by Matt Clarke

On March 21, 2023, the U.S. Court of Appeals for the Third Circuit reinstated a former federal prisoner’s lawsuit under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq., alleging religiously motivated harassment by guards with the federal Bureau of Prisons (BOP) caused him to cease daily Muslim prayer at his workplace in the prison commissary and then cost him his job.

In 2009, Charles Mack was incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania. A devout Muslim as well as a paid worker in the prison’s commissary, he tried to observe the basic tenet of his faith that he pray daily at five specified times, as his work duties allowed. Mack typically went to the back corner of the commissary to pray for about five minutes.

Mack was easily identifiable as a devout Muslim because he wore religious headgear and was exempted from handling pork products in the commissary. Most of the guards assigned to the commissary had no problem with his prayers, he said. But two guards, Doug Roberts and Samuel Venslosky, allegedly targeted Mack for religious animus. Because of his religious beliefs, the two guards – who were assigned to run the commissary – “singled him out for disrespect and harassment,” according to the complaint he later filed. Other prisoners also told him that Roberts and Vensloky were “out to get [him] because [he] was a Muslim.”

Initially, the hostility was limited to “stares” and “looks,” the complaint continued. It escalated to “‘snide remarks’ mocking Mack’s adherence to Islam.” Roberts repeatedly told Mack, “I don’t like Muslims,” adding that he didn’t like Mack. Venslosky told other prisoners “he disliked Mack because he was a Muslim” and “sarcastically asked Mack whether Muslim was a religion.”

Within months, things got worse, with Roberts telling Mack: “There is no good Muslim but a dead Muslim.” Venslosky would sit back and grin, “egging him on,” the prisoner claimed, thus expressing tacit approval of what Roberts was saying.

In addition to verbal harassment, the guards “would interfere with Mack’s efforts to pray” by coming to the corner of the commissary where he retreated for prayers and interrupting them by “making noise, telling jokes, talking loudly, and even kicking the boxes that Mack was praying behind.” Other prisoners confirmed to him that the guards “were trying to interrupt [his] prayers.”

One Friday, as Mack left work for Islamic services, Roberts “surreptitiously put a sticker on Mack’s back. It said ‘I love pork bacon.’” When Mack found out and confronted him, Roberts did not deny the deed, but told him, “You are not going to be here long,” indicating he would try to get Mack fired.

On the advice of an imam, Mack decided to stop praying in the commissary and to “make up” the missed prayers with additional prayers in the evening. But about two weeks later, Mack was fired on allegedly bogus disciplinary charges.

He then filed a pro se civil rights complaint in federal court for the Western District of Pennsylvania against the guards and other prison officials. Over the course of three trips to the court of appeals and litigation in the district court, his lawsuit was pared down to a single claim that the guards violated RFRA by interfering with his worship.

The guards filed a motion to dismiss, asserting qualified immunity (QI). The district court granted the motion. Mack, now out of prison and represented by attorneys Jessica Moran, Christopher E. Kemmitt and Michael Skocpol of K&L Gataes in Washington, D.C., appealed for a fourth time.

At the Third Circuit
a Fourth Time

As an initial matter, the Third  Circuit needed to determine whether QI could be a defense to an RFRA claim. Finding that “[j]ust as textual similarity between § 1983 and the RFRA means that those statutes provide analogous remedies,” the Court said “they also contemplate analogous defenses.” By the time RFRA was enacted, “the Supreme Court had interpreted § 1983 ‘to permit …  monetary recovery against officials’ only if they violated ‘clearly established’ federal law,” the Court continued, citing Tanzin v. Tanvir, 14 S.Ct. 486 (2020). Based on that, the Third Circuit held that QI applies to RFRA claims, as the Fourth, Ninth, Eleventh and D.C. Circuits had previously decided.

Moving on, the Court noted that
“[i]t is undisputed that the first prong [of a qualified immunity analysis] – a violation of Mack’s RFRA rights – has been established here.” Therefore, it addressed the second prong, whether the rights that were violated were clearly established at the time of the incident.

The Court noted that its previous rulings and those of the district court had already determined that the guards had placed “indirect pressure” on Mack “to stop praying at work” by creating a “hostile work environment.” To overcome that finding, the guards would have to show that what they did represented “the least restrictive means of furthering a compelling governmental interest.” Yet they did not even argue there was a governmental interest involved.

However, neither Mack nor the guards framed the issue correctly, the Court said. Instead the proper frame was whether it was clearly established that “Mack had a right to engage in prayer free of substantial, deliberate, repeated, and unjustified disruption by prison officials.” The Court noted that sometimes a violation is so obvious that a case that addresses the same facts is not required in order to prove clearly established law, citing Peroza-Benitez v. Smith. 994 F.3d 157 (3d Cir. 2021). This, the Court said, was such a case.

There was not a “‘factually analogous’ binding precedent” nor anything to “amount to a ‘robust consensus’ of persuasive authority” that the guards’ conduct was unlawful, the Court noted – largely due to the fact that freedom of religion is so well established that government actors rarely violate it and thus there are few cases addressing the issue. However, the Court was “convinced that it should be clear to any reasonable correctional officer that, in absence of some legitimate penological interest, he may not seek to prevent an inmate from praying in accordance with his faith.”

“The long-standing history and force of these general principles lead us to conclude that, during the time at issue, it was clearly established that a correctional officer was forbidden to pressure an inmate to forego engaging in prayer, absent some compelling government interest,” the Court said. “Simply put, there is no logical conundrum about whether the law permits prison officials to wage a concerted campaign, for no legitimate reason, to stop an inmate from praying.” Citing O’Lone v. Est. of Shabazz, 482 U.S. 342 (1987), the Court said “[t]hat has been in place beyond reasonable debate for decades.” Therefore, the order granting summary judgment was vacated and the case remanded. See: Mack v. Yost, 63 F.4th 211 (3d Cir. 2023).