Banks v. Sec'y Pa. Dep't of Corr.

RONALD BANKS, Appellant v. SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;REV. ULLI KLEMM, ADMINISTRATOR OF RELIGION;JAMES J. MCGRADY, SUPERINTENDENT;MICHAEL HOOVER, DEPUTY SUPT.- CENTRALIZED SERVICES;REV. JOHN RITCHEY, FACILITY CHAPLAINCY PROGRAM DIRECTOR

No. 13-4081

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: January 2, 2015

February 9, 2015

NOT PRECEDENTIAL

On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Civil Action No. 3:10-cv-01480)

District Judge: Honorable James M. Munley

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 2, 2015

Before: RENDELL, GREENAWAY, JR. and SCIRICA, CircuitJudges

OPINION^*

PER CURIAM

After his transfer to SCI - Somerset, Ronald Banks, a Pennsylvania inmate, filed an amended complaint against the Secretary of the Pennsylvania Department of Corrections ("DOC"); the Religion, Volunteer, and Recreational Services Program Administrator for the DOC (Ulli Klemm); and three prison officials at SCI - Retreat, where he had resided previously. As we write primarily for the parties, we will refer to the details only to the extent they are necessary to the analysis.

Essentially, Banks alleged that while he was incarcerated in the Secure Special Needs Unit at SCI - Retreat, his rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), the First Amendment, and the Equal Protection Clause were violated by prison policies relating to participation in the Islamic feasts of Eid al-Fitr and Eid al-Adha and to the use of prayer oils during religious services. He also alleged that a DOC memorandum issued by defendant Klemm to all DOC Chaplaincy Program Directors limiting indigent Muslims in high security and general population units from participation in the Islamic feasts was not promulgated in compliance with Pennsylvania's Commonwealth Documents Law.

Banks sought declaratory judgments that the defendants' actions violated his rights under the First Amendment, the Equal Protection Clause, and RLUIPA. He also sought several injunctions against all the defendants, including a general injunction to "put an end" to the acts and policies described in his complaint, and more specific injunctions tomodify DOC Policy DC-ADM 819 (to allow indigent Muslim prisoners to be placed in debt to participate in the feasts of Eid al-Fitr and Eid al-Adha) and DOC Policy Statement #3.1.1. (to utilize the Inmate General Welfare Fund ("IGWF") to purchase food for the two feasts for indigent Muslims in the high security units and general population). He also requested damages from each defendant.

The defendants moved for summary judgment, which the District Court granted. The District Court first concluded that Banks could not recover compensatory and punitive damages under RLUIPA, and that his claims for injunctive and declaratory relief were moot because he had been transferred to SCI - Somerset. The District Court also stated that even if other damages were available or if his case were not moot, Banks would not be entitled to relief because Islam did not compel participation in the feast meals or the use of prayer oils. Applying Turner v. Safley, 482 U.S. 78 (1987), the District Court rejected the First Amendment claims. The District Court also considered and rejected the Equal Protection challenge. Banks appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. The Court exercises plenary review over the District Court's grant of summary judgment in favor of the defendants. Abramson v. William Patterson Coll., 260 F.3d 265, 276 (3d Cir. 2001). We may affirm on any basis supported by the record. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988).

Banks' case, in large part, is moot. RLUIPA does not allow for the recovery of money damages. See Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir. 2012) ("RLUIPA does not permit an action against Defendants in their individual capacities . . . [t]hus, RLUIPA cannot impose direct liability on Defendants."); see also Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981) (explaining that the Eleventh Amendment bars a suit for damages against state officials acting in their official capacities). The only relief potentially available to Banks for his RLUIPA claims is injunctive or declaratory, but to the extent that Banks seeks that relief against defendants at SCI - Retreat, his claims are moot because he was transferred to SCI - Somerset. He no longer presents a live case or controversy for injunctive relief regarding the policies or practices at SCI -Retreat because an injunction where he is no longer imprisoned would not provide him meaningful relief. See Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). On this record, any future incarceration of Banks at SCI - Retreat is speculative, so his case not does not present an issue capable of repetition, yet evading review regarding the relief against the SCI - Retreat defendants. See id. Although "[t]he mootness of a . . . claim for injunctive relief is not necessarily dispositive regarding the mootness of . . . [a] claim for a declaratory judgment," Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011), Banks' claims for declarations the SCI - Retreat defendants are similarly moot, see id. at 1027-28 (10th Cir. 2011) (explaining that prison-specific claims are moot on transfer because a declaration that a prisoner was wronged at institution where he no longerresides has no effect on a defendant's behavior toward him). Furthermore, Banks specifically noted in his complaint that the use of prayer oil, at least at Friday services, was not an issue at SCI - Somerset. Similarly, Banks' First Amendment and Equal Protection claims for other injunctive and declaratory relief against the defendants at SCI - Retreat are moot.

Remaining are his RLUIPA claims against Superintendent Beard and defendant Klemm for declarative and injunctive relief relating to the terms of the DOC-wide policies DC-ADM 819 and Policy Statement #3.1.1, his claims for damages for purported violations of the First Amendment and the Equal Protection Clause, and his claims of a violation of the Pennsylvania Commonwealth Documents Law.¹

We conclude that summary judgment was properly granted on the Equal Protection claims. The District Court's analysis of how Christmas is treated as a cultural phenomenon or nationally recognized holiday (on pages 23-25 of the District Court's memorandum) and why the use of IGWF funds for it is different from the use of those funds for meals for some inmates on Eid al-Fitr and Eid al-Adha is sound. As the District Court explained, indigency is not a suspect class. There is a rational reason (cost-containment) for treating indigent versus non-indigent prisoners differently. Also as the District Court concluded, the ban on prayer oil stems from a distinct documented problemat that institution.² And Banks did not controvert the evidence that RARs submitted by inmates of different faiths are treated the same.

Also, although the District Court did not explicitly address it, the defendants were entitled to judgment in their favor on the Commonwealth Documents Law claim. The Documents law sets forth procedures to be followed when a state agency issues binding regulations. See Small v. Horn, 722 A.2d 664, 668-69 (Pa. 1998). However, Banks could not succeed on his Commonwealth Documents Law claim because the memorandum written by defendant Klemm that Banks cited was not a regulation under the terms of the statute. A regulation is a rule promulgated through the statutory authority of an agency to administer a statute or to prescribe a practice or procedure before the agency. 45 P.S. § 1102(12). DOC bulletins and policy statements are not regulations; instead they are "agency decisions inherently committed to the agency's sound discretion." See Small v. Horn, 722 A.2d 664, 669-70 (Pa. 1998) (noting the DOC's need to be able to modify reasonable rules of internal prison management as conditions require); Bundy v. Beard, 924 A.2d 723, 727-28 (Pa. Commw. Ct. 2007).

Banks also pursues RLUIPA claims against Beard and Klemm with respect to DC-ADM 819 and Policy Statement #3.1.1. DC-ADM 819 is the DOC's policy statement on religious activities. Among the religious accommodations it lists is that "special foods and diets may be provided as required for the celebration of major religious holidays consistent with established [DOC] policy." DC-ADM 819(G)(1). Banks seeks a modification of the policy to allow indigent Muslim prisoners to be placed in debt to participate in the feasts of Eid al-Fitr and Eid al-Adha. In effect, he wants a policy in which special foods (including optional items) must be provided for the celebration of Eid al-Fitr and Eid al-Adha. In relevant part, Policy Statement #3.1.1, the Fiscal Administration policy, states that IGWF funds may be expended only on approved categories, which include "gifts to inmate packages" at "major holidays" and "non specific religious items" for the chapel and other items "used for various religious and secular activities" in the chapel. Banks argues that to comply with RLUIPA, it should be modified to allow the use of IGWF funds to purchase food for the two feasts for indigent Muslims in the high security units and general population.

In addition to mootness grounds, the defendants argued, and the District Court alternatively noted, that Banks had not established that any sincerely held religious belief had been burdened. The conclusion was based on the premise that Islam did not require participation in a feast or meal on Eid al-Fitr and Eid al-Adha. In relevant part, RLUIPA provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person[] (1)

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