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
3

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.
4

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 
5

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 
6

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 evidence2 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).
7

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.
8

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 
9

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 Howard3—

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.
10

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 

4Wiggins abandoned his Fourteenth Amendment claim on appeal.
11

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 
12

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 
13

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.”).
14

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
15

“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 
16

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 
17

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 
18

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 
19

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 
20

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. 
21

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 
22

and Howard’s assertions5—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.
23

In short, a jury may find that one or more Defendants6 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. 
24

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).

7 Although Wiggins is represented by counsel on appeal, he was pro se before the 

district court.
25

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 
26

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.
27

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) 
28

(“[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 
29

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 
30

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, 
31

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.”). 
32

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. 
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-CV07559, 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 
2

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.”); 
3

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). 
4

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.”).