21-533 Wiggins v. Griffin, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2022
(Argued: January 6, 2023 Decided: November 20, 2023)
Docket No. 21-533
____________________
ROBERT E. WIGGINS,
Plaintiff-Appellant,
v.
THOMAS GRIFFIN, Superintendent, M. KOPP, Deputy Superintendent of Programs, D. HOWARD, Assistant Deputy Superintendent of Programs, and DR. G. JEBAMANI, Protestant Chaplain,
Defendants-Appellees.
Before: KEARSE and MENASHI, Circuit Judges. *
*Judge Rosemary S. Pooler, originally a member of the panel, died on August 9, 2023. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). Robert E. Wiggins, a practicing Baptist, was incarcerated in the Green Haven
Correctional Facility from 2002 until 2018. After prison officials failed to update
the Protestant services “call-out list,” Wiggins was excluded from all religious
services for over five months. He sued Green Haven officials Thomas Griffin, M.
Kopp, D. Howard, and Dr. G. Jebamani under 42 U.S.C. § 1983, alleging that they
violated his constitutional rights. The United States District Court for the Southern
District of New York (Philip M. Halpern, J.) granted the defendants’ motion for
summary judgment, reasoning that (1) the defendants did not substantially
burden Wiggins’s free exercise of religion, (2) the defendants were entitled to
qualified immunity, and (3) if there were a constitutional violation, Kopp was not
personally involved in it.
We affirm in part, vacate in part, and remand to the district court for further
proceedings. First, we conclude that the defendants’ failure to update the
Protestant services call-out list, which prevented Wiggins from attending worship
services for over five months, substantially burdened his religious exercise.
Second, because disputed issues of material fact remain, qualified immunity
cannot shield the defendants from liability at this juncture. Third, Wiggins
sufficiently alleged Kopp’s personal involvement in a First Amendment violation by pleading that Kopp took no action even after she was informed that Wiggins’s
rights were being infringed. Finally, we hold that a Section 1983 free exercise claim
requires a plaintiff to demonstrate the defendant’s deliberate indifference to the
plaintiff’s rights. We remand to the district court to consider whether evidence of
Kopp’s, Howard’s, and/or Jebamani’s conduct suffices to permit a finding of
deliberate indifference. But because Griffin is alleged to have engaged in (at most)
an isolated act of negligence, we affirm the dismissal of the claim against him.
Judge Menashi concurs in a separate opinion.
JENNIFER LOEB (Meredith Kotler, Andrew Henderson, and Matthew Steyl, on the brief), Freshfields Bruckhaus Deringer US LLP, New York, NY, for Plaintiff-Appellant Robert E. Wiggins.
ERIC DEL POZO, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Judith N. Vale, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Defendants-Appellees Thomas Griffin, M. Kopp, D. Howard, and Dr. G. Jebamani.
3 PER CURIAM:
Robert E. Wiggins, a practicing Baptist, was incarcerated in the Green Haven
Correctional Facility (“Green Haven”) from 2002 until 2018. When he arrived at
Green Haven, he registered as a Baptist and was placed on the Protestant services
“call-out list,” enabling his regular attendance at the prison’s weekend worship
services and mid-week bible study. But after prison officials transferred Wiggins
to a new cellblock, they failed to update the call-out list to reflect his relocation.
Despite his repeated requests to update the call-out list with his name, Wiggins
was deprived of all religious services for over five months before officials
eventually reinstated him to the list.
Wiggins sued Green Haven officials Thomas Griffin, M. Kopp, D. Howard,
and Dr. G. Jebamani (collectively, “Defendants”) under 42 U.S.C. § 1983. He
alleged that Defendants violated his First Amendment right to the free exercise of
religion by failing to update the call-out list. The district court granted summary
judgment to Defendants, reasoning that Wiggins’s free exercise rights were not
substantially burdened. Additionally, the district court concluded that Defendants
4 were shielded by qualified immunity and that Wiggins failed to plead Kopp’s
personal involvement in a First Amendment violation.
On appeal, Defendants concede that Wiggins’s free exercise rights were
substantially burdened. They nevertheless maintain that the judgment can be
affirmed pursuant to the doctrine of qualified immunity. Alternatively,
Defendants ask us to decide the requisite mental state for a Section 1983 free
exercise claim and argue that negligence is insufficient. Wiggins, however, sees
things differently. He points to disputed issues of material fact and evidence that
suggest Defendants’ deliberate indifference.
We affirm in part and vacate in part the district court’s decision. We
conclude that Wiggins’s free exercise rights were substantially burdened, that
disputed issues of material fact preclude Defendants from qualifying for
immunity at this juncture, and that the record contains sufficient evidence to show
that Kopp was informed of, but failed to take any action to remedy, the violation
of Wiggins’s rights that was within her sphere of responsibility. We also hold that
Section 1983 free exercise claims require a showing of deliberate indifference, and
5 we remand to the district court to consider whether the conduct of Kopp, Howard,
and/or Jebamani meets this standard. But because we find that Griffin engaged in
(at most) an isolated act of negligence, we affirm the dismissal of the claim against
him.
BACKGROUND
I. Factual Background
The district court disposed of Wiggins’s claims pursuant to a motion for
summary judgment. Therefore, we recount the following evidence 2 in the light
most favorable to Wiggins, drawing all available inferences in his favor. Ford v.
McGinnis, 352 F.3d 582, 597 (2d Cir. 2003).
Wiggins was incarcerated in Green Haven from 2002 until 2018. Green
Haven follows New York State Department of Corrections and Community
Supervision Directive 4202, governing the administration of religious programs in
2 Wiggins’s complaint was sworn under penalty of perjury, and we consider its factual assertions as evidence for summary judgment purposes. Brandon v. Kinter, 938 F.3d 21, 26 n.5 (2d Cir. 2019). 6 New York state prisons. Under this directive, in order to attend religious services,
an incarcerated individual must register as an adherent of a particular faith and
request to be placed on a “call-out list.” Unlike other records maintained by Green
Haven, religious call-out lists do not automatically change to reflect an inmate’s
transfer to a new prison location. Thus, when an individual is relocated to a
different part of Green Haven, prison officials must manually update the list to
reflect the transfer.
Wiggins was raised in the Baptist church and identifies himself as a Baptist
or a Protestant. He attended church services throughout his life, which he views
as a “fundamental act of worship.” App’x at 16. At Green Haven, Wiggins
registered as a Baptist and took part in Saturday and Sunday worship services
“[e]very weekend, unless [he] was sick or [he] couldn’t go,” which “wasn’t too
often.” App’x at 125. He also frequented Green Haven’s mid-week bible study.
Though 160 to 180 observers typically attend Sunday morning services, only 60 to
70 individuals participate in the other Protestant services offered at the prison.
7 On April 3, 2017, prison officials transferred Wiggins to a new cellblock.
However, the call-out list was not updated to indicate his relocation. Initially,
when officers told Wiggins that he was not on the new cellblock’s call-out list,
Wiggins assumed the list had not “c[aught] up” with his relocation. App’x at 454.
But when Wiggins was not called for religious services again the following week,
he asked the officers to put his name on the call-out list. He continued making
these requests “every Saturday and Sunday.” App’x at 14. The officers responded
with “verbal[] threats” and “abusive language.” App’x at 16-17.
As the weeks progressed, Wiggins pressed on. He sent several call-out
requests to Jebamani, the Protestant chaplain “responsible for carrying out all
aspects of . . . religious programs.” App’x at 294. Wiggins also handed call-out
requests to churchgoers, asking them to pass the notes to Jebamani. Jebamani did
not respond to, and stated that he did not remember receiving, these requests. On
May 2, 2017, Wiggins sent Jebamani a letter regarding the issue. Still, Jebamani did
not respond. Then, on May 7, 2017, Wiggins wrote to Griffin, the Superintendent
8 at Green Haven. Wiggins implored Griffin to investigate his exclusion from the
call-out list. Griffin did not respond.
Jebamani did not directly answer Wiggins. However, Jebamani stated that
he contacted the Deputy Superintendent of Programs—either Kopp or Howard 3—
on June 5, 2017, requesting Wiggins’s reinstatement to the call-out list. Jebamani
stated that he sent another interdepartmental communication on July 25, 2017. His
efforts were met with silence. Afterwards, Jebamani took no further action.
By September 2017, Wiggins remained unable to attend communal worship.
He wrote again to Griffin on September 18, 2017, asserting that he was “being
denied the right to attend religious services” and asking Griffin to address the
matter. App’x at 342. Wiggins filed a formal complaint with the Inmate Grievance
Resolution Committee that same day. This time, Griffin’s office forwarded
3 The record reflects some confusion among Defendants as to who was the “Deputy Superintendent of Programs.” In her affidavit, Kopp identified herself as Deputy Superintendent for Programs. In response to Wiggins’s interrogatories, Howard also listed himself as Deputy Superintendent of Programs. In other documents, however, Howard stated that he was Assistant Deputy of Programs or Assistant Deputy Superintendent for Program Services. 9 Wiggins’s letter to Howard as Assistant Deputy of Programs, who updated the
call-out list on September 20, 2017. Wiggins was eventually able to attend worship
services on September 23.
II. Procedural History
Wiggins instituted this pro se action on August 16, 2018. He alleged that
Defendants violated his First and Fourteenth Amendment rights by failing to
update the call-out list. 4
On February 22, 2021, the district court granted Defendants’ motion for
summary judgment, dismissing the case. In its decision, the district court
determined that Wiggins’s exclusion from communal worship did not constitute
a substantial burden on his religious beliefs because he “occasionally missed
religious services” while imprisoned. Wiggins v. Griffin, No. 18-CV-07559, 2021 WL
706720, at *4 (S.D.N.Y. Feb. 22, 2021). It highlighted Wiggins’s decision to wait five
4 Wiggins abandoned his Fourteenth Amendment claim on appeal. 10 months before filing a formal complaint and concluded on that basis that Wiggins
“was not that concerned about the issue.” Id.
The district court provided alternative bases for its decision. First, the
district court held that Defendants were shielded from liability under the doctrine
of qualified immunity. It determined that Wiggins did not have a “clearly
established right to attend religious services despite the fact that his name did not
appear on a call-out list.” Id. at *6. And because Defendants eventually remedied
the situation, the district court concluded that each defendant was neither “plainly
incompetent [n]or in knowing violation of the law.” Id. Second, the district court
dismissed claims against Kopp on the ground that Wiggins’s complaint did “not
include any allegations” against her. Id. at *5 n.5.
Wiggins timely appealed.
DISCUSSION
We review de novo the district court’s grant of summary judgment. See
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Summary judgment is appropriate
when, viewing the evidence favorably to the non-movant, there is no genuine issue
11 of material fact and the facts as to which there is no such issue warrant the entry
of judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). “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.” Brandon, 938 F.3d at 31
(internal quotation marks omitted). “Thus, although the court should review the
record as a whole, it must disregard all evidence favorable to the moving party
that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 151 (2000).
I. Substantial Burden
We begin our discussion with the continued vitality of the substantial
burden test. The Free Exercise Clause of the First Amendment safeguards religious
practice, providing that “Congress shall make no law . . . prohibiting the free
exercise” of religion. U.S. Const. amend. I. Incarcerated individuals “retain some
measure of th[is] constitutional protection.” Ford, 352 F.3d at 588. Seeking to
balance the rights of incarcerated persons with the “interests of prison officials” in
12 performing their complex duties in administering the penal system, we have
required a threshold showing that a prison official’s conduct “substantially
burdens” an incarcerated individual’s “sincerely held religious belief.” Brandon,
938 F.3d at 32 (internal quotation marks omitted). Even if this burden is met, a
defendant may still avoid liability by showing the conduct at issue was
“reasonably related to legitimate penological interests.” See Holland v. Goord, 758
F.3d 215, 222 (2d Cir. 2014) (internal quotation marks omitted).
A burden on religious exercise is not substantial when 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.” Ford, 352 F.3d
at 593. We have explained, however, that preventing an incarcerated person from
attending communal religious services without justification cannot be described
as constitutionally de minimis. See Sabir v. Williams, 52 F.4th 51, 65 n.9 (2d Cir.
2022) (“[P]reventing a prisoner from engaging in congregational prayer
constitutes a substantial burden on the prisoner’s religious exercise.”).
13 We have not decided whether the substantial burden test survives
Employment Division v. Smith, 494 U.S. 872 (1990). See Holland, 758 F.3d at 220;
Brandon, 938 F.3d at 32 n.7. In Smith, the Supreme Court held that an alleged free
exercise violation stemming from a facially neutral law of general applicability
could not be evaluated under a balancing test. 494 U.S. at 884-85. It also “took issue
with the premise that courts can differentiate between substantial and
insubstantial burdens.” Ford, 352 F.3d at 592 (describing Smith). Wiggins thus
asserts that the substantial burden test has no continued place in our jurisprudence
because it seeks to “determine the place of a particular belief in a religion”—in
direct contravention of Smith. Appellant’s Br. at 23 (quoting Smith, 494 U.S. at 887).
Indeed, our sister circuits disagree about whether the sun has set on this test.
Brandon, 938 F.3d at 32 n.7 (collecting cases). But we need not answer the question
here because Defendants concede that the burden on Wiggins’s rights was
substantial. See Appellee’s Br. at 39.
It is undisputed that the call-out list was not timely updated, without
justification. Because of this unjustified delay, Wiggins was unable to engage in a
14 “fundamental act of worship” for over five months. App’x at 16. As Defendants
now concede, this amounted to a substantial burden on Wiggins’s free exercise
rights. See Appellee’s Br. at 39 (“Wiggins’[s] sincerely held religious beliefs were
substantially burdened by his allegedly months-long inability to attend
congregate prayer services.”); see also Sabir, 52 F.4th at 65 n.9.
We note several problematic inferences reached by the district court in its
conclusion that Wiggins suffered no substantial burden. The district court
reasoned that Wiggins was never forced “to modify his behavior or violate his
beliefs” because he “occasionally missed religious services.” Wiggins, 2021 WL
706720, at *4. But Wiggins testified that between 2002 and 2017 he attended
congregational services “[e]very weekend” except when he “couldn’t go” because
he was sick or had a visit, which “wasn’t too often.” App’x at 125. We have never
construed the substantial burden test so narrowly as to suggest that an
individual’s intermittent absences, in the context of a lifetime of worship, indicates
the unimportance of the religious practice. See Brandon, 938 F.3d at 32
(“[E]stablishing a substantial burden is not a particularly onerous task.” (internal
15 quotation marks omitted)). Moreover, there is no indication that Wiggins had ever
abstained from worship services for months-long periods, indicating that inaction
by one or more Defendants did, in fact, force Wiggins to modify his behavior and
violate his beliefs. See Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (explaining
that “a substantial burden exists where the state puts substantial pressure on an
adherent to modify his behavior and to violate his beliefs” even for “only a short
period of time” (internal quotation marks omitted)).
The district court also posited that Wiggins “was not that concerned about
the issue” because he failed to file a formal grievance for several months. Wiggins,
2021 WL 706720, at *4. This inference ignores that Wiggins twice a week requested
that the call-out list be updated, passed notes about the issue to Jebamani, and sent
letters to both Griffin and Jebamani. We reiterate the danger of making
“conclusory judgments about the unimportance of the religious practice to the
adherent,” Ford, 352 F.3d at 593, especially when there is evidence to the contrary.
At bottom, because there is evidence from which a jury could find that the
conduct of one or more Defendants placed a substantial burden on Wiggins’s
16 religious exercise, we avoid the question of whether the substantial burden
requirement survives Smith. See Holland, 758 F.3d at 220-21 (declining to address
the “continued vitality of the substantial burden requirement” when the plaintiff’s
religious exercise was substantially burdened). And because Defendants concede
that Wiggins’s rights were substantially burdened, summary judgment on this
basis was improper.
II. Qualified Immunity
We next turn to the doctrine of qualified immunity. The district court
concluded that Wiggins did not have the “right to attend religious services despite
the fact that his name did not appear on a call-out list.” Wiggins, 2021 WL 706720,
at *6. Wiggins argues that this inaccurately captures the scope of his right. On
appeal, Defendants abandon the district court’s framing, instead asserting that
Wiggins did not have a clearly established right to a “call-out system that
automatically updates.” Appellee’s Br. at 35.
Qualified immunity is meant to “provide[] ample protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475
17 U.S. 335, 341 (1986). The doctrine shelters a defendant whose “conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Brandon, 938 F.3d at 39 (internal quotation marks
omitted). We find a right clearly established when “(1) the law is defined with
reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the
right, and (3) a reasonable defendant would have understood from the existing
law that his conduct was unlawful.” Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004)
(internal quotation marks and alterations omitted). Even when we find a right
clearly established, defendants “may nonetheless establish immunity by showing
that reasonable persons in their position would not have understood that their
conduct was within the scope of the established prohibition.” LaBounty v. Coughlin,
137 F.3d 68, 73 (2d Cir. 1998) (internal quotation marks omitted).
We acknowledge that defining a right at the appropriate level of generality
is not always straightforward. Id. (observing that “accurately defining the right at
issue” is a “chronic difficulty . . . for courts”). This is apparent when, as in this case,
the parties and the district court each articulate a different right at stake. The
18 Supreme Court has cautioned that a broadly defined right creates “virtually
unqualified liability,” Anderson v. Creighton, 483 U.S. 635, 639 (1987), yet we have
also recognized that a too-narrowly defined right “effectively insulate[s] the
government’s actions,” LaBounty, 137 F.3d at 73.
The district court erred in defining Wiggins’s right as the “right to attend
religious services despite the fact that his name did not appear on a call-out list.”
Wiggins, 2021 WL 706720, at *6. Not only is this characterization of the right at issue
too narrow; it ignores the substance of Wiggins’s pleas. Wiggins did not challenge
the prison’s use of a call-out list generally. Rather, he contested Defendants’
inaction in response to his requests to be reinstated on such list. Nevertheless,
Defendants argue that an incarcerated individual does not have a clearly
established right to a “call-out system that automatically updates.” Appellee’s Br.
at 35. We have never found such a narrowly construed right.
We have, however, held that incarcerated individuals have the right to
engage in religious exercise absent a legitimate penological justification for the
denial. See Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (“Summary
19 judgment on the basis of qualified immunity is not appropriate because it was
clearly established law at the time of the alleged violations that religious exercise
may not be denied without any reason.”). The failure of prison administrators to
update the call-out list violated this clearly established right.
Whether any of the Defendants are liable for the violation of this clearly
established right depends on the resolution of competing narratives. The record
indicates that Jebamani failed to act on Wiggins’s requests for over a month.
Jebamani asserts that in June and again in July he finally sent interdepartmental
communications to either Kopp or Howard as the Deputy Superintendent of
Programs. But the Deputy did not process the requests, and Kopp and Howard
both deny knowledge of the requests. Moreover, when Kopp or Howard failed to
act, Jebamani took no further action. All the while, Jebamani, Kopp, and Howard
were aware that the call-out list was not automatically updated. In other words, if
they knew of Wiggins’s requests, they would have known that Wiggins’s ability
to attend religious services depended on their input.
20 On the issue of whether Kopp or Howard was aware of Wiggins’s requests,
depending on whose testimony we credit, there are at least three versions of
events: that Jebamani sent the communications to Kopp but not Howard; that
Jebamani sent the communications to Howard but not Kopp; or that Jebamani sent
the communications to neither of them. It is thus possible for a jury to conclude
that fewer than all Defendants are liable—if, for example, it finds that Kopp but
not Howard received Jebamani’s communications.
However, it is not the court’s role on summary judgment to make
“[a]ssessments of credibility and choices between conflicting versions of the
events.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015) (internal
quotation marks omitted); see also Reeves, 530 U.S. at 151 (stating that on summary
judgment a court “must disregard all evidence favorable to the moving party that
the jury is not required to believe”). Rather, we draw factual inferences in
Wiggins’s favor with respect to his claim against each Defendant separately. In
considering Wiggins’s claim against Jebamani, we adopt the inference that
Jebamani never sent the communications to the Deputy—thereby crediting Kopp’s
21 and Howard’s assertions 5—or otherwise failed adequately to respond to
Wiggins’s repeated requests. In considering Wiggins’s claim against Kopp, we
adopt the inference that Kopp received Jebamani’s communications—thereby
crediting Jebamani’s assertion that he sent the communications and Howard’s
assertion that they were not directed to him. And in considering Wiggins’s claim
against Howard, we adopt the inference that Howard received Jebamani’s
communications—thereby crediting Jebamani’s assertion that he sent the
communications and Kopp’s assertion that they were not directed to her.
5 The record contains documents which Jebamani asserts are the June 5, 2017 and July 25, 2017 communications sent from him to the Deputy Superintendent of Programs relaying Wiggins’s call-out list requests. See App’x at 359-60. These documents appear to be from Jebamani’s records, so we cannot tell whether they were actually sent to or received by the Deputy. Furthermore, the document showing Jebamani’s July 25 communication—unlike the June 5 document—is not on Department of Corrections and Community Supervision letterhead, has no “To” or “From” lines, and at the top of the page has only a handwritten date of July 25, 2017. App’x at 360. 22 In short, a jury may find that one or more Defendants 6 purposefully ignored
or delayed processing Wiggins’s requests, seeking to deny his participation in
communal worship, or may have been deliberately indifferent to Wiggins’s
requests. In such a scenario, they would have violated Wiggins’s clearly
established right. See Sabir, 52 F.4th at 64-65. Furthermore, because Defendants
acknowledged that the call-out system required their input, they could not escape
liability by arguing that “reasonable persons in their position would not have
understood that their conduct was within the scope of the established
prohibition.” See LaBounty, 137 F.3d at 73 (internal quotation marks omitted). But,
on the other hand, a Defendant may have simply missed Wiggins’s requests or
failed to take extra steps to ensure they were processed. If so, qualified immunity
may be appropriate.
6 Because we affirm the judgment as to Griffin, we do not address whether qualified immunity would have shielded his conduct. 23 Because the record contains evidence to support the conflicting accounts,
the question is one for the jury. See Jones v. Parmley, 465 F.3d 46, 64 (2d Cir. 2006).
Jebamani, Kopp, and Howard are not entitled to qualified immunity at this stage.
III. Personal Involvement
We also consider the district court’s dismissal of claims against Kopp
because Wiggins’s complaint “d[id] not include any allegations against” her.
Wiggins, 2021 WL 706720, at *5 n.5. Wiggins maintains that he sufficiently alleged
Kopp’s personal involvement.
To establish a Section 1983 violation, a plaintiff must plead (and later prove)
that each defendant was personally involved in the alleged constitutional
violation. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). We liberally
construe submissions from pro se plaintiffs, 7 interpreting them to make “the
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (emphasis omitted).
7Although Wiggins is represented by counsel on appeal, he was pro se before the district court. 24 In his complaint, Wiggins alleged that Kopp was the Deputy
Superintendent of Programs at Green Haven and was “responsible for [the
prison’s] day-to-day activities and the involvement of the Facility Chaplains and
their approved religious programs and services call-outs.” App’x at 13. He averred
that Kopp had “actual and constructive notice” of the “on[]going denial of [his]
right to attend religious services.” App’x at 17. And he complained that Kopp’s
“inaction[]” caused a violation of his free exercise rights. App’x at 17. Construing
Wiggins’s complaint liberally, as we must, we conclude that he sufficiently alleged
Kopp’s personal involvement in a First Amendment violation. See Triestman, 470
F.3d at 474.
This conclusion has support in the record before us. The evidence
suggests—albeit not unequivocally, see supra note 3—that Kopp was the Deputy
Superintendent of Programs, and Jebamani stated that he sent two requests to the
Deputy Superintendent of Programs that asked for Wiggins’s reinstatement to the
call-out list. The record also supports the inference that the Deputy Superintendent
of Programs failed to act upon these requests. Although Kopp denied any personal
25 involvement in the circumstances underlying Wiggins’s claim, the record reflects
a genuine dispute as to whether her inaction substantially burdened Wiggins’s
free exercise rights. 8 As such, we vacate the district court’s grant of summary
judgment as to Kopp.
IV. Mental State
Finally, we address Defendants’ states of mind in failing to reinstate
Wiggins to the call-out list. The parties disagree as to the relevant standard and
whether this standard was met. Defendants argue that a Section 1983 free exercise
claim requires proof that an official acted intentionally or with deliberate
indifference to a plaintiff’s rights and that the record demonstrates nothing more
than negligence. Meanwhile, Wiggins asserts that we have never held negligence
8 Because we affirm the judgment as to Griffin, we do not reach Defendants’ argument that the record does not reflect Griffin’s personal involvement in Wiggins’s First Amendment claim. 26 insufficient to sustain such a claim and that, nevertheless, the record supports the
inference that Defendants acted with deliberate indifference.
Section 1983 does not include a state-of-mind requirement. See 42 U.S.C.
§ 1983; Daniels v. Williams, 474 U.S. 327, 329-30 (1986). Instead, this requirement is
defined by the underlying constitutional right at stake. Id. at 330. We have not
clarified the minimum standard for a Section 1983 free exercise claim, see Brandon,
938 F.3d at 38, but our sister circuits considering this issue have concluded that
negligent conduct is not enough. Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006)
(“We . . . hold that negligent acts by officials causing unintended denials of
religious rights do not violate the Free Exercise Clause.”); Eason v. Thaler, 73 F.3d
1322, 1327 n.2. (5th Cir. 1996) (concluding that a prison official’s negligent act of
designating the wrong religion on a travel card could not amount to a First
Amendment violation); Mbonyunkiza v. Beasley, 956 F.3d 1048, 1055 (8th Cir. 2020)
(“[E]vidence that a correction official negligently failed to comply with an inmate’s
sincerely held religious dietary beliefs does not establish a Free Exercise Clause
claim under § 1983.”); Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009)
27 (“[I]solated act[s] of negligence would not violate an inmate’s First Amendment
right to free exercise of religion.”).
We now join those circuits. Negligence is the “failure to exercise the
standard of care that a reasonably prudent person would have exercised in a
similar situation.” Negligence, Black’s Law Dictionary (11th ed. 2019). The First
Amendment‘s command that government not “prohibit” the free exercise of
religion, U.S. Const. amend. I, “connotes a conscious act, rather than a merely
negligent one,” Lovelace, 472 F.3d at 201 (internal quotation marks omitted); accord
Prohibit, Black’s Law Dictionary (11th ed. 2019) (defining prohibit as to “prevent,
preclude, or severely hinder”). Given this understanding of the First Amendment,
isolated acts of negligence cannot violate an individual’s free exercise of religion
in this context. See Daniel, 474 U.S. at 330.
Although mere negligence cannot support a First Amendment free exercise
claim, we have previously held that deliberate indifference “clearly suffices.”
Brandon, 938 F.3d at 38 (citing Greenwich Citizens Comm., Inc. v. Cntys. of Warren &
Wash. Indus. Dev. Agency, 77 F.3d 26 (2d Cir. 1996)). Deliberate indifference arises
28 when an actor is “culpabl[y] reckless[],” or when an official’s “act or . . . failure to
act” reveals “a conscious disregard of a substantial risk of serious harm.” Charles
v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019) (internal quotation marks omitted).
Repeated acts of apparent negligence may indicate deliberate indifference. See
Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (“[W]hile a single instance of medical
care denied or delayed, viewed in isolation, may appear to be the product of mere
negligence, repeated examples of such treatment bespeak a deliberate indifference
by prison authorities to the agony engendered by haphazard and ill-conceived
procedures.”).
With these principles to guide us, we affirm the district court’s dismissal of
the claim against Griffin. Wiggins sent Griffin two letters. Although Griffin left
one letter unanswered, he quickly acted upon the second. Construing this
evidence favorably to Wiggins, it establishes (at most) that Griffin acted
negligently in response to the first letter. Such a showing is insufficient.
Whether the record suffices to permit a finding that any of the remaining
defendants were deliberately indifferent poses a closer question. Instead of single
29 acts of negligence, the record contains sufficient evidence to allow a jury to
conclude that one or more of the remaining defendants repeatedly failed to redress
Wiggins’s exclusion from the call-out list. Jebamani testified that he sent two
interdepartmental communications to the Deputy Superintendent of Programs.
But he took no further action when Wiggins did not return to worship services or
bible study. Jebamani asserted that it was “not possible to keep up with when an
inmate ha[d] not been to services” because of the number of adherents and
“irregular . . . attendance.” App’x at 309. It is conceivable, however, that Jebamani
should have noticed that Wiggins—a regular worshiper of many years—was
missing week after week from services consisting of only 60 to 180 people. Thus, a
jury could rationally conclude that Jebamani’s repeated failure to rectify the
situation constituted more than negligence. Furthermore, if the jury finds that
Jebamani, as he claims, sent the Deputy Superintendent requests in June and July
to reinstate Wiggins to the call-out list, it could find that the failure to act by
whoever was Deputy (whether Kopp or Howard) was more than negligent.
Although Defendants contend that Wiggins should have done more to follow up,
30 Kopp or Howard may have nevertheless failed to act on repeated requests despite
their knowledge that the call-out system required their manual input.
The district court did not consider whether this evidence sufficed to support
a finding of deliberate indifference. Rather, it concluded that Defendants “had [no]
reason to know that their conduct” burdened Wiggins’s rights because they
eventually placed Wiggins back on the call-out list. Wiggins, 2021 WL 706720, at
*5. This conclusion impermissibly views the record in a light less than “most
favorable” to Wiggins, see Tolan v. Cotton, 572 U.S. 650, 657 (2014), giving
disproportionate weight to Defendants’ late-stage remedial actions. We thus
vacate the judgment in part and remand to the district court to consider whether
the record—viewed favorably to Wiggins with respect to each claim—reflects a
dispute as to Jebamani’s, Kopp’s, and Howard’s deliberate indifference. See Florez
v. Cent. Intel. Agency, 829 F.3d 178, 189 (2d Cir. 2016) (“[R]emanding the case is in
keeping with our general policy that the trial court should consider arguments . . .
in the first instance.”).
31 CONCLUSION
Defendants contend that their failures boil down to “less than perfect prison
administration.” Oral Argument Audio Recording at 41:32-41:35. The question to
be determined, however, is whether the conduct of Jebamani, Kopp, and/or
Howard constituted deliberate indifference to Wiggins’s First Amendment rights.
For the reasons above, we affirm in part, vacate in part, and remand to the district
court for further proceedings consistent with this opinion: We affirm the dismissal
of the claim against Griffin, and vacate and remand the dismissal of the claims
against Jebamani, Kopp, and Howard.
32 21-533 Wiggins v. Griffin
MENASHI, Circuit Judge, concurring:
I join the court’s opinion, which correctly holds that negligent conduct by an official is insufficient to establish a violation of the Free Exercise Clause under 42 U.S.C. § 1983. Ante at 28. Wiggins’s claim against Griffin cannot succeed because, as the court explains, Griffin at most acted negligently in response to Wiggins’s letter. Id. at 29. But a reasonable jury could conclude on this record that the remaining defendants were deliberately indifferent.
I also agree that the complaint sufficiently alleges Kopp’s personal involvement, id. at 25, and that the district court erred when it determined that qualified immunity protected the defendants’ conduct. The district court identified the right at issue as Wiggins’s purported right to “attend religious services despite the fact that his name did not appear on a call-out list.” Wiggins v. Griffin, No. 18-CV- 07559, 2021 WL 706720, at *6 (S.D.N.Y. Feb. 22, 2021). That description “[c]haracteriz[ed] the right too narrowly to the facts of the case” and thereby risked “permit[ting] government actors to escape personal liability.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251 (2d Cir. 2001). Because of the defendants’ conduct, Wiggins “was excluded from religious services without reason,” and such exclusion implicates a clearly established right. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). For these reasons, the court properly affirms the judgment as to Griffin but allows the claims against the remaining defendants to proceed.
I write separately to address the open question of whether a prisoner must show a substantial burden on his religious exercise to state a claim under § 1983 for a violation of the Free Exercise Clause. Since Employment Division v. Smith, 494 U.S. 872 (1990), the circuits have split on that question. 1 “Whenever the question has arisen in our Circuit,” however, we have avoided taking a position by observing “either that the parties did not brief the issue or that the requirement, even if applied, would have been satisfied.” Brandon v. Kinter, 938 F.3d 21, 32 n.7 (2d Cir. 2019). 2 In light of that avoidance, the “[d]istrict
1 Compare Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003) (“The Prison
Officials argue that it is also a prerequisite for the inmate to establish that the challenged prison policy ‘substantially burdens’ his or her religious beliefs. There is no support for that assertion.”) (citation omitted); Butts v. Martin, 877 F.3d 571, 585-86 (5th Cir. 2017) (“Other circuits have required that a prisoner must make a threshold showing that a regulation imposes a substantial burden on their religious exercise in order to maintain free exercise claims. … [T]his Court has not required a preliminary showing that a regulation substantially interferes with an inmate’s religious rights before assessing whether the regulation is reasonably related to a penological interest.”); Shakur v. Schriro, 514 F.3d 878, 885 (9th Cir. 2008) (“Given the Supreme Court’s disapproval of the centrality test, we are satisfied that the sincerity test … determines whether the Free Exercise Clause applies.”), with Wilcox v. Brown, 877 F.3d 161, 168 (4th Cir. 2017) (“In order to state a claim for violation of rights secured by the Free Exercise Clause, an inmate, as a threshold matter, must demonstrate that … a prison practice or policy places a substantial burden on his ability to practice his religion.”); Mbonyunkiza v. Beasley, 956 F.3d 1048, 1053 (8th Cir. 2020) (“[T]he inmate must show the challenged regulation ‘substantially burdens’ his sincerely held belief.”); Williams v. Hansen, 5 F.4th 1129, 1133 (10th Cir. 2021) (“To state a valid constitutional claim, a prisoner must allege facts showing that officials substantially burdened a sincerely held religious belief.”); Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he First Amendment is implicated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious practice.”). 2 See also ante at 14 (“[W]e need not answer the question here because
Defendants concede that the burden on Wiggins’s rights was substantial.”); Ford v. McGinnis, 352 F.3d 582, 592 (2d Cir. 2003) (“[W]e … proceed in this appeal on the assumption that the substantial burden test applies.”);
2 courts within this circuit continue to apply the substantial burden test when addressing free exercise claims.” Nicholson v. Ferreira, No. 20- CV-1214, 2021 WL 327529, at *5 n.3 (D. Conn. Feb. 1, 2021). And the district court dismissed Wiggins’s claims in this case based on the substantial burden test. See Wiggins, 2021 WL 706720, at *4.
We have explained that “the substantial burden test requires courts to distinguish important from unimportant religious beliefs” because it assumes that burdens on beliefs that are “peripheral to the plaintiff’s religion … can be aptly characterized as constitutionally de minimis.” Ford, 352 F.3d at 593. The substantial burden test, however, is constitutionally offensive. It conflicts with the reasoning of all three opinions in Smith. See 494 U.S. at 887 (“Judging the centrality of different religious practices is akin to the unacceptable business of evaluating the relative merits of differing religious claims.”) (internal quotation marks omitted); id. at 906-07 (O’Connor, J., concurring in the judgment) (“[O]ur determination of the constitutionality of Oregon’s general criminal prohibition cannot, and should not, turn on the centrality of the particular religious practice at issue.”); id. at 919 (Blackmun, J., dissenting) (“[C]ourts should refrain from delving into questions whether, as a matter of religious doctrine, a particular practice is ‘central’ to the religion.”). It is incompatible with recent Supreme Court cases that rely on sincerity as the threshold inquiry for free exercise claims. See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421-22 (2022) (“[A] plaintiff may carry the burden of
Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014) (“It has not been decided in this Circuit whether, to state a claim under the First Amendment’s Free Exercise Clause, a prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs.”) (internal quotation marks omitted).
3 proving a free exercise violation … by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’”) (quoting Smith, 494 U.S. at 879-81). And it cannot be reconciled with the “well established” principle, “in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion); see Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”). 3
In an appropriate case, we should hold that a prisoner alleging a violation of the Free Exercise Clause under § 1983 need only show a burden on sincerely held religious beliefs—not a “substantial” burden that involves showing that the beliefs are “central.” Three decades is too long for federal judges to be telling litigants which of their religious beliefs are “unimportant.” Ford, 352 F.3d at 593.
3 See also Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L.
Rev. 1771, 1774 (“[T]he Establishment Clause is typically understood to prohibit courts from investigating matters of religion and theology; so evaluating the theological substantiality of a law’s burden on a person’s religious exercise would seem to be off limits.”).