1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2174

_____________

SHAWN C. SHARP,

 Appellant

v.

SUPERINTENDENT JOHNSON; DEPUTY 

SUPERINTENDENT KRYSEVIG;

DEPUTY SUPERINTENDENT DICKSON; DEPUTY 

SUPERINTENDENT STICKMAN, PROGRAM 

MANAGER RHODA A. WINSTEAD; CHAPLAIN 

FATHER TURSA, CHAPLAIN TANKO IBRAHIYM, 

SUPERINTENDENT CONNER BLAIN; DEPUTY 

SUPERINTENDENT PAUL STOWITZKY; DEPUTY 

SUPERINTENDENT JOHN MILLER, CAPTAIN 

COLEMAN; LIEUTENANT FISHER; MAJOR 

MELVIN LOCKETT; LIEUTENANT MATCUS; 

LIEUTENANT BLAKEY; JEAN A. MEARS; 

CHAPLAIN GEORGE J. MONECK; CHAPLAIN 

IHMAM MUHAMMED,

_____________
2

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-00-cv-02156

Magistrate Judge: The Honorable Amy Reynolds Hay

Argued November 8, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit 

Judges

(Filed: February 9, 2012)

Anderson T. Bailey (Argued)

Thomas S. Jones

Jones Day

500 Grant Street

Suite 4500

Pittsburgh, PA 15219

Counsel for Appellant

Kemal A. Mericli (Argued)

Scott A. Bradley

Office of Attorney General of Pennsylvania

564 Forbes Avenue

Manor Complex

Pittsburgh, PA 15219

Susan J. Forney
3

Office of Attorney General of Pennsylvania

15th Floor

Strawberry Square

Harrisburg, PA 17120

Counsel for Appellee

_____________________

 OPINION

_____________________ 

SMITH, Circuit Judge.

 Plaintiff Shawn Sharp, an inmate in the custody of 

the Pennsylvania Department of Corrections (“DOC”), 

brought this civil rights action in November 2000 claiming 

that two prison facilities (SCI-Pittsburgh and SCI-Greene) 

unlawfully denied his request to accommodate his particular 

religious group.1

 1 Eleven defendants testified at the bench trial in this matter. 

They were Philip Johnson, William Stickman, Joel Dickson, 

Mark Krysevig, Rhoda Winstead, Father William Terza and 

Imam Tanko Ibrahiym, who were assigned to SCI-Pittsburgh 

during all times relevant to the respective allegations made by 

Sharp, and William Stickman, Brian Coleman, Jean Mears, 

Father George Moneck and Imam Abu Bakr Muhammad, 

who were assigned to SCI-Greene. All of these individuals 

are Appellees in this matter. The remaining seven defendants 

did not testify at trial and include Conner Blain, Lieutenant 

Blakey, Lieutenant Fisher, Melvin Lockett, Lieutenant 

Matcus, John Miller and Paul Stowitzky.

 After years of motions practice, in which 
4

several of Sharp’s claims were dismissed, Sharp’s remaining 

two claims proceeded to a three-day bench trial before the 

Magistrate Judge.2

I. BACKGROUND

 They were: (1) a claim pursuant to 42 

U.S.C. § 1983 that Defendants’ policies and practices violated 

Sharp’s right to practice his religion as guaranteed by the 

First and Fourteenth Amendments (the “First Amendment 

Action”); and (2) a claim pursuant to the Religious Land Use 

and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc 

(2000) (the “RLUIPA Action”). The Magistrate Judge

entered judgment in favor of Defendants and issued a 

memorandum setting forth her findings of fact and 

conclusions of law. We will affirm. 

Sharp is serving a life term of imprisonment following 

his conviction for first degree murder. He was incarcerated at 

SCI-Pittsburgh from September 18, 1998 to May 23, 2001. 

Sharp was transferred to SCI-Greene and was incarcerated 

there from May 23, 2001 to June 13, 2006, when he was 

transferred to SCI-Dallas. 

 

2 The parties consented to have the Magistrate Judge conduct 

all proceedings in this case, including entry of final judgment, 

pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
5

A. SCI-PITTSBURGH

1. RELIGIOUS SERVICES OFFERED AND 

POLICIES FOR REQUESTING RELIGIOUS 

ACCOMMODATIONS

SCI-Pittsburgh recognizes and accommodates several 

different religions and religious groups, namely Christians, 

Jews, and Muslims. With respect to Christianity, SCIPittsburgh offers Catholic, Protestant, and Jehovah’s 

Witnesses services. As to Islam, SCI-Pittsburgh offers 

Nation of Islam, Moorish Science Temple, and Sunni Muslim 

services. 

An inmate practicing a religion not covered by the 

aforementioned groups may request an accommodation. DCAdministrative 819 (“DC-ADM 819”) sets forth the DOC’s 

policy for requesting recognition of a religion and obtaining 

services for that group. The version of DC-ADM 819 that 

was in effect from March 2, 1998 until July 15, 2002 stated, 

in pertinent part, that:

Requests to engage in religious practices . . . 

which are not being accommodated by the 

[DOC], must be initiated by the inmate via an 

‘Inmate Religious Accommodation Request 

Form’ . . . . The form shall be completed by the 

requesting inmate and submitted to the Facility 

Chaplaincy Program Director for review by 

appropriate staff. 
6

The Inmate Religious Accommodation Request Form, also 

known as DC-52, stated that “[i]f more than one inmate is 

filing a request, each inmate must submit a form. If this is a 

group request, information must be submitted to the Facility 

Chaplaincy Program Director, who will compile information 

about the group request.” After the inmate submits this form, 

the prison’s chaplain director must obtain publications from 

the faith group regarding the goals, beliefs and practices of 

that group. The chaplain then circulates a recommendation 

form to certain prison officials, each of whom makes a 

written recommendation as to whether the request should be 

granted or denied. The chaplain then forwards the prisoner’s 

request, the compiled religious information, and the staff 

recommendations to the Administrator of Religion and 

Family Services at the DOC central office, who ultimately 

determines whether to approve or deny the request. 

2. SHARP’S INCARCERATION AND ACCOMMODATION 

REQUEST AT SCI-PITTSBURGH

Sharp is a member of the faith group known as Ahlus 

Sunnati Wal Jama‘ah, whose members are frequently referred 

to as Sunni Muslims. There are different subsets within the 
7

broader Sunni Muslim group. Sharp identifies himself as a 

member of the Habashi sect.3

The Islamic Chaplains testified that Muslims at the 

prison typically take part in Jumah and Taleem. Jumah is a 

group prayer service held on Fridays that every Muslim is 

obligated to attend if possible. Taleem is a religious study 

period that is generally held on a weekly basis though there is 

no religious obligation to attend. Defendant Tanko Ibrahiym, 

the Islamic Chaplain at SCI-Pittsburgh from 1998 to 2004 and 

a self-identified Sunni Muslim, led Jumah services and 

 

 3 Testimony from Imam Muhammad and exhibits introduced 

at trial provided general background information regarding 

the Habashi sect. Pursuant to this information, the Habashis 

are followers of Abdullah Alharrari Alhabashi, an Ethiopian 

who settled and taught in Lebanon. The Habashi are 

offspring of the Al-Ashari community, which was founded by 

Abu-Hasan Al-Ashari around the year 860 A.D. 

One of the purported differences between the Habashi 

sect of Sunni Islam and other Sunni sects is the direction of 

prayer. As a precondition for a Muslim’s prayers to be valid, 

those prayers must be offered toward the Qiblah, which is the 

direction to the Kabah, the holy shrine in Mecca. Thus, the 

direction of a Muslim’s prayer is dependent on the orientation 

between that person’s current location and the Kabah. Imam 

Muhammad estimated that 99.9% of Muslims in the United 

States pray in a northeast direction. Habashis, however, 

contend that the Kabah is southeast from the United States, 

and they pray in that direction. 

 
8

Taleem classes for Sunni Muslims at the prison. Sharp 

regularly attended these services and classes. 

At some point, Sharp informed Imam Ibrahiym that he 

believed there were ideological differences between Sharp’s 

Habashi sect and the recognized Sunni group at SCIPittsburgh. Sharp believed that the Habashi could not be 

accommodated within the Sunni Muslim community at SCIPittsburgh. Imam Ibrahiym disagreed with Sharp’s assertion 

that the Habashi were not being accommodated and advised 

that if Sharp was a Sunni Muslim, as he claimed to be, then 

there was no reason why Sharp could not attend the services

and programs that were offered to the Sunni Muslims at SCIPittsburgh. 

On October 14, 1999, Sharp, on behalf of a purported 

group of Habashi members, submitted a typed document 

titled “Religious Accommodation Request for Ahlus Sunnati 

wal Jama’ah,” requesting recognition and accommodation of 

the Habashi sect. In particular, Sharp sought space for 

separate Jumah services and Taleem classes on behalf of his 

purported group of 30 inmates. Although the document

submitted was not the DC-52 form required by DC-ADM 

819, it contained similar substantive information. 

Imam Ibrahiym discussed this group request with 

Defendant Father William Terza, who was the Facility 

Chaplain Program Director and was responsible for 

overseeing the chaplaincy program at SCI-Pittsburgh. Father 

Terza informed Sharp that his request was improperly 

submitted because it did not include an individual request on 

the proper DC-52 form, as required by DC-ADM 819. Father 
9

Terza told Sharp that once he submitted the proper form, 

Father Terza would circulate it to the appropriate SCIPittsburgh staff members for their recommendation and then 

forward it to the DOC central office for a decision. The 

District Court found that Sharp never submitted the proper 

individual request form to Father Terza. 

On November 28, 1999, a meeting was held between 

Defendant Mark Krysevig, who was the Deputy 

Superintendent at SCI-Pittsburgh, Defendant Rhoda 

Winstead, who was the Corrections Classification Program 

Manager (the “CCPM”) at SCI-Pittsburgh, Imam Ibrahiym, 

Father Terza and several inmates, including Sharp, to discuss 

SCI-Pittsburgh’s Ramadan services. Specifically, discussions 

were held to determine how Ramadan, a month-long Muslim 

observance, would be accommodated among the various 

Muslim groups and inmates who wished to participate. At 

this meeting, Sharp again — this time orally — raised his 

request for a group accommodation of his Habashi sect. 

On November 30, 1999, Sharp was placed in 

administrative custody (i.e., the restrictive housing unit) 

because, according to Defendants, Sharp’s efforts to organize 

a separate religious group were creating a threat to 

institutional security. In particular, the prison officials found

that Sharp was a danger to others, that he was attempting to 

establish himself as the leader of a group of inmates, and that 

he threatened disruption and violence if his religious group 

was not recognized. Defendants Krysevig and William 

Stickman, who was the Deputy Superintendent for Facility 

Management at SCI-Pittsburgh, believed that Sharp was more 

interested in placing himself in a leadership position over a 
10

group of inmates than obtaining a genuine religious 

accommodation. Several inmates complained to Krysevig 

that Sharp was being disrespectful of their beliefs, and 

Krysevig was concerned that these other inmates might 

retaliate against Sharp. In sum, Sharp was placed in 

administrative custody for “fomenting unrest in group 

activity.” 

On December 1, 1999, Sharp filed Grievance No. PIT0997-99 (the “Pittsburgh Grievance”) questioning why no 

determination had been issued with respect to his group 

request for accommodation. On December 20, 1999, 

Winstead denied the Pittsburgh Grievance in writing, stating, 

in pertinent part: 

At the meeting you mention on November 28, 

1999 it was verified that all staff mentioned 

received a copy of your proposal [i.e., Sharp’s 

request for an accommodation].

In accordance with DC-ADM 819-3 for 

religious accommodations, you were to submit 

the proper form requesting such an 

accommodation for you as an individual. Any 

other inmates requesting an accommodation 

must be filed individually. Your form should be 

forwarded to the chaplaincy coordinator. Your 

form was improperly filed.

The SCI-Pittsburgh Defendants testified that Sharp 

never submitted a form requesting religious accommodations 

for himself as an individual. Sharp claims that he and other 
11

Habashi members submitted handwritten, individual requests 

for accommodation to Imam Ibrahiym. Imam Ibrahiym’s trial 

testimony on this issue was, at best, unclear. Imam Ibrahiym 

testified that he never received a DC-52 form from Sharp or 

any other of the inmates that practice Habashi. Later, Imam 

Ibrahiym testified that he received written requests for 

accommodation from Sharp, though the nature of these 

purported requests was unclear.

4

Sharp appealed the denial of the Pittsburgh Grievance 

to Defendant Philip Johnson, who was Superintendent of SCIPittsburgh. On January 5, 2000, Johnson dismissed Sharp’s 

appeal as untimely. 

Sharp further claims that, while he was in 

administrative custody, Defendants proposed that he sign a 

behavioral modification contract that included a condition 

that he agree not to practice his religion in exchange for 

release into the general population. SCI-Pittsburgh had a

Program Review Committee (“PRC”) that would periodically 

meet with inmates confined to administrative custody and 

review their restricted status. Defendants Krysevig and Joel 

Dickson, who was the Deputy Superintendent at SCI-

 4 The Magistrate Judge did not find Sharp’s claim that he 

submitted a handwritten, individual request to Imam Ibrahiym 

credible because Sharp could not produce a copy of this 

request at trial despite producing copies of all the other 

important documents in the case. The Magistrate Judge also 

found Sharp’s claim belied by his grievance requests, which 

refer to group requests, not an individual request.

 
12

Pittsburgh, were on Sharp’s PRC.

5

 Because the PRC had 

“serious reservations” about releasing Sharp into the general 

population absent modification of his behavior, the PRC 

offered him the opportunity to agree to a behavioral 

modification contract. Behavioral modification contracts 

were informal agreements between the institution and the 

inmate setting the terms of the inmate’s release from 

administrative custody. If the inmate fails to comply with the 

terms of the contract, he can be returned to administrative 

custody. The PRC proposed a behavioral modification 

contract to Sharp, the general terms of which were to include 

promises by Sharp to cease fomenting unrest and to refrain 

from showing disrespect for the religious beliefs and practices 

of others, in exchange for release from administrative 

custody. Sharp was to draft the specific language of the 

contract. Both Krysevig and Dickson testified that the PRC 

never made restrictions on Sharp’s practice of his religion a 

condition of his release from administrative custody. Sharp 

never submitted a draft to — nor reached an agreement with 

— the PRC.6

On May 23, 2001, the DOC transferred Sharp from 

SCI-Pittsburgh to SCI-Greene.

 

 5 Defendant Melvin Lockett, who was a Unit Manager at SCIPittsburgh, was the third member of Sharp’s PRC. 

6 Collectively, Defendants Johnson, Krysevig, Dickson, 

Stickman, Winstead, Terza, and Ibrahiym are the “SCIPittsburgh Defendants.” 

 
13

B. SCI-GREENE

1. RELIGIOUS SERVICES OFFERED AND 

POLICIES FOR REQUESTING RELIGIOUS 

ACCOMMODATIONS

SCI-Greene recognizes and accommodates several 

different religions and religious groups, namely Christians, 

Jews, Native Americans and Muslims. With respect to 

Christianity, SCI-Greene offers Catholic, Protestant, 

Jehovah’s Witness and Yoke Fellowship services. As to 

Islam, SCI-Greene offers Nation of Islam and Sunni services. 

Effective July 15, 2002, the DOC issued a revised DC-ADM 

819. This revised policy stated, in pertinent part, that requests 

for religious accommodation were to be made as follows: 

a. Each inmate must use a DC-52, Inmate 

Religious Accommodation Request Form . . .

to submit his/her request for accommodation to 

the FCPD [Facility Chaplaincy Program 

Director].

* * *

c. The inmate shall obtain written information 

from his/her outside faith group, including any 

publications that describe the goals, beliefs, and 

practices of the group and supply this 

information to the FCPD for review.

d. The Religious Accommodation Review 

Committee shall review each inmate’s request 

for a religious accommodation within 45 days 
14

of receipt and forward a recommendation to the 

affected Regional Deputy Secretary.

e. The Regional Deputy Secretary shall, within 

15 days of receiving the recommendation from 

the Director of the Bureau of Inmate 

Services/designee, approve/disapprove the 

request and notify the Director of the Bureau of 

Inmate Services of the decision.

f. The Director, Bureau of Inmate Services 

shall, within 10 days, inform the Facility 

Manager and the FCPD of the requesting 

facility of the determination and ensure copies 

of all final determinations are provided to all 

Deputy Secretaries and Facility managers. The 

FCPD shall be responsible for informing the 

affected inmate of the outcome of his/her 

request no later than 10 working days from the 

date that the determination of 

approval/disapproval is received.

g. If an inmate is informed by the FCPD that 

the request will not be accommodated, the 

inmate may then file a grievance in accordance 

with Department policy DC-804, “Inmate 

Grievances.” Grievances may only be 

submitted after the inmate has received 

notification of the decision on the requested 

accommodation.
15

(emphasis in original). The DOC did not make any 

substantive changes to the DC-52 Inmate Religious 

Accommodation Request Form.

Defendant Imam Abu Bakr Muhammad, who was the 

Muslim Chaplain at SCI-Greene, testified that he is a Sunni 

Muslim. Imam Muhammad provided Taleem and led the 

weekly Jumah prayer services for Muslim inmates.

2. SHARP’S INCARCERATION AND 

ACCOMMODATION REQUESTS AT SCI-GREENE

On September 30, 2002, more than a year after being 

transferred to SCI-Greene, Sharp submitted a DC-52 form 

requesting an individual religious accommodation of his 

Habashi sect pursuant to DC-ADM 819.

7

Defendant Father George Moneck, who was the 

Director of Chaplaincy at SCI-Greene, reviewed Sharp’s 

request and recommended that the DOC central office deny it. 

Father Moneck further commented on the form that Sharp 

“can practice his religion privately. [SCI-Greene] cannot 

 Sharp’s request 

sought, among other things, Jumah services and Taleem 

study, library space with books teaching his beliefs, prayer 

time at sunset during Ramadan with others who shared his 

beliefs, an outside coordinator on a weekly basis, and a 

community bank account. 

 7 Sharp identified the formal name of his religion as “Islam as 

taught by the Ashariy Community of Ahlus Sunnah wal 

Jama’ah,” but he noted that it is commonly referred to as 

Habashi. 
16

accommodate another Muslim sect. [Sharp] is most welcome 

to join the Sunni or the Nation of Islam communities.” 

Father Moneck circulated the vote form to the other 

staff members, who all recommended that Sharp’s request be 

denied. Defendant Jean Mears, who was SCI-Greene’s 

CCPM, generally reviewed inmates’ requests for religious 

accommodation. Mears, however, was unavailable when 

Sharp’s request was circulated. Michael Bruno, who was 

SCI-Greene’s acting CCPM at the time, reviewed and 

recommended that the DOC central office deny Sharp’s 

request. Bruno is not a defendant in this action. Stickman, 

who was promoted to Superintendent at SCI-Greene in 2002,8

generally participated in reviewing inmates’ requests for 

religious accommodation. Stickman, however, was 

unavailable and did not participate in the review of Sharp’s 

request. Defendant Paul Stowitzky, who was SCI-Greene’s 

acting superintendent at the time, reviewed and recommended 

that the DOC central office deny Sharp’s request.

9

 8 This is the same Defendant who was the Deputy 

Superintendent at SCI-Pittsburgh during Sharp’s incarceration 

at that prison.

 

 

9 Two others voted to recommend that Sharp’s request be 

denied: the Major-of-the-Guard and the Deputy 

Superintendent for Centralized Services. The record is not 

clear who these individuals are, and they do not appear to be 

named as defendants.
17

Father Moneck submitted Sharp’s request and the 

staff’s recommendations to the DOC’s central office for a 

final determination. On December 18, 2002, the central 

office denied Sharp’s request. Father Moneck informed 

Sharp that his request was denied because he was “able to 

attend existing Islamic services or practice [his] religion 

privately in [his] cell.” 

On December 26, 2002, Sharp submitted Grievance 

No. 39662 (the “Greene Grievance”), challenging the denial 

of his request for an accommodation. Mears conducted the 

initial review and denied Sharp’s grievance because, in her 

estimation, Sharp was not denied the right to practice his faith 

or prohibited from maintaining his beliefs and praying in his 

cell. Sharp appealed the denial of his grievance to Stickman. 

This appeal was dismissed as untimely. Sharp did not submit 

any other requests for religious accommodation at SCIGreene. 

Sharp complained to Defendant Brian Coleman, who 

was the Security Captain at SCI-Greene, about the content of 

certain sermons given by Imam Muhammad. Sharp 

specifically complained that Imam Muhammad made derisive 

comments about the Habashi sect and Sharp in particular. 

Coleman informed Mears of Sharp’s complaint. Mears and 

Father Moneck reviewed the videotape of Imam 

Muhammad’s sermons and found nothing inflammatory. 

Sharp claimed that Coleman ordered his cell to be 

searched in order to confiscate Sharp’s religious materials. 

Coleman denied this and testified that he had never ordered a 
18

search of an inmate’s cell specifically to retrieve religious 

materials. 

Sharp also claimed that Imam Muhammad would not 

allow him to participate in Ramadan services unless Sharp 

signed an agreement that he would not practice his Habashi 

faith. Imam Muhammad denied this and testified that, 

although he did develop an agreement form for inmates 

wishing to participate in Ramadan, this form did not require 

the inmates to profess or practice a specified religion.10

On June 13, 2006, the DOC transferred Sharp from 

SCI-Greene to SCI-Dallas. 

 

 10 Collectively, Defendants Coleman, Mears, Moneck, 

Muhammad, Stowitzky, and Stickman are the “SCI-Greene 

Defendants.” Collectively, the SCI-Pittsburgh and Greene 

Defendants are the “Defendants.” 

The Magistrate Judge dismissed, among others, the 

following defendants prior to trial: Blaine, Miller, Fisher, 

Lockett, Matcus, and Blakey. On appeal, Sharp has not 

expressly challenged the dismissal of these parties. In fact, 

Sharp’s supplemental brief only references these individuals 

in the case caption. Consequently, Sharp has abandoned any 

issues with respect to these individuals on appeal. See, e.g., 

Kost v. Kozakiewicz, 1 F.3d 176, 182-83 (3d Cir. 1993); 

Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993). 
19

C. PROCEDURAL BACKGROUND

On November 2, 2000, Sharp filed his complaint.11 

The case underwent years of motions practice and several of 

Sharp’s claims were dismissed prior to trial.

12

On April 7, 2008, the Magistrate Judge entered 

judgment in favor of Defendants and set forth her findings of 

fact and conclusions of law in a comprehensive

memorandum. The Magistrate Judge found against Sharp on 

the First Amendment Action because, among other things: 

Sharp failed to comply with the DOC’s regulations regarding 

 Sharp’s First 

Amendment and RLUIPA Actions proceeded to a bench trial 

before the Magistrate Judge.

 11 Counsel was appointed and represented Sharp for much of 

the pre-trial proceedings, but Sharp’s counsel, apparently at 

Sharp’s request, sought to withdraw prior to trial. Thereafter,

Sharp proceeded pro se, including at trial. 

12 By Order dated December 28, 2004, the Magistrate Judge 

granted Defendants’ motion to dismiss and/or for summary 

judgment with respect to Sharp’s claims for: compensatory 

damages under the Religious Freedom Restoration Act, 42 

U.S.C. § 2000bb; lost and/or destroyed property; and lost 

wages and employment opportunities.

By Order dated December 28, 2005, the Magistrate 

Judge granted Defendants’ motion for summary judgment, 

dismissing Sharp’s claims asserting violations of his rights 

under the Eighth Amendment and Fourteenth Amendment’s 

Due Process Clause.

 
20

individualized submissions (SCI-Pittsburgh); Sharp failed to 

meet his burden of demonstrating that denial of his request 

had no rational connection to any legitimate penological 

interest (SCI-Greene); the Defendants did not have any 

personal involvement in the denial of Sharp’s requests to 

support a § 1983 action (SCI-Pittsburgh and Greene); and 

Defendants were entitled to qualified immunity (SCIPittsburgh and Greene). The Magistrate Judge found against 

Sharp on the RLUIPA Action because, among other things: 

Sharp was not entitled to any relief under the statute; 

Defendants were entitled to qualified immunity; and in any 

event, Sharp’s claim failed on the merits. 
21

Sharp appealed.13

II. DISCUSSION

 

The District Court had jurisdiction under 28 U.S.C. § 

1331. We have appellate jurisdiction pursuant to 28 U.S.C. 

§ 1291.

We apply a clearly erroneous standard when reviewing 

the findings of fact from a bench trial and a plenary standard 

to the conclusions of law. Trustees of Nat’l Elevator Indus. 

Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d 

188, 191 (3d Cir. 2003).

 13 On April 21, 2008, Sharp filed a pro se notice of appeal. 

After the initial briefs were submitted, we requested 

supplemental briefing and appointed counsel to represent 

Sharp.

Defendants’ motion to strike Section VI of Sharp’s 

supplemental reply brief (“Section VI”) is currently pending 

before us. Defendants assert that Section VI contains 

arguments regarding issues not raised in Sharp’s 

supplemental brief. Sharp argues that these issues were 

raised in his informal brief, and that two of the three issues 

raised are a response to Defendant’s supplemental opposition 

brief. We conclude that Section VI improperly exceeded the 

scope of Defendants’ supplemental opposition brief. 

Accordingly, we grant Defendants’ motion to strike Section 

VI in that we have given that portion of the brief no 

consideration in our decision.

 
22

A. THE RLUIPA ACTION

Sharp’s RLUIPA Action sought injunctive relief and 

money damages against Defendants in both their official and 

individual capacities. The Magistrate Judge held that Sharp’s 

claims for injunctive relief were mooted by his transfer from 

SCI-Pittsburgh and SCI-Greene to SCI-Dallas, and that 

RLUIPA does not permit recovery against Defendants in their 

official or individual capacities. On appeal, Sharp is 

challenging only the Magistrate Judge’s denial of his 

RLUIPA claim against Defendants in their individual 

capacities. The issue of whether RLUIPA permits actions 

against State officials in their individual capacities is one of 

first impression for this Court. For the reasons discussed 

below, we conclude that RLUIPA does not permit such 

actions. 

RLUIPA permits plaintiffs to “obtain appropriate relief 

against a government.” 42 U.S.C. § 2000cc-2. 

“[G]overnment,” in pertinent part, is defined as:

(i) a State, county, municipality, or other 

governmental entity created under the 

authority of a State;

(ii) any branch, department, agency, 

instrumentality, or official of an entity 

listed in clause (i); and

(iii) any other person acting under color of 

State law[.]
23

42 U.S.C. § 2000cc-5(4)(A) (emphasis added). 

Sharp argues that the express language of RLUIPA, in 

particular the separate references to an “official” and “any 

other person acting under color of State law,” supports his 

position that Congress intended the statute to permit relief 

against government employees in their individual capacities. 

In particular, Sharp asserts that, by the “any other person 

acting under color of State law” language, Congress 

purposefully tracked its § 1983 language. Sharp concludes 

that because § 1983 permits recovery against a government 

employee in her individual capacity, so too must RLUIPA. 

Sharp, however, overlooks the constitutional underpinnings 

of RLUIPA. In fact, the Courts of Appeals for the Fourth, 

Fifth, Seventh and Eleventh Circuits — the only circuits we 

are aware of that have addressed this issue in precedential 

opinions — have rejected arguments similar to Sharp’s and 

held that RLUIPA does not permit actions against 

government employees in their individual capacities. See, 

e.g., Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009); 

Rendelman v. Rouse, 569 F.3d 182, 186-89 (4th Cir. 2009); 

Sossamon v. Lone Star State of Texas, 560 F.3d 316, 327-29 

(5th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1271-75 (11th 

Cir. 2007), abrogated on other grounds, Sossamon v. Texas, 

131 S. Ct. 1651, 1654 (2011) (abrogating Smith as to the 

claim against government employees in their official 

capacities). 
24

Congress enacted RLUIPA pursuant to its spending 

power under Article I of the Constitution.14

Thus, non-recipients of the funds, including 

individuals who are state officials, generally cannot be subject 

to private liability for monetary damages. See, e.g., Nelson, 

570 F.3d at 888-89 (stating that permitting suits against 

government officials in their individual capacity would “raise 

serious questions regarding whether Congress had exceeded 

its authority under the Spending Clause”); Rendelman, 569 

F.3d at 189 (concluding that the RLUIPA’s definition of 

“government” did not clearly convey Congress’s intent to 

impose a condition of individual liability pursuant to the 

 When Congress 

enacts legislation pursuant to its spending power, it may 

attach conditions on the receipt of federal funds and 

essentially create a contract between the federal government 

and the State recipient. Smith, 502 F.3d at 1273; see also

Nelson, 570 F.3d at 887 (citing Pennhurst State Sch. & Hosp. 

v. Halderman, 451 U.S. 1, 17 (1981)). As a result, the statute 

may, as a condition of the funding, “subject the grant 

recipient to liability in a private cause of action, but the 

spending power cannot be used to subject individual 

defendants, such as state employees, to individual liability in 

a private cause of action.” Smith, 502 F.3d at 1274; see also

Sossamon, 560 F.3d at 329. 

 14 Although Congress enacted RLUIPA pursuant to both its 

spending power and the Commerce Clause, see, e.g., 42 

U.S.C. § 2000cc-1(b), the parties have conceded that only 

Congress’s authority under the spending power is implicated 

here.

 
25

Spending Clause); Sossamon, 560 F.3d at 329 

(“Congressional enactments pursuant to the Spending Clause 

do not themselves impose direct liability on a non-party to the 

contract between the state and the federal government.”); 

Smith, 502 F.3d at 1273-74 (drawing an analogy to the court’s 

Title IX jurisprudence, which does not permit suits against 

individuals because Title IX was enacted pursuant to the 

Spending Clause).

Moreover, when Congress desires to impose a 

condition under the Spending Clause, it is Congress’s burden 

to affirmatively impose the condition in clear and 

unmistakable statutory terms. See, e.g., Pennhurst State Sch. 

& Hosp., 451 U.S. at 17. In Pennhurst State School & 

Hospital, the Supreme Court stated that 

[t]he legitimacy of Congress’s power to 

legislate under the spending power thus rests on 

whether the State voluntarily and knowingly 

accepts the terms of the “contract.” . . . There 

can, of course, be no knowing acceptance if a 

State is unaware of the conditions or is unable 

to ascertain what is expected of it. Accordingly, 

if Congress intends to impose a condition on the 

grant of federal moneys, it must do so 

unambiguously.

Id. (internal citations omitted).

Here, the Magistrate Judge correctly concluded that 

RLUIPA does not permit an action against Defendants in 

their individual capacities. Pennsylvania, not Defendants, 
26

was the direct recipient of any federal funds. Thus, RLUIPA 

cannot impose direct liability on Defendants, who were not 

parties to the contract created between Pennsylvania and the 

federal government.15

Further, RLUIPA does not unambiguously signal 

Congress’s intent to impose a condition of individual liability. 

The Supreme Court’s recent decision in Sossamon v. Texas

— which reviewed the related issue of whether States, by 

accepting federal funds, waived sovereign immunity under 

RLUIPA — is particularly instructive. In Sossamon, the 

Court held that States did not consent to waive their sovereign 

immunity with respect to RLUIPA suits for damages against 

State employees in their official capacities. See 131 S. Ct. at 

1655. The Court reasoned that RLUIPA’s authorization of 

“‘appropriate relief against a government,’ § 2000cc-2(a), 

[was] not an unequivocal expression of state consent” to 

waive sovereign immunity to suits for money damages. Id. at 

1658-59. Rather, the Court found RLUIPA’s “appropriate 

 

 15 Sharp’s reliance on Sabri v. United States, 541 U.S. 600 

(2004), for the proposition that Congress may regulate the 

actions of third parties under the Spending Clause, is 

misplaced. In Sabri, Congress enacted the statute at issue, 18 

U.S.C. § 666(a)(2), pursuant to its powers under the Spending 

and the Necessary and Proper Clauses to protect its 

expenditures against local bribery and corruption. Sabri, 541 

U.S. at 602, 605-07. Here, however, Congress did not enact 

RLUIPA to protect its own expenditures, but rather it enacted 

RLUIPA to protect the religious rights of institutionalized 

persons. Thus, Sabri is inapposite. 
27

relief” language to be “open-ended and ambiguous about 

what types of relief it includes,” thereby precluding any 

finding that the States consented to waive sovereign 

immunity. Id. at 1659. Similarly here, it cannot be said that 

RLUIPA’s “appropriate relief” language unambiguously 

signaled Congress’s intent to impose a condition of individual 

liability. 

Accordingly, the Magistrate Judge did not err when 

she entered judgment against Sharp and for Defendants on the 

RLUIPA Action.

B. THE FIRST AMENDMENT ACTION

We will affirm the judgment for Defendants on the 

First Amendment Action because the Magistrate Judge did 

not err in concluding that Defendants were protected by 

qualified immunity (discussed in greater detail infra Section 

II.B.2). The Magistrate Judge, however, did err in placing the 

burden on Sharp to demonstrate that the denial of his request 

had no rational connection to any legitimate penological 

interest. Although this error ultimately does not affect our 

holding, we discuss it next to provide clarity and avoid future 

confusion.

1. THE MAGISTRATE JUDGE ERRED IN PLACING THE 

BURDEN OF PROOF REGARDING THE PENOLOGICAL 

INTEREST FACTOR ON SHARP

Inmates do not completely forego their constitutional 

rights because of their incarcerated status, but those rights are 

necessarily limited. Waterman v. Farmer, 183 F.3d 208, 213 

(3d Cir. 1999) (citing Jones v. N.C. Prisoners’ Labor Union, 
28

433 U.S. 119, 125 (1977)). An inmate retains his First 

Amendment rights that are “not inconsistent with his status as 

a prisoner or with the legitimate penological objectives of the 

corrections system.” Pell v. Procunier, 417 U.S. 817, 822 

(1974); see also Turner v. Safley, 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court recognized that 

subjecting the day-to-day judgments of prison officials to a 

strict scrutiny analysis would impede the officials’ ability to 

anticipate and solve security and administrative problems. 

482 U.S. at 89. Instead, the Court found that “when a prison 

regulation impinges on inmates’ constitutional rights, the 

regulation is valid if it is reasonably related to legitimate 

penological interests.” Id. The Court listed four factors that 

are relevant in determining the reasonableness of a particular 

prison regulation: (1) there must be a “valid, rational 

connection” between the prison regulation and the legitimate, 

neutral governmental interest put forward to justify it (the 

“First Turner Factor”); (2) whether the inmate has alternative 

means of exercising the right at issue; (3) the burden that the 

accommodation would impose on prison resources; and (4) 

whether any ready alternatives to the regulation exist that 

would fully accommodate the inmate’s rights at de minimis

cost to valid penological objectives (Turner factors 2-4 are 

the “Other Turner Factors”). Id. at 89-91 (quoting Block v. 

Rutherford, 486 U.S. 576, 586 (1984)).16

 16 Note that the prisons do not have to use the least restrictive 

means possible to further legitimate penological interests. 

Turner, 482 U.S. at 90. 

 Turner does not 
29

expressly state which party, the inmate or the prison, bears 

the burden of proving these factors.

After Turner, we developed a two-step analysis for 

determining whether a prison’s regulation is reasonably 

related to a penological interest. First, the prison has the 

burden of demonstrating the First Turner Factor. See

Waterman, 183 F.3d at 218 n.9; Wolf v. Ashcroft, 297 F.3d 

305, 308 & n.2 (3d Cir. 2002). This burden is slight, and in 

certain instances, the connection may be a matter of common 

sense. Wolf, 297 F.3d at 308. Second, if the prison meets its 

burden under the First Turner Factor, then we consider the 

Other Turner Factors. See Waterman, 183 F.3d at 218 n.9; 

Wolf, 297 F.3d at 308 & n.2; see also Jones v. Brown, 461 

F.3d 353, 360 (3d Cir. 2006).

After our decisions in Waterman and Wolf, the 

Supreme Court, in Overton v. Bazzetta, stated that where an 

inmate challenges regulations, the burden “is not on the State 

to prove the validity of prison regulations but on the prisoner 

to disprove it.” 539 U.S. 126, 132 (2003). Notably, Overton

did not expressly state that the burden for the First Turner

Factor is on the inmate. 

In Jones v. Brown, we interpreted Overton as placing 

the “ultimate burden of persuasion with regard to the 

reasonableness of a regulation” on the inmate but continued 

to require that the prison “put forward the legitimate 

governmental interest alleged to justify the regulation and 

demonstrate that the policy drafters could rationally have seen 

a connection between the policy and [that interest].” Jones, 

461 F.3d at 360-61 (citations and quotation marks omitted
30

(alteration in original)). Other Third Circuit decisions have 

followed Jones. See, e.g., Fontroy v. Beard, 559 F.3d 173, 

177 (3d Cir. 2009) (“Although the Inmates bear the ultimate 

burden of showing that the DOC’s new mail policy is 

unconstitutional, it is the DOC Officials’ burden to 

demonstrate that a rational connection exists between the 

policy and a legitimate penological interest.”); Monroe v. 

Beard, 536 F.3d 198, 207 (3d Cir. 2008) (stating that the 

party challenging the regulation bears the burden of showing 

that it is unreasonable, but that the prison must come forward 

with a legitimate interest justifying the regulation).

Here, the Magistrate Judge erred in concluding that 

Overton overruled, sub silentio, our Jones line of cases that 

placed the burden for the First Turner Factor on the prison. 

See Sharp v. Johnson, No. 00 civ. 2156, 2008 WL 941686, at 

*12 (W.D. Pa. Apr. 7, 2008) (placing the burden on Sharp to 

“negative every conceivable legitimate penological interest 

which might support [Defendants’] denial of the 

accommodation”). First, Overton’s burden language does not 

support the Magistrate Judge’s conclusion that the burdens of 

production and persuasion for all Turner factors fall on those 

challenging the regulations. See, e.g., Overton, 539 U.S. at 

132. In other words, Overton did not tie its burden language 

to the Turner factors; rather, it made a statement about the 

general burden of persuasion where a prisoner is challenging 

a regulation. 

Second, Jones is binding Third Circuit precedent, and 

it interpreted Overton’s burden language to mean that the 

“ultimate burden of persuasion” — not the burden to prove 

the First Turner Factor — is on the inmate. Jones, 461 F.3d 
31

at 360-61. In fact, the Supreme Court’s plurality opinion in 

Beard v. Banks, 548 U.S. 521 (2006) (“Banks”) supports 

Jones’s interpretation of Overton. In Banks, an inmate 

challenged the prison’s policy of restricting certain 

periodicals and photographs. Banks, citing Overton, stated 

that the prisoner “bears the burden of persuasion” when he is 

challenging a regulation, 548 U.S. at 529, and that “Turner

requires prison authorities to show more than a formalistic 

logical connection between a regulation and a penological 

objective.”17 548 U.S. at 535.18

 17 This is consistent with Turner, where the Court stated that 

“there must be a valid, rational connection between the prison 

regulation and the legitimate governmental interest put 

forward to justify it.” Turner, 482 U.S. at 89 (quotation 

marks omitted) (emphasis added). Commonsense dictates 

that only the prison officials, not the inmates, would be 

putting forth a legitimate governmental interest to support the 

regulation.

 

18 Defendants’ assertion that Banks is inapposite because it 

was presented to the Supreme Court in a different procedural 

posture (i.e., a motion for summary judgment) than the instant 

matter is not persuasive. Banks stated that Turner, not 

Federal Rule of Civil Procedure 56, requires prison 

authorities to demonstrate the connection between a 

regulation and its penological interest. See, e.g., 548 U.S. at 

535. Thus, Banks is applicable to the instant matter. 

 
32

Third, contrary to Defendants’ assertion, we see no 

internal inconsistency in our jurisprudence on the placement 

of the burden for the First Turner Factor. In Newman v. 

Beard, a case cited by Defendants, we upheld the dismissal of 

the inmate’s First Amendment claim on a 12(b)(6) motion 

because the inmate did not allege that the regulation at issue 

served no legitimate penological objectives or was not 

reasonably related to rehabilitation. 617 F.3d 775, 781 (3d 

Cir. 2010). Newman involved a pleading deficiency, not a 

determination as to the burden of proof at trial. 

In Williams v. Morton, the other case cited by 

Defendants for the proposition that our jurisprudence is 

inconsistent, we granted summary judgment for the prison 

officials and stated that the inmates “have the burden of 

disproving the validity of the regulation.” 343 F.3d 212, 218 

(3d Cir. 2003). This is essentially the same burden statement 

set forth in Overton, which we interpreted in Jones to mean 

the general burden of persuasion. In fact, the prison 

administrators in Williams set forth a number of legitimate 

penological interests to support their regulation. See, e.g., 

343 F.3d at 218 (listing simplified food service, prison 

security, and budgetary constraints as legitimate penological 

interests supporting the prison’s refusal to serve Halal meat). 

Neither Newman nor Williams stated that they were deviating 

from the established Third Circuit precedent set forth in Jones

and its progeny. We are satisfied that our jurisprudence on 

this issue is consistent. 

Finally, policy concerns favor placing the burden of 

the First Turner Factor on prison officials. According to the 

Magistrate Judge, for Sharp to meet his burden of proving the 
33

First Turner Factor, he would have to accomplish the 

herculean task of negating “every conceivable legitimate 

penological interest which might support” the denial of his 

accommodation. Defendants argue that a prisoner seeking a 

religious accommodation would merely have to show no 

impact on security, orderly administration of the prison, or 

expenditures. Defendants, however, ignore the fact that 

within these three broad categories are numerous subcategories of potential penological interests that an inmate 

would also have to negate (e.g., the interests within 

expenditures would include: additional guard salary/overtime, 

purchase of religious books, space concerns within the library 

and prayer areas, additional chaplain expenses, and potential 

speaker fees). Placing this burden on prisoners unnecessarily 

creates inefficiencies and would invite speculation into the 

often subjective motivations of prison officials. 

Consequently, policy implications favor placing the burden 

on the prison officials.

Accordingly, the Magistrate Judge erred in placing the 

burden for the First Turner Factor on Sharp. This error, 

however, was not fatal to the judgment on the First 

Amendment Action because Defendants were entitled to

qualified immunity. 

2. QUALIFIED IMMUNITY 

As an initial matter, the Magistrate Judge did not err in 

determining that Defendants did not waive their qualified 

immunity defense. We review a lower court’s decision 

regarding the waiver of an affirmative defense for abuse of 

discretion. See, e.g., Cetel v. Kirwan Fin. Group, Inc., 460 
34

F.3d 494, 506 (3d Cir. 2006); see also Eddy v. V.I. Water & 

Power Auth., 256 F.3d 204, 210 (3d Cir. 2001).19

Here, Defendants, who pled qualified immunity as an 

affirmative defense, placed Sharp on notice of their intent to 

raise that defense at trial. Defendants’ delay in asserting 

qualified immunity was understandable because trial 

testimony was necessary to develop the contours of Sharp’s 

 Qualified 

immunity is an affirmative defense and generally must be 

included in a responsive pleading or may be considered 

waived. See, e.g., Leveto v. Lapina, 258 F.3d 156, 161 (3d 

Cir. 2001) (stating that qualified immunity is an affirmative 

defense); see also Fed. R. Civ. P. 8(c). Although it is true 

that parties should generally assert affirmative defenses early 

in the litigation, there is no firm rule. See Cetel, 460 F.3d at 

506. Thus, affirmative defenses may be raised at any time, 

even after trial, so long as the plaintiff suffers no prejudice. 

See Cetel, 460 F.3d at 506 (citing Charpentier v. Godsil, 937 

F.2d 859, 863-64 (3d Cir. 1991)). A party may raise qualified 

immunity as a defense at trial, especially where the facts are 

not clear. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 

2002) (stating that fact issues may require a trial before 

determining whether qualified immunity is appropriate);

Eddy, 256 F.3d at 210 n.3 (stating in dicta that qualified 

immunity may be raised at trial).

 19 A court abuses its discretion when its decision “rests upon a 

clearly erroneous finding of fact, an errant conclusion of law 

or an improper application of law to fact.” Oddi v. Ford 

Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) (quoting 

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 

(3d Cir.1993)). 
35

claims and to determine certain factual issues, including the 

number of Habashi adherents at SCI-Pittsburgh and Greene. 

Sharp, who was proceeding pro se at trial, did not incur any 

unnecessary legal fees as a result of Defendants’ delay, and 

he has not identified any substantial prejudice caused by the 

delay. If anything, Sharp may have benefited from the delay 

because he was afforded the opportunity to introduce 

evidence at trial demonstrating that qualified immunity was 

improper under the circumstances. Consequently, the 

Magistrate Judge did not abuse her discretion by permitting 

Defendants to raise their qualified immunity defense at trial. 

The Magistrate Judge also did not err in holding that 

Defendants were protected by qualified immunity because 

they did not violate Sharp’s clearly established rights. We 

review the grant of qualified immunity de novo as it raises a 

purely legal issue. See Burns v. PA Dep’t of Corr., 642 F.3d 

163 (3d Cir. 2011). The qualified immunity doctrine 

“protects government officials from liability for civil damages 

insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 

(2009) (citations and quotation marks omitted); see also Ray 

v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010). 

“Qualified immunity balances two important interests — the 

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from 

harassment, distraction, and liability when they perform their 

duties reasonably.” Pearson, 555 U.S. at 231. Qualified 

immunity protects “all but the plainly incompetent or those 

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 

335, 341 (1986); see also Ray, 626 F.3d at 173-74. Thus, so 
36

long as an official reasonably believes that his conduct 

complies with the law, qualified immunity will shield that 

official from liability. See Pearson, 555 U.S. at 244. 

In Saucier v. Katz, the Supreme Court established a 

two-part analysis for determining when qualified immunity is 

applicable: (1) whether the official’s conduct violated a 

constitutional or federal right; and (2) whether the right at

issue was “clearly established.” 533 U.S. 194, 201 (2001), 

overruled in part by Pearson, 555 U.S. at 236 (relaxing the 

Saucier analysis by no longer requiring courts to determine 

the Saucier prongs in sequential order); see also Ray, 626 

F.3d at 174.

A right is clearly established for qualified immunity 

purposes where its contours are “sufficiently clear that a 

reasonable official would understand that what he is doing 

violates that right.” Saucier, 533 U.S. at 202; see also 

Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006). In 

determining whether a right has been clearly established, the 

court must define the right allegedly violated at the 

appropriate level of specificity. Williams, 455 F.3d at 191 

(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). In some 

cases, even though there may be no previous precedent 

directly on point, an action can still violate a clearly 

established right where a general constitutional rule already 

identified in the decisional law applies with obvious clarity. 

Williams, 455 F.3d at 191 (citing Hope v. Pelzer, 536 U.S. 

730, 741 (2002)).

At issue here is whether Sharp had a clearly 

established right under the First Amendment to separate 
37

religious services in accordance with the Habashi sect of 

Sunni Islam when Sunni Islamic services were already 

available. The Supreme Court has stated that “[a] special 

chapel or place of worship need not be provided for every 

faith regardless of size; nor must a chaplain, priest, or 

minister be provided without regard to the extent of the 

demand.” Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). We 

echoed this when we said, “The requirement that a state 

interpose no unreasonable barriers to the free exercise of an 

inmate’s religion cannot be equated with the suggestion that 

the state has an affirmative duty to provide, furnish, or supply 

every inmate with a clergyman or religious services of his 

choice.” Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 

1970). Although we later stated that “an opportunity to 

worship as a congregation by a substantial number of 

prisoners may be a basic religious experience and, therefore, a 

fundamental exercise of religion by a bona fide religious 

group,” Small v. Lehman, 98 F.3d 762, 768 (3d Cir. 1996),20

 20 Small held that the Religious Freedom Restoration Act of 

1993 (“RFRA”), 42 U.S.C. § 2000bb, applies to prisoners’ 

claims. 98 F.3d at 768. Subsequent to our decision in Small, 

the Supreme Court in City of Boerne v. Flores declared the 

RFRA unconstitutional. 521 U.S. 507 (1997). Although 

Small has been overruled in part by Boerne, Small’s finding 

that communal worship by a substantial number of prisoners 

may be a fundamental aspect of the exercise of religion is still 

good law in the Third Circuit.

we have never indicated, let alone clearly established, that a 

single prisoner or a non-substantial number of like-minded 

prisoners are entitled to place on the state the burden of 

 
38

furnishing separate religious services for them.

21 Given this 

precedent, a reasonable official would not have understood 

the denial of Sharp’s request, whether made by Sharp on 

behalf of either himself or a small number of inmates, to 

violate a constitutional right.

22

 21 Cf. Smith v. Kyler, 295 F. App’x 479, 483-84 (3d Cir. 

2008) (determining an inmate’s Free Exercise rights were not 

violated by a DOC policy prohibiting group worship in the 

absence of an approved faith group leader); Boretsky v. 

Corzine, No. 08 civ. 2265, 2011 WL 2610370, at *13 (D.N.J. 

June 30, 2011) (holding that a Jewish inmate’s restriction 

from congregational services as well as communal activities 

did not violate his constitutional rights); Palmer v. Rustin, 

No. 10 civ. 0042, 2011 WL 2489820, at *9 (W.D. Pa. June 

21, 2011) (dismissing a claim based on denial of right to 

attend Muslim services); Gould v. Beard, No. 07 civ. 0055, 

2010 WL 845566, at *6 (W.D. Pa. Jan. 16, 2010) (holding 

that a prisoner did not have a right to communal Nation of 

Islam services); Morris-El v. Menei, No. 00 civ. 200J, 2006 

WL 1455592, at *2-6 (W.D. Pa. May 22, 2006) (denying 

claim that failure to provide Moorish Science services 

violated the inmate’s right to Free Exercise).

22 Sharp further argues that, pursuant to Grant v. City of 

Pittsburgh, the Magistrate Judge erred by not conducting a 

careful examination of the record and detailing a factual 

description of each defendant’s actions. 98 F.3d 116 (3d Cir. 

1996) (denying qualified immunity because the district court 

did not analyze the specific conduct of each defendant). This 

is a red herring. Although the Magistrate Judge did state in a 
39

Accordingly, Defendants are entitled to qualified 

immunity as to Sharp’s First Amendment Action.

23

 

conclusory fashion that “the evidence shows that the 

Defendants acted reasonably,” she only did so after making 

factual findings as to the involvement of each SCI-Pittsburgh 

and Greene Defendant with respect to Sharp’s First 

Amendment Action. Thus, the Magistrate Judge did conduct 

a proper examination of the record.

23 Sharp’s informal brief also expressly asserted that the 

Magistrate Judge erred when she: (1) determined that he 

waived his retaliation claim; and (2) dismissed his due 

process claim. We disagree. 

Prior to trial, the Magistrate Judge found that Sharp’s 

amended complaint did not include any retaliation claims in 

the section identified as “Legal Claims.” The Magistrate 

Judge was unsure whether this omission was intentional. 

Thus, the Magistrate Judge directed Sharp to “identify any 

retaliation claim he intends to pursue in a separate paragraph 

within the section of his [second amended complaint] wherein 

he sets forth his legal claims.” Sharp, who was represented 

by counsel at that time, filed his second amended complaint, 

but did not include retaliation claims in the legal claims 

section. Sharp never sought to amend his second amended 

complaint to include a retaliation claim. Because Sharp 

omitted his retaliation claim in his second amended 

complaint, the Magistrate Judge did not err in concluding that 

Sharp waived this claim.

The Magistrate Judge also did not err in granting 

Defendants’ motion for summary judgment on Sharp’s due 
40

III. CONCLUSION

For the reasons set forth above, we will affirm the 

judgment in favor of Defendants.

 

process claim. Sharp claims that his confinement in 

administrative custody for thirty months violated his 

Fourteenth Amendment Due Process rights. Sharp, however, 

failed to demonstrate that he was not afforded proper due 

process protections. We have previously upheld the 

constitutionality of the DOC’s policy statement 802, which 

sets forth the policies and procedures for confining inmates to 

administrative custody and the PRC’s periodic review of their 

status. See Shoats v. Horn, 213 F.3d 140, 145-46 (3d Cir. 

2000). Sharp has not argued that the DOC’s policy statement 

802 has been substantively amended since Shoats or that the 

DOC failed to follow this policy.

Accordingly, the Magistrate Judge did not err in 

determining that he waived his retaliation claim or in 

dismissing his due process claim.