Mack v. Warden Loretto FCI

839 F.3d 286

Charles Mack, Appellant

v.Warden Loretto FCI, Tim Kuhn, Associate Warden, Jeff Stevens, Trust Fund Officer, Sued in their Individual and Official Capacities; D. Veslosky, Correctional Officer, Doug Roberts, Correctional Officer, Sued in their Individual Capacities

No. 14-2738

United States Court of Appeals, Third Circuit.

Argued April 18, 2016

Opinion Filed: October 11, 2016

Sean E. Andrussier, Esq., John Bailey, Law Student, Anne Showalter, Law Student, Russell Taylor, Law Student [ARGUED]^* , Duke University School of Law, Science Drive and Towerview Road, Box 90360, Durham, NC 27708, Counsel for Appellant.

Jennifer R. Andrade, Esq., Jane M. Dattilo, Esq. [ARGUED], Rebecca R. Haywood, Esq., Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellees.

Before: MCKEE¹ , Chief Judge, FUENTES,^** and ROTH, Circuit Judges

OPINION OF THE COURT

FUENTES, Circuit Judge.

Charles Mack is a Muslim inmate who claims that he was terminated from his paid work assignment for complaining to a prison official about two correctional officers' anti-Muslim harassment at work. He also claims that the same officers' harassment had caused him to refrain from praying while at work. Mack brought this lawsuit pro se against various prison employees seeking monetary relief for alleged violations of his rights under the First Amendment, Fifth Amendment, and the Religious Freedom and Restoration Act (“RFRA”). The District Court dismissed all of Mack's claims.

Mack's allegations raise several issues of first impression in our Circuit, including (1) whether an inmate's oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity. We answer all three questions in the affirmative, and therefore conclude that Mack has sufficiently pled a First Amendment retaliation claim and a RFRA claim. We agree, however, that Mack's First Amendment Free Exercise claim and Fifth Amendment equal protection claim must be dismissed. We will therefore affirm in part, vacate in part, and remand to the District Court for further proceedings.

I. BACKGROUND

A. Mack's Allegations of Anti–Muslim Harassment

Mack's pro se complaint includes the following allegations, which we assume are true for purposes of this appeal.² Mack is an inmate at the Federal Correctional Institution in Loretto, Pennsylvania (“FCI Loretto”). He worked for pay in the prison's commissary from approximately May 2009 until he was terminated in October 2009. His job responsibilities included stocking shelves, filling inmate commissary orders, and cleaning the work area. As a practicing Muslim, Mack was provided certain religious accommodations at work. For example, Mack did not have to handle pork products at the commissary, he was provided a suitable area in which he could pray during breaks, and he was permitted to attend religious services on Friday.³ Defendants Doug Roberts and Samuel Venslosky are correctional officers at FCI Loretto who were assigned to supervise the commissary at the time Mack worked there. They were responsible for the safety and security of the inmates and the orderly operation of the commissary.

While Mack was at work one day, Officer Roberts walked up behind him and slapped him hard on the back. Mack asked Roberts why he had hit him, to which Roberts responded, “do you have a problem with what I did?”⁴ Mack said “yes,” and Roberts declared, “you'll be looking for another job soon!”⁵ Officer Venslosky and other inmates witnessed this interaction and laughed. The officers and inmates continued to laugh and snicker at Mack throughout his shift. When Mack finished work and left the commissary, a fellow inmate informed him that he had an “I LOVE BACON” sticker affixed to the back of his shirt. Roberts knew that Mack is Muslim and that Islam forbids the handling and consumption of pork. The next day, Mack asked Roberts why he had slapped the offensive sticker on his back. Roberts asked Mack if he had a problem with that, and then declared again, “don't worry you'll be looking for another job soon!”⁶ A few days later, while Mack was at work, Roberts loudly told Mack in the presence of Venslosky and other inmates that “there is no good Muslim, except a dead Muslim!”⁷ Venslosky and other inmates heard this comment and laughed.

Mack claims that the officers' anti-Muslim harassment and animus created a tense work environment and caused him to fear that he could be harmed at work because of his religious beliefs. He “continued his work assignment very carefully and nervously[,] not knowing whether an inmate commissary worker [might] act out on Defendant Roberts['] statement and attempt to physically harm [him] for being Muslim.”⁸ While Mack was permitted to pray at work, the officers' conduct “created a threatening [and] hostile environment, that literally caused [him] to change his behavior in that [he] would no longer pray in that area, and would wait until he got off work.”⁹

B. Mack's Complaints to Prison Staff

Seeking redress, Mack spoke with Jeff Stephens, who was Roberts' and Venslosky's supervisor.¹⁰ Mack orally complained to Stephens about Roberts' anti-Muslim conduct and statements, and about Venslosky's inaction during both incidents. Stephens agreed to “look into it.”¹¹ Approximately one week later, Venslosky told Mack that he was being fired from his commissary position for “bringing in other inmates' commissary slips.”¹² Mack replied that this was untrue, and that the only reason he was being fired was because he had complained to Stephens. Venslosky did not respond.

Convinced that Venslosky's reason for firing him was a sham, Mack located Stephens during his lunch period and orally complained to him about his termination. Stephens again responded that he would look into it. When nothing came of that, Mack filed an inmate request-to-staff form seeking an explanation in writing for his termination. Stephens provided Mack with a written response from Venslosky asserting that Mack was “caught bringing slips in for inmates.”¹³ Mack then orally complained to the Warden, John Yost, during his next lunch period. The Warden responded, “[w]hat do you expect me to do?”¹⁴ Finally, Mack filed a formal grievance. Deputy Warden Tim Kuhn repeated the same reason for Mack's termination in his response to Mack's formal grievance. Mack then filed this federal lawsuit.

C. Procedural History

Mack filed suit pro se against Roberts, Venslosky, Stephens, Warden Yost, and Deputy Warden Kuhn for alleged constitutional violations pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,¹⁵ and for violations of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).¹⁶ Among other things, Mack alleged that the defendants violated his rights under the Petition Clause of the First Amendment, which protects “the right of the people ... to petition the Government for a redress of grievances.”¹⁷ In particular, Mack claimed that he was retaliated against for seeking to redress his grievances, that is, for orally complaining to Stephens about Roberts' and Venslosky's anti-Muslim conduct.

The District Court dismissed the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Mack appealed, and this Court vacated and remanded.¹⁸ We directed the District Court to consider in the first instance whether an inmate's oral complaint to prison staff constitutes protected activity under the First Amendment's right to petition.¹⁹ We noted that “[f]iling a formal prison grievance clearly constitutes protected activity,” but acknowledged that “certain informal, oral complaints to prison personnel have been held to constitute protected activity as well.”²⁰ We also explained that Mack's allegations “clearly invite inquiry into” whether the defendants violated Mack's “First Amendment right to practice as a Muslim,” and that Mack's claims should not have been dismissed without leave to amend.²¹

At the direction of the District Court, Mack filed an amended complaint, which largely tracks his original complaint. Construed liberally, Mack's amended complaint raises three constitutional claims and one statutory claim: (1) First Amendment retaliation, invoking the Petition Clause; (2) First Amendment Free Exercise Clause violation; (3) Fifth Amendment equal protection violation; and (4) Religious Freedom and Restoration Act violation.²² From Roberts and Venslosky only, Mack seeks back pay plus interest for each month since he was removed from his commissary position. He seeks from all defendants $75,000 each in punitive damages.²³

The District Court dismissed Mack's amended complaint, too, for failure to state a claim under Rule 12(b)(6). Addressing Mack's First Amendment retaliation claim, the District Court held that “[a]n oral complaint to a prison guard is not a petitioning for the redress of grievances guaranteed by the First and Fourteenth Amendments.”²⁴ The Court accordingly dismissed this claim, reasoning that Mack “had not filed a petition with an administrative agency, whether by formal or informal means,” until after the alleged retaliation occurred.²⁵ The District Court also rejected Mack's equal protection claim because Mack had not identified any similarly situated individuals whom prison officials treated differently.²⁶ As for Mack's Free Exercise and RFRA claims, which the District Court construed as “potential” claims, the District Court held that the defendants neither intentionally nor substantially burdened Mack's religious exercise, and it accordingly dismissed these claims as well.²⁷

Mack moved for reconsideration under Federal Rule of Civil Procedure 59(e). The District Court denied that motion, and Mack appealed. This Court then appointed pro bono counsel to...