw lines that would distinguish and require us to give more

importance to some religious commands (such as fasting during Ramadan) over

others (such as abstaining from the consumption of pork). The defendants give us

28 no good reason to make such distinctions here. Indeed, it would be absurd to

require that courts, in order to determine what constitutes a substantial burden,

be made to decide the number of violations of a particular religious tenet that make

a sin grievous. Yet that is what the defendants’ arguments would force us to do.

We, therefore, hold that, even if the evidence had shown that Brandon was

denied only the 10 meals that were specifically identified by the magistrate judge,

the court below still erred in concluding, as a matter of law, that those 10 meals

did not constitute a substantial burden.11

For both of the reasons discussed above, the district court erred in granting

summary judgment to the defendants on Brandon’s free exercise claim.

3. Personal Involvement

The above errors do not end the inquiry, however. “It is well settled in this

Circuit that ‘personal involvement of defendants in alleged constitutional

deprivations is a prerequisite to an award of damages under § 1983.’” Wright v.

11We express no opinion as to whether a single meal or a smaller number of meals spread out over a longer period of time might perhaps be considered isolated incidents, such that the burden they impose is de minimis. See, e.g., Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010) (finding no First Amendment violation where the plaintiff alleged “only isolated incidents” of being served non‐kosher food); Gallagher v. Shelton, 587 F.3d 1063, 1071 (10th Cir. 2009) (finding that a single “isolated act of negligence” of using non‐kosher utensils was not a First Amendment violation); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (finding that 3 noncompliant meals out of 810 meals served to the plaintiff did not violate the First Amendment). On the facts before us, a reasonable jury could readily find that the 10 meals were not isolated incidents and hence that they imposed a substantial burden on Brandon’s religious beliefs. 29 Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal citation omitted). We must

determine, therefore, whether there is evidence that each individual defendant

was personally involved in denying Brandon religiously compliant meals.

Most cases addressing personal involvement do so in the context of

supervisory defendants. A supervisory official is personally involved if

(1) [he or she] participated directly in the alleged constitutional violation, (2) [he or she], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) [he or she] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) [he or she] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) [he or she] exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

In this case, four of the defendants—Kinter, Bedard, Laurin, and Clancy—

were supervisors. Brandon has introduced evidence showing that, under the

second prong enumerated above, all four supervisory defendants were aware of

his grievances and failed to remedy the recurring wrong.

Bedard concedes in his affidavit that he was aware that Brandon had filed

grievances about his meals. He further admits that he was responsible for

discussing “the components or ingredients of meals with the COs, and how this 30 related to any restrictions the kitchen had on file for various inmates, in attempts

to resolve any issues regarding an inmate being served a non‐compliant meal.”12

J.A. 325.

There is also evidence that Kinter, Laurin, and Clancy were each aware of

Brandon’s complaints. All three of them had signed off on one or more of

Brandon’s grievance forms. Clancy, for example, investigated Brandon’s claim

that there was pork in his meatless salad on October 17. Brandon avers that many

of the grievances he filed went unanswered and that he continued to be served

meals containing pork.

This evidence, therefore, is sufficient to create a genuine dispute as to

whether the four supervisory defendants were “informed of the violation through

a report or appeal” and “failed to remedy the wrong.” Colon, 58 F.3d at 873.

The remaining CO defendants are not supervisory officials, so we consider

only whether they participated directly in the violation. Brandon’s sworn

statements contain evidence that Webb and Perry each directly participated in at

least one incident involving a noncompliant meal. Brandon attests that, on

12Brandon also introduced evidence that Bedard participated directly in at least one violation. Brandon attests that, on October 29, Bedard admitted to using the serving spoon from the regular bean soup, which contained pork, to serve Brandon’s vegetarian bean soup. 31 November 5, he complained to Webb that there was pepperoni in his meal.

Brandon claims that, without asking the kitchen, Webb told Brandon that the

pepperoni was turkey, not pork, and further stated, “If you grieve this, I won’t get

you a replacement.” J.A. 38. As for Perry, Brandon states that, on December 25, he

complained to Perry that he could not eat the pork ribs that he was served.

Brandon claims that Perry responded, “C’mon Brandon, where’s your holiday

spirit?” J.A. 39.

On the other hand, there is no evidence that either Blaise or Wingler was

personally involved in denying Brandon a religiously compliant meal. The record

does not indicate that either of them responded to any of Brandon’s grievances

about his religious diet. Accordingly, we affirm the dismissal of Brandon’s free

exercise claim against Blaise and Wingler. We, however, permit Brandon to

proceed on the claim against the other six defendants before us.

4. Two Possible Defenses

The defendants raise two additional defenses that need to be addressed.

They claim that there is not sufficient evidence of intent to violate Brandon’s First

Amendment rights. And they assert that they are entitled to qualified immunity.

32 a. Mental State

Defendants argue that, for a First Amendment violation, Brandon must

show that each defendant had a requisite mental state. They do not specify what

they believe that mental state to be. They claim only that “mere negligence is

insufficient as a matter of law to state a claim under section 1983.” Appellees’ Br.

at 13 (quoting Poe v. Leonard, 282 F.3d 123, 145 (2d Cir. 2002); and citing Davidson

v. Cannon, 474 U.S. 344, 347 (1986)).

The cases on which defendants rely do not hold that all claims under § 1983

require a mental state greater than negligence. See Davidson v. Cannon, 474 U.S. 344

(1986) (holding only that negligence is not sufficient to establish liability under the

Due Process Clause); Poe v. Leonard, 282 F.3d 123, 145‐46 (2d Cir. 2002) (holding

that negligence is insufficient to support a finding of liability under two definitions

of personal involvement that expressly require gross negligence or deliberate

indifference). To the contrary, the § 1983 statute “contains no state‐of‐mind

requirement independent of that necessary to state a violation of the underlying

constitutional right.” Daniels v. Williams, 474 U.S. 327, 330 (1986). Daniels does not

foreclose all § 1983 claims based on negligence. The Supreme Court simply stated

that, “depending on the right, merely negligent conduct may not be enough to state

33 a claim” and expressly declined to “rule out the possibility that there are other

constitutional provisions that would be violated by mere lack of care.” Id. at 328,

330 (emphasis added).

Our Circuit has not stated whether a First Amendment free exercise claim

requires more than negligence, and we need not do so here. Even assuming

arguendo that it does, in the instant case, as we will outline shortly, Brandon has

introduced sufficient evidence to create a genuine dispute as to whether the

defendants acted with deliberate indifference in serving him pork. Under our

holding in Greenwich Citizens Communications, 77 F.3d 26 (2d Cir. 1996), deliberate

indifference clearly suffices. We, therefore, decline to reach the question of

whether something less than deliberate indifference—like negligence—would also

be sufficient to establish an affirmative First Amendment claim.

As outlined earlier, evidence in the record indicates that each of the

defendants who could be found to have been personally involved was aware that

Brandon had complained at least once about being served a meal containing pork.

These defendants either directly received a complaint from Brandon during

mealtime or signed off on a grievance that he filed. And, despite the defendants’

awareness of the problem, there is evidence both that Brandon continued to be

34 served noncompliant meals and that, on at least three occasions, Brandon found

meat in his “meatless” meal while other Muslim detainees had no meat in their

meals. It follows that a reasonable jury could infer from this difference in treatment

that Brandon was being specifically targeted for noncompliant meals. Moreover,

a jury could also find that several of the defendants made statements that support

an inference of deliberate indifference as to this treatment. For example, there is

evidence that Perry replied to Brandon’s complaint by saying, “C’mon Brandon,

where’s your holiday spirit?”; that Webb stated, “If you grieve this, I won’t get

you a replacement”; and that Kinter stated, “You can starve for all I care, since you

want to knit [sic] pick and complain about everything, you’ll get what we give

you.” J.A. 26, 38‐39.

We conclude that a reasonable jury could find that the defendants acted

with deliberate indifference to Brandon’s free exercise rights. Accordingly, and for

those reasons, we need not decide at this time whether negligence would also be

sufficient to state a claim under the Free Exercise Clause.

35 b. Qualified Immunity

Defendants also argue that they are entitled to summary judgment on the

ground of qualified immunity.13 We disagree. A defendant is entitled to qualified

immunity if “(1) [the defendant’s] conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known,

or (2) it was objectively reasonable for [the defendant] to believe that his actions

were lawful at the time of the challenged act.” Cerrone v. Brown, 246 F.3d 194, 199

(2d Cir. 2001) (internal quotation marks omitted).

It is clearly established law in our Circuit that “to deny prison inmates the

provision of food that satisfies the dictates of their faith does unconstitutionally

burden their free exercise rights.” McEachin, 357 F.3d at 201. The defendants

contend, however, that the law was not clearly established as to how many

religiously compliant meals must be denied before the prisoner’s religious beliefs

are substantially burdened. Assuming arguendo that this is so, the argument cannot

save them. As discussed above, a genuine dispute of material fact exists as to the

number of noncompliant meals that Brandon was served. Based on the evidence

in the record, a reasonable jury could find that Brandon was denied 63 religiously

The defendants raise their qualified immunity defense only against Brandon’s free exercise claim. They 13

make no mention of such a defense against Brandon’s retaliation claim. 36 appropriate meals. And the defendants make no argument that a reasonable

officer would have believed that 63 noncompliant meals was not a substantial

burden.14

Retaliation Claim

In addition to his free exercise claim, Brandon also alleges that the

defendants violated the First Amendment by retaliating against him for filing

meal‐related grievances. While the nature of his retaliation claim was somewhat

unclear before the court below, he now identifies three retaliatory actions.

14The defendants may, of course, still argue at trial that they reasonably believed that the meals actually did not contain pork. But because genuine disputes exist as to the facts underlying such a defense, we cannot grant summary judgment to the defendants on such a ground. We today also hold that even the 10 meals that concededly contained pork violated Brandon’s rights. Given the material dispute as to the number of pork‐containing meals that were served to Brandon, we need not today decide what number of meals would constitute a sufficiently clear violation of Brandon’s rights as to preclude a qualified immunity defense. 37 Brandon asserts that, in retaliation for exercising his First Amendment right

to file grievances, (1) Kinter and Laurin removed his medical diet, (2) Bedard

intentionally served him meals containing pork, and (3) Clancy and Blaise exposed

him to being spat on by another inmate.15 The defendants argue that Brandon has

not introduced evidence sufficient to allow a reasonable jury to find that they

retaliated against him. We disagree and hold that genuine disputes of material fact

exist as to Brandon’s retaliation claims.

1. Standard for First Amendment Retaliation Claims

To establish a First Amendment retaliation claim, a plaintiff must show “(1)

that the speech or conduct at issue was protected, (2) that the defendant took

adverse action against the plaintiff, and (3) that there was a causal connection

between the protected speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d

379, 380 (2d Cir. 2004). The defendant may nonetheless avoid liability by showing

that he or she would have taken the adverse action “even in the absence of the

protected conduct.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003).

15Although Brandon asserts his retaliation claim against all the defendants, he makes no allegations that Wingler, Webb, or Perry were personally involved in any of the retaliatory actions against him. Accordingly, we affirm the dismissal of the retaliation claims as to those defendants, and we consider the retaliation claim only against Bedard, Kinter, Laurin, Clancy, and Blaise. 38 The filing of prison grievances is a protected activity. Davis v. Goord, 320 F.3d

346, 352‐53 (2d Cir. 2003). Therefore, the first element of Brandon’s retaliation

claim is satisfied, and we need consider only the latter two elements.

An adverse action is defined as “retaliatory conduct that would deter a

similarly situated individual of ordinary firmness from exercising his or her

constitutional rights.” Id. at 353. It might seem that, because Brandon continued to

file grievances even after the alleged retaliation, the defendants’ actions were not

sufficiently adverse. But such a view misperceives what constitutes adverse action.

The test is objective, and the plaintiff is not required to show that he was actually

deterred. Gill, 389 F.3d at 381. Thus, our Circuit has permitted retaliation claims to

proceed when a reasonable inmate would be deterred, even though the particular

plaintiff continued to file grievances. Id. For, as we have stated, a prisoner “should

not be denied remedy because his extraordinary efforts resulted in the resolution

of grievances that would have deterred a similarly situated individual of ordinary

firmness.” Id.; see also Davis, 320 F.3d at 353.

Once an adverse action is adequately shown, a plaintiff must still introduce

evidence “sufficient to support the inference that the speech played a substantial

part in the adverse action.” Davis, 320 F.3d at 354. That is, a plaintiff must establish

39 a causal connection between the defendants’ actions and the adverse action. And,

as mentioned earlier, mere negligence is not enough to support a claim of

retaliation. A plaintiff must show some evidence of retaliatory intent to cause the

adverse effect. Greenwich Citizens Comm., 77 F.3d at 31.

One way a plaintiff can establish a causal connection is by “showing that

protected activity was close in time to the adverse action.” Espinal v. Goord, 558

F.3d 119, 129 (2d Cir. 2009). Our Circuit has declined to draw a bright line as to

how close in time the events must be. We have instead called on courts to exercise

“judgment about the permissible inferences that can be drawn from temporal

proximity in the context of particular cases.” Id.

With these standards in mind, we address each of Brandon’s retaliation

claims.

2. Removal of Brandon’s Medical Diet

A reasonable jury could conclude that the removal of medical dietary

restrictions would deter an inmate of ordinary firmness from filing further

grievances. We therefore hold that Brandon has introduced sufficient evidence to

support his claim that Kinter and Laurin took adverse action against him. In

Brandon’s case, his medical diet ensured that he would not be served foods that

40 he was allergic to, that gave him severe acid reflux, and that could exacerbate his

high cholesterol and heart problems. Given the potential consequences for

Brandon’s health, the removal of his medical diet could reasonably be found to be

an adverse action. See Davis, 320 F.3d at 353 (finding that “it is possible that there

were adverse effects resulting from [the prisoner] not being given his high fiber

diet”).

Brandon also introduced evidence sufficient to create a genuine dispute as

to whether there was a causal connection between Brandon’s grievances and

Kinter’s and Laurin’s decision to remove his medical diet.

Brandon relies in part—but only in part—on temporal proximity. He claims

that he filed 8 grievances between September 27 and October 15. Then, on October

15, Laurin held an informal hearing at which he asked about Brandon’s

commissary purchases, and on October 16, Kinter removed Brandon’s medical

diet, allegedly as a result of those purchases.

The temporal proximity of these events somewhat supports an inference of

causation. The strength of that inference is, however, limited by the frequency with

which Brandon filed grievances throughout his incarceration. Brandon filed 41

grievances, beginning on May 28. Because of this high number, almost any event

41 during Brandon’s incarceration would likely be temporally close to at least one or

a few of his grievances. On the other hand, Brandon’s temporal proximity

argument is strengthened by the fact that a higher concentration of his grievances

were filed in September and October, prior to the removal of his medical diet.

We conclude that temporal proximity provides some evidence of causation

in this case, but that evidence is not as strong as it would have been had Brandon

filed fewer grievances in total.16

We need not, however, decide whether Brandon’s evidence of temporal

proximity is sufficient to survive summary judgment. Significantly, Brandon does

not rely exclusively on temporal proximity to establish causation. Additionally, he

attests that Kinter and Laurin made statements indicating retaliatory animus. For

example, Brandon avers that, at the informal hearing on October 15, Laurin angrily

stated, “No one will get into Clinton County’s business!” J.A. 25. And that this

outburst was in response to his request for the address of CPCRC in order to seek

assistance with his complaints. Brandon also attests that, on October 16, Kinter

16Our reasoning should not be read to imply that a prisoner who has filed a high number of grievances frequently or consistently cannot establish causation by temporal proximity. Our Circuit has chosen to let the determination of what inferences can be made from temporal proximity be based on the particular facts of each case. See Espinal, 558 F.3d at 129. 42 stated, “You can starve for all I care, since you want to knit [sic] pick and complain

about everything, you’ll get what we give you.” J.A. 26.

We agree with Brandon that these statements, combined with the asserted

temporal proximity, suffice to permit a jury reasonably to find that Kinter and

Laurin were motivated by retaliatory intent when they removed Brandon’s

medical diet.

Kinter and Laurin argue, however, that they would have removed

Brandon’s medical diet even if he had not filed any grievances. According to them,

his diet was removed because he made commissary purchases that were

inconsistent with his diet. But the veracity of this explanation is subject to genuine

dispute. There is evidence in the record to show that the commissary records were

a pretext for retaliation. Laurin’s grievance investigation report states, “As has

been done in the past when a large amount of grievances are filed on diets[,] the

commissary receipts are reviewed.” J.A. 203. Based on that statement, a reasonable

jury could find that the defendants would not have investigated Brandon’s

commissary purchases—and therefore would not have removed his medical

diet—had he not filed any grievances.

43 Accordingly, we conclude that the district court erred in granting summary

judgment to Laurin and Kinter; on remand, Brandon may proceed on his

retaliation claim against them.

3. Intentional Introduction of Pork into Brandon’s Meals

Similarly, we hold that summary judgment in favor of Bedard with respect

to the purposeful introduction of pork into Brandon’s meals is also improper. A

reasonable jury could find that intentionally placing pork in Brandon’s meals

would deter an inmate of ordinary firmness from continuing to grieve that

violation. Certainly, there is no point to filing a grievance if the grievance results

in more of the complained‐of conduct. Therefore, under the second element of

Brandon’s retaliation claim, Bedard’s alleged actions could reasonably be found to

be adverse.

To show causation, Brandon again relies on temporal proximity, this time

coupled with a comparison to the meals of other Muslim inmates. Brandon

identifies several instances in which, after having filed numerous grievances in the

days and weeks prior, he was served pork. For the reasons discussed above, due

to the frequency with which Brandon filed grievances, this temporal proximity is

of limited significance.

44 But there is other evidence supporting Brandon’s claim that he was

specifically targeted by Bedard. On at least three instances, Brandon avers that he

received pork in a supposedly “meatless” meal. Although Clancy and Bedard

claim that two of those instances were accidents, Brandon attests that he compared

his meal with that of other Muslim inmates and found that his was the only meal

with pieces of meat. He argues, plausibly, that this consistent difference in

treatment supports his argument that the pork was placed in his meal

intentionally. The matter is close. But we conclude that a reasonable jury could

find that the temporal proximity and difference in treatment together are sufficient

to support an inference of causation and retaliatory intent.

4. Exposure to Assault

Finally, we hold that Brandon has also introduced sufficient evidence to

create a genuine dispute of material fact as to whether Clancy and Blaise retaliated

against him by exposing him to assault by another inmate, Tiny.

Tiny spat on Brandon. This, while an assault, is not an especially egregious

one. Nevertheless, Tiny was aggressive and had a history of physically attacking

another inmate. When Clancy placed Tiny in the cell next to Brandon and Blaise

subsequently instructed Brandon to pick up Tiny’s tray, they exposed him to

45 potential assault. They could not have known beforehand whether Tiny would

spit on Brandon or attack him physically in some more serious manner.

A reasonable jury could conclude that an inmate of ordinary firmness would

be deterred from filing additional grievances if doing so would place him in

harm’s way and at the mercy of other inmates. We do not doubt that exposing a

prisoner to potential assault by another inmate can constitute an adverse action,

even if the actual resulting assault turns out to be relatively minor.

As to causation, Brandon’s evidence again consists of a combination of

temporal proximity and statements showing retaliatory animus. Here, the

temporal proximity argument is even weaker than for the prior two claims.

Brandon argues that he filed 26 grievances between September 15 and November

17, that Tiny was transferred to the cell next to his on November 17, and that Tiny

spat on him on November 19. The 26 grievances Brandon cites, however, were

more highly concentrated in September and October. For the reasons discussed

above, the frequency of Brandon’s grievances and their timing weaken the

inference that can be drawn based on temporal proximity.

Brandon, however, also points to statements that he claims were made by

Clancy and Blaise. And we conclude that these are sufficient to create a genuine

46 dispute of material fact as to retaliatory intent and causation. Brandon avers that,

on October 17, a month before the assault, Clancy stated, “If he grieves another

tray, I’m going to lock his ass up!” J.A. 36. Brandon further attests that, on

November 17, when Clancy and Blaise transferred Tiny to his cell, Clancy said to

Blaise, “[L]et’s see if he tries that shit on Brandon!” J.A. 48. As for Blaise, Brandon

claims that, after Tiny spat on him, Blaise laughed and said, “I can’t believe he

f***ing spit on you!” J.A. 48. When Brandon asked for a grievance, Blaise stated,

“[G]ive me a break Brandon, you know you had that coming.” J.A. 48‐49.

Viewing the evidence in the light most favorable to Brandon, as we must do

at summary judgment, we hold that a reasonable jury could find that the above

evidence was sufficient to support an inference of causation.

CONCLUSION

For the foregoing reasons, the district court’s decision is VACATED in part

and AFFIRMED in part. Specifically, we VACATE the district court’s decision and

REMAND for Brandon to proceed on his free exercise claim against Defendants

Kinter, Bedard, Laurin, Clancy, Perry, and Webb and on his retaliation claim

against Defendants Bedard, Kinter, and Laurin. And we AFFIRM the district

court’s decision dismissing the free exercise claim against Defendants Blaise and

47 Wingler and dismissing the retaliation claim against Defendants Webb, Wingler,

and Perry.