19-3575

Sabir v. Williams

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2021

(Argued: October 14, 2021 Decided: June 17, 2022

Amended: October 28, 2022)

Docket No. 19-3575

RAFIQ SABIR, JAMES J. CONYERS,

Plaintiffs-Appellees,

v.

D.K. WILLIAMS, IN HER INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS 

WARDEN OF FCI DANBURY, HERMAN QUAY, IN HIS INDIVIDUAL CAPACITY,

Defendants-Appellants;

MARK S. INCH, DIRECTOR OF FEDERAL BUREAU OF PRISONS, THOMAS R. KANE,

DIRECTOR OF FEDERAL BUREAU OF PRISONS, HUGH J. HURWITZ, IN HIS 

INDIVIDUAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF PRISONS,

Defendants.

Before: WALKER, SACK, AND CARNEY, Circuit Judges.

Defendants-appellants D.K. Williams and Herman Quay appeal 

from an order denying their motion to dismiss in part and rejecting their

qualified immunity defense against the Religious Freedom Restoration Act

("RFRA") claims of plaintiffs-appellees Rafiq Sabir and James Conyers. The 

plaintiffs-appellees are practicing Muslims whose 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 

result, Sabir and Conyers were forced to forgo their religious exercise of group 

prayer to avoid disciplinary action. We conclude that the wardens are not 
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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 RFRA. We therefore

AFFIRM the order of the district court. 

 

DANIEL WINIK, (Brian M. Boynton, Leonard 

C. Boyle, Michael S. Raab, on the brief), U.S. 

Department of Justice, Washington, D.C., 

for Defendant-Appellants;

MATTHEW W. CALLAHAN, Muslim 

Advocates, Washington, D.C., for PlaintiffsAppellees;

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.

SACK, 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 at the Federal Correctional Institution in Danbury, Connecticut
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("FCI Danbury"), Warden D.K. Williams and Warden Herman Quay enforced a 

policy that restricted prayer in groups of more than two to the prison's chapel, 

despite that facility's frequently unavailability. As a result, the plaintiffs were

forced to forgo their engagement in a required religious practice to avoid 

disciplinary 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, the district court (Bolden, J.) granted the defendants' motion to dismiss the

plaintiffs' Second Amended Complaint 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 defendants-appellants are 

not entitled to qualified immunity at this stage of the proceedings because the 

allegations in the complaint and the documents attached to it as exhibits do not 
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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 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 Rafiq 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 of 
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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 

defendants' motion to dismiss.

Individuals incarcerated at FCI Danbury have a relatively high 

degree of autonomy: Many 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, the 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 

plaintiffs 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 one 
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prayer leader" and cannot "break up into smaller groups." Id. at 6, ¶ 23. They 

explain that performing group prayer with the largest possible number of other

Muslims "multiplies the blessings and utility of prayer." Id. at 5-6, ¶ 19.

The Federal Bureau of Prisons ("FBOP") does not have a formal 

policy categorically banning congregational prayer within its facilities. Each 

facility’s warden is, however, authorized to temporarily restrict a specific 

religious practice if he or she determines 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 allowed congregational prayer without significant restrictions.

In March 2014, FCI Danbury's then-warden, Maureen Baird,

nonetheless instituted a policy restricting prayer in groups of more than two 

people to the prison's chapel. The policy statement 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. 
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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 permitted 

congregational prayer in the chapel, groups seeking to use the space could only 

do so when chapel staff was present and the rooms were not otherwise occupied 

or reserved. The facility was "frequently unavailable" during the plaintiffs' 

prayer times. Id. at 9, ¶ 32.

In October 2014, Sabir was praying with two other inmates in the 

auditorium when corrections officers approached to inform them that group 

prayer was only permitted in the chapel and that violating the rule could result 

in discipline. Sabir and the others explained to the officers that their religion 

required them to perform congregational prayer five times per day and that the 

chapel was frequently unavailable during those times. The officers responded by 

reiterating the terms of the prison's group prayer policy. As a result of this 

incident, Sabir was "fearful" that he would be sanctioned or disciplined 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 to
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avoid disciplinary action. The plaintiffs allege that the wardens' "enforcement of 

the Policy prevent[ed] [them] from . . . engaging in daily congregational prayer

as mandated by [their] sincerely-held religious beliefs." Id. at 11, ¶¶ 41-42. 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. 

According to the SAC, "Defendants have offered no meaningful justification for 

the [p]olicy" restricting group prayer. Id. at 9, ¶ 33.

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 policy, 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. 27, 2015), J.A. 48. Quay's

determination 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, 
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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. 

In May 2017, Warden Williams denied Conyers's grievance,

restating the policy and explaining that that the prison's Religious Services 

Department had consulted 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, 2017), 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 accommodated." Id. The Administrator of National Inmate Appeals 

concurred, adding that the policy was "the least restrictive alternative in order to 

afford inmates with more opportunities to practice this religious observance 
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consistent with security and budgetary 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 another institution.

Procedural History

In May 2017, Sabir, acting pro se, initiated this suit against Williams 

and the director of the FBOP, 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 Institutionalized 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 that 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 added Conyers as an additional plaintiff and named Quay as an 
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additional defendant. Sabir and Conyers asserted that FCI Danbury's communal 

prayer policy violated RFRA and the Free Exercise Clause. They sought a 

declaration that the policy was unlawful, injunctive relief preventing the 

enforcement of the policy, and damages from Williams and Quay in their 

individual capacities. The defendants 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 transfers out of FCI Danbury. 

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 plaintiffs stated a claim by "detail[ing] the religious 

importance of congregational prayer," showing "the burden the Policy has placed 

1 On appeal, we consider only the plaintiffs' 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 under 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 wardens 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).
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on [the plaintiffs'] exercise of religion," and "alleg[ing] that FCI Danbury only 

applies this sort of burden to religious activities, 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 court 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 and 
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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 id. at *6, but in May 2020, Sabir voluntarily dismissed it.2

DISCUSSION

On appeal, the wardens 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. They 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 without 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.”). 
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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 shields defendants from liability, 

courts may "exercise their sound discretion in deciding which of the two prongs 

of the qualified immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 
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236 (2009); see also Francis, 942 F.3d at 140.3 However, because 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. First, we decide

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[ping] ahead" to the second 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 wellfounded 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 qualified 

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[] controlling 

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 because 

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 constitutional 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. Even if it were not clearly established that the wardens 

violated RFRA, we would therefore still address the merits question first to clearly 

establish the law and prevent a vicious cycle of shielded misconduct. 
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conclude that their rights were clearly established at the time of the alleged 

violations.

B. Violation of RFRA

In the 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 

furtherance of a compelling governmental interest; and (2) is the least restrictive 

means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb1(a)-(b). To establish a prima 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 desired 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). 
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First, Sabir and Conyers's performance of congregational prayer is 

undoubtedly religious 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 same religious exercise is also

protected by RFRA, which Congress intended to cover an even broader range of 

activity than the First Amendment does, see Hobby Lobby Stores, Inc., 573 U.S. at 

696.4 

Second, the wardens' application of the group-prayer policy against 

Sabir and Conyers substantially burdened 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 this 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.").
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substantially burdens 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 officers 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 repeatedly 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 prayer] 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 here 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). 
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361. Moreover, "the availability of alternative means of practicing religion"—

such as praying in pairs—is insufficient to eliminate that substantial burden. Id.

Third, once plaintiffs have demonstrated that defendants 

substantially burdened their religious exercise, 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. § 2000bb1(b). RFRA thus places an "exceptionally demanding" burden 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 expressly 

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 motionto-dismiss stage; therefore, our consideration is limited to any interests and 

evidence of narrow tailoring contained in the allegations of the complaint or, as 
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relevant here, any facts reflected in the attachments to it. See Chamberlain v. City 

of White Plains, 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 unhelpful to their 

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. 27, 2015), J.A. 48. His confusing

paraphrase 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 restated 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 any
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governmental interest for the policy's enforcement against Conyers or explain 

how this enforcement was narrowly tailored to serve any such interest.

The wardens contend that other attachments to the complaint 

adequately reflect the governmental interests served by their enforcement 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. 

Even taking into account these subsequent attempts by nondefendant FBOP officials to justify the policy's existence more broadly, we cannot 

identify any governmental interests on which Quay and Williams relied when 
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they enforced the policy against Sabir and Conyers. "[P]rison officials must have 

been pursuing the interest . . . when limiting [the plaintiffs'] religious exercise," 

and we have explained that this requirement "ensures that prison officials actually 

had, not just could have had, a legitimate reason for burdening protected 

activity." Salahuddin, 467 F.3d at 277 (emphasis added). Subsequent statements 

from regional and national supervisory officials shed no light on the wardens'

actual reasons for enforcing the policy against Sabir and Conyers. For the same

reason, a panel of this Court 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. The 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 reasonableness 
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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 institution," or "security and budgetary constraints."

Responses of J.L. Norwood and Ian Connors, supra at J.A. 51, 61. They 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 allege that 
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Lobby Stores, Inc., 573 U.S. at 726.

Further, FBOP officials offered only conclusory assertions that the

policy was the "least restrictive alternative," Responses of J.L. Norwood and Ian 

Connors, supra at J.A. 51, 61, and even if these claims were attributable to the 

wardens, we could 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) ("Taking 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)). Indeed, 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’ justification for the 

policy would be an issue of fact incapable of resolution at the motion-to-dismiss stage.
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approach that is less restrictive" because it "has already established an 

accommodation" for others).7 

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

we thus conclude 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 second 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). We conclude that the 

plaintiffs' rights under RFRA were clearly established at the time of the alleged 

violations. 

1. Legal Standard

Although 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 available 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 189; see also id. at 191 ("Such 

unexplained disparate treatment of 'analogous nonreligious conduct' leads us to 

question whether the [government's] interest . . . is as compelling as it suggests . . . .").
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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). Precedent "directly on 

point" is not required for law to be clearly established, District of Columbia v. 

Wesby, 138 S. Ct. 577, 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 omitted).

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 an obvious, if rarely expressed, 
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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, 960 F.3d at 110 (internal quotation marks and citation omitted). 

The wardens chose to press their qualified immunity defense at the 

pleadings 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 

reference, 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 436.

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.
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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. Application

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 justification. 467 F.3d at 275-76. 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. Defendants had "not pointed to anything 
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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. 

"Without 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 services, 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 stage "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]
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on summary judgment showed no violation of a clearly established right." Id. at 

276.

In the case at bar, we are at an even earlier stage of litigation than we 

were in Salahuddin. We are limited here to the allegations in the complaint and 

the evidence in the attachments to it. The wardens cannot point to any 

justification in that material for their imposition of a substantial burden on 

Sabir's and Conyers's religious exercise.9 To repeat yet again, as 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 Nor 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 course, 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 a 
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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 purposes of 

qualified immunity than in others. For example, the Fourth Amendment's

prohibition of "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; see also Mullenix 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 apply to the factual situation the officer 

confronts." (internal quotation marks and alteration omitted)). No such concerns 

compelling interest. On a motion for 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 instance, it appears that a justification offered by the 

defendants may be pretextual. Id. at 277 (holding 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.
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are present here. Based on RFRA's requirements, it 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 the text of the

statute itself explains: "Government 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. of Cornwall-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 violate the victim's constitutional rights."). Put another way, if 

an official substantially burdens 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 violated 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 was 
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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.