Muslim Inmate’s ‘I LOVE BACON’RFRA Suit Proceeds

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By Patrick Gregory

Oct. 12 — A Muslim inmate alleging that a corrections officer placed an “I LOVE BACON” sticker on him can proceed with retaliation and Religious Freedom Restoration Act claims, the U.S. Court of Appeals for the Third Circuit held Oct. 11 ( Mack v. Warden Loretto FCI , 2016 BL 338255, 3d Cir., No. 14-2738, 10/11/16 ).

The ruling will be important to cases seeking money damages “like this one, where it would be difficult or impossible to control the unpredictable behavior of individual guards with an injunction,” Douglas Laycock, a professor at the University of Virginia School of Law, Charlottesville, Va., told Bloomberg BNA in an Oct. 11 e-mail. Laycock has written extensively about religious liberty law.

The decision answers several questions of first impression in the Third Circuit, the decision by Judge Julio M. Fuentes and joined by Judge Theodore A. McKee, said.

It answers in the affirmative "(1) whether an inmate’s oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity.”

Muslim inmate Charles Mack alleged that a corrections officer violated his right to free speech by firing him from a paid work assignment after Mack complained about corrections officers’ anti-Muslim harassment, the court said.

He also alleged that the harassment caused him to stop praying while at work, in violation of RFRA.

Injunctions Not Affected

The decision is significant for certain RFRA damages cases but not “to the big picture of RFRA,” Laycock said.

That’s because RFRA is mostly “enforced by injunctions—court orders against government officials to comply in the future.”

“And this decision will not change that,” he said.

Further, damages “claims are uncommon, and they are hard to win.”

“Government employees are protected—most observers not in government would say over-protected—by a broad doctrine of official immunity; they are liable for damages only when what they do is obviously illegal or when some court has held it illegal on nearly identical facts.”

“Defendants are entitled to jury trial when you sue them for damages, and government employees often make sympathetic defendants,” Laycock said.

“So juries don’t tend to award large damages.”

‘Color of Law.’

The court found “that federal officers who violate RFRA may be sued in their individual capacity for damages.”

RFRA’s plain language “establishes that a plaintiff may bring claims for ‘appropriate relief’” against “those acting under color of federal law, whose individual conduct substantially burdens one’s religious exercise,” the court said.

Laycock said he thought “the court got it right.”

RFRA’s “color of law” language is “slightly odd” and “means any person exercising government authority,” he said.

“He doesn’t have to be exercising it correctly” to be acting under color of law, Laycock said.

Presumption of Relief

In finding that RFRA’s “appropriate relief” language applied here, the court relied on the U.S. Supreme Court’s ruling in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

That decision applied “the traditional presumption” that “‘any appropriate relief’ is available unless Congress expressly indicates otherwise,” the appeals court said.

Franklin involved a Title IX claim, but the “same presumption applies here” because Congress specifically included the exact “appropriate relief” language “used in Franklin,” the court held.

Congress enacted the act only one year after Franklin, “and was therefore well aware that ‘appropriate relief’ means what it says.”

Civil Liberties Tradition

Laycock said the act’s “authorization of ‘appropriate relief’ was enacted against a largely settled background of relief in civil rights and civil liberties claims against governments.”

“For those who were thinking about the question” of what “appropriate relief” meant at RFRA’s enactment, “which certainly was not all members of Congress, this set of rules was the most obvious referent,’” he said.

Laycock said he “may have been the only witness to testify about appropriate relief, and this is what I said it meant.”

The Third Circuit “would not have given that much weight even if it had known about it, which it almost certainly did not,” he said.

But Laycock said the court did invoke “this tradition of civil liberties remedies” in a footnote.

The court’s “greater reliance” on Franklin, “decided the year before RFRA was enacted,” was “also sensible,” he said.

Retaliation Claim

Mack’s retaliation claim could proceed because his oral complaint about the alleged harassment constituted protected activity under the First Amendment, the court held.

That “oral grievance sufficiently and timely put prison officials on notice that he was seeking redress, was conveyed to prison officials in a reasonable manner, and concerned conduct that the prison itself prohibits.”

The court followed the Seventh Circuit, which is the only other circuit to have addressed “this specific issue” of prisoner retaliation claims based on oral grievances, in Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006).

In a partial dissent, Judge Jane R. Roth said “oral complaints should not be considered protected conduct under the First Amendment.”

Such complaints, “unlike written grievances, do not create a record,” Roth said.

Law student Russell Taylor, of Duke University School of Law, argued for Mack.

Jane M. Dattilo, of the U.S. Attorney’s Office, argued for the defendants.

To contact the reporter on this story: Patrick Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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