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First Circuit: RLUIPA Does Not Provide Relief from Transfer to Remote Prison where Opportunities for Religious Exercise are Limited

On March 29, 2012, the First Circuit Court of Appeals held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc et seq., does not provide a basis for relief where a prisoner’s opportunities for exercise of religion are limited due to his transfer to a prison that is too remote for religious volunteers to visit.

In December 2010, Seth Bader, an Orthodox Jew serving a life sentence for murder without the possibility of parole, was transferred from the New Hampshire State Prison in Concord (NHSP) to the Northern Correctional Facility located in Berlin, New Hampshire (NCF).

While at NHSP, Bader was able to participate in Jewish religious activities on a regular basis because a local rabbi, as well as other outside volunteers, visited the facility. For example, he could participate in celebrations of Passover, Purim, Yom Kippur, Rosh Hashanah and Chanukah. At NCF, by contrast, the remote location of the prison made it all but impossible for volunteers to conduct services or otherwise minister to Bader.

Bader was transferred because Major John Fouts, the director of security at NHSP, was concerned that Bader had “undue influence” in certain areas of the prison and was potentially developing relationships with staff that he could later exploit. Fouts had charged Bader with a disciplinary infraction for being in possession of contraband (classical music CDs and a computer disk); the charge was later dismissed when it was determined that he had staff approval for the alleged contraband.

Bader filed suit in federal court, alleging that his transfer to NCF violated his rights under RLUIPA. He sought injunctive relief requiring his return to NHSP.

After holding a hearing, the district court denied Bader’s request for a preliminary injunction. It reasoned that it was not the transfer to NCF, but rather the inability of volunteers to travel to the prison that prevented Bader from receiving religious services.
“[T]hat failure of volunteers to appear, as long as their visits are not prohibited by an action of the government, does not give rise to a RLUIPA claim,” the court wrote.

On appeal, the First Circuit affirmed the district court. While noting that “RLUIPA provides greater protection to inmates’ free-exercise rights than does the First Amendment,” the appellate court rejected the suggestion that RLUIPA’s enactment was somehow “meant to govern the siting of prisons, general policies of assigning prisoners or determining transfers, or the failure to assign prisoners by religion.”

The appellate court noted that Bader’s problems with access to religious services at NCF “derive from a lack of out-side clergy, volunteer visitors, and practicing co-religionists in the prison. Bader does not charge that the government precludes visits from rabbis or volunteers or deliberately limits the number of Jewish prisoners.”

In dicta, the Court of Appeals observed that it was neither “wise” nor “charitable” to keep Bader at NCF indefinitely, and suggested that state prison officials consider transferring him back to NHSP. Almost a year later, however, as of January 2013, Bader remained incarcerated at NCF. See: Bader v. Wrenn, 675 F.3d 95 (1st Cir. 2012).

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Related legal case

Bader v. Wrenn