2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 232 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1867

___________ MITCHELL THEOPHILUS GARRAWAY,

A ppellant

v. HARLEY G. LAPPIN, Federal Bure au of Prisons; TROY WILLIAMSON, former War den, USP Lew isburg; KERSTETTER, Captain, Inmate Systems Manager, former Warden, USP Lewisbur g; SALVADORE IRIZZARY, Chaplain, USP Lewisburg; R. ROGERS, Food Service Administrator, USP Lewisburg; FRANK STRADA, former Assistant Warden, USP Lewisburg; KEVIN KELLEY, Chapla in, USP Lewisburg; JOHNSON, Inmate Trust Fund Manager, USP Lewisburg; JOHN JOHNSON, Chaplain, USP Canaan; RONNIE HOLT, Warden Executive Officer, USP Canaan; ANGELA DUNBAR, Assistant Warden, USP Canaan; D. MRAD, USP Canaan; R. SORENSON, USP Canaan; THOMAS D IEHL, Inmate Trust Fund, Manager, USP Canaan; R. GUNDRUM, Food Service Administrator, USP Canaan; M. NOVAK, Lieutenant, USP Canaan

____________________________________ Appeal from the United States District Court for the Middle District of Pennsylvania ( D.C. Civil No. 4

- 10

- cv - 01697 ) District Judge: Honorable William J. Nealon

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 Ju ly 19, 2012 Before: RENDELL, HARDIMAN and COWEN , Circuit Judges

(Opinion filed : July 31, 2012 )2 _________ OPINION OF THE COURT

_________ PER CURIAM Mitchell Theophilus Garraway, an inmate at the United States Penitentiary in Lewisburg (“USP

- Lewis burg”), appeals pro se and in forma pauperis from the District Court‟s order granting the De fendants‟ motion to dismiss, or in the alt ernative, for summary judgment. For the reasons that follow, we will summarily affirm the District Court‟s order.
I.
In August 2010, Garraway commenced a Bivens action 1 claiming that certain rules and policies instituted by the Federal Bureau of Prisons (“BOP”) “severely and unnecessarily” burdened his ability to practice his Muslim faith , in violation of his First Amendme nt free exercise rights . He brought statutory claims under the Religious Freedom R estoration Act (“RFRA”) , 42 U.S.C. §§ 2000bb et seq. , and the Religious Land Use an d Institutionalized Persons Act (“RLUIPA”) , 42 U.S.C. §§ 2000cc et seq

. He named as D efe ndants several current and former employees of USP

- Lewisburg and the United States Penitentiary in Canaan (“ USP

- Canaan ”) , having been an inmate at both facilities during the time period set forth in his complaint

.

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971).3

D efendants filed a motion to dismiss, o r in the alternative, for summary judgment, with respect to all of Garraway‟s claims. The District Court granted the motion on March 21, 2012 , and entered final judgment in favor of D efendants . Garraway timely filed a Notice of Appeal on March 27, 2012.
II.
J urisdiction is proper under 28 U.S.C. § 1291. We will summarily affirm the District Court‟s judgment if the appeal presents no substantial question. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
We exercise plenary review over an order dismissing cla ims under Federal Rule of Civil Procedure 12(b)(6). Monroe v. Beard , 536 F.3 d 198, 205 (3d Cir. 2008). “Reviewing such an order, w e accept as true all allegations in the plaintiff‟s complaint as
well as all reasonable inferences that can be drawn from th em, and we construe them in a light most favorable to the non

- movant.” Id. (citation omitted).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to rel ief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require „detailed factual allegations,‟ but it demands more than an unadorned, the

defendant

- unlawfully

- harmed

- me accusation.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). “ A pleading that offers „labels and conclusions‟ or „a formulaic recitation of the elements of a cause of action will not do.‟” Id

. “[A] complaint must contain sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on i ts face.‟” Id. ; see also Twombly ,4

550 U.S. at 556 (explaining that a plaintiff must “identify[] facts that are suggestive enough to render [his claim] plausible.”) “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss. ” Iqbal , 556 U.S. at 679.
We also exercise plenary review over a grant of summary judgment and “employ the same standard as applied below

. ” DeHart v. Horn , 390 F.3d 262, 267 (3d Cir. 2004). That is, “[t]he court shall grant summary judgment if the mo vant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “ In reviewing the grant of summary judgment, we must affirm if the record evidence submitted by the non

- movant is merely colorable or is not significantly probative.” DeHart , 390 F.3d at 267

- 68 (citation and internal quotation marks omitted). Claims under the First Amen dment and claims under the RFRA are analyzed separate ly

. 2 When a prisoner asserts a First Amendment free exercise claim that “a prison policy is impinging on [his] constitutional rights , ” the court must then apply the four factor test set forth in Turner v. Safley , 482 U.S. 78 (1987), to determine whether the curtailment at issue is “r easonably related to penological interests.” DeHart v. Horn , 227 F.3d 47, 51 (3d Cir. 2000) (citing Turner , 482 U.S. at 89)

. As this Court has explained,

2 The District Court properly dismissed Garraway‟s RLUIPA claims because RLUIPA does not apply to a federal government action. Navajo Nation v. U.S. Forest Serv. , 535 F.3d 1058, 1077 (9th Cir. 2008); Rogers v. United States , 696 F. Supp. 2d 472, 486 (W.D. Pa. 2010); see also Sharp v. Johnson , 669 F.3d 144, 153 (3d Cir. 2012) (recognizing that RLUIPA applies to actions against state and local governments).5 [ Turner ] directs courts to assess the overall reasonableness of such regulations by weighing four f actors. “First, there must be a „valid, rational connection‟ between the prison regulation and the legitimate governmental interest put forward to justify it,” and this connection must not be “so remote as to render the policy arbitrary or irrational.” Sec ond, a court must consider whether inmates retain alternative means of exercising the circumscribed right. Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. A nd fourth, a court must consider whether there are alternatives to the regulation that “fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological interests.”
Id. (citing Waterman v. Farmer , 183 F.3d 208, 213 (3d Cir. 1999) (intern al citations omitted ) ).
In contrast, a challenged restraint on the freedom of religion does not fall within the scope of the RFR A unless the inmate can establish that a “substantial burden” is placed on his abi lity to exercise said freedom. Small v. Le hman , 98 F.3d 762, 767 (3d Cir. 1996), over ruled on other grounds by City of Boerne v. Flores , 521 U.S. 507 (1997)

. 3
This Court has said that a substantial burden exists where:

(1) a follower is forced to choose between following the precepts of his relig ion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; or

3 Though the Supreme Court held the RFRA unconstitutional as to state and local governments in City of Boerne v. Flores , RFRA claims against the federal government “remain viable,” Jama v. Esmor Corr. Servs., Inc. , 577 F.3d 169, 172 n.4 (3d Cir. 2009) (citation omitted).6 (2) the government puts substantial pressure on an adherent to subst antially modify his beha vior and to violate his beliefs. Washington v. Klem , 497 F.3d 272, 280 (3d Cir. 2007). It is only once a substantial burden on religion has b een established by the prisoner that the governm ent must then establish “that it has a „compelling interest‟ in i ts actions and is furthering that interest by the „least restrictive means.‟” Small , 98 F.3d at 767 (citations omitted).
III. The District Court addressed Garraway‟s numerous claims by subject matter

. In his argum ent in support of appeal, Garraway hig hlighted the following issues as violative of his First Amendment free exercise right s and the RFRA : (1) prison policies limiting group prayer; (2) the lack of a full

- time Sunni Muslim chaplain; (3 ) prison poli cies regarding an Islamic Halal diet; (4) pris on policies limiting the number of books he can keep in his cell; and (5) the availability of ceremonial reli gious items

. We will first consider these claims before turning to the remainder of those a ddressed in the District Court‟ s Memorandum

. 1

. Prison Policies Limiting Group Prayer Garraway claimed that the prison regulation regarding congregational worship violated his First Amendment free exercise rights. The regulation in question, BOP Program Statement 5360.09.7.a , states , in pertinent part :

The level of scheduled activities is expected to be commensurate with the institution‟s mission/need. Authorized congregate services will be made available for all inmates weekly with the exception of those detained in any7 Special Housing Units (SHUs). If a stat e of emergency exists (e.g. fog, institution lock do wn, food strike), the warden or designee will determine the appropriate level of chapel programming. (Dkt

. No. 39, Ex. 1, Attach. B.) “When a prison regulation impinges on inmates‟ constitut ional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner , 482 U.S. at 89. The District Court aptly applied the four

- part Turner analysis in determining that Garraway‟s First Amendment right to free ex ercise was not impermissibly impinged by this regulation

. (Dkt. No. 65, pp. 20

- 29.) That analysis need not be repeated here. Garraway did not allege that the policy substantially burdened his ability to exercise his religion. Without establishing a sub stantial burden, his claim under the RFRA fails.
2

. Lack of a Full

- T ime Sunni Muslim Chaplain Garraway claimed that Defendants violated his First Amendment rights and the
RFRA “by refusing to provide a full

- time Sunni Muslim chaplain ... while provid ing ... two to three Christian chaplains for Christian inmate s.” (Dkt. No. 27, ¶¶ 22, 44.) “A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand.” Cruz v. Beto , 405 U.S. 319, 322 n.2 (1972) (per curiam); see also Gittlemacker v. Prasse , 428 F.2d 1, 4 (3d Cir. 1970) (no affirmative duty to provide an inmate wi th a clergyman of his choice). Nonetheless, it is undisputed that Defendants8

provide d Muslim chaplains as they beca me available. (Dkt. No. 40, ¶¶ 16

- 17; Dkt. No. 50, Attach. 3 , ¶¶ 16

- 17

. ) Garraway has not alleged that there is a prison policy impinging

on his First Amendment rights. Therefore, it is not necessary to undertake a Turner analysis. Nor has Garraway alleged that the lack of a full

- time Sunni Muslim chaplain substantially burdens the exercise of his religion. Without esta blishing a substantial burden, his claim under the RFRA fails

. 3

. Prison Poli cies Regarding an Islamic Halal Diet Garraway claimed that Defendants violated his First Amendment rights by failing to provide an Islam ic Halal die t. R eligious diets are provided in accordance with the following BOP policy :

The Bureau provides inmates requesting a religious diet reasonable and equitable opportunity to observe their religious dietary practice within the constraints of budget limitations and the security and orderly running of the institution and the Bureau through a religious diet menu. 28 C.F.R. § 548.20(a). Again, t he District Court ably applied the requisite four

- part Turner analysis , concluding that the regulation in question did not impermissibly curtail Garraway‟s right to free exercise of his religion

. (Dkt. No. 65 at pp. 35

- 39 ) ; s ee also Williams v. Morton , 343 F.3d 212, 220 (3d Cir. 2003) ( rejecting inmates‟ claim that failure to provide Halal meat in lieu of vegetarian meals violated their First Amendment rights).9

4

. Prison Policies Limit ing the Number of Books Kept in an Inmate‟s Cell Garraway claimed that the BOP regulati on limiting the number of books an inmate may have as personal property in his cell substantially b urdened his ability to exercise his religion

. The regulation in question, BOP Program Statement 5580.07, instituted a national limit of five books per inmate, regardless of topic. (Dkt. No . 39, Ex. 1, Attach

. C. ) According to Defendants, t his limit was impose d in the interest of security, fire safety , and sanitation , as it allowed proper cell searc hes and limit ed the places inmates could store contraband. ( Dkt. No. 40, ¶ 51

- 52 .) Garraway did not dispute that the BOP provided him with religious texts. (Dkt. No . 40, ¶¶ 42

- 43; Dkt No. 50, Attach. 3, ¶¶ 42

- 43.) However, he claimed that Defendants “ e xaggerated ” the security concerns addressed by BOP Program Statement 55 80.07. (Dkt. No. 50, Attach. 3, ¶¶ 51

- 52.)
T he District Court correctly considered the Turner factors in reaching the conclusion that the BOP regulation did not impermissibly imping e on Garra way‟s free exercise of his religion

. (Dkt. No. 65 at 45

- 46.) Further, n o facts support ed Garraway‟s claim that the five book national limit substantially burdened his ability to practice his religion. This Court‟s decision in Washington v. Kle m , 497 F.3d 272 (3d Cir. 2007) , is distingui shable. There, an inmate argued that his religion required “a daily rea ding of four Afro

- centric books, ” i d. at 281, and that the prison‟s ten

- book limitation substantially burdened the practice of his religion , i d. at 282

- 83. Garraway makes no such claim. Without establishing a substantial burden, his claim under the RFRA fails.10

5

. Availability of Ceremonial Religious Items Garraway claimed his First Amendment rights were violated because Islamic

cerem onial religious items were sold in the BOP commissary with marked

- up prices , in violation of BOP policy. Defendants provided evidenc e that the items were not sold with
a mark

- up . (Dkt. No. 39 , Ex. 1, Attach. E and Attach. F. ) Garraway responded with an unsupported assertion that the evidence provided by Defendants contained “false and misleading” information. (Dkt. N o. 50

- 4, ¶ 16.) There being no genuine issue of material fact, the District Court correctly granted summary ju dgm ent in favor of Defendant s. We will affirm. See DeHart , 390 F.3d at 267

- 68 ( “In reviewing the grant of summary judgment, we must affirm if the record evidence submitted by the non

- movant is merely colorable or i s not significantly probative.”).
6. Garraway‟s Remaining Cl aims We have thoroughly reviewed the District Court‟s Memorandum and Order , toge ther with the record below. Garraway‟s remaining claims were either properly dismissed 4 or summary judgment was properly entered 5 in favor of the Defendants.

4 Th ese include Garraway‟s claims under the RLUIPA (Dkt. No. 65, pp. 7

- 8) , those barred by the statute of limitations ( id. , pp. 8

- 10) , and his claims with respect to a standardized chapel library ( id. , pp. 47

- 48) , the distribution of B ible quotes ( id. , p. 50) , and alleged verbal harassment ( id. , pp. 62

- 64).

5 These include Garraway‟s claims with respect to a delay in receiving mail (Dkt. No. 65, pp. 31

- 33) , dress and clothing issues ( id. , pp. 39

- 43) , allocation of funds ( id. , p. 50) , teaching Arabic in chape l ( id. , pp. 55

- 57) , participation in Muslim observances ( id. , pp. 57

- 59) , and rejection of his administrative remedies ( id. , pp. 60

- 62).11

Because no sub stantial question is presented by this appeal, we will summarily affirm t he order of the District Court granting Defendants‟ motion to dismiss, or in the alternative, for summary judgment 6 , pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6.

6 It is unclear from the District Court‟s opinion whether certain claims were dismissed or whether summary judgmen t was entered in favor of Defendants. In any case, it is harmless error where, as here, “the judgment may be affirmed if it appears that there is no set of facts on which plaintiff[] could possibly recover.” Rose v. Bartle , 871 F.2d 331, 342 (3d Cir. 198 9) (citation omitted); see also Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999) (“We may affirm the district c ourt on any ground supported by the record.”).