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.
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.
SCI-Pittsburgh recognizes and accommodates several different religions and religious
An inmate practicing a religion not covered by the aforementioned groups may request an accommodation. DC-Administrative 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:
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.
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 broader Sunni Muslim group. Sharp identifies himself as a member of the Habashi sect.
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 Taleem classes for
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 SCI-Pittsburgh. Sharp believed that the Habashi could not be accommodated within the Sunni Muslim community at SCI-Pittsburgh. 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 SCI-Pittsburgh.
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 Terza told Sharp that once he submitted the proper form, Father Terza would circulate it to the appropriate SCI-Pittsburgh 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 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."
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 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.
Sharp appealed the denial of the Pittsburgh Grievance to Defendant Philip Johnson, who was Superintendent of SCI-Pittsburgh. 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-Pittsburgh, were on Sharp's PRC.
On May 23, 2001, the DOC transferred Sharp from SCI-Pittsburgh to SCI-Greene.
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:
(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.
On September 30, 2002, more than a year after being transferred to SCI-Greene,
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 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,
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 SCI-Greene.
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
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 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.
On June 13, 2006, the DOC transferred Sharp from SCI-Greene to SCI-Dallas.
On November 2, 2000, Sharp filed his complaint.
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 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 (SCI-Pittsburgh 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.
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).
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:
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,
Congress enacted RLUIPA pursuant to its spending power under Article I of the Constitution.
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 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, 101 S.Ct. 1531. In Pennhurst State School & Hospital, the Supreme Court stated that
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, was the direct recipient of any federal funds. Thus, RLUIPA cannot impose direct liability on Defendants, who were not parties to the contract created
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 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.
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.
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, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (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, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); see also Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (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
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, 123 S.Ct. 2162, 156 L.Ed.2d 162 (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 (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
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 at 360-61. In fact, the Supreme Court's plurality opinion in Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572, 165 L.Ed.2d 697 (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, 126 S.Ct. 2572, and that "Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective."
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
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 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.
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 F.3d 494, 506 (3d Cir.2006); see also Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 210 (3d Cir.2001).
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
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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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, 129 S.Ct. 808. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); see also Ray, 626 F.3d at 173-74. Thus, so 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, 129 S.Ct. 808.
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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson, 555 U.S. at 236, 129 S.Ct. 808 (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, 121 S.Ct. 2151; 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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
At issue here is whether Sharp had a clearly established right under the First Amendment to separate religious services in accordance with the Habashi sect of Sunni Islam when Sunni Islamic
Accordingly, Defendants are entitled to qualified immunity as to Sharp's First Amendment Action.
For the reasons set forth above, we will affirm the judgment in favor of Defendants.
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.
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).
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.
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.
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 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.
