     18-3103
     Washington v. McKoy



                         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 ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.


 1                 At a stated term of the United States Court of Appeals for the Second
 2   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
 3   the City of New York, on the 8th day of June, two thousand twenty.
 4
 5   PRESENT:
 6               RICHARD J. SULLIVAN,
 7               MICHAEL H. PARK,
 8               WILLIAM J. NARDINI,
 9                     Circuit Judges.
10   _____________________________________
11
12   Wayne Washington,
13
14                         Plaintiff-Appellant,
15
16   Nathaniel Jay, Patrick Jeanty, Derrick Fulton,
17   Eric McCoy, Derrick Clark, Peter Wells,
18
19                         Plaintiffs,
20
21                  v.                                               18-3103
22
23   Jeff McKoy, Deputy Commissioner of
24   Programs Services, Harold D. Graham,
 1   Superintendent of Auburn Correctional
 2   Facility, Justin J. Thomas, Superintendent of
 3   Marcy Correctional Facility, Donna M.
 4   Martin, F.S.A.; Auburn Correctional Facility,
 5   Minister Sunni Shabazz, N.O.I. Chaplain,
 6   Auburn Correctional Facility,
 7
 8                       Defendants-Appellees,
 9
10   Anthony J. Annucci,
11
12                     Defendant.
13   _____________________________________
14
15
16   FOR PLAINTIFF-APPELLANT:                                   Wayne Washington, pro
17                                                              se, Wallkill, NY.
18
19   FOR DEFENDANTS-APPELLEES:                                  Kate H. Nepveu, Assistant
20                                                              Solicitor General, for
21                                                              Letitia James, Attorney
22                                                              General for the State of
23                                                              New York, Albany, NY.
24

           Appeal from a judgment of the United States District Court for the Northern

     District of New York (Suddaby, C.J.; Baxter, M.J.).

           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

     AND DECREED that the judgment of the district court is AFFIRMED.

           Appellant Wayne Washington, an incarcerated prisoner proceeding pro se, appeals

     the district court’s granting of summary judgment to the defendants, who are officials

     with the New York State Department of Corrections and Community Supervision
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(“DOCCS”). Washington and six other prisoners – all practicing Muslims and members

of the Nation of Islam (“NOI”) – claimed that the defendants violated the First and

Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc-1, by changing their policy regarding the selection of

kitchen workers for Muslim religious holidays, unequally applying that policy, and

providing the defendants with inadequate and noncompliant meals throughout the

month of Ramadan in 2014. A magistrate judge recommended granting the defendants’

motion for summary judgment, concluding that the plaintiffs failed to show that either

the noncompliant meals or the kitchen-worker policy substantially burdened their

religious beliefs and that there was insufficient evidence to support the contention that

the policy was applied unequally.         The district court adopted the report and

recommendation, and Washington (but no other plaintiff) appealed. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

       We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and

draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706

F.3d 120, 126–27 (2d Cir. 2013). “Summary judgment is proper only when, construing

the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.’”

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Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

I. RLUIPA Claims

       The district court properly granted summary judgment to the defendants on the

RLUIPA claims. “In this circuit, an inmate’s transfer from a prison facility generally

moots claims for declaratory and injunctive relief against officials of that facility.”

Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).       And money damages are not

available under the RLUIPA. Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014). Thus,

Washington’s RLUIPA claims were mooted by his transfer from Auburn. Washington

does not challenge this holding on appeal.

II. Free Exercise Claim

       The Free Exercise Clause of the First Amendment extends to prisoners and

includes their right to meals that comport with religious requirements. Ford v. McGinnis,

352 F.3d 582, 588, 597 (2d Cir. 2003); see also McEachin v. McGuinnis, 357 F.3d 197, 203–04

(2d Cir. 2004). Although this Court has not yet decided whether a prisoner asserting a

free exercise claim must, as a threshold requirement, show that the disputed conduct

substantially burdened his sincerely held religious beliefs, Holland, 758 F.3d at 220–21, the

district court applied the substantial burden test, and Washington does not challenge its

application on appeal. See Brandon v. Kinter, 938 F.3d 21, 32 n.7 (2d Cir. 2019) (declining

to address the question, and applying the substantial burden test because the parties did

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not brief the issue on appeal); Ford, 352 F.3d at 592 (same); cf. LoSacco v. City of Middletown,

71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant

proceeding pro se . . . .”).

       Assuming the applicability of that test here, we find that Washington failed to

establish that Auburn’s policy of allowing non-NOI members to prepare meals for NOI

inmates substantially burdened the latter’s religious beliefs.           In fact, Washington

admitted that the fact that the kitchen workers were not NOI members was “not

necessarily the issue,” and instead asserted that he believed Ramadan meals needed to

be prepared by people with good hygiene. And since Washington did not assert that

the policy had any effect on the hygiene of the kitchen workers, or that the policy resulted

in unclean persons preparing the meals, no reasonable jury could find that the policy

itself constituted a substantial burden on Washington’s beliefs.

       Nor did Washington demonstrate that the allegedly noncompliant meals

themselves substantially burdened his religious beliefs.           Courts have held that a

substantial burden occurs where a defendant’s actions force a plaintiff to “choose

between for[going] adequate nutrition or violating a central ten[et] of his religion.”

Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016); cf. Kahane v. Carlson, 527 F.2d 492, 496

(2d Cir. 1975) (modifying a district court order to “require the provision of a diet sufficient

to sustain the [Jewish] prisoner in good health without violating the Jewish dietary

                                               5
laws”).   The defendants proffered evidence – including a statement by Robert

Schattinger, the DOCCS Director of Nutritional Services – showing that the plaintiffs

were able to eat at least some portion of their meal every day and that, even without the

side dishes and desserts, the meals were nutritionally sufficient. Washington and the

other plaintiffs did not submit any evidence contradicting Schattinger’s statement about

nutritional sufficiency (such as, for example, evidence that they lost weight or

experienced other symptoms of nutritional deficiency). Thus, Washington and the other

plaintiffs failed to show that they were forced to forgo adequate nutrition, eat the

noncompliant foods, or break their fast. See Thompson, 809 F.3d at 380; cf. Holland, 758

F.3d at 221 (ordering plaintiff to break his fast by drinking water or face administrative

segregation constituted a substantial burden).      We therefore find that this case is

distinguishable from this Court’s prior cases concerning noncompliant religious meals.

III. Equal Protection Claim

      Finally, an independent review of the record and relevant case law reveals that the

district court properly adopted the magistrate judge’s recommendation on plaintiffs’

equal protection claim. As the magistrate judge noted, Auburn’s policy allowed co-

religionists who were non-kitchen workers to prepare religious meals if there were no

prisoners of the faith group already approved to work in the kitchen. In support of their

equal protection claim, plaintiffs offered only an affidavit stating that a Rastafarian

                                            6
inmate, who was not a regular kitchen worker, was selected to work in the kitchen to

prepare food for a Rastafarian holiday. But the magistrate judge did not err in finding

that this affidavit did not support a finding that defendants treated the NOI community

differently than similarly situated individuals, particularly since there was no evidence

that Auburn did not follow the prison rules in that instance.

      We have considered all of Washington’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O=Hagan Wolfe, Clerk of Court




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