15-117-pr
Smith v. Perlman

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of August, two thousand sixteen.

Present:
            DEBRA ANN LIVINGSTON,
            SUSAN L. CARNEY,
                  Circuit Judges,
            TIMOTHY C. STANCEU,
                  Judge.*
_____________________________________

AUREL SMITH,

                         Plaintiff-Appellant,

                   v.                                                 No. 15-117-pr

KENNETH PERLMAN, MARK LEONARD, DANIEL
MARTUSCELLO, R. SHANLEY, JEFFREY A. HALE,
HARRY S. GRAHAM, G. ROBINSON,

                  Defendants-Appellees.†
_____________________________________




        *
          The Honorable Timothy C. Stanceu, Chief Judge of the United States Court of
International Trade, sitting by designation.
        †
            The Clerk of Court is directed to modify the caption as above.
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For Plaintiff-Appellant:                      COLIN REARDON (Alan E. Schoenfeld, on the brief),
                                              Wilmer Cutler Pickering Hale and Dorr LLP, New
                                              York, N.Y.


For Defendants-Appellees:                     ZAINAB A. CHAUDHRY (Andrew D. Bing, Barbara D.
                                              Underwood, on the brief) for Eric T. Schneiderman,
                                              Attorney General for the State of New York, Albany,
                                              N.Y.


       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the order of the district court is VACATED and the case REMANDED for

further proceedings consistent with this order.

       Plaintiff-Appellant Aurel Smith (“Smith”) is a practicing Muslim and an inmate currently

in the custody of New York State. He challenges two policies instituted by the New York State

Department of Corrections and Community Supervision (“Department”).1          The first concerns

the Department’s policy on the diets it provides to inmates, which Smith challenges under the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq.

The second relates to the Department’s policy on the number of religious holidays inmates may

celebrate with family and friends, which Smith challenges under the Equal Protection Clause of

the Fourteenth Amendment.      Smith now appeals from a judgment of the United States District

Court for the Northern District of New York (D’Agostino, J.), entered December 19, 2014,

granting summary judgment to the Department on both claims.2      The Department has conceded,

and we agree, that the portion of the judgment that granted summary judgment as to the RLUIPA



       1
         Defendants-Appellees are various individuals who hold high-level positions either in the
Department or in the Auburn Correctional Facility where Smith was housed during the events in
question. We refer to Defendants-Appellees collectively as the “Department.”
       2
         The district court also granted summary judgment to the Department on several other
claims that are not the subject of the present appeal.
                                                  2
claim should be vacated.3 Accordingly, this summary order addresses only Smith’s Equal

Protection claim.     We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal, which we reference only as necessary to explain our

decision to vacate.

       I.      Background

       The Department allows inmates who adhere to religious groups to celebrate certain

religious holidays with their family and friends. These days are designated “family event



       3
           Under RLUIPA, states and local governments may not take any action that
“substantial[ly] burden[s] . . . the religious exercise of a person residing in or confined to an
institution . . . unless the government demonstrates that imposition of the burden on that
person . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.” Holt v. Hobbs, 135 S.
Ct. 853, 860 (2015) (quoting 42 U.S.C. § 2000cc–1(a)); see also Holland v. Goord, 758 F.3d
215, 224 (2d Cir. 2014). RLUIPA stands in contrast to the Free Exercise Clause’s
rational-relationship test. Id. A law that is both neutral and generally applicable is “presumed
to be valid and will be sustained” under the Free Exercise Clause “if the [burden imposed] by the
[law] is rationally related to a legitimate state interest.” Central Rabbinical Congress of U.S. &
Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 186 n.2 (2d Cir. 2014) (first
alteration in original) (quoting Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d
Cir. 2007)). Although the district court acknowledged that Smith raised both a Free Exercise
and a RLUIPA challenge to the Department’s diet policy, and further concluded that summary
judgment to the Department was proper with respect to both claims, the district court apparently
analyzed only whether the Department’s diet policy was rationally related to a legitimate state
interest. The district court did not expressly consider whether the Department’s diet policy
survived the stricter RLUIPA standard.
         The Department concedes that this was error that warrants vacatur. Counsel for Smith,
meanwhile, acknowledged at oral argument on appeal that the current record is rather thin with
respect to facts concerning Smith’s RLUIPA claim and could benefit from further development.
We therefore vacate the district court’s grant of summary judgment to the Department on
Smith’s RLUIPA claim and remand to the district court to develop a fuller record of the relevant
facts, as well as to assess in the first instance whether Smith’s challenge to the Department’s diet
policy survives the heightened standard under RLUIPA. See Reynolds v. Giuliani, 506 F.3d
183, 197 (2d Cir. 2007) (“On review of a district court decision that rests on an improper legal
standard and omits necessary factual and legal analysis, it is often appropriate to remand the case
to the trial court for its reconsideration.”); see also Freeplay Music, Inc. v. Verance Corp., 80 F.
App’x 137, 139 (2d Cir. 2003) (“Because it is unclear whether the evidence on which the district
court relied was all the evidence the parties could have adduced in a Rule 56 motion for
summary judgment, we vacate for proper resolution under Rule 56 upon a complete record.”).

                                                 3
Before 2008, when the Department began to change its policy on family event days to its current

form, the Department allowed many, if not all, religious groups multiple family day events.

Under the Department’s current written policy on family event days, however, each religious

group receives one family event day, with the exception of the Native American group, which

receives nine family event days.

        The Department’s policy on family event days for Native American inmates stems from a

lawsuit brought by certain Native American inmates in the custody of New York State in the late

1990s, Hughes v. Goord, No. 97-cv-06431 (W.D.N.Y.), in which the Native American inmates

alleged that various Department policies violated their constitutional rights.     As part of the

parties’ agreement in 1999 to settle the lawsuit, the Department stipulated to providing all Native

American inmates eight family event days.4      The terms of the Department’s stipulation lasted

three years from the date of the agreement and thus automatically ceased to bind the parties in

2002.   Nevertheless, when the Department decided in 2008 to reduce the number of family

days for religious groups, it exempted the Native American religious group from the reduction.

        II.    Smith’s Equal Protection Challenge to the Department’s Family Event Policy

        Smith argues that the district court erred in granting summary judgment to the

on his claim that the Department’s policy on religious family event days violates the Equal

Protection Clause of the Fourteenth Amendment.      In the prison context, “the Supreme Court has

accorded great deference to determinations of prison officials and fashioned ‘a lesser standard of

scrutiny . . . in determining the constitutionality of . . . prison rules.’” Benjamin v. Coughlin,



        4
          On the current record, it is unclear why the Department at some point decided to provide
Native American inmates nine family event days. It is undisputed, however, that the Department
stipulated to providing Native American inmates eight family event days in 1999, and that the
Department currently provides Native American inmates nine family event days.


                                                4
F.2d 571, 574 (2d Cir. 1990) (quoting Turner v. Safley, 482 U.S. 78, 81 (1987)); see also O’Lone

Estate of Shabazz, 482 U.S. 342, 349 (1987). Generally, “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89. But see Johnson v. California, 543 U.S. 499,

507–14 (2005) (holding that strict scrutiny, rather than the less stringent standard of scrutiny

Turner and Shabazz, applies to racial classifications even in the prison context).             “The

standard is one of reasonableness,” and in assessing whether that standard has been met, we

“consider[] . . . 1) whether there is a rational relationship between the regulation and the

government interests asserted; 2) whether the inmates have alternative means to exercise the

3) the impact that accommodation of the right will have on the prison system; and 4) whether

alternatives exist which accommodate the right and satisfy the governmental interest.”

905 F.2d at 574.5

       In granting summary judgment to the Department on Smith’s Equal Protection claim, the

district court relied principally, if not exclusively, on the Department’s statements that the Native

American religious group was singular in its need for family participation in multiple religious

holidays, while other religious groups do not strictly require family participation as part of

religious observance and thus would not be limited in such observance by the reduction to a

family event day.      See Smith v. Perlman, No. 09:11–cv–00020 (MAD/CFH), 2014 WL

at *14 (N.D.N.Y. Dec. 19, 2014).        According to the district court, the Department had a

“legitimate penological interest” in accommodating what it perceived to be the “unique need” of

Native American inmates and a policy that was “rationally related” to that legitimate penological



       5
          Although “the Turner/Shabazz standard was established in the context of first
amendment issues, it is also relevant to the assessment of equal protection claims in the prison
setting.” Benjamin, 905 F.2d at 575.

                                                 5
interest. Id.   As the Department conceded at oral argument on appeal, however, it was “not

appropriate for [the Department] to . . . mak[e] [a] religious judgment” about “the relative

importance of family participation” across “different religious groups.” See Oral Argument at

55:59–57:20, Smith v. Perlman, No. 15-117-pr (2d Cir. 2016).          For courts to credit a state’s

judgment about the observance requirements of various religious groups “would necessarily lead

[courts] down the unnavigable road of attempting to resolve . . . disputes over religious law and

doctrine.” Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003).          See also Thomas v. Review

of Indiana Emp’t Sec. Division, 450 U.S. 707, 716 (1981) (observing that “it is not within the

judicial function and judicial competence to inquire” into whether someone “correctly perceived

the commands” of his or her own faith).

       Because the district court’s decision with respect to Smith’s Equal Protection claim rested

on grounds that are not properly the province of judicial determination — indeed, grounds that

Department has now acknowledged are improper — we agree with Smith that vacatur of the

district court’s grant of summary judgment to the Department on his Equal Protection claim is

warranted.   We express no view, however, on whether summary judgment to the Department on

Smith’s Equal Protection claim ultimately is or is not appropriate.       Rather, we leave it to the

district court to consider on remand whether the Department’s policy on family event days,

setting aside the Department’s now avowedly improper justification, was nevertheless rationally

related to a legitimate penological concern.

       In doing so, we acknowledge that the district court also concluded that Smith failed to

demonstrate that he was treated differently than members of a similarly situated group or that the

Department’s policy on family event days was the result of intentional discrimination. We are not

so certain that where, as here, the state expressly classifies inmates on the basis of religion in the



                                                  6
prison context, a plaintiff challenging the state’s express classification on Equal Protection

grounds must show either (1) that she was treated differently than members of a similarly situated

group, cf. Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001) (“[A] plaintiff who . . . alleges an

express racial classification . . . , is not obligated to show a better treated, similarly situated group

of individuals of a different race in order to establish a claim of denial of equal protection.”); or (2)

that the state’s express classification was the result of intentional discrimination, cf. Brown v. City

of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir. 2000) (explaining that one of the “ways [in which] a

plaintiff [can] plead intentional discrimination that violates the Equal Protection Clause” is to

“point to a law or policy that ‘expressly classifies persons on the basis of race’” (quoting Hayden v.

Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999))). Further, it appears that we have previously

considered religious Equal Protection challenges (to both express religious classifications and

policies generally applicable to all religious groups) in the prison context without requiring

plaintiffs to show that they were treated differently than members of a similarly situated group, or

that the state’s policy was the result of intentional discrimination. See, e.g., Benjamin, 905 F.2d at

577–79. We need not decide here whether Smith was required to make such showings. Even if

Smith were so required, the district court’s analysis as to whether Smith made the requisite

showings was flawed for similar reasons that its analysis of the Department’s allegedly legitimate

penological interest was flawed. Namely, the district court’s reliance on the Department’s

inappropriate judgment about the relative importance of family participation to different religious

groups clearly colored its analysis of whether Smith had shown that he was treated differently than

similarly situated persons. It also may have led the district court to conclude that Smith failed to

show that the Department’s policy was the result of intentional discrimination.




                                                   7
       We therefore leave it to the district court to consider on remand whether Smith was

required to make the aforementioned showings and, if so, whether Smith satisfied his burden.

Cf. UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 136 (2d Cir. 2010) (finding it “not clear”

whether a new legal theory satisfied a requirement for plaintiffs’ federal racketeering claim;

“declin[ing] to consider whether summary judgment with respect to the . . . theory is appropriate

in the first instance”; vacating the district court’s denial of summary judgment; and remanding

“for further proceedings, including possible further consideration of summary judgment, with

respect to plaintiffs’ [new legal] theory”).

       Accordingly, we VACATE the district court’s grant of summary judgment to the

Department on Smith’s RLUIPA claim and Equal Protection claim and REMAND the case for

further proceedings consistent with this order.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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