     11-980-cv
     Washington v. Gonyea



1                       United States Court of Appeals
2                                FOR THE SECOND CIRCUIT
3
4                                        August Term 2012
5
6               (Argued: June 21, 2013                Decided: September 10, 2013)
7
8                                       No. 11-980-cv
9                           _____________________________________
10
11                                     ANTHONY WASHINGTON,
12                                      Plaintiff-Appellant,
13
14                                                 -v.-
15
16        PAUL GONYEA, Deputy Superintendent of Monterey Correctional Facility,
17   Individually and in his Official Capacity, TAMMI CHABOTY, Sergeant at Woodbourne
18     Correctional Facility, Individually and in her Official Capacity, KEITH GRANGER,
19      Sergeant at Livingston Correctional Facility, Individually and in his Official
20                                          Capacity,
21                                   Defendants-Appellees.
22                          _____________________________________
23
24   Before: LIVINGSTON and CHIN, Circuit Judges, and RAMOS, District Judge.*
25
26           Appeal from the judgment of the United States District Court for the Southern
27   District of New York (Gardephe, J.), entered January 31, 2011, dismissing Plaintiff-
28   Appellant’s claim alleging that defendants substantially burdened his right to free
29   exercise of religion in violation of the Religious Land Use and Institutionalized Persons
30   Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1. For the reasons discussed below, we
31   hold that section 3 of RLUIPA does not provide a private right of action against state
32   officials acting in their individual capacities. We AFFIRM the judgment of the district
33   court as to the RLUIPA claim.
34

35                                        MICHAEL J. BALCH, New York, NY, for Plaintiff-
36                                        Appellant.


            *
            The Honorable Edgardo Ramos, of the United States District Court for the Southern District
     of New York, sitting by designation.
1                                     BRIAN A. SUTHERLAND, Assistant Solicitor General
2                                     of Counsel (BARBARA D. UNDERWOOD, Solicitor
3                                     General, MICHAEL S. BELOHLAVEK, Senior Counsel,
4                                     on the brief), for ERIC T. SCHNEIDERMAN, Attorney
5                                     General of the State of New York, New York, NY,
6                                     for Defendants-Appellees.
7
8    PER CURIAM:

9          Plaintiff-Appellant Anthony Washington (“Washington”) appeals from a

10   judgment of the United States District Court for the Southern District of New York

11   (Gardephe, J.) , entered January 31, 2011, dismissing his pro se complaint alleging

12   that New York state prison officials Paul Gonyea (“Gonyea”), Tammi Chaboty

13   (“Chaboty”), and Keith Granger (“Granger”) substantially burdened his First

14   Amendment right to free exercise of religion in violation of the Religious Land Use and

15   Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1, and infringed

16   his due process and First Amendment rights in violation of 42 U.S.C. § 1983 (“§ 1983”).

17   In an accompanying summary order filed today, we affirm in part and reverse in part

18   the district court’s rulings on Washington’s § 1983 claims. For the reasons stated

19   below, we conclude that Washington’s RLUIPA claim must fail because RLUIPA does

20   not authorize monetary damages against state officers in their official capacities, see

21   Sossamon v. Texas, 131 S. Ct. 1651 (2011), and does not create a private right of action

22   against state officers in their individual capacities.1 We therefore affirm the judgment

23   of the district court dismissing Washington’s RLUIPA claim.


           1
             Since Washington is no longer in the Special Housing Unit, we dismiss his
     RLUIPA claim for injunctive and declaratory relief as moot. See Salahuddin v. Goord,
     467 F.3d 263, 272 (2d Cir. 2006); Muhammad v. City of N.Y. Dep’t of Corr., 126 F.3d
     119, 122-23 (2d Cir. 1997).

                                                2
1                                         BACKGROUND
2
3             This appeal arises from an incident and subsequent disciplinary proceedings at

4    the Woodbourne Correctional Facility, where Washington was an inmate. As relevant

5    here, Defendants-Appellees Chaboty and Granger, corrections officers at Woodbourne,

6    instigated a disciplinary proceeding against Washington, a Muslim, after an

7    interaction on August 6, 2006 in which Washington gave Chaboty a Quran. Following

8    a disciplinary hearing at which Defendant-Appellee Gonyea presided, Washington was

9    found guilty of “harassment” and making “comments of a personal nature to

10   employees,” in violation of 7 N.Y.C.R.R. § 270.2(B)(8)(ii). Gonyea imposed a penalty

11   of 65 days’ special housing confinement and loss of “rec[reation], packages,

12   commissary, phones, and special events.” The New York Appellate Division, Third

13   Department ultimately annulled the disciplinary disposition in an Article 78

14   proceeding on the basis that the disposition was not supported by substantial evidence

15   and that Washington’s conduct was only “a continuation of a cordial relationship

16   between the officer and petitioner.” Washington v. Selsky, 48 A.D.3d 864, 865 (3d Dep’t

17   2008).

18            Washington commenced this pro se suit in the United States District Court for

19   the Southern District of New York on November 5, 2009, alleging that Defendants-

20   Appellees unconstitutionally retaliated against him for exercising his First

21   Amendment rights to free exercise of religion and free speech and denied him due

22   process in violation of § 1983, and that Defendants-Appellees substantially burdened

23   his free exercise rights in violation of RLUIPA. Defendants each moved to dismiss the

                                                 3
1    complaint. As relevant here, the district court dismissed Washington’s RLUIPA claims

2    on the ground that Washington had not adequately pled that the Defendants-Appellees

3    had placed “a substantial burden---or, indeed, any burden---on his religious practice.”

4    See Washington v. Chaboty, No. 09 Civ. 9199, 2011 WL 102714, at *9 (S.D.N.Y. Jan.

5    10, 2011). Washington subsequently filed this timely appeal.

6                                             DISCUSSION
7
8          Section 3 of RLUIPA provides that “[n]o government shall impose a substantial

9    burden on the religious exercise [of an institutionalized person],” 42 U.S.C. § 2000cc-

10   1(a), “in a program or activity that receives Federal financial assistance,” id. § 2000cc-

11   1(b)(1), or in a way that affects or would affect “commerce with foreign nations, among

12   the several States, or with Indian tribes,” id. § 2000cc-1(b)(2). RLUIPA creates an

13   express private cause of action allowing individuals to “obtain appropriate relief

14   against a government.” Id. § 2000cc-2(a); see Sossamon v. Texas, 131 S. Ct. at 1656.

15   The term “government” includes, inter alia, “a State, county, municipality, or other

16   governmental entity created under the authority of a State,” “any branch, department,

17   agency, instrumentality, or official” thereof, and “any other person acting under color

18   of State law[.]” 42 U.S.C. § 2000cc-5(4)(A).

19         In Sossamon v. Texas, the Supreme Court held that sovereign immunity

20   forecloses the availability of money damages as a remedy against states and state

21   actors in their official capacities under RLUIPA. 131 S. Ct. at 1663 (“States, in

22   accepting federal funding, do not consent to waive their sovereign immunity to private

23   suits for money damages under RLUIPA because no statute expressly and

                                                 4
1    unequivocally includes such a waiver.”).        Washington therefore cannot sustain his

2    RLUIPA claim against Defendants-Appellees in their official capacities.

3          Washington has also sued Defendants-Appellees in their individual capacities.

4    While Sossamon did not decide whether RLUIPA allows individual-capacity suits

5    against state officials, every circuit to have addressed the issue has held that it does

6    not. See Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009); Rendelman v. Rouse,

7    569 F.3d 182, 188-89 (4th Cir. 2009); Sossamon v. Lone Star State of Tex., 560 F.3d

8    316, 328-29 (5th Cir. 2009), aff’d on other grounds by 131 S. Ct. 1651 (2011); Smith v.

9    Allen, 502 F.3d 1255, 1271-75 (11th Cir. 2007), abrogated on other grounds by

10   Sossamon, 131 S. Ct. 1651.

11         We adopt the reasoning of our sister circuits in concluding that RLUIPA does

12   not provide a cause of action against state officials in their individual capacities

13   because the legislation was enacted pursuant to Congress’ spending power, see 42

14   U.S.C. § 2000cc-1(b)(1), which allows the imposition of conditions, such as individual

15   liability, only on those parties actually receiving the state funds. See, e.g., Smith, 502

16   F.3d at 1272-75 (“[I]t is clear that the ‘contracting party’ in the RLUIPA context is the

17   state prison institution that receives federal funds; put another way, these institutions

18   are the ‘grant recipients’ that agree to be amenable to suit as a condition to receiving

19   funds—but their individual employees are not ‘recipients’ of federal funding.”);2 cf.


           2
             As we have previously observed, “Spending clause legislation is ‘much in the
     nature of a contract,’ and [] its ‘contractual nature has implications for our construction
     of the scope of available remedies.’” Henrietta D. v. Bloomberg, 331 F.3d 261,285 (2d
     Cir. 2003) (quoting Barnes v. Gorman, 536 U.S. 181, 186-87 (2002)).

                                                 5
1    Davis ex rel LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640-41 (1999)

2    (holding that for Title IX, “enacted pursuant to Congress’ authority under the Spending

3    Clause,” “[t]he Government’s enforcement power may only be exercised against the

4    funding recipient”). Indeed, “[t]o decide otherwise would create liability on the basis

5    of a law never enacted by a sovereign with the power to affect the individual rights at

6    issue”—i.e., the state receiving the federal funds, Sossamon, 560 F.3d at 329—and this

7    would “raise serious questions regarding whether Congress had exceeded its authority

8    under the Spending Clause,” Nelson, 570 F.3d at 889. Cf. Rendelman, 569 F.3d at 189

9    (explaining that even if Congress could condition acceptance of federal funds on a state

10   subjecting its officials to individual liability, “Congress did not signal with sufficient

11   clarity [an] intent” to do so under RLUIPA). Accordingly, as a matter of statutory

12   interpretation and following the principle of constitutional avoidance, we hold that

13   RLUIPA does not create a private right of action against state officials in their

14   individual capacities. We affirm dismissal of Washington’s RLUIPA claim on this

15   ground.

16         We note that Congress invoked its power to regulate interstate and foreign

17   commerce as an alternative basis for enforcing section 3 of RLUIPA. See 42 U.S.C. §

18   2000cc-1(b) (“This section applies in any case in which . . . (2) the substantial burden

19   affects . . . commerce with foreign nations, among the several states, or with Indian

20   tribes.”); Nelson, 570 F.3d at 886; Rendelman, 569 F.3d at 189. Here, however,

21   Washington has pled no facts indicating that the restriction of his religious rights had

22   any effect on interstate or foreign commerce. The commerce clause basis for RLUIPA

                                                 6
1   is therefore not properly before the Court, and we decline to decide whether RLUIPA

2   authorizes individual-capacity suits under the imprimatur of the commerce clause.

3                                         CONCLUSION

4         For the foregoing reasons, we AFFIRM the judgment of the district court in

5   dismissing Washington’s RLUIPA claim.

6




                                             7
