Allende v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sharif Allende
v. Civil No. 19-cv-208-JD
Opinion No. 2019 DNH 189
Commissioner, New Hampshire
Department of Corrections
O R D E R
Sharif Allende, proceeding pro se and in forma pauperis, is
an inmate at the New Hampshire State Prison. He brought suit
against the Commissioner of the New Hampshire Department of
Corrections and other officials and officers in the Department
and at the New Hampshire State Prison to challenge the
department’s policy that requires inmates to maintain their hair
so that a comb may be pulled through it easily. As determined
on preliminary review, Allende asserts claims under the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§ 2000cc, et seq., (“RLUIPA”), and 42 U.S.C. § 1983 for
violation of his First and Fourteenth Amendment rights. The
Commissioner moves to dismiss the claims.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges a complaint on the ground that it fails “to
state a claim on which relief can be granted.” To decide the
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motion, the court accepts as true all of the properly pleaded
facts in the complaint and draws reasonable inferences in favor
of the nonmoving party. Lemelson v. Bloomberg L.P., 903 F.3d
19, 23 (1st Cir. 2018). The plaintiffs must allege facts that
allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Background
Sharif Allende was admitted to the New Hampshire State
Prison on March 21, 2017, after completing a prison sentence
served at the Massachusetts Correctional Institution. When he
arrived, his hair was styled in dreadlocks.
During the admission process in the receiving and
diagnostic department of the prison, Officer David Burris asked
Allende if he could “take those things out of [his] hair.” Doc.
no. 1, ¶ 10. Allende responded that he had dreadlocks and that
they could not be taken off. He explained that he was
Rastafarian and would not cut his hair. Burris told him that if
he did not cut his hair he would be placed in the Secure Housing
Unit (“SHU”) and would not be let out. Although Allende was not
sent to SHU, he decided to shave his head to avoid the risk.
In his complaint, Allende alleges that Rastafarian is a
religious denomination and that Rastafarians believe that they
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are the reincarnation of ancient Israelites. As part of the
religion, its followers take a vow of Nazarite. Dreadlocks are
a symbol of the lion of Judah. He further alleges that the New
Hampshire State Prison recognizes the Rastafarian denomination.
Allende cites PPD 7.30 as the prison policy that forbids
dreadlocks. Under PPD 7.30 inmates cannot grow their hair and
facial hair to a length that would prevent corrections officers
from completing “an efficient visual inspection of the hair for
contraband.” Doc. no. 1-1, at *2. In addition, “[a]ny person
under supervision must be able to pull a comb through the hair
or facial hair with reasonable ease at the direction of a
Correction Officer.” Id. As of February 20, 2017, braids and
dreadlocks were prohibited.
In Claim One, Allende states that the prison’s policy that
made him cut his hair violated his First Amendment right to free
exercise of his religion and violated RLUIPA. In Claim Two,
Allenge states that the prison violated his right to equal
protection under the Fourteenth Amendment by making Rastafarians
but not Native Americans cut their hair. In Claim Three,
Allende alleges that he suffered emotional distress in violation
of the Eighth Amendment by being forced to shave off his
dreadlocks, which was not addressed on preliminary review. For
purposes of relief, Allende seeks a declaration that the
defendants violated his rights under the United States
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Constitution and federal law, an injunction against the prison’s
hair policy and to have his disciplinary infractions under the
hair policy be removed from his record, and monetary damages.
The magistrate judge held a hearing on Allende’s request
for injunctive relief on September 19, 2019, and a second
hearing for October 15, 2019. At the October 15 hearing,
Allende moved to withdraw his request for preliminary injunctive
relief because he requests had been satisfied. The magistrate
judge issued the following order:
On October 15, 2019, a hearing was held on plaintiff
Sharif Allende’s request for preliminary injunctive
relief included in his complaint (Doc. No. 1). As
stated on the record at that hearing, Mr. Allende has
been provided with the relief he sought in his
preliminary injunction request. Specifically, the New
Hampshire Department of Corrections (“DOC”) has
reduced Allende’s March 31, 2018 disciplinary report
to a “bad spot report” and his March 21, 2019
disciplinary report to an incident report, rendering
moot Allende’s request that the court direct the DOC
to expunge those disciplinary reports. Further, Mr.
Allende has been advised that if he files a request
for a exemption to the “no dreadlocks” hair policy
with the Warden, that request will be granted,
rendering moot Allende’s request that the court direct
the DOC to allow him to grow dreadlocks. For those
reasons, and for reasons stated on the record at the
October 15, 2019 hearing, Allende’s oral motion to
withdraw his request for preliminary injunctive relief
is GRANTED.
Endorsed Order, Nov. 4, 2019.
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Discussion
The defendants move to dismiss Allende’s claims as
insufficient to state a claim for relief and on the ground of
qualified immunity. Allende filed an objection along with the
affidavits of other inmates. The defendants filed a reply to
argue that the court should disregard the affidavits filed with
Allende’s objection.
A. Affidavits
The defendants correctly point out that the affidavits
Allende submitted with his objection cannot be considered for
purposes of their motion to dismiss under Rule 12(b)(6). See
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); Hamann v.
Carpenter, 2018 WL 2012689, at *3 (D. Mass. Apr. 30, 2018).
Nevertheless, the court has read the affidavits and concludes
that they do not support Allende’s claims, as is explained
further below.
B. Injunction
Allende has achieved the relief he sought by way of an
injunction, as stated in the magistrate judge’s order dated
November 4, 2019. For that reason, Allende’s claim for
injunctive relief against the prison’s policy that forbids
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dreadlocks and to remove his disciplinary infractions related to
that policy is moot.
C. Declaratory Judgment
Allende seeks a declaratory judgment that the defendants’
“acts and omissions described” in the complaint violate his
“rights under the Constitution and laws of the United States.”
Doc. no. 1, ¶ 15. The defendants contend that Allende lacks
standing to seek a declaratory judgment.
To have standing to maintain a claim for a declaratory
judgment, a plaintiff must allege both injury caused by the
defendants’ unlawful conduct and “‘a sufficient likelihood that
he will again be wronged in a similar way.’” Berner v.
Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983); see also Mota v.
Madeiros, 2018 WL 1524538, at *3 (D. Mass. Mar. 28, 2018). For
purposes of establishing an injury, a plaintiff must show “that
he has suffered (or has been threatened with) ‘an invasion of a
legally protected interest which is . . . concrete and
particularized,’” Berner, 129 F.3d at 24 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Even assuming that Allende could establish an injury for
purposes of standing, he cannot show a sufficient likelihood
that he will again be wronged in the same way. As Allende
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conceded for purposes of his request for injunctive relief, the
defendants have provided the relief he sought against the hair
policy making an injunction unnecessary. Therefore, under these
circumstances, Allende lacks standing to pursue a declaratory
judgment.
D. RLUIPA – Claim One
In the complaint, Allende alleges that the defendants
violated RLUIPA by preventing him from wearing dreadlocks as
part of his Rastafarian religion. The defendants move to
dismiss the RLUIPA claim on the ground that money damages are
not available. The court agrees.
Sovereign immunity precludes money damages against states
and state officials sued in their official capacities, and
sovereign immunity was not waived for purposes of RLUIPA.
Sossamon v. Texas, 563 U.S. 277, 293 (2011). Although the First
Circuit has not addressed the issue, the majority of courts have
concluded that money damages are not available against
defendants sued in their individual capacities under RLUIPA.
See, e.g., Fox v. Sheftic, 2019 WL 5597906, at *5 (N.D.N.Y. Oct.
3, 2019) (citing Holland v. Goord, 758 F.3d 215, 224 (2d Cir.
2014)); Pickwell v. Newton, 2019 WL 4675374, at *5 (E.D. Va.
Sept. 25, 2019) (citing Rendelman v. Rouse, 569 F.3d 182, 189
(4th Cir. 2009), and Haight v. Thompson¸ 763 F.3d 554, 560-70
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(6th Cir. 2014)); Baker v. O.D.O.C., 2019 WL 4454503, at *2 (D.
Or. Sept. 17, 2019) (citing Wood v. Yordy, 753 F.3d 899, 904
(9th Cir. 2014)); Adams v. Corrs. Emergency Response Team, 2019
WL 4074653, at *2 n.4 (E.D. Pa. Aug. 28, 2019) (citing Sharp v.
Johnson, 669 F.3d 144, 154 (3d Cir. 2012)); Hoke v. Lyte, 2019
WL 4440128, at *13 (S.D. Ga. Aug. 14, 2019) (citing Smith v.
Allen, 502 F.3d 1255 (11th Cir. 2007)); Gregory v. Pfister, 2019
WL 3287873, at *2 (N.D. Ill. July 22, 2019) (citing Nelson v.
Miller, 570 F.3d 868, 869 (7th Cir. 2009)). In addition, other
judges in this district and circuit have concluded that money
damages are not available under RLUIPA against state officials
sued in their individual capacities. Musterd v. R.I. Dep’t of
Health, 2018 WL 1684345, at *3 (D.R.I. Mar. 19, 2018); Staples
v. Prison, 2017 WL 519189, at *2 (D.N.H. Feb. 8, 2017); Cryer v.
Spencer, 934 F. Supp. 2d 323, 334 (D. Mass. 2013).
Therefore, no relief is available to Allende under RLUIPA,
and the claim must be dismissed.
E. Violations of the First, Eighth, and Fourteenth Amendments
Claims One, Two, and Three
Allende alleges that the defendants’ enforcement of the
hair policy also violated his First, Eighth, and Fourteenth
Amendment rights. Those claims are brought pursuant to 42
U.S.C. § 1983. The defendants contend that Allende cannot
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recover damages against the defendants sued in their official
capacities, and for that reason, the claims against those
defendants must be dismissed. With respect to the claims
against the defendants in their individual capacities, they
contend that they did not violate Allende’s rights. In
addition, with respect to the First Amendment claim, the
individual defendants argue that they are entitled to qualified
immunity.
1. Sovereign Immunity – All Claims Against Defendants in
Their Official Capacities
“Absent an explicit waiver from the state, the Eleventh
Amendment bars official capacity suits against state actors in
federal court unless the suit seeks prospective injunctive
relief.” Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003).
Allende’s claim for prospective injunctive relief is moot.
Nothing suggests that New Hampshire has waived its immunity for
purposes of Allende’s § 1983 claims. See, e.g., Santos v.
Smith, 2016 WL 1032791, at *1 (D. Mass. Mar. 14, 2016).
Therefore, Allende’s claims under § 1983 against the
defendants in their official capacities are dismissed.
2. Qualified Immunity – First Amendment – Claim One
The doctrine of qualified immunity protects state
employees, sued in their individual capacities, from liability
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for damages as long as their conduct did not violate clearly
established constitutional or statutory rights that would have
been known to a reasonable person. Harlow v. Fitzgerald, 457
U.S. 800, 819 (1982). The court uses a two-part test to
determine whether qualified immunity exists: (1) whether the
facts alleged by the plaintiff show the violation of his
constitutional right, and (2) whether that right was clearly
established when the alleged violation occurred. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). The court may skip the
first step and go directly to the second step of the inquiry.
Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014).
The defendants contend that they are entitled to qualified
immunity with respect to Allende’s claim that enforcement of the
hair policy violated his First Amendment right to free exercise
of his religion. They further contend that there was no clearly
established First Amendment right under the free exercise clause
to wear dreadlocks in prison in March of 2017, when Allende
arrived at the prison and cut his hair. In support, they cite a
list of cases from 2014 through 2018 to show that prisoners’
rights with respect to prison hair policies were not clearly
established.
The Second Circuit long ago recognized the First Amendment
right of Rastafarian prisoners to wear their hair in dreadlocks.
See Benjamin v. Coughlin, 905 F.2d 572, 576-77 (2d Cir. 1990);
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Michel v. Manna, 2017 WL 1381859, at *4 (N.D.N.Y. Jan. 17, 2017)
(Rastafarian prisoner’s right to wear dreadlocks clearly
established). Other courts, however, have not recognized that
right. See Luther v. White, 2019 WL 511795, at *13 (W.D. Ky.
Feb. 8, 2019) (citing cases and holding that it was not clearly
established in January of 2017 that prison grooming standards
banning dreadlocks violated the free exercise clause of the
First Amendment). In December of 2012, the Tenth Circuit
considered whether it was clearly established that a prison
grooming policy, which required hair to be able to be combed
out, would violate First Amendment free exercise rights.
Stewart v. Beach, 701 F.3d 1322, 1333 (10th Cir. 2012). The
Tenth Circuit concluded that the law was unsettled and,
therefore, not clearly established.
There is no Supreme Court case or First Circuit case on
point. In 2011, the First Circuit held that enforcement of the
New Hampshire State Prison’s policy restricting facial hair did
not violate the free exercise clause of the First Amendment.
Kuperman v. Wrenn, 645 F.3d 69, 77 (1st Cir. 2011). Given the
state of the law in March of 2017, it was not clearly
established that enforcement of the New Hampshire State Prison’s
hair grooming policy would violate a prisoner’s First Amendment
free exercise right.
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The defendants sued in their individual capacities in Claim
One are entitled to qualified immunity and the claim is
dismissed.
3. Eighth Amendment – Claim Three
In Claim Three, Allende alleges that Officer D. Burris
violated his Eighth Amendment rights by requiring him to shave
off his dreadlocks. He alleges that his request slips to
Chaplain Daly and his discussions with him show that Chaplain
Daly knew that Rastafarians wear dreadlocks. He further alleges
that he “suffered mental and emotional distress from the
violence done to his Religion by being forced to shave his
[dreadlocks] and breach his ‘vow to Nazarite.’” Doc. no. 1, ¶
14.
The defendants argue that Allende cannot recast his First
Amendment claim as an Eighth Amendment claim. The Eighth
Amendment protects against cruel and unusual punishment in
prison, while the First Amendment protects the free exercise of
religion. Whether or not Allende’s alternative pleading is
cognizable, qualified immunity would also protect Burris from
liability in this context.1 The court has found no cases that
1 The defendants also argue that the Eighth Amendment claim
is barred by 42 U.S.C. § 1997e(e). Section 1997e(e) provides:
“No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
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show that it was clearly established in March of 2017 that
enforcement of the prison’s hair policy would violate Allende’s
Eighth Amendment rights.
Therefore, Allende does not state an actionable claim under
the Eighth Amendment.
4. Fourteenth Amendment – Claim Two
In his complaint, Allende alleges that the defendants
violated his Fourteenth Amendment right to equal protection of
the laws by requiring him to shave off his dreadlocks while
allowing Native American inmates to keep long hair. The
defendants contend that Allende does not allege an equal
protection claim because the hair policy does not limit the
length of hair but instead requires that hair be groomed so that
the inmate can run a comb through it with reasonable ease.2
The Fourteenth Amendment precludes governmental action that
denies any person the equal protection of the laws. U.S. Const.
amend. XIV, § 1. To state an equal protection claim, a
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act.”
Whether or not § 1997e(e) bars claims for violation of
constitutional rights is unsettled. See, e.g., Wilcox v. Brown,
877 F.3d 161, 169 (4th Cir. 2017); Ashley v. Metelow, 2019 WL
5493482, at *5 (D.N.J. Oct. 25, 2019).
2 The defendants also contend that the Fourteenth Amendment
claim is barred because it is duplicative of Allende’s RLUIPA
and First Amendment claims. The defendants are mistaken.
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plaintiff must allege facts that show he was treated differently
from others who are similar to him in all relevant respects and
that the difference in treatment was because of an impermissible
consideration such as his religion. Freeman v. Town of Hudson,
714 F.3d 29, 36 (1st Cir. 2013). At the first step, the
plaintiff must show that “the parties with whom he seeks to be
compared have engaged in the same activity vis-à-vis the
government entity without such distinguishing or mitigating
circumstances as would render the comparison inutile.” Cordi-
Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007).
The governmental action that Allende challenges is the
prison’s hair grooming policies. Under those policies, inmates
cannot grow their hair to a length that would prevent
corrections officers from completing “an efficient visual
inspection of the hair for contraband” and inmates “must be able
to pull a comb through the hair or facial hair with reasonable
ease at the direction of a Correction Officer.” Based on those
policies, the prison banned braids and dreadlocks.
In support of his claim, Allende alleges that the prison
allows Native Americans to grow long hair. He does not allege
that the prison allows Native Americans to wear braids or
dreadlocks. He also does not allege that corrections officers
were unable to do visual inspections of the hair or that Native
Americans are unable to pull a comb through their hair. In
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contrast, Allende wanted to wear his hair in dreadlocks, which
he does not deny cannot be combed. As such, Allende does not
allege facts that show he was treated differently from other
similarly situated inmates, such as inmates who were unable to
pull a comb through their hair.3
Allende has not alleged a cognizable claim for violation of
the equal protection clause of the Fourteenth Amendment.
Conclusion
For the foregoing reasons, the defendants’ motion to
dismiss (document no. 11) is granted. All claims against all
defendants are dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 12, 2019
cc: Counsel and Pro Se Party of record.
3 The affidavits that Allende submitted with his objection
are from four inmates who state that they have never been asked
to run a comb through their hair. Two of them say that their
hair was long. One says that he never saw anyone be asked to
run a comb through his hair. Importantly, none of the affiants
states that he had braids or dreadlocks or any style that would
preclude a visual inspection or running a comb through his hair.
Therefore, even if the affidavits were properly submitted, they
do not help Allende’s claim.
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