Ashaheed v. Currington

7 F.4th 1236

Tajuddin ASHAHEED, Plaintiff - Appellant,

v.Thomas E. CURRINGTON, Defendant - Appellee.

Institute for Justice; Cato Institute; Muslim Advocates, Amici Curiae.

No. 20-1237

United States Court of Appeals, Tenth Circuit.

FILED August 10, 2021

David M. Shapiro, Roderick & Solange MacArthur Justice Center, Chicago, Illinois (David A. Lane and Andrew McNulty, Kilmer, Lane & Newman, Denver, Colorado, with him on the briefs), for Plaintiff – Appellant.

Joshua J. Luna, Assistant Attorney General, (Philip J. Weiser, Attorney General, with him on the brief), State of Colorado, Denver, Colorado, for Defendant – Appellee.

Jaba Tsitsuashvili, Keith Neely, and Anya Bidwell, Arlington, Virginia, filed an amicus curiae brief on behalf of Plaintiff – Appellant for the Institute for Justice.

Clark M. Neily III and Jay R. Schweikert, Washington, District of Columbia, filed an amicus curiae brief on behalf of Plaintiff – Appellant for the Cato Institute.

Matthew W. Callahan, Washington, District of Columbia, filed an amicus curiae brief on behalf of Plaintiff – Appellant for Muslim Advocates.

Before MATHESON, MURPHY, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

Tajuddin Ashaheed wears a beard because he is Muslim. He arrived at the Colorado Department of Corrections ("CDOC") Denver Reception and Diagnostic Center (the "Center") to serve a short sentence for parole violations. The Center's policies required inmates to shave their beards at intake but exempted those like Mr. Ashaheed who wear beards due to their religion. Mr. Ashaheed alleged that he repeatedly invoked this exemption, but Sergeant Thomas Currington, motivated by anti-Muslim animus, forced him to shave his beard.

Mr. Ashaheed sued Sergeant Currington under 42 U.S.C. § 1983, alleging claims for violations of the First Amendment Free Exercise Clause and Fourteenth Amendment Equal Protection Clause. Sergeant Currington moved to dismiss both claims based on qualified immunity and failure to state a claim. The court granted the motion and dismissed the case with prejudice.

Mr. Ashaheed appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

I. BACKGROUND

A. Factual History

Mr. Ashaheed's second amended complaint ("SAC") alleged as follows.

Mr. Ashaheed has practiced Islam for decades. He follows the " ‘Sunnah’ practice of leaving one's beard to grow" and believes shaving his beard would "violate[ ] a core tenet of his faith." App. at 205.

CDOC has long been aware of Mr. Ashaheed's faith. In 1993, while serving a sentence with CDOC, he "signed a written declaration of his religious affiliation." Id. CDOC updated his inmate file to document his faith. It then provided a Qur'an and a prayer rug to him. He "participated in religious practices ... consistently throughout his time at CDOC and thereafter." Id. Mr. Ashaheed wore a beard while serving this sentence.

In 2014, Mr. Ashaheed started a four-year prison sentence with CDOC. His inmate file "was updated and continued to document his Muslim faith," and he "continued devotional practice of his religious faith." Id. He was paroled in March 2016.

In July 2016, Mr. Ashaheed arrived at the Center to serve a short sentence for parole violations. An intake officer interviewed Mr. Ashaheed, verified his religious affiliation, and updated his inmate file to reflect his continued Muslim adherence. Because Mr. Ashaheed's 1993 declaration was still on file, "[t]he intake officer did not require Plaintiff Ashaheed to sign a form declaring his religion." Id. at 206.

After the intake interview, Mr. Ashaheed showered, submitted to a physical examination, and dressed. The Center's policies required inmates’ beards to be shaved at intake, but they "provide[d] an exemption for inmates who wear a beard based on religious tenets." Id. Sergeant Currington nevertheless ordered Mr. Ashaheed "to submit to having his beard shaved." Id. at 207. Mr. Ashaheed explained to him "that he is a practicing Muslim and that shaving his beard would violate a core tenet of his faith." Id. Sergeant Currington replied that Mr. Ashaheed "must have a ‘full beard’ in order to ‘qualify’ for the religious exemption." Id. The religious exemption in the Center's beard-shaving policy, however, did not require Mr. Ashaheed to have a full beard.

Mr. Ashaheed told Sergeant Currington "that he is physically unable to grow a full beard, reiterated that his beard is worn for religious practices, and stated that his religious affiliation is documented in his CDOC file." Id. Sergeant Currington "replied that he ‘didn't want to hear about it.’ " Id. He then threatened that Mr. Ashaheed "would be ‘thrown in the hole’ "—solitary confinement—if he did not agree to be shaved. Id. Mr. Ashaheed "submitted to having his beard shaved by the inmate barber." Id. at 208. He felt "dehumanized" and "humiliated" because "his faith ha[d] been disrespected." Id.

Mr. Ashaheed averred that "no other inmate[s] had their religious freedom infringed upon by Currington." Id. He alleged that "[o]ther non-Muslim inmates were allowed to keep items of religious significance such as crosses, bibles and small wedding rings and only Ashaheed was singled out by Currington to be treated differently from any other inmate of a different religion." Id. Mr. Ashaheed further stated that at CDOC and the Center, there was a "pattern and practice of substantially burdening and interfering with Muslim inmates’ ability to freely practice their religion, including, but not limited to, publicly demeaning Muslim practices, culturally isolating Muslim inmates, and generally fostering an environment in which the practice of Islam is burdensome to Muslim inmates." Id. at 209. He alleged that shaving him "advanced no penological interest of the CDOC or Defendant Currington." Id. at 208.

B. Procedural History

1. First Amended Complaint and Its Dismissal

Mr. Ashaheed's first amended complaint ("FAC") alleged § 1983 claims against Sergeant Currington under the Free Exercise Clause and the Equal Protection Clause, and a claim for violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc to 2000cc-5.¹ Sergeant Currington moved to dismiss. The district court dismissed Mr. Ashaheed's RLUIPA claim with prejudice, and his § 1983 claims without prejudice.

2. SAC and Its Dismissal

The SAC alleged free exercise and equal protection claims under § 1983. Sergeant Currington moved to dismiss. The district court dismissed both claims with prejudice. On the free exercise claim, the court bypassed the first element of qualified immunity and held Mr. Ashaheed had not identified Supreme Court or Tenth Circuit case law clearly establishing that Sergeant Currington violated his free exercise rights by forcing him to shave his beard. On the equal protection claim, the court held Mr. Ashaheed had not stated a claim because he had not plausibly alleged facts showing that he was treated differently from similarly situated non-Muslim inmates.

The district court entered final judgment. Mr. Ashaheed timely appeals.

II. DISCUSSION

Our following discussion concludes that the district court erred when it granted Sergeant Currington qualified immunity on the free exercise claim and dismissed the equal protection claim.²

A. Free Exercise Clause Claim

When a defendant in a § 1983 action raises a qualified immunity defense, the plaintiff bears the burden of overcoming it. Sawyers v. Norton , 962 F.3d 1270, 1282 (10th Cir. 2020). To do so on a motion to dismiss, a plaintiff must (1) plead facts demonstrating the defendant violated a federal constitutional or statutory right, and (2) show that the right was clearly established at the time of the defendant's conduct. Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Doe v. Woodard , 912 F.3d 1278, 1289 (10th Cir. 2019).

The district court erred when it granted qualified immunity to Sergeant Currington on the free exercise claim on the ground that Mr. Ashaheed "ha[d] failed to establish that [his] right to maintain his beard was clearly established." App. at 283.

Although the court addressed only the second element of qualified immunity—clearly established law, we also address the first—constitutional violation—because Sergeant Currington argues it presents an alternative ground to affirm and because our discussion informs our analysis of clearly established law. See Richison v. Ernest Grp. , 634 F.3d 1123, 1130 (10th Cir. 2011) (court of appeals may consider alternative grounds for affirmance not passed upon by the district court).

1. Legal Background

The Free Exercise Clause provides that "Congress shall make no law ... prohibiting the free exercise [of religion]." U.S. Const. amend I. It protects against government regulation of religious belief or conduct and has been applied to the states through the Fourteenth Amendment's Due Process Clause. Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

The Supreme Court's free exercise cases primarily address laws that burden religious exercise. A law that is "neutral" and "generally applicable" is constitutional if it is rationally related to a legitimate government interest. Brown v. Buhman , 822 F.3d 1151, 1160 n.5 (10th Cir. 2016) ; see Fulton v. City of Philadelphia , ––– U.S. ––––, 141 S. Ct. 1868, 1876, ––– L.Ed.2d –––– (2021) ; Emp. Div., Dep't of Hum. Res. of Or. v. Smith , 494 U.S. 872, 877-79, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). A law that is not "neutral" or "general[ly] applicab[le]" is unconstitutional unless it is "narrowly tailored to advance" "a compelling government interest." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (Lukumi ), 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) ; see Tandon v. Newsom , ––– U.S. ––––, 141 S. Ct. 1294, 1296, 209 L.Ed.2d 355 (2021) (per curiam).

This case, however, is not about a law that burdens religion, but rather about a detention officer's refusal to apply a religious exemption...