   11-5456
   Smith v. Goord




                         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 15th day of November, two thousand thirteen.

   PRESENT:
              ROBERT D. SACK,
              PETER W. HALL,
              DEBRA ANN LIVINGSTON,
                    Circuit Judges.
   _____________________________________

   Andre Smith, AKA Stuckey,

                          Plaintiff-Appellant,

                    v.                                            11-5456

   Glenn S. Goord, Commissioner, et al.,

                          Defendants-Appellees.

   _____________________________________

   FOR PLAINTIFF-APPELLANT:                         Andre Smith, pro se, Delano, CA (on
                                                    submission).
FOR DEFENDANTS-APPELLEES:                             Eric T. Schneiderman, Attorney General
                                                      of the State of New York, Barbara D.
                                                      Underwood, Solicitor General, Andrew
                                                      D. Bing, Deputy Solicitor General, Kate
                                                      H. Nepveu, Assistant Solicitor General
                                                      of Counsel, Albany, NY (on submission).

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

New York (Siragusa, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

       Appellant, Andre Smith, pro se and incarcerated, appeals from the district court’s

judgment, following a jury verdict in favor of the defendants, in his action under 42 U.S.C.

§ 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§§ 2000cc to 2000cc-5. Smith sued prison officials asserting that they failed to provide Islamic

religious services at Lakeview Correctional Facility. On appeal, he argues that the jury’s verdict

was “clearly erroneous” in light of the evidence presented, and that the district court refused to

provide, or make available, his exhibits to the jury. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       In the main, Smith argues that the jury’s verdict was “clearly erroneous.” In other words,

he challenges the sufficiency of the evidence in support of its finding for the defendants. “[A]

party is not entitled to challenge on appeal the sufficiency of the evidence to support the jury’s

verdict on a given issue unless it has timely moved in the district court for judgment as a matter

of law on that issue.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir. 1998). Between

the close of proof and the parties’ closing arguments, the trial transcript states: “(Whereupon,


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legal argument was placed on the record.).” Smith may have filed such a motion during that

interlude; but no motions by Smith appear on the minute entry for the day’s proceedings. On

this record, it appears Smith’s challenge to the sufficiency of the evidence is not properly before

us.

        In any event, such challenge is without merit. In reviewing the sufficiency of the

evidence at trial, “we view the facts of the case in the light most favorable to the prevailing

party.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir. 2006). “[J]udges have a very

limited role in controlling jury fact-finding, acting only when they think it highly likely that the

jury decided wrongly” or that “the jury relied only on the bases of unsupported surmise and

conjecture.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 753 (2d Cir. 2004). Further,

we “defer to the jury’s assessment of witness credibility.” United States v. Bala, 236 F.3d 87, 93

(2d Cir. 2000); see also United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010) (“Assessments of

witness credibility and choices between competing inferences lie solely within the province of

the jury.”).

        RLUIPA provides that governments may not “impose a substantial burden on the

religious exercise” of inmates, unless the burden is the least restrictive means of furthering a

compelling governmental interest. 42 U.S.C. § 2000cc-1(a). “[A] substantial burden on

religious exercise exists when an individual is required to ‘choose between following the

precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the

precepts of her religion . . . on the other hand.’” Westchester Day Sch. v. Vill. of Mamaroneck,

504 F.3d 338, 348 (2d Cir. 2007) (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963)). We

have similarly applied a substantial burden test in the free exercise context. Salahuddin v.


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Goord, 467 F.3d 263, 274-75 (2d Cir. 2006) (noting that, to state a free exercise claim, “[t]he

prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely

held religious beliefs”).

       Here, given Smith’s short stay at Lakeview (which included only four Fridays and no

Islamic holidays), a rational fact-finder could have concluded that his religious exercise was not

sufficiently burdened by Lakeview’s lack of Islamic services. Further, the jury could have

rationally found that, even if Smith had established such a burden, the defendants had adequate

justification for their action—for example, Lakeview’s transient inmate population and its

difficulty recruiting an Imam. For similar reasons, a rational fact-finder could have found that

Smith failed to prove an equal protection violation. See Giano v. Senkowski, 54 F.3d 1050, 1057

(2d Cir. 1995) (“To prove an equal protection violation, claimants must prove purposeful

discrimination.”).

       Smith’s argument about his trial exhibits is belied by the record. During its charge to the

jury, the district court advised, “in deciding the case, you may look at the exhibits received into

evidence. . . . As to any exhibits which were received, you may examine them upon request and

just ask for them and they’ll go back to you.” After the jury left the courtroom, Smith asked

whether the exhibits had been sent with the jury. The district court told him, “Only if they

request them.” Smith did not object to the charge below and cannot show that the charge

contained a plain error affecting a substantial right. See United States v. Nouri, 711 F.3d 129,

138 (2d Cir. 2013) (noting that, where a party fails to make a timely objection, jury instructions

are reviewed for plain error).




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       Finally, Smith raises no argument concerning his excessive force and Establishment

Clause claims. These claims are therefore waived. See Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally

will not be addressed on appeal.”); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.

1995) (deeming claims not raised on appeal by pro se litigant to be abandoned).

       We have considered all of Smith’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




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