19 - 3575 Sabir v. Williams UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 20 2 1 (Argued: October 14 , 20 2 1 Decided: June 1 7 , 202 2 Amended : October 2 8 , 2022 ) Docket No. 19 - 3575
RAFIQ SABIR , JAMES J. CONYERS , Plaintiffs

- Appell ees ,
v. D.K. WILLIAMS , IN HER INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS W ARDEN OF FCI D ANBURY , HERMAN QUAY, IN HIS INDIVIDUAL CAPACITY , Defendants

- Appell ants ;

MARK S. INCH, D IRECTOR OF F EDERAL B UREAU OF P RISONS , THOMAS R. KANE, D IRECTOR OF F EDERAL B UREAU OF P RISONS , HUGH J. HURWITZ, IN HIS INDIVIDUAL CAPACITY AS D IRECTOR OF THE F EDERAL B UREAU OF P RISONS , Defendants

.

Before: W ALKER , SACK , AND CARNEY , Circuit Judges

. Defendants

- a ppellants D.K. Williams and Herman Quay appeal from an order denying their motion to dismiss in part and rejecting the ir qualified immunity defense against the Religious Freedom Restoration Act ("RFRA") claim s of p laintiffs

- a ppe llees Rafiq Sabir and James Conyers . The plaintiffs

- appellees are practicing Muslims who se religion requires them to perform daily congregational prayers with as many other Muslims as are available . According to the allegations in their complaint, while Sabir and Conyers were incarcerated at the Federal Correctional Institution in Danbury, Connecticut, the defendants

- appellants enforced a policy that restricted group prayer to the prison's chapel, despite that facility's frequent unavailability. As a res ult, Sabir and Conyers were forced to forgo their religious exercise of group prayer to avoid disciplinary action. We conclude that the wardens are not19 - 3575 Sabir v. Williams

2 entitled to qualified immunity at this stage of the proceedings because the pleadings do not establish that their enforcement of the policy against Sabir and Conyers was in service of a compelling interest, and it was clearly established at the time of the violation that substantially burdening an inmate's religious exercise without justification violates R FRA. We therefore
AFFIRM the order of the district court

.
D ANIEL W INIK , (Brian M. Boynton, Leonard C. Boyle, Michael S. Raab, on the brief ), U.S. Department of Justice, Washington, D.C., for Defendant

- Appellants ; M ATTHEW W. C ALLAHAN , Muslim Advocates, Washington, D.C., for Plaintiffs

Appellees ; Elizabeth A. Bixby, Daniel M. Greenfield, on the brief , Roderick & Solange MacArthur Justice Center , Washington, D.C. and Chicago, IL, for Amicus Curiae , Roderick & Solange MacArthur Justice Center

.

S ACK , Circuit Judge : The plaintiffs, Rafiq Sabir and James Conyers , are practicing Muslims who believe that they are required under the precepts of their religion
to perform five daily congregational prayers with as many other Muslims as are available and wish to participate

. Sabir and Conyers allege that while they were incarcerated a t the Federal Correctional Institution in Danbury, Connecticut19 - 3575 Sabir v. Williams

3 ("FCI Danbury") , Warden D.K. Willi ams and Warden Herman Quay enforced a policy that restricted prayer in groups of more than two to the prison's chapel , despite th at facility's frequently unavailab ility

. As a result , the plaintiffs were f orced to forgo their engage ment in a required relig ious practice to avoid disciplin ary action

. The plaintiffs filed this suit against defendant prison officials in the
United States District Court for the District of Connecticut , seeking injunctive relief and damages on the grounds that FCI Danbury's communal prayer policy
violated the Religious Freedom Restoration Act ( " RFRA " ) and the Free Exercise
Clause of the First Amendment to the United States Constitution

. In August
2019 , t he d istrict c ourt (Bolden, J .) granted the defendants ' motion to dismiss the plaintiffs' S econd A mended C omplaint in large part , but declined to dismiss the plaintiffs' RFRA claims for damages against the defendants in their individual capacities , holding that qualified immunity was not available to Williams and Quay at the motion

- to

- dismiss stage.
We agree with the district court that the d efendants

- a ppellants are not entitled to qualified immunity at this stage of the proceedings because the allegation s in the complaint and the documents attached to it as exhibits do not19 - 3575 Sabir v. Williams

4 establish that their enforcement of the policy against Sabir and Conyers was in service of a compelling interest, and it was clearly established at the time of the
violation that substa ntially burdening an inmate's religious exercise with out justification violate s RFRA.
BACKGROUND Factual Background For the purposes of this appeal from the district court's denial of a motion to dismiss, we are required " to accept as true those factual assertions set forth in plaintiff [s ' ] complaint

. " Charles W. v. Maul , 214 F.3d 350, 356 (2d Cir. 2000)

. In reviewing a motion to dismiss, we "may consider [not only] the facts alleged in the complaint, [but also] documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 ( 2d Cir. 2010). According to the complaint as thus augmented : Plaintiffs Ra f iq Sabir and James Conyers were inmates at FCI Danbury , a low

- security federal prison , beginning in July 2014 and September 2016, respectively. Defendant Herman Quay was the Warden of FCI Danbury from July 2014 to December 2015 ; Defendant D.K. Williams was the Warden of19 - 3575 Sabir v. Williams

5 FCI Danbury at the time of the plaintiffs' Second Amended Complaint , dated June 1, 2018 ( the "SAC") , which was the operative pleading at the time of the
defend ants' motion to dismiss

. Individuals incarcerated at FCI Danbury have a relatively high degree of autonomy: M any living quarters remain unlocked, and inmates regularly gather , with prison approval , in large groups for activities ranging
from inmate

- led fitness classes to sports and card games. FCI Danbury has several recreational facilities, including " a recreation yard, weight room , gymnasium, bathroom, wellness room, hobbycraft [sic] room, music room, video viewing area with game tables, th e chapel facility, and several offices

. " SAC at 8 , ¶ 29

. The inmates also have access to "the medical area, food services, education and housing facilities, laundry, the barber shop, and the prison work program
area." Id

. Sabir and Conyers are practicing Muslims. A central aspect of their religious exercise is a prayer known as a "salah , " which , according to the religion's tenets, adult Muslims are required to perform five times each day. The
p laintiffs possess the "sincerely

- held religious belief that if two or more Muslims are together at a time of required prayer, they must pray together behind one19 - 3575 Sabir v. Williams

6 prayer leader" and cannot "break up into smaller groups." Id. at 6 , ¶ 23. They explain that performing group prayer with the largest possibl e number of other
Muslims " multiplies the blessings and utility of prayer." Id. at 5

- 6 , ¶ 19.
T h e Federal Bureau of Prisons ( " FBOP " ) does not have a formal policy categorically ban ning congregational prayer with in its facilities . E ach facility’s warden i s , however, authorized to temporarily restrict a specific religious practice if he or she determine s that the " practice jeopardizes the facility's safety and security. " Id. at 6

- 7 , ¶ 24 . At many FBOP facilities

— including those in which both Sabir and Conyers were previously housed

— prison officials allow ed congregational prayer without significant restriction s . In March 2014, FCI Danbury's then

- w arden , Maureen Baird , nonetheless instituted a polic y restricting prayer in groups of more than two people to the prison's chapel. The policy state ment provided : Congregate Prayer, outside of the Chapel, for all faith groups will follow the following guidelines : a) Must get the approval of the location to pray from work supervisor, program supervisor, etc. b) Prayer individually or in pairs is permitted, however, group prayer of 3 or more is restricted to the Chapel. c) Prayers can be made at work detail sites, school, or units during break times.19 - 3575 Sabir v. Williams

7 d) Prayer rug or clean towel is permitted to cover the floor. e) In case of institutional emergency or instructed by staff prayers will be terminated. Id. at 8

- 9 , ¶ 30 (alterations omitted) . Although FCI Danbury p ermitted congregational prayer in the chapel, groups seeking to use the space could only
do so when chapel staff w as present and the rooms were not otherwise occupied

or reserved. The facility was "frequently unavailable" during the plaintiffs' prayer tim es . Id. at 9 , ¶ 32. In October 2014, Sabir was pray ing with two other inmates in the
auditorium when corrections officer s approached to inform the m that group
prayer was only permitted in the chapel and that violati ng th e rule could result in discipli ne . Sabir and the others explained to the officer s that their religion required them to perform congregational prayer five times per day and that the chapel was frequently un available during those times . T he officers responded by
reite rat ing the terms of the prison's group prayer policy. As a result of this incident, Sabir was "fearful" that he would be sanctioned or discipline d for engaging in group prayer

. Id. at 11, ¶ 41. Prison officials also repeatedly
informed Conyers that congregational prayer outside of the chapel was not allowed . He therefore felt compelled to refrain from engaging in group prayer to19 - 3575 Sabir v. Williams

8 avoid disciplinary action. The plaintiffs allege that the w ardens' " enforcement of the Policy prevent [ed] [them] fr om . . . engaging in daily congregat ional praye r

as mandated by [their] sincerely

- held religious beliefs." Id. at 11 , ¶¶ 41 - 4 2 . Sabir and Conyers have thus " been forced to choose between acting in accordance with their sincere religious beliefs and facing discipline at the prison , including possible solitary confinement and loss of other privileges ." Id. at 11 , ¶ 44. A ccording to the SAC , "Defendants have offered no meaningful justification for
the [p] olicy " restricting group prayer

. Id. at 9, ¶ 3 3 . Each plaintiff submitted an administrative grievance asserting that the policy violated his right to freely exercise his religion . Warden Quay denied Sabir's grievance in January 2015 but offered no explanation beyond reiterating
the content of the pol icy, stating that "congregate prayer is not restricted"
because praying in pairs was allowed and " congregate prayer is permitted in the Chapel." Response of H. Quay to Sabir (Jan. 2 7 , 201 5) , J.A. 48. Quay's
de termination was subsequently upheld by FBOP's Regional Director , who wrote
that FCI Danbury's congregate prayer policy was "a reasonable, least restrictive alternative of accommodating prayer by groups of three or more inmates in the chapel when the schedule permits." Response of J.L

. Norwood to Sabir ( Mar

. 11,19 - 3575 Sabir v. Williams

9 2015 ) , J

. A

. 51. FBOP's Administrator of National Inmate Appeals later agreed, reiterating the terms of the policy, and stating that it provided "a reasonable and equitable opportunity to pursue your religious beliefs and practices." Response of Ian Connors to Sabir ( Sept

. 27, 2016 ) , J

. A

. 53. I n May 2017, Warden Williams denied Conyers's grievance , restating the policy and explaining th at that the prison's Religious Services Department had consult ed with Muslim Imams and determined that Muslims were not required to perform their five daily prayers in groups of three or more

. See Response of D.K. Williams to Conyers (May 19 , 201 7) , J.A. 56. Williams's
determination was upheld by FBOP's Regional Director, who found that "the institution's policy on prayer does not ban group prayer." Response of M.D. Carvajal to Conyers ( July 5, 2017 ) , J.A. 58 . Instead, the Regional Director explained that "the policy provides the necessary structure to promote equity among all faith groups in regards to prayers in the chapel area" and that "[t]his allowance offers you a least restrictive alternative when congregational prayer
cannot be accomm odated ." Id

. The Administrator of National Inmate Appeals
concurred , add ing that the policy was "the least restrictive alternative in order to afford inmates with more opportunities to practice this religious observance19 - 3575 Sabir v. Williams

10 consistent with security and budge tary constraints." Response of Ian Connors to Conyers ( Oct

. 24, 2017 ) , J

. A

. 61. After the initiation of this proceeding, Sabir and Conyers were each
transferred to an other institution

. Procedural History In May 2017, Sabir , acting pro se, initiated this suit against Williams
and the director of the FBO P , alleging violations of the Free Exercise Clause of
the First Amendment , the Religious Freedom Restoration Act , 42 U.S.C. § 2000bb , et seq. ( " RFRA " ) , and the Religious Land Use and Institut ionalized Persons Act , 42 U.S.C. § 2000cc, et seq. ( " RLUIPA " ). The district court dismissed Sabir's suit for failure to pay a filing fee, then reopened the case and dismissed it under the screening provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915A. In December 2017, the district court granted Sabir’s motion to reopen the case and amend his complaint. The court dismissed Sabir’s RLUIPA
claim because th at statute applies only to state and local governments, but it
allowed his RFRA and Free Exercise claims to proceed

. Sabir then filed the SAC , through newly obtained counsel , in June 2018. The SAC add ed Conyers as a n additional plaintiff and named Quay as a n19 - 3575 Sabir v. Williams

11 additional defendant. Sabir and Conyers asserted that FCI Danbury's communal prayer policy violated RFRA and the Free Exercise Clause . T hey sought a declaration that the policy was unlawful, injunctive relief preventing the enforcement of the policy , and damages f rom Williams and Quay in their individual capacitie s . The d efendants moved to dismiss the claims for damages against Williams and Quay , and later moved to dismiss the equitable claims as
moot in light of Sabir's and Conyers's respective transfer s out of F CI Danbur y. The district court granted in part and denied in part the defendants'
motion to dismiss. See Sabir v. Williams , No. 3:17

- cv - 749 (VAB), 2019 WL 4038331 (D. Conn. Aug. 27, 2019). It declined to dismiss the plaintiffs' RFRA claims for damages against the defendants acting in their individual capacities , concluding
that the group prayer policy was "arguably a substantial burden on the exercise of religion

. " Id. at *9. 1 The plaintiff s stated a claim by " detail [ing] the religious importance of congregational prayer," show ing "the burden the Policy has placed

1 On appeal, we consider only the p laintiffs' claim for individual

- capacity damages under RFRA, not under the First Amendment. Before the district court, the defendants argued that a Bivens claim "is the only avenue for damages un der the First Amendment" and claimed that the "[p]laintiffs s[ought] to impermissibly expand Bivens to include a new context . . . ." Sabir , 2019 WL 4038331, at *7

- 8 . In response, the plaintiffs conceded that "they only seek money damages against the war dens in their individual capacity based on the Religious Freedom Restoration Act [;] therefore Plaintiffs need not, and do not, look to Bivens to seek damages. " Id. at *8 (internal quotation marks omitted).19 - 3575 Sabir v. Williams

12 on [the plaintiffs'] exercise of religion, " and "alleg[ing] that FCI Danbury only applies this sort of burden to religious activi ties, while other group activities
continued unencumbered. " Id

. The district court held that qualified immunity was not available to Williams or Quay at the motion

- to

- dismiss stage. The court explained that the policy "may violate clearly established First Amendment case law and the RFRA statute," and, therefore, decided that "it is plausible

— at this stage

— that qualified immunity would not shield Defendants from liability in their individual capacities. " Id

. at *10

- 11. The co urt found it " [ s ] ignificant[]" that in Salahuddin v. Goord , 467 F.3d 263 (2d Cir. 2006) (" Salahuddin ") , the Second Circuit denied qualified immunity to prison officials for religious liberties claims , even at the
later stage of summary judgment proceedings , "because it was clearly
established

. . . that prison officials may not substantially burden inmates' right to religious exercise without some justification . . . ." Sabir , 2019 WL 4038331, at *11
n.3 (quoting Salahuddin , 467 F.3d at 275

- 76)

. The district court dismissed most of the plaintiffs' equitable claims

as moot in light of Sabir's and Conyers's transfers. See id. at *5 ("[A]n inmate's transfer from a prison facility generally moots claims for declaratory and19 - 3575 Sabir v. Williams

13 injunctive relief against officials of that facility." (quoting Salahuddin , 467 F.3d at 272) ). The only surviving claim for equitable relief was Sabir's claim against FBOP 's Director, see i d. at *6 , but i n May 2020, Sabir voluntarily dismissed it

. 2
DISCUSSION On appeal, the w ardens assert that the district court erred in denying their motion to dismiss the plaintiffs' individual

- capacity damages
claims because the wardens are entitled to qualified immunity, even at this early stage of the proceedings . We disagree. The y cannot point to assertions in the
SAC or evidence in its attachments that demonstrate that their enforcement of the policy against Sabir and Conyers was in service of a governmental interest. Because it was clearly established at the time that substantially burdening prisoners' religious exercise with out justification violates RFRA, the wardens are not entitled to qualified immunity.
I. Standard of Review "We review a district court's denial of qualified immunity on a

2 We have jurisdiction to consider this appeal of the court's partial denial of the defendants' motion to dismiss under 28 U.S.C. § 1291 through the collateral order doctrine. See Locurto v. Safir , 264 F.3d 154, 162 (2d Cir. 2001) (“A denial by a district court of a claim of qualified immunity

— to the extent that it turns on an issue of law

— is a collateral order subject to immediate appeal.”).19 - 3575 Sabir v. Williams

14 motion to dismiss de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs' favor." Garcia v.
Does , 779 F.3d 84, 91 (2d Cir. 2015) ( internal quotation marks omitted )

. II. Qualified Immunity
A. Legal Analysis We apply a two

- step analysis to determine whether qualified immunity bars a plaintiff's claim against government officials for civil damages
related to actions taken in the course of their official duties

. Francis v. Fiacco , 942 F.3d 126, 139 (2d Cir. 2019). "Pursuant to that analysis, ' [q]ualified immunity shields federal and state officials from money damages unless [the] plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged
conduct.'" Id. (alterations in original) (quoting Ricciuti v. Gyzenis , 834 F.3d 162, 167 (2d Cir. 2016)). When qualified immunity shield s defendant s from liability,

c ourts may " exercise their sound discretion in deciding which of the two prongs of the qu alified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. " Pearson v. Callahan , 555 U.S. 223,19 - 3575 Sabir v. Williams

15 236 (2009) ; see also Francis , 942 F.3d at 140

. 3 However, b ecause we conclude that
the district court properly denied qualified immunity to the defendants at the pleadings stage, we must engage in both prongs of the analysis

. F irst , we de cide that the plaintiffs have adequately pled a violation of RFRA , and second, we

3 Before Pearson , courts were required to complete both steps in every case, because "skip[ p ing] ahead" to the sec ond step without first holding that an official violated a plaintiff's rights might preclude "the law's elaboration from case to case." Saucier v. Katz , 533 U.S. 194, 201 (2001). The Supreme Court has continued to recognize this well

founded concern, even after Pearson introduced discretion as to the order in which courts may address the prongs

. See Camreta v. Greene , 563 U.S. 692, 704

- 06 (2011) (recognizing "that our regular policy of avoidance sometimes does not fit the qualifi ed immunity situation because it threatens to leave standards of official conduct permanently in limbo" and explaining that merits rulings in immunity

- barred cases are "self

- consciously designed . . . with this Court's permission" to "establish[] controlli ng law and prevent[] invocations of immunity in later cases"). Camreta warned of a "repetitive cycle" in which a court repeatedly declines to address the merits because immunity exists, and the official continues to engage in the challenged practice becau se he will remain immune until the right is clearly established. Id. at 706 & n.5 . This cycle could happen "again, and again, and again," id. at 706 , thereby allowing "palpably unreasonable conduct [to] go unpunished , " Kisela v. Hughes , 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J. , dissenting). Although this "repetitive cycle of qualified immunity defenses" could be broken if the same merits questions "arise in a case in which qualified immunity is unavailable," the Court has warned that "some kinds of c onstitutional questions do not often come up in these alternative settings." Camreta , 563 U.S. at 706 n.5 (citing Pearson , 555 U.S. at 236 and County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5 (1998) ) . Claims brought by incarcerated individuals against officials at a specific institution likely fall into that category. As evidenced by the case at bar , a prisoner's equitable claims could be mooted at any moment by his transfer to a new facility. See Salahuddin , 467 F.3d at 272. Thus, these circumstances present a higher likelihood that prisoners' rights do not become clearly established. E ven if it were not clearly established that the wardens violated RFRA, we would therefore still address the meri ts question first to clearly establish the law and prevent a vicious cycle of shielded misconduct.19 - 3575 Sabir v. Williams

16 conclude that their rights were clear ly establishe d at the time of the alleged
violation s . B. Violation of RFRA
In t he first step of the qualified immunity inquiry , we must determine whether the SAC plausibly alleges that the wardens ' enforcement of the group

- prayer policy against Sabir and Conyers violated RFRA. We conclude
that it does.
RFRA prohibits the government from " substantially burden [ing] a person's exercise of religion " unless " application of the burden

. . . (1) is in
fur therance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb

1 (a)

- (b)

. T o establish a prim a facie RFRA violation, the plaintiffs must
demonstrate that they sought to engage in the exercise of religion and that the
defendant

- officials substantially burdened that exercise

. The government then faces an "exceptionally demanding" burden to show "that it lacks other means of achieving its des ired goal without imposing a substantial burden on the exercise of religion by the objecting parties . . . ." Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 728 (2014).19 - 3575 Sabir v. Williams

17 First, Sabir and Conyers 's perform ance of congregational prayer is undoubtedly re ligious exercise

. The term "exercise of religion" extends beyond "belief and profession" and encompasses "the performance of

. . . physical acts [such as] assembling with others for a worship service." Cutter v. Wilkinson , 544 U.S. 709, 720 (2005). " It is well established that prisoners have a constitutional right to participate in congregate religious services , " Salahuddin v. Coughlin , 993 F.2d 306, 308 (2d Cir. 1993) (emphasis added), and that s a me religious exercise is also protected by R FRA, which Congress intended to cover an even broader range of activity than the First Amendment does , s ee Hobby Lobby Stores, Inc. , 573 U.S. at
696

. 4 Second, the wardens' application of the group

- prayer policy against Sabir and Conyers substantially burden ed that religious exercise. An
incarcerated plaintiff "easily satisfie[s] " his burden of proving that a prison policy

4 Williams's purported reliance on the advice of imams to determine that Muslims do not need to perform the five daily prayers in groups does not change th is analysis. RFRA's definition of the "exercise of religion" broadly includes "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Hobby Lobby Stores, Inc. , 573 U.S. at 696 (quoting 42 U.S.C. § 2000cc

- 5(7) (A) ). The "proper inquiry" is whether Sabir's and Conyers' beliefs were "sincerely held and in [their] own scheme of things, religious," which the SAC adequately alleges. Ford v. McGinnis , 352 F.3d 582, 598 (2d Cir. 2003) (emphasis and internal quotation marks omitted); see id. ("[R]eligious authorities' opinions that a particular practice is not religiously mandated under Muslim law, without more, cannot render defendants' conduct reasonable.").19 - 3575 Sabir v. Williams

18 substantially burden s his religious exercise when the policy "puts [him] to th [e]
choice" between "engag[ing] in conduct that seriously violates [his] religious
beliefs" or risking "serious disciplinary action" for adhering to those beliefs. Holt v. Hobbs , 574 U.S. 352, 361 (2015) (internal quotation marks omitted)

. 5 Sabir stopped engaging in congregate prayer because he was "fearful" of being disciplined after officer s chastised his prayer group and threatened "that
violation of th[e] rule may result in disciplinary action." SAC at 10

- 11 , ¶¶ 37

- 38 ; 41. Officials repeated ly warned Conyers that congregational prayer outside of the chapel was not allowed, and "[r]ather than risk discipline for engaging in congregational prayer . . . [he] refrained from engaging in congregational prayer on many occasions." Id. at 11, ¶ 43. Both plaintiffs "have been forced to choose between acting in accordance with their sincere religious beliefs and facing discipline at the prison , including possible solitary confinement and loss of other privileges. " Id. , ¶ 44. "Because the [group praye r] policy puts [the plaintiffs] to this choice, it substantially burdens [their ] religious exercise." Holt , 574 U.S. at

5 Holt involved a challenge under RLUIPA to restrictions on religious exercise and is relevant he re because the statutory provision in that case "mirrors RFRA and . . . thus allows prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA." Holt , 574 U.S. at 357

- 58 (internal quotation marks omitted).19 - 3575 Sabir v. Williams

19 361. Moreover, "the availability of alternative means of practicing religion"

— such as praying in pairs

— is insufficient to eliminate that substantial burden. Id. Third, o nce plaintiffs have demonstrated that defendants substantially burdened their religious ex ercise, the defendants must establish that the "application of the burden to the [plaintiffs]" is the "least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C. § 2000bb

1(b). RFRA thus places an "exceptionally demanding" bur den on the wardens to show that they "lack[ed] other means of achieving [their] desired goal without imposing a substantial burden on the exercise of religion by the objecting parties." Hobby Lobby Stores, Inc. , 573 U.S. at 728. And because RFRA expressl y requires government officials to demonstrate a compelling interest, it follows that prison officials necessarily violate RFRA when they substantially burden a plaintiff's exercise of religion without demonstrating that they had any interest, compelling or otherwise , in doing so

. See Salahuddin , 467 F.3d at 275

- 76 ("[P]rison officials may not substantially burden inmates' right to religious exercise without some justification

. . . ."). The wardens chose to press this appeal at the motion

to

- dismiss stage; therefore, our consideration is limited to any interests and evidence of narrow tailoring contained in the allegations of the complaint or , as19 - 3575 Sabir v. Williams

20 relevant here, any facts reflected in the attachments to it

. See Chamberlain v. City of White Pla ins , 960 F.3d 100, 110 (2d Cir. 2020). From these documents, we can discern no asserted governmental interest

— much less a compelling one

— for the requirement that Sabir and Conyers engage in group prayer only in the prison chapel. Quay 's and Williams's denials of the plaintiffs' administrative grievances were attached to the complaint and may therefore be considered in reviewing their motion to dismiss , but they are ultimately unhel pful to th eir position

. In denying Sabir's grievance, Quay declared that "congregate prayer is
not restricted" despite recognizing that "group prayer of 3 or more is restricted to the Chapel." Response of H. Quay to Sabir ( Jan

. 2 7 , 201 5 ) , J.A. 48. His confusing paraphras e of the policy does nothing to demonstrate that a compelling interest is at stake, or that the policy is the least restrictive means of furthering any such
interest

. In denying Conyers's grievance, Williams also restat ed the policy and suggested that the prison had determined through consultations with religious
leaders that performing congregate prayer five times per day was not necessary

. At most, Williams' s defense of the policy could suggest that Conyers's religious
beliefs were not widely held , but the administrative denial again fails to offer a ny19 - 3575 Sabir v. Williams

21 government al interest for the policy's enforcement against Conyers or explain
how this enforcement was narrowly tailored to serve any such interest

. The w ardens contend that other attachments to the complaint adequately reflect th e governmental interests served by their enforc ement of the policy against Sabir and Conyers

. Specifically, they point to subsequent
statements by high

- ranking FBOP officials upholding the wardens' denials. One response from FBOP's Regional Director offers the conclusory statement that FCI Danbury's policy was "a reasonable, least restrictive alternative of accommodating prayer" consistent with "the orderly running of the institution" and with "staff supervision" and "space" constraints. Response of J.L

. Norwood
to Sabir ( Mar

. 11, 2015 ) , J.A. 51. Another response by FBOP's Administrator of
National Inmate Appeals similarly declares that the policy was "the least
restrictive alternative" that would allow for group prayer "consistent with security and budgetary constraints." Response of Ian Connors to Conyers ( Oct

. 24, 2017 ) , J.A. 61

. E ven taking into account these subsequent attempts by non defendant FBOP officials to justify the policy's existence more broadly , we cannot identify any governmental interests on which Quay and Williams relied when19 - 3575 Sabir v. Williams

22 they enforc ed the policy against Sabir and Conyers

. " [P] rison officials must have been pursuing the interest . . . when limiting [the plaintiffs'] religious exercise ,"

a nd we have explained that this requirement "ensure s that prison officials actually had , not just co uld have had, a legitimate reason for burdening protected activity." Salahuddin , 467 F.3d at 277 (emphasis added)

. S ubsequent statements
from regional and national supervisory officials shed no light on the wardens' actual reasons for enforcing the policy against Sabir and Conyers. For th e same
reason, a panel of this C ourt similarly refused to "impute[] the penological interest articulated by [one official] onto [another]." Barnes v. Fedele , 813 F. App'x 696, 701 (2d Cir.) (summary order) , cert. denied , 141 S. Ct. 884 (2020)

. Here,

" nothing in the record sets forth [the wardens'] motivation or thinking ," and " [i] t is possible, after all, that [the FBOP officials' ] ' understanding ' of the policy

. . . was not aligned with " that of the wardens

. Id

. T he wardens cannot "point[] to anything in the [complaint or the evidence in the attachments] to show that they
relied on " compelling interests, and we cannot " manufacture facts out of thin air. " Salahuddin , 467 F.3d at 275 (emphasis added); see Barnes v. Furman , 629 F. App'x 52, 57 (2015) (summary order) (“ [ B ] ecause defendants have not identified any penological interests supporting the policy, we cannot assess the reasonableness19 - 3575 Sabir v. Williams

23 of their actions. ")

. Even if we could impute the FBOP officials' reasoning to the wardens, it would not suffice

. Under RFRA , it is not enough to offer "very broad terms"; rather , RFRA demands "a more focused inquiry " that " requires the
Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to

. . . the particular claimant whose sincere exercise of religion is being substantially burdened." Hobby Lobby Stores, Inc. , 573 U.S. at 726 (internal quotation marks omitted). "This requires us to 'loo [ k ] beyond broadly formulated interests' and to 'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants . . . .'" Id

. at 726

- 27 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 431 (2006)). The FBOP officials' statements do not explain how the wardens' enforcement of this policy against Sabir and Conyers served an interest in "the orderly running of the in stitution," or "security and budgetary constraints

. " Response s of J.L

. Norwood and Ian Connors , supra at J.A. 51, 61

. The y offer only

" broadly formulated interests , " which are insufficient to satisfy RFRA. 6 Hobby

6 This not to say that the plaintiffs would necessarily fail to state a claim under RFRA if the wardens, in their responses to the plaintiffs’ grievances, had identified a sufficiently specific interest furthered by the policy. So long as the plaintiffs plausibly a llege that19 - 3575 Sabir v. Williams

24 Lobby Stores, Inc. , 573 U.S. at 726

. Further, FBOP officials offer ed only conclusory assertions that the policy was the "least restrictive alternative , " Response s of J.L

. Norwood and Ian
Connors , supra at J.A. 51, 61 , and e ven if these claims were attributable to the wardens, w e c ould not credit them in our review since the plaintiffs plausibly allege that the policy is more restrictive than necessary

. See Williams v. Annucci , 895 F.3d 180, 192 (2d Cir. 2018) ("T aking the [government] at its word under such
circumstances would involve ' a degree of deference that is tantamount to unquestioning acceptance. '" (quoting Holt , 574 U.S. at 364)). In deed , it seems highly unlikely that the policy is narrowly tailored considering the fact that , according to the SAC , comparable secular activities

— including inmate

- led fitness classes and card games

— do not face similar restrictions. See Williams , 895
F.3d at 193 ("[U] nexplained disparate treatment of ' analogous nonreligious
conduct ' leads us to suspect that a narrower policy that burdens [the plaintiffs] to a lesser degree is in fact possible. "); Hobby Lobby Stores, Inc. , 573 U.S. at 730 (noting that the government "itself has demonstrated that it has at its disposal an
any purported interests are pretextual

— as they have done here by asserting that there is no meaningful justification for the policy and pointing to comparable secular activities that are not restricted

— the legitimacy of the officials’ justificat ion for the policy would be an issue of fact incapable of resolution at the motion

- to

- dismiss stage.19 - 3575 Sabir v. Williams

25 approach that is less restrictive" because it "ha s already established an accommodation" for others)

. 7 Based on the pleadings and other material available to us on review ,

we thus c onclude that Sabir and Conyers have plausibly alleged that the
wardens' enforcement of the group

- prayer policy against them violated RFRA.
C. Whether the Right was "Clearly Established " Having determined that the plaintiffs pled a RFRA violation, we
must address the secon d prong of the qualified immunity analysis: whether " the right [ at issue ] was clearly established at the time of the challenged conduct."
Francis , 942 F.3d at 139 (internal quotation marks omitted)

. W e conclude that the plaintiffs' rights under RFRA were clearly established at the time of the alleged
violations.
1. Legal Standard
Alt hough the scope of qualified immunity is considered broad enough to protect "all but the plainly incompetent or those who knowingly violate the law," it is not availabl e when an officer ' s actions are not objectively

7 This "underinclusiveness " also counsels against a finding that the policy serves a compelling governmental interest. Williams , 895 F.3d at 1 89 ; see also id. at 191 ("Such unexplained disparate treatment of 'analogous nonreligious conduct' leads us to question whether the [govern ment's] interest . . . is as compelling as it suggests . . . .").19 - 3575 Sabir v. Williams

26 reasonable in light of clearly established law. Ziglar v. Abbasi , 137 S. Ct. 1843, 1867 (2017) (internal quotation marks omitted). "To determine whether the relevant law was clearly established, we consider the specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable officer in light of preexisting
law." Terebesi v. Torreso , 764 F.3d 217, 231 (2d Cir. 2014). P recedent "directly on point" is not required for law to be clearly established, District of Columbia v. Wesby , 138 S. Ct. 5 7 7, 590 (2018), and "[i ]t is not necessary, of course, that the very action in question has previously been held unlawful," Abbasi , 137 S. Ct. at 1866 (internal quotation marks omitted) . Thus, "the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue." Garcia v. Does , 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and brackets omitte d).
2. Qualified Immunity at the Pleadings Stage The Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant , 502 U.S. 224, 227 (1991). "But there is a n obvious, if rarely expressed,19 - 3575 Sabir v. Williams

27 corollary to that principle: The immunity question cannot be resolved before the earliest possible stage, i.e., prior to ascertainment of the truth of the plausible factual allegations on which a finding of qualified immunity is premised." Chamberlain , 9 6 0 F.3d at 110 (internal quotation marks and citation omitted).
The wardens chose to press th eir qualified immunity defense at the pleading s stage, and they therefore must face the " more stringent standard applicable to this procedural route. " McKenna v. Wright , 386 F.3d 432, 436 (2d Cir. 2004). Specifically, "the facts supporting the defense [must] appear on the face of the complaint ," id. , or in its attachments and documents incorporated by
referenc e, DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010)

. 8 On a motion to dismiss, the plaintiffs are " entitled to all reasonable inferences from the facts alleged, not only those that support [their] claim, but also those that defeat the immunity defense." McKenna , 386 F.3d at 43 6. For this reason, we have explained that "advancing qualified immunity as grounds for a motion to dismiss is almost always a procedural
mismatch." Chamberlain , 960 F.3d at 111. Although it is possible for a qualified

8 A previous version of this opinion referred to a since

- overruled pleading standard. The reference has been deleted. We conclude that nothing further is required to correct the error.19 - 3575 Sabir v. Williams

28 immunity defense to succeed on a motion to dismiss, see Liberian Cmty. Ass'n of
Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020) , such a defense " faces a formidable hurdle . . . and is usually not successful , ” Field Day, LLC v. County of Suffolk , 463 F.3d 167, 191

- 92 (2d Cir. 2006) (internal quotation marks omitted) ; see also Chamberlain , 960 F.3d at 110 ("[A]s a general rule, the defense of qualified immunity cannot support the grant of a [Rule] 12 (b)(6) motion." (internal quotation marks omitted)).
3. Applica tion
A reasonable officer should have known, based on clearly established law, that denying a Muslim inmate the ability to engage in group
prayer without any justification or compelling interest , as alleged in the SAC,
violates RFRA.
In 2006, we held in Salahuddin that it was clearly established that prison officials cannot substantially burden inmates' religious exercise without offering any just ification. 467 F.3d at 2 75

- 76

. There, we concluded that prison
officials violated inmates' religious freedom under both RLUIPA and the First
Amendment by requiring Sunni Muslims and Shi’ite Muslims to pray and fast jointly for Ramadan. See id . at 270 , 275

. D efendant s had "not pointed to anything19 - 3575 Sabir v. Williams

29 in the record to show that they relied on legitimate penological justifications " and

" our review of the record [ did not] reveal any such evidence

. " Id

. at 275.
"W ithout some support in the record, we [could not] find that [prison] officials were worried that separate services would endanger inmates, or were short on space for separate ser vices, or had some other reason for mandating the joint
services. " Id

. "Although the facts at trial might [have] show [n] otherwise," even at the summary judgment stage in Salahuddin , the lack of evidence of the policy's justification "establish[ed] that [the plaintiff's] free

- exercise rights were substantially burdened by a joint

- worship policy not justified by

. . . [a] compelling governmental interest

. . . ." Id

. In addition to showing that violations of the plaintiff's constitutional and statutory rights had occurred , the lack of justification for the policy's
enforcement in the record made clear that " [q]ualified immunity [was] not appropriate " even at the summary judgment sta g e " because it was clearly established at the time of the alleged violations that prison officials may not substantially burden inmates' right to religious exercise without some justification ." Id

. at 275

- 76. " [W] e [could not] say as a matter of law that it was objectively reasonable for any defendant to believe that the facts as they [stood]19 - 3575 Sabir v. Williams

30 on summary judgment showed no violation of a clearly established right. " Id . at
276.
In th e case at bar , we are at an even earlier stage of litigation than we

were in Salahuddin . W e are limited here to the allegations in the complaint and
the evidence in the attachments to it . T he wardens cannot point to any justification in th at material for their imposition of a substantia l burden on Sabir's and Conyers's religious exercise. 9 To repeat yet again, a s in Salahuddin , "although the facts at trial" or summary judgment "might show otherwise," we
cannot "manufacture [such] facts out of thin air." Id

. at 275. Because it was clearly established at the time of the alleged violations of Sabir and Conyers's RFRA rights that the wardens could " not substantially burden inmates' right to religious exercise without some justification," "[q]ualified immunity is not appropriate at this stage " of the proceedings

. Id

. at 275

- 76. 10

9 N or can the officials seriously dispute that it was clearly established that preventing a prisoner from engaging in congregational prayer constitutes a substantial burden on the prisoner’s religious exercise. As we explained above, we have consistently recognized that policies restricting access to group prayer impose a burden on prisoners’ free exercise rights

. See Salahuddin v. Coughlin , 993 F.2d at 308; Young v. Coughlin , 866 F.2d 567, 570 (2d Cir. 1989). 10 Our decision should not , of co urse, be read to suggest that the district court should automatically grant summary judgment to defendants on qualified immunity grounds upon the introduction of any evidence that their enforcement of the policy served a19 - 3575 Sabir v. Williams

31 We reject the wardens ' argument that Salahuddin 's holding is an "abstract legal principle" that "cannot establish law for purposes of qualified immunity

. " Appellants' Br. at 17

. There are, of course, some contexts in which a higher degree of specificity is required to establish the law for purpose s of qualified immunity than in others. For example, the Fourth Amendment's prohibition o f "unreasonable searches and seizures" is an "abstract right [] " because "it may be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation encountered." Abbasi , 137
S. Ct. at 1866; s ee also Mulleni x v. Luna , 577 U.S. 7, 12 (2015) (per curiam) ("Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine

. . . will a pply to the factual situation the officer
confronts. " ( internal quotation marks and alteration omitted) )

. No such concerns

compelling interest. On a motion f or summary judgment, any "unchallenged and unresolved factual allegations" will be "viewed in the light most favorable to" Sabir and Conyers. Salahuddin , 467 F.3d at 275. It may be that the qualified immunity issue can only be resolved at trial if , for i nstance, it appears that a justification offered by the defendants may be pretextual. Id. at 277 (h olding that officials must prove they were "pursuing the interest

. . . when limiting [the plaintiff ' s] religious exercise," so as to "ensure[] that prison officials actually had, not just could have had, a legitimate reason for burdening protected activity"). For example, a purported interest in security may be pretextual if comparable secular activities posing identical security concerns are not restricted

. See Williams , 895 F.3d at 191

- 92

.19 - 3575 Sabir v. Williams

32 are present here

. Based on RFRA 's requirements , i t is not "difficult for an [official] to know whether" an unjustified substantial burden on religious
exercise "will be deemed reasonable." Abbasi , 137 S. Ct. at 1866. As t he text of the
statute itself explains : " G overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person

. . . is in furtherance of a compelling governmental interest . . . ." 42 U.S.C. § 2000bb

- 1 (emphasis added) ; see also Okin v. Vill. o f Cor n wall

- On

- Hudson Police Dep't , 577 F.3d 415, 433

- 34 (2d Cir. 2009) (noting that courts "may examine statutory or administrative provisions in conjunction with prevailing circuit or Supreme Court law to determine whether an individual had fair warning that his or her
behavior would vio late the victim's constitutional rights."). Put another way, i f an official substantially burden s a sincere religious exercise but cannot point to
evidence that the application of the burden was in service of any interest

— let alone a compelling one

— the official has violat e d RFRA

. Thus, the wardens are not entitled to dismissal of the SAC on the
basis of qualified immunity because our case law , in conjunction with the text of RFRA, clearly established at the time of the events at issue that substantially burdening Sabir's and Conyers's religious exercise with no justification , as was19 - 3575 Sabir v. Williams

33 alleged by the plaintiffs, violated RFRA

. CONCLUSION We have considered the parties' remaining arguments on appeal and conclude that they are without merit. For the reasons set forth above, we affirm
the district court's order.