13‐2694‐pr

Holland v. Goord

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term 2013

4 (Argued: April 10, 2014                   Decided: July 10, 2014)

5

6 No. 13‐2694‐pr

7 _____________________________________

8

9 DARRYL HOLLAND,

10

11 Plaintiff‐Appellant,

12 ‐ v ‐

13 GLENN S. GOORD, in his individual capacity, ANTHONY J. ANNUCI, in his official

14 capacity as Acting Commissioner of the Department of Corrections and

15 Community Supervision, ANTHONY F. ZON, in his individual capacity and official

16 capacity as Former Superintendent, Wende Correctional Facility, THOMAS

17 SCHOELLKOPF, in his individual capacity and official capacity as Hearing Officer,

18 Wende Correctional Facility, JOHN BARBERA, in his individual capacity and

19 official capacity as Correctional Officer, Wende Correctional Facility, MARTIN

20 KEARNEY, in his individual capacity and official capacity as Captain, Wende

21 Correctional Facility,

22

23 Defendants‐Appellees,

24 JAY WYNKOOP, in his individual capacity and official capacity as the Watch

25 Commander and/or Keeplock Review Officer, Wende Correctional Facility,

26

Defendant.

* 27

28 _____________________________________

* Acting Commissioner Anthony J. Annuci has been substituted in place of former

CommissionerBrianFischer,pursuantto FederalRule ofAppellateProcedure 43(c)(2).  The

Clerk of the Court is directed to amend the caption to reflect the alterations set out above.
1

2 Before: JACOBS, CALABRESI, and LIVINGSTON, Circuit Judges.

3

4 Appeal from the judgment of the United States District Court forthe Western

5 District of New York (Telesca, J.), granting the defendants’ motion for summary

6 judgment and denying the plaintiff’s cross‐motion for summary judgment as to the

7 plaintiff’s free exercise, retaliation, and due process claims brought pursuant to 42

8 U.S.C. § 1983, and his claim under the Religious Land Use and Institutionalized

9 Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc etseq.  Even assuming arguendo that the

10 substantial burden requirementremains a necessary component of a plaintiff’s free

11 exercise claim, we conclude that the defendants’ conduct placed such a burden on

12 the plaintiff’s free exercise rights.  Accordingly, we vacate the district court’s grant

13 of summary judgment in the defendants’ favor, based on its conclusion that the

14 burden imposed here was de minimis, and we remand  the plaintiff’s § 1983 claim for

15 damages under the First Amendment for further consideration of this claim.

16 Because we also conclude that the plaintiff’s claim for damages under RLUIPA is

17 barred, that his claims forinjunctive relief underRLUIPA and the First Amendment

18 are moot, and that he has failed to state a claim for either a denial of due process or

19 First Amendment retaliation, we affirm the grant of summary judgment in the

20 defendants’ favor on those claims.

21

22 VACATED AND REMANDED IN PART AND AFFIRMED IN PART.  

23

24 JEFFREYA.WADSWORTH (Candace M. Curran, on the

25 brief),Harter Secrest & Emery LLP, Rochester, N.Y.,

26 for Plaintiff‐Appellant.

27

28 KATE    H. NEPVEU, Assistant Solicitor General

29 (Barbara D. Underwood, Solicitor General, and

30 Andrew D. Bing, Deputy Solicitor General, on the

31 brief), for Eric T. Schneiderman, Attorney General of

32 the State of New York, New York, N.Y., for

33 Defendants‐Appellees.

34

35

2
1 DEBRA ANN LIVINGSTON, Circuit Judge:

2 Plaintiff‐Appellant Darryl Holland (“Holland”), an inmate and practicing

3 Muslim, asserts that defendant prison officials Glenn Goord, Anthony J. Annuci,

4 Anthony F. Zon, Thomas Schoellkopf, John Barbera, and Martin Kearney

(collectively, “Appellees”)1 5 unconstitutionally burdenedhis religious exercise when

6 they ordered him to provide a urine sample within a three‐hour window – the time

7 limit then permitted by prison regulations – while Holland fasted in observance of

8 Ramadan, the holy month during which Muslims refrain from ingesting food and

9 drink during daylight hours.  Though Holland cited his fast to explain why he could

10 not comply with the order or drink water to aid his compliance, Appellees did not

11 permit Holland an opportunity to provide a urine sample after sunset when his fast

12 had ended.   Instead, when Holland failed timely to produce a sample, he was

ordered confined in keeplock.2 13     In this ensuing lawsuit, Holland asserts that

1 Holland also named Lieutenant Jay Wynkoop in his second amended complaint, but the

record reflects that he was never served, is not represented by counsel, and is not a party

to this appeal.

2 “Keeplock is a form of administrative segregation in which the inmate is confined to his

cell, deprived of participation in normal prison routine, and denied contact with other

inmates.”  Peralta v. Vasquez, 467 F.3d 98, 103 n.6 (2d Cir. 2006) (internal quotation marks

omitted).  We note the specifics of Holland’s keeplock status below.

3
1 Appellees’ order and disciplinary action infringed his rights underthe Free Exercise

2 Clause of the First Amendment and the Religious Land Use and Institutionalized

3 Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.  Holland also asserts that his

4 inability to call a witness during a subsequent disciplinary hearing resulted in a

5 denial of due process under the Fourteenth Amendment, and that his confinement

6 in keeplock amounted to First Amendmentretaliation.  Holland seeks damages and

7 injunctive relief.

8 Following cross‐motions for summary judgment, the district court (Telesca,

9 J.) entered judgment in favor of Appellees.  Significantly, the district court held that

10 Holland could not prevail on his FirstAmendmentfree exercise andRLUIPAclaims

11 because Appellees’ conduct had placed only a de minimis burden on Holland’s

12 religious exercise.  See Holland v. Goord, No. 05 Civ. 6295 (MAT), 2013 WL 3148324,

13 at *11‐12 (W.D.N.Y. June 19, 2013).    The district court also ruled that, in the

14 alternative, Appellees were entitled to qualified immunity as to Holland’s free

15 exercise claims because Holland’s right to an exception from the three‐hour limit

16 had not been clearly established at the time the order was given.   Id. at *8‐10.

17 Further, the district court noted that RLUIPA does not support Holland’s claim for

4
1 money damages, id. at *7; it dismissed Holland’s due process claim on the ground

2 that Holland lacked a liberty interest in avoiding keeplock, id. at *5‐6; and, finally,

3 the court concluded that Holland’s FirstAmendmentretaliation claim was properly

4 dismissed because Holland failed to raise any issue as to a retaliatory motive

5 underlying his keeplock confinement, id. at *13‐14.

6 On appeal, we conclude that the choice either to provide a urine sample by

7 drinking water during his fast or to face disciplinary action placed a substantial

8 burden on Holland’s religious exercise.  Accordingly, we vacate the district court’s

9 judgment insofar as it concerns Holland’s claim for damages under the First

10 Amendment’s Free Exercise Clause and remand for further consideration of this

11 claim.  We affirm the remainder ofthe judgment, albeitlargely on alternate grounds.

12 BACKGROUND

13 A. Facts

14 Holland was incarcerated in Wende Correctional Facility (“Wende”) from

15 1999 until 2005, during which time he converted to Islam.  On November 20, 2003,

16 Martin Kearney, a captain atWende,purportedly receivedinformationthat Holland

17 was using drugs and directed John Barbera, a correctional officer at Wende, to

5
1 obtain a urine sample from him.    At the time, New York State Department of

2 Correctional Services (“DOCS”)Directive 4937 requiredthatinmatesprovide aurine

3 sample within three hours of being ordered to do so, without exception.    The

4 Directive also provided that inmates could be given up to eight ounces of water per

5 hour during the three‐hour time span to assist in their production.  On Kearney’s

6 order, Barbera directed Holland to provide a urine sample.  However, Holland

7 stated that he was unable to do so, citing his fast in observance of Ramadan.

8 Holland also refused water on those grounds.  Though Holland offered to drink

9 water and provide a sample after sunset, when his fast had ended, Barbera declined

10 to permit an exception to the Directive.  After three hours had elapsed and Holland

11 had failed to comply with the order, Barbera issued a misbehavior report charging

12 Holland with violating theurinalysis guidelines anddefying adirect order.  Holland

13 was then placed in keeplock pending a disciplinary hearing on the matter.  

14 Atthat hearing, Holland testified that he had been unable to provide a sample

15 when he was ordered to do so because he could not drink water prior to sunset

16 during Ramadan.  Holland also requested that his imam be permitted to attest to

17 these beliefs; however, Thomas Schoellkopf, a hearing officer at Wende, refused to

6
1 permit the witness, stating that it was unnecessary to call the imam given that he

2 had not been present at the incident and that his testimony regarding the practice

3 of Muslims observing the Ramadan fast would be duplicative of Holland’s.

4 Following this exchange, Schoellkopf found Holland guilty of violating the

5 urinalysis guidelines, stating that he was “not aware of any religious exceptions

6 such as Ramadan that excuse[] . . . participation in drug testing.”  Schoellkopf also

7 found Holland not guilty of the charge that he failed to comply with a direct order,

8 stating that his “more lenient disposition” was an attempt to “encourage [Holland]

9 to follow the urinalysis guidelines in the future.”  In light of the guilty disposition

10 on the urinalysis charge, Schoellkopf sentenced Holland to 90 days in keeplock, as

11 well as 90 days of lost privileges.

12 Holland initiated several administrative appeals of the verdictfrom keeplock

13 and sent a letter to Anthony F. Zon, the then‐Superintendent of Wende, informing

14 him of the sentence.    Holland’s imam also sent a memorandum to Kearney,

15 reaffirming Holland’s beliefs, questioning why Holland had not been permitted to

16 provide a sample after sunset, and asking Kearney to “look into” the matter.  While

17 Holland’s initial appeals were resolved in his favor – with Zon determining on

7
1 January 21, 2004 that “[u]rinalysis testing couldbe taken after sunset” – Holland was

2 not immediately released from keeplock.  Instead, Holland further appealed his

3 claims until, on February 5, 2004, the Director of Special Housing/Inmate Discipline

4 workingunderthen‐DOCS CommissionerGlennGoordreversedandexpungedthe

5 disciplinary action, citing Schoellkopf’s failure to elicit relevant testimony from

6 Holland’s imam.  Holland was released from keeplock that day, after serving 77

7 days in detention.  While in keeplock, Holland was confined to his cell for 23 hours

8 each day, was barred from attending Islamic services, including the Eid ul‐Fitrfeast

9 celebrating the end of Ramadan, allegedly received “punishment trays” containing

10 meager portions, and lost his seniority and higher wage job at Wende.

11 B. Procedural History

12 Holland filed the underlying action pro se in June 2005.  After his complaint

13 survived two motions to dismiss, see Holland v. Goord, No. 05 Civ. 6295 (CJS), 2007

14 WL 2789837 (W.D.N.Y. Sept. 24, 2007); Holland v. Goord, No. 05 Civ. 6295 (CJS), 2006

15 WL 1983382 (W.D.N.Y. July 13, 2006), Holland was appointed counsel and filed a

16 second amended complaint, asserting under 42 U.S.C. § 1983 and RLUIPA that the

17 order to provide a urine sample and his resultant confinement in keeplock violated

8
1 his right to free exercise of religion.  Holland also asserted under 42 U.S.C. § 1983

2 that Schoellkopf’s refusal to call his imam as a witness denied him due process

3 underthe Fourteenth Amendment, and that his confinement in keeplock amounted

4 to retaliation for his religious beliefs in violation of the First Amendment.    As

5 relevant here, Holland sought damages and injunctive relief.  As part of Holland’s

6 requested injunctive relief, he sought an order requiring DOCS to amend Directive

7 4937 to “include express protection” for inmates fasting during Ramadan.

8 In June and July 2010, the parties cross‐moved for summary judgment.  In

9 May 2012, after seven years of litigation and while the parties’ motions were fully

10 briefed, DOCS added a “Note” to Directive 4937 advising that

11 [i]nmates participating in an approved religious fast should not be

12 required to provide a urine sample during fasting periods since

13 consumption of water may be necessary.  Sample requests should be

14 scheduled during other periods of the day and normal urinalysis

15 testingprocedures shouldthen apply, including offering waterto those

16 inmates unable to provide a urine sample.  

17

18 Appellees did not notify either the district court or Holland that this note had been

19 added.  

20 On June 18, 2013, the district court granted Appellees’ motion for summary

21 judgment and denied Holland’s cross‐motion.  In its decision, the district court held

9
1 that the order to provide a urine sample placed only a “de minimis” burden on

2 Holland’s religious exercise,defeating Holland’s FirstAmendmentfree exercise and

3 RLUIPA claims.  Holland, 2013 WL 3148324, at *12.  In reaching that conclusion, the

4 court credited Holland’s imam’s testimony that Holland could have fasted for one

5 additional day to atone fortaking a drink of waterto aid compliance with the order.

6 Id.  In addition, the district court held that Appellees were entitled to qualified

7 immunity from Holland’s free exercise claims because the rightto an exception from

8 Directive 4937 had not been clearly established in November 2003.  Id. at *8‐10.  The

9 court also noted that RLUIPA did not support Holland’s claim for money damages.

10 Id. at*7.  Finally, the district court concluded that Holland lacked a protected liberty

11 interest in remaining free from keeplock, precluding his due process claim, and that

12 Holland had not drawn a causal connection between his religious exercise and

13 Appellees’ disciplinary action, precluding the First Amendment retaliation claim.

14 Id. at *5‐6, *13‐14.  Holland appealed.

15 DISCUSSION

16 We review a district court’s grant of summary judgment de novo, construing

17 all facts in favor of the nonmoving party.  See Jeffreys v. City of New York, 426 F.3d

10
1 549, 553 (2d Cir. 2005).    Summary judgment is proper only when “there is no

2 genuine dispute as to any material fact and the movant is entitled to judgment as a

3 matter of law.”  Fed. R. Civ. P. 56(a); see Jeffreys, 426 F.3d at 553.

4 A. First Amendment Free Exercise Claim

5 It has not been decided in this Circuit whether, to state a claim underthe First

6 Amendment’s Free Exercise Clause, a “prisoner must show at the threshold that the

7 disputed conduct substantially burdens his sincerely held religious beliefs.”

8 Salahuddin v. Goord, 467 F.3d 263, 274‐75 (2d Cir. 2006);see Ford v. McGinnis, 352 F.3d

9 582, 592 (2d Cir. 2003) (assuming without deciding that substantial burden

10 requirement applies).  Hollandchallenges the continuedviability ofthe “substantial

11 burden” test in light of the Supreme Court’s statement in Employment Division v.

12 Smith that application of the test embroils courts in “the unacceptable business of

13 evaluating the relative merits of differing religious claims.”  Ford, 352 F.3d at 592

14 (quoting Emp’t Div. v. Smith, 494 U.S. 872, 887 (1990)) (internal quotation marks

15 omitted); see also Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003) (declining to

16 apply the substantial burden testto a § 1983 claim regarding the availability of meals

17 conforming to religious dictates in prison).  However, we need not decide the issue

11
1 here, as even assuming the continuedvitality ofthe substantial burden requirement,

2 our precedent squarely dictates that Holland’s religious exercise was

3 unconstitutionally burdened – a point, moreover, that Appellees do not contest on

4 appeal.  See Salahuddin, 467 F.3d at 275 n.5 (declining to address continued viability

5 of substantial burden test when the defendants failed to argue that the inmate’s

6 burdened religious practice was “peripheral ortangential to [his]religion”);see also

7 Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (noting that a “substantial burden”

8 exists when “the state puts substantial pressure on an adherent to modify his

9 behavior and to violate his beliefs” (internal quotation marks and alterations

10 omitted)).  

11 In one of several cases concerning this issue, we held in Ford v. McGinnis that

12 a Muslim inmate’s free exercise rights would be substantially burdened if prison

13 officials denied his request for a meal to celebrate the Eid ul‐Fitr feast.  352 F.3d at

14 593‐94.  Though a question of factremained as to whetherthe meal had, in fact, been

15 denied, in vacating summary judgment in favor of the defendants, we emphasized

16 both that the inmate had credibly claimed that the meal was “critical to his

17 observance as a practicing Muslim” and that inmates have a “clearly established”

12
1 right “to a diet consistent with [their] religious scruples.”  Id. at 594, 597 (internal

2 quotation marks omitted).  Then, in McEachin v. McGuinnis, we cited this language

3 to hold that an inmate stated a free exercise claim based on his assertion that prison

4 officials haddeniedhim “properly blessed food” to break his fastsduringRamadan.

5 357 F.3d 197, 201‐03 (2d Cir. 2004).   Though the Court declined to address the

6 substantial burden standard on a motion to dismiss, we emphasized that “courts

7 have generally found that to deny prison inmates the provision of food that satisfies

8 the dictates of their faith does unconstitutionally burden their free exercise rights,”

9 noting that this Court had recognized such a principle since “at least as early as

10 1975.”    Id. at 203 (citing Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975)

11 (determining that Orthodox Jewish inmate had right to provision of kosher meals)).

12 Finally, in Jolly v. Coughlin, we held that forcing an inmate to choose between his

13 religious beliefs – which forbade the medical testing prison officials attempted to

14 impose upon him – or confinement in keeplock “itself constitute[d] a substantial

15 burden.”  76 F.3d at 477.

16 Taken together, these cases clearly support the conclusion that ordering

17 Holland to provide a urine sample – and drink waterin violation of his fast – orface

13
1 confinementin keeplock substantially burdened Holland’s free exercise right.  First,

2 it is undisputed that Holland is a practicing Muslim and that fasting in observance

3 of Ramadan is a core tenet of his faith.  See Holland, 2013 WL 3148324, at *11.  Thus,

4 there can be no debate that directly ordering Holland to drink water in violation of

5 his fast would substantially burden his free exercise rights.  As we stated in Ford and

6 reiterated in McEachin, inmates “have a ‘clearly established’ right ‘to a diet

7 consistent with their religious scruples.’”  See McEachin, 357 F.3d at 203 (quoting

8 Ford, 352 F.3d at 597)(brackets omitted).  The difference between the denial of a meal

9 and the imposition of a drink is of no constitutional significance.  See id. at 204‐05

10 (stating, in light of the inmate’s claim that an officer deliberately ordered him to act

11 in contravention of his beliefs, that “[p]recedent suggests that inmates have a right

12 not to be disciplined for refusing to perform tasks that violate their religious

13 beliefs”).  By contrast,the district court’s conclusion thatthe orderto provide a urine

14 sample placed only a “de minimis” burden on Holland’s free exercise because he

15 could “make up” a premature drink of water with “one extra day of fasting,” see

16 Holland, 2013 WL 3148324, at *11‐12 (quoting Holland’s and his imam’s testimony),

17 finds no support in our case law.  While this Court has suggested that “[t]here may

14
1 be inconveniences so trivial that they are most properly ignored,” McEachin, 357

2 F.3d at 203 n.6, the uncontradicted evidence submitted by Holland that breaking his

3 fast prior to sunset would have been a “grave sin” – regardless whether atonement

4 was possible – prevented such a conclusion in this case.

5 The closer question identified but not determined by the district court is

6 whether, in the district court’s words, an “issue as to causation” barred Holland’s

7 claim.  See Holland, 2013 WL 3148324, at *10.  That is, while the denial of a religious

8 meal plainly burdens the inmate’s right to eat that meal, as in Ford and McEachin, it

9 is not self‐evident that an inmate’s inability or refusal to provide a urine sample

10 followed from his fast‐related forbearance from drinking water.  However, no such

11 question of fact exists in this case.    Holland explained to Schoellkopf at his

12 disciplinary hearing that he had not complied with the order because he was fasting

13 during Ramadan and, as a result, “was not able to go to the bathroom due to [his]

14 not being able to drink any water.”  And, in his deposition, Schoellkopf stated that

15 he “believed” Holland’s statement, though he nonetheless sentenced him to 90 days

16 in keeplock because there was no exception to the DOCS rule.   

17 If Appellees were able to counter these facts, they have failed to do so.

15
1 Instead, Appellees argued broadly below that Holland could not establish a link

2 between his fast and failure to comply with the order, while neglecting to cite record

3 evidence countering the foregoing material.  See, e.g., Mem. in Support of Summary

4 Judgment, Holland v. Goord, No. 05 Civ. 6295, Doc. No. 75, at 19 (W.D.N.Y. June 16,

5 2010) (“It is common knowledge that people that do not eat or drink for a day are

6 still able to produce urine.”).  But no such argument has been advanced on appeal.

7 Thus, it is now uncontested that Holland, a practicing Muslim, was unable to

8 comply with the orderto provide a urine sample within three hours because he was

9 fasting in observance of Ramadan.  While Appellees permitted Holland a choice

10 between prematurely breaking his fast or facing confinement in keeplock, that

11 choice – as has been clearly established by our precedent for decades – placed a

12 substantial burden on the free exercise of his religion.  See Jolly, 76 F.3d at 477.

13 Of course, this conclusion does not end the inquiry into Holland’s First

14 Amendmentfree exercise claim.  Given the “difficultjudgments” attendanttoprison

15 operation, Turner v. Safley, 482 U.S. 78, 89 (1987), “a generally applicable policy” –

16 even one that burdens an inmate’s free exercise – “will not be held to violate a

17 plaintiff’s right to free exercise of religion if that policy ‘is reasonably related to

16
1 legitimate penological interests,’” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010)

2 (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)).    To make this

3 determination, a court must consider:

4 whetherthe challenged regulation or official action has a valid,rational

5 connection to a legitimate governmental objective; whether prisoners

6 have alternative means of exercising the burdened right; the impact on

7 guards, inmates, andprison resources of accommodating the right; and

8 the existence of alternative means of facilitating exercise of the right

9 that have only a de minimis adverse effect on valid penological

10 interests.

11

12 Salahuddin, 467 F.3d at 274 (footnote omitted)(citingTurner, 482 U.S. at 90‐91).  Zon’s

13 determination that the urinalysis could have been conducted after sunset and

14 DOCS’s subsequent amendment ofDirective 4937 (notto mentionAppellees’failure

15 to address these points on appeal) give us pause as to whether Appellees can

16 demonstrate a valid penological interest pursuant to this standard.  Nevertheless,

17 because the district court did not reach this question below, we decline to address

18 it for the first time on appeal.  See Dardana Ltd. v. Yuganskneftegaz, 317 F.3d 202, 208

19 (2d Cir. 2003) (“It is this Court’s usual practice to allow the district court to address

20 arguments in the first instance.”).

21 In addition, we decline to address in the first instance the issue of qualified

17
1 immunity as regards the state’spenological interestin theprevious policy.  To assess

2 a defendant’s entitlement to qualified immunity, a court must consider “both the

3 clarity of the law establishing the right allegedly violated as well as whether a

4 reasonable person, acting under the circumstances then confronting a defendant,

5 would have understood that his actions were unlawful.”  Hanrahan v. Doling, 331

6 F.3d 93, 98 (2d Cir. 2003) (per curiam) (internal quotation marks omitted).  The

7 district court ruled that it had not been clearly established at the time of the order

8 that “Directive # 4937, or a substantially equivalent policy, placed a substantial

9 burden on an inmate’s religious liberty,” Holland, 2013 WL 3148324, at *9, a

10 conclusion that we reject by our holding today.  See Ford, 352 F.3d at 597 (“[C]ourts

11 need not have ruled in favor of a prisoner under precisely the same factual

12 circumstance in orderfor[a]right to be clearly established.”).  However, the district

13 court did not address other aspects of Appellees’ qualified immunity claim,

14 including the question whether a reasonable officer might have believed that the

15 challenged order was lawful in light of legitimate penalogical interests supporting

16 Directive 4937, as it existed at the time.  Nor has the district court examined whether

17 certain Appellees should be dismissed from this suit for a lack of personal

18
1 involvement in the claimed constitutional deprivations.  See Grullon v. City of New

2 Haven, 720 F.3d 133, 138 (2d Cir. 2013). We leave these issues to the district court for

3 consideration on remand.

4 We do not, however, require that the district court assess Holland’s

5 entitlement to all of the relief he seeks on remand.    In his second amended

6 complaint, Holland sought both damages and injunctive relief pursuant to his free

7 exercise claim.  Since the filing ofthat complaint, DOCS has amended Directive 4937

8 to include the “express protection” for inmates fasting during Ramadan that

9 Holland’s complaint seeks.    While a defendant’s “voluntary cessation of a

10 challenged practice does not deprive a federal court of its power to determine the

11 legality of the practice,” it is nonetheless “an important factor bearing on the

12 question whether a court should exercise its power” to entertain a request for

13 injunctive relief or declare it moot.  City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.

14 283, 289 (1982).  Of course, “a defendant claiming that its voluntary compliance

15 moots a case bears the formidable burden of showing that it is absolutely clear the

16 allegedly wrongful behavior could not reasonably be expected to recur.” Already,

17 LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (internal quotation marks omitted).  

19
1 We conclude that Appellees have satisfied that burden here.  First, DOCS has

2 amended Directive 4937 specifically to prohibit the conduct of which Holland

3 complains, an act meriting some deference.    See Harrison & Burrowes Bridge

4 Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1992) (dismissing as moot an

5 appeal concerning a minority set‐aside program after the state administratively

6 suspended the program, in part, because “[s]ome deference must be accorded to a

7 state’s representations that certain conduct has been discontinued”); see also

8 Massachusetts v.Oakes, 491U.S. 576, 582 (1989)(deeming overbreadthchallengemoot

9 due to the state’s amendment of the challenged statute).    Moreover, Holland

10 succeeded in his administrative appeal – eliciting a determination from Zon that

11 Holland should have been permitted to provide a urine sample after sunset in light

12 of his religious fast – and Appellees have abandoned on appeal their argument that

13 the conduct at issue was constitutional.  Cf. Nike, 133 S. Ct. at 728 (“Where a party

14 assumes a certain position in a legal proceeding, and succeeds in maintaining that

15 position, he may not thereafter, simply because his interests have changed, assume

16 a contrary position, especially if it be to the prejudice of the party who has

17 acquiesced in the position formerly taken by him.” (quoting Davis v. Wakelee, 156

20
1 U.S. 680, 689 (1895) (internal quotation marks and brackets omitted)).  Given these

2 circumstances (as well as the further assurance provided by our decision today) we

3 deem it clear that the allegedly wrongful policy is not likely to be reinstated.

4 Accordingly, we dismiss as moot Holland’s request forinjunctive relief pursuant to

5 his First Amendment free exercise claim, and remand only his request for damages.

6 B. RLUIPA Claim

7 RLUIPA provides a more stringent standard than does the First Amendment,

8 barring the government from imposing a substantial burden on a prisoner’s free

9 exercise unless the challenged conduct or regulation “further[s] a compelling

10 governmental interest and [is]the leastrestrictive means offurthering thatinterest.”

11 Redd, 597 F.3d at 536 (citing RLUIPA, 42 U.S.C. § 2000cc‐1(a)). Under the foregoing

12 analysis, Holland would likely prevail on the substance of his RLUIPA claim.

13 Nevertheless, Holland is not entitled to either damages orinjunctive relief underthe

14 statute.  First, as the district court held below and Holland concedes on appeal,

15 RLUIPA does not authorize claims for monetary damages against state officers in

16 either their official or individual capacities.  See Washington v. Gonyea, 731 F.3d 143,

17 145‐46 (2d Cir. 2013) (per curiam) (citing Sossamon v. Texas, 131 S. Ct. 1651, 1663

21
1 (2011)).  Thus, Holland’s claim for damages against Appellees is barred.  Second, we

2 deem Holland’s claim forinjunctive relief underRLUIPA mootforthe same reasons

3 discussed above regarding the injunctive reliefrequested as part of his free exercise

4 claim.    Thus, we affirm the district court’s judgment in favor of Appellees on

5 Holland’s RLUIPA claims.

6 C. Fourteenth Amendment Due Process Claim

7 Ordinarily, an “inmate facing disciplinary proceedings should be allowed to

8 call witnesses and present documentary evidence in his defense when permitting

9 him to do so will not be unduly hazardous to institutional safety or correctional

10 goals.”  Wolff v. McDonnell, 418 U.S. 539, 566 (1974).  The right to call witnesses is

11 limited in the prison context, however, “by the penological need to provide swift

12 discipline in individual cases” and “by the very real dangers in prison life which

13 may result from violence or intimidation directed at either other inmates or staff.”

14 Ponte v. Real, 471 U.S. 491, 495 (1985).    Thus, “[p]rison officials must have the

15 necessarydiscretion to keepthe hearing within reasonable limits andto refuse to call

16 witnesses that may create a risk of reprisal or undermine authority, as well as to

17 limit access to other inmates to collect statements or to compile other documentary

22
1 evidence.”  Id. at 496 (quoting Wolff, 418 U.S. at 566).  Citing Ponte, we have stated

2 that “[t]he Supreme Court . . . has suggested that a prisoner’s request for a witness

3 can be denied on the basis of irrelevance or lack of necessity.”  Kingsley v. Bureau of

4 Prisons, 937 F.2d 26, 30‐31 (2d Cir. 1991) (citing Ponte, 471 U.S. at 496).  The refusal

5 to call witnesses whose testimony would be redundant is not a violation of any

6 established due process right.  See Russell v. Selsky, 35 F.3d 55, 58‐59 (2d Cir. 1994)

7 (holding that a prison hearing officer “did not violate any clearly established

8 constitutional or statutory right” for refusing to call inmate’s suggested witnesses,

9 who would have given “duplicative or non‐probative” testimony).

10 Holland sought to call his imam as a witness at his disciplinary hearing to

11 establish that, as a practicing Muslim, Holland was unable to drink water atthe time

12 he was ordered to provide a urine sample.  However, Holland had already testified

13 to this fact and Schoellkopf did not discredit his statement.  Instead, Schoellkopf

14 determined that there were no “religious exceptions such as Ramadan” to excuse

15 Holland’snoncompliance withDirective 4937.  Because Holland’s imamwouldhave

16 corroborated an established fact, and any additional testimony that he might have

17 given did not go to the basis of Schoellkopf’s decision, Schoellkopf did not err in

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1 characterizing the imam’s proposed testimony as unnecessary and redundant.

2 While Holland asserts that he should have nonetheless been permitted to call his

3 imam because there was no risk that his five‐minute disciplinary hearing would

4 drag on “ad infinitum,” Russell, 35 F.3d at 59, this Court has never announced such

5 a limitation on prison officials’ discretion.    Accordingly, we conclude that

6 Schoellkopf acted within his discretion when he refused to call Holland’s imam as

a witness, and we affirm the entry of judgment in Appellees’ favor on this claim.3 7

8 D. First Amendment Retaliation Claim

9 To prevail on a First Amendment retaliation claim, an inmate must establish

10 “(1) that the speech or conduct at issue was protected, (2) that the defendant took

11 adverse action against the plaintiff, and (3) that there was a causal connection

12 between the protected [conduct] and the adverse action.”  Espinal v. Goord, 558 F.3d

13 119, 128 (2d Cir. 2009) (internal quotation marks omitted).  An inmate bears the

14 burden of showing that “the protected conduct was a substantial or motivating

15 factor” in the prison officials’ disciplinary decision.  Graham v. Henderson, 89 F.3d 75,

3 While the Director of Special Housing/Inmate Discipline reversed Holland’s keeplock

sentence on the procedural ground that Schoellkopf had erred in failing to call the imam,

as our earlier discussion indicates, that keeplock reversal was correct on the merits.

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1 79 (2d Cir. 1996).  The defendant official then bears the burden of establishing that

2 the disciplinary action would have occurred “even absent the retaliatory

3 motivation,” which he may satisfy by showing that the inmate “committed the . . .

4 prohibited conduct charged in the misbehavior report.” Gayle v. Gonyea, 313 F.3d

5 677, 682 (2d Cir. 2002) (internal quotation marks omitted).

6 Holland has not proffered any evidence supporting his claim that Appellees

7 took disciplinary action against him because of his religion.    While Holland’s

8 religious observation caused him to decline to provide a urine sample, which in turn

9 prompted the disciplinary action, Holland cites no case law holding that such an

10 attenuated link can constitute a “substantial or motivating factor” for retaliation.

11 Nor has Holland rebutted Appellees’ evidence that they would not have acted

12 differently if he had declined to comply for reasons other than religion, given that

13 Directive 4937 did not permit exceptions for religious exercise at the time of the

14 order.    Though Holland notes that other exceptions to the Directive had been

15 permitted, those exceptions went to inmates with a medically recognized inability

16 to provide a sample, such as inmates on dialysis. Holland cites no other exceptions

17 to support his otherwise conclusory assertion that Appellees disciplined him

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1 because of his religion.  Thus, the district court’s judgment in favor of Appellees on

2 this claim is affirmed.

3 CONCLUSION

4 Forthe foregoing reasons, we vacate the judgment on Holland’s free exercise

5 claim and remand forfurther proceedings as to this claim, to the extent that Holland

6 seeksdamages.  We affirm the judgmentin favor ofAppellees on Holland’sRLUIPA

7 claim,his FourteenthAmendment claim,his FirstAmendmentretaliation claim, and

8 his free exercise claim for an injunction.  Therefore,the judgment ofthe district court

9 entered June 18, 2013, is VACATED AND REMANDED IN PART AND AFFIRMED IN PART.

10

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