Green Haven Prison Preparative Meeting v. New York State Dept. of

20-18-pr
Green Haven Prison Preparative Meeting v. New York State Dept. of Corrections
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2020
Argued: October 30, 2020 Decided: October 18, 2021
Docket No. 20-18-pr
GREEN HAVEN PRISON PREPARATIVE MEETING OF THE RELIGIOUS SOCIETY OF
FRIENDS, AN UNINCORPORATED ASSOCIATION, YOHANNES JOHNSON, INDIVIDUALLY,
AND AS CLERK OF GREEN HAVEN PRISON PREPARATIVE MEETING, GREGORY
THOMPSON, INDIVIDUALLY, AND AS MEMBER OF GREEN HAVEN PRISON PREPARATIVE
MEETING, NINE PARTNERS QUARTERLY MEETING OF THE RELIGIOUS SOCIETY OF
FRIENDS, AN UNINCORPORATED ASSOCIATION, DONALD BADGLEY, INDIVIDUALLY,
AND AS CO-CLERK OF NINE PARTNERS QUARTERLY MEETING , EMILY BOARDMAN ,
INDIVIDUALLY AND AS CO-CLERK OF NINE PARTNERS QUARTERLY MEETING , BULLS
HEAD-OSWEGO MONTHLY MEETING, AN UNINCORPORATED ASSOCIATION, CAROLE
YVONNE NEW , INDIVIDUALLY AND AS CLERK OF BULLS HEAD-OSWEGO MONTHLY
MEETING, DAVID LEIF ANDERSON, INDIVIDUALLY AND AS TREASURER OF BULLS
HEAD-OSWEGO MONTHLY MEETING, POUGHKEEPSIE MONTHLY MEETING, AN
UNINCORPORATED ASSOCIATION , FREDERICK DONEIT, SR., AS TREASURER OF
POUGHKEEPSIE MONTHLY MEETING, JULIA GIORDANO, MARGARET L. SEELY,
SOLANGE MULLER, NEW YORK YEARLY MEETING OF THE RELIGIOUS SOCIETY OF
FRIENDS, INC.,
Plaintiffs-Appellants,
— v. —
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION,
ANTHONY ANNUCCI, IN HIS CAPACITY AS ACTING COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, JEFF MCKOY, IN HIS
CAPACITY AS THE DEPUTY COMMISSIONER FOR PROGRAM SERVICES OF THE
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, ALICIA
SMITH-ROBERTS, IN HER CAPACITY AS THE DIRECTOR OF MINISTERIAL, FAMILY AND
VOLUNTEER SERVICES OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, JAMIE LAMANNA, IN HIS CAPACITY AS SUPERINTENDENT OF GREEN
HAVEN CORRECTIONAL FACILITY, JAIFA COLLADO, IN HER CAPACITY AS DEPUTY
SUPERINTENDENT OF PROGRAMS AT GREEN HAVEN CORRECTIONAL FACILITY,
MARLYN KOPP, IN HER CAPACITY AS DEPUTY SUPERINTENDENT OF PROGRAM
SERVICES AT GREEN HAVEN CORRECTIONAL FACILITY
Defendants-Appellees.*
B e f o r e:
LIVINGSTON, Chief Judge, CABRANES, and LYNCH, Circuit Judges.
Several unincorporated associations and individual members of the
Religious Society of Friends (widely referred to as “Quakers”) appeal from an
order of the United States District Court for the Southern District of New York
(Karas, J.) denying their motion for a preliminary injunction directing defendant
officials of the New York State Department of Corrections and Community
Supervision to rescind changes in the scheduling of certain regularly-held
Quaker religious gatherings at Green Haven Correctional Facility. We agree with
the district court that a preliminary injunction is not warranted because Plaintiffs-
Appellants are unable to demonstrate a likelihood of success on the merits of
their claims. The order of the district court is thus AFFIRMED.
*
The Clerk of the Court is respectfully directed to amend the caption as set forth
above.
1
FREDERICK R. DETTMER, Law Office of Frederick R. Dettmer,
New Rochelle, NY, on the brief, for Plaintiffs-Appellants.
MARK S. GRUBE, Assistant Solicitor General, State of New York,
New York, NY (Letitia James, Attorney General, Barbara
D. Underwood, Solicitor General, Anisha S. Dasgupta,
Deputy Solicitor General, on the brief), for Defendants-
Appellees.
________________
GERARD E. LYNCH, Circuit Judge:
This case arises from scheduling changes made by the New York State
Department of Corrections and Community Supervision (“DOCCS”) to certain
regularly-held religious gatherings of the Religious Society of Friends, generally
known as “Quakers,” at Green Haven Correctional Facility (“Green Haven”).
DOCCS’s measures affected the scheduling of two types of Quaker religious
gatherings. The first type, called Quarterly Meetings, are held four times a year
and involve neighboring Quaker communities gathering at Green Haven to
worship with inmates. The second type, referred to as “meetings for worship
with a concern for business” (“MFWCBs”), are weekly meetings where inmates
at Green Haven who participate in Quaker activities discuss the group’s business
concerns. The scheduling changes generally prevented inmates from holding
2
these meetings on their preferred days of the week. Plaintiffs-Appellants, who
include both Quaker prisoners Yohannes Johnson and Gregory Thompson (the
“Incarcerated Plaintiffs”) and outside Quaker individuals and organizations who
participate in communal worship with the Incarcerated Plaintiffs (“the Non-
Incarcerated Plaintiffs”) (together, “Plaintiffs”) brought this action in the United
States District Court for the Southern District of New York challenging the
scheduling changes, and moved for a preliminary injunction. Plaintiffs sought to
direct Defendants-Appellees, who include DOCCS and several DOCCS and
Green Haven officials (collectively, "Defendants"), to reinstate the meetings at
their previously scheduled times.
The district court (Kenneth M. Karas, J.) concluded that the Incarcerated
Plaintiffs were unable to demonstrate a likelihood of success on the merits of
their claims, in part because they failed to comply with the Prison Litigation
Reform Act’s (“PLRA’s”) requirement to exhaust administrative remedies and
failed to demonstrate that they qualified for an exception to the exhaustion
mandate. The court further concluded that all Plaintiffs failed to show that the
scheduling changes imposed a substantial burden on their religious exercise. We
conclude that the district court did not err in denying the preliminary injunction.
3
BACKGROUND
I. Quaker Meetings
Adherents of the Quaker faith, formally referred to as “Friends,” believe
that a person can convene directly with God without a mediator (such as a priest,
minister, or other member of the clergy) and that a group of individuals form a
congregation when they worship together and submit their independent
religious revelations and insights to collective discernment at periodic meetings
for worship.1 Friends who meet and worship together regularly as a congregation
may organize themselves into a formal group known as a “Monthly Meeting.” A
Monthly Meeting is responsible for local matters of business, including
organizing worship services, managing membership applications and lists,
approving and overseeing marriages, and providing pastoral care. A Monthly
Meeting conducts institutional business at specially-convened gatherings called
“meetings for worship with a concern for business.”
A Monthly Meeting may include multiple congregations which regularly
hold their own separate worship services. Such constituent congregations may be
1
Here and throughout this opinion, we base our understanding of Quaker belief
and practice on materials submitted in the record by Plaintiffs.
4
organized as “Worship Groups” called “Preparative Meetings.”1 Two or more
Monthly Meetings and Worship Groups in the same region may form a Quarterly
Meeting, which meets four times a year, and two or more Quarterly Meetings in a
larger area may unite to form a Yearly Meeting, which meets annually. Friends
form Quarterly and Yearly Meetings to “gather for the spiritual enrichment
available from a larger body and to conduct business together.” Appellants’ Br. at
7. In pursuit of meaning and truth through collective deliberation and consensus,
Friends use these larger meetings to test and discuss with a broader group
insights from their smaller local Meetings.
II. Quaker Meetings at Green Haven
Green Haven is a maximum security correctional facility that houses
approximately 1900 inmates with diverse religious affiliations. Formed in 1976,
Plaintiff Green Haven Prison Preparative Meeting (“Green Haven Meeting”) is
the organized Quaker Worship Group at Green Haven; its approximately eight
members, including the Incarcerated Plaintiffs, are all prisoners there. Before the
implementation of the changes at issue in this appeal, the group met three times a
1
Unlike a Monthly Meeting, a Preparative Meeting “does not have final authority
to receive, transfer, or dismiss members, or to perform marriages.” J. App’x at
138.
5
week: Thursday evenings in a study group from 6:00 p.m. to 8:30 p.m. in
Building 12 led by a civilian volunteer, Friday evenings for worship from 6:00
p.m. to 8:30 p.m. in the J School led by a civilian volunteer, and Saturdays from
12:30 p.m. until about 2:00 p.m. for MFWCBs in the J School led by Incarcerated
Plaintiff Johnson, who was the designated inmate facilitator.2 Green Haven
Meeting also held Quarterly Meetings four times a year on Saturdays for
approximately six hours, starting in the morning and ending in the mid-
afternoon.
Green Haven Meeting, Poughkeepsie Monthly Meeting, Bulls Head-
Oswego Monthly Meeting and other Quaker meetings in the region belong to
Nine Partners Quarterly Meeting (“Nine Partners Quarter”). Poughkeepsie
Monthly Meeting, Bulls Head-Oswego Monthly Meeting, and Nine Partners
Quarter are not-for-profit unincorporated associations and are Non-Incarcerated
Plaintiffs. New York Yearly Meeting, a not-for-profit corporation and also a Non-
Incarcerated Plaintiff, is an umbrella organization for all Meetings and worship
groups throughout New York and parts of Connecticut and New Jersey. New
2
A facilitator is an inmate designated by DOCCS to serve as the representative of
the faith group in the absence of a competent chaplain.
6
York Yearly Meeting, the unincorporated associations of non-incarcerated
Quakers, and eight individual members of those associations join the
Incarcerated Plaintiffs in appealing the district court’s order denying the
preliminary injunction.
III. Regulatory Framework
DOCCS Directive 4202, titled “Religious Programs and Practices,” sets
forth DOCCS’s policy for the promotion of religious experiences of persons
under its supervision. “[I]n recognition of the First Amendment right of ‘religious
liberty,’” the policy aims “to provide as many opportunities as feasible for the
practice of [inmates’] chosen faiths, consistent with the safe and secure operations
of the DOCCS correctional facilities.” J. App’x 573. Directive 4202 § VI(B)(2)
discusses two types of regularly scheduled religious gatherings: worship services
and educational gatherings. Additional special religious holy days, celebrations,
or observances are governed by § VII and the Religious Holy Day Calendar,
which is distributed annually. Directive 4202 § VI(B)(2) allows faiths with six to
ten requesting adherents to hold religious gatherings such as classes or study
groups twice a month subject to the availability of space and staffing. The
Superintendent may also approve additional gatherings “if the accommodation
7
can be made without incurring any additional costs/resources.” J. App’x at 576.
Pursuant to Directive 4750, titled “Volunteer Services Program,” civilian religious
volunteers must be registered in order to be permitted into correctional facilities
to assist in programs.
Plaintiffs do not challenge the reasonableness of these system-wide
regulations. Rather, their complaint concerns the specific implementation of the
regulations at Green Haven with respect to Quaker gatherings at the prison,
starting in 2015.
IV. Policy Changes
In the fall of 2014, following a spate of security breaches involving visitors
smuggling in weapons, cash, and contraband, and in at least one instance a
corrections officer taking a bribe to smuggle a pound of marijuana to Green
Haven inmates, the Acting Commissioner of DOCCS, Defendant Anthony
Annucci, installed new Green Haven administrators, including a new
Superintendent and several new Deputy Superintendents, including Defendant
Jaifa Collado (“Collado”) who was Deputy Superintendent for Program Services
at Green Haven and responsible for scheduling religious and other activities. The
8
security concerns prompted the new administration to reevaluate special events
and other gatherings held in the facility.
A. Quarterly Meetings
For 35 years, from 1980 to 2015, Green Haven Meeting hosted Friends from
Nine Partners Quarter at Green Haven for full-day Quarterly Meetings. Those
meetings, which typically took place over six or more hours on Saturdays and
included lunch, allowed Quaker inmates and non-incarcerated Friends in the
region to worship together and exchange beliefs, practices and concerns.
Quarterly Meetings also provided inmates who were not members of the Green
Haven Meeting an opportunity to participate in and be introduced to the Quaker
religion. Plaintiffs contend that holding these Quarterly Meetings on Saturdays,
as opposed to any other day of the week, is “critical to their success” because on
Saturdays non-incarcerated Friends are less limited by work schedules, parental
obligations, evening travel, and other workweek commitments. J. App'x at 216.
Special events – including Quaker Quarterly Meetings – typically require
the presence of extra security staff to protect the non-incarcerated visitors and
volunteers who may attend the events and to maintain safety for the general
prison population. In light of ongoing security concerns raised by the security
9
breaches in the fall of 2014, the new prison administration sought to reduce the
size and number of special events at Green Haven, and special events held on
weekends in particular, since the staff on weekend duty is smaller and the prison
would have to pay overtime to adequately staff events. Special events also
increase “out counts,” the number of inmates away from their cells when a count
of inmates occurs. Prison administration sought to reduce the out count since the
absence of inmates from the count carries security risks associated with tracking
inmate movement. As a result, in 2015, Green Haven administration moved
Quarterly Meetings from Saturdays to Friday evenings after 5:30 p.m.
In 2014, Green Haven Meeting hosted Saturday Quarterly Meetings –
which were scheduled on the special events calendar – on March 29, June 7,
September 13 and December 27 from 8:30 a.m. to 2:30 p.m. Visitors were
prohibited from bringing food, beverages, packages, or gifts into the facility.
Green Haven provided food for the Quarterly Meetings in the form of “offline
meals,” which are meals from the mess hall’s regular menu. All registered
Quaker inmates, who numbered from six to nine at the relevant times, were
allowed but not required to attend these Quarterly Meetings. Green Haven also
allowed 15 registered civilian volunteers to attend the March, June and
10
September Quarterly Meetings. After noticing that only a few of the volunteers
actually attended the Quarterly Meetings, and in light of ongoing security
concerns about events including a large number of civilians, prison
administration limited the maximum number of guests at the December 27, 2014
Quarterly Meeting to any four from the list of registered volunteers.
Thaddeus Davis (“Davis”), the designated facilitator for Quaker inmates at
Green Haven before Plaintiff Johnson took over that role, corresponded with
prison administration about, inter alia, his four proposed dates for the 2015
Quarterly Meetings, which were all Saturdays. In one of her responses, Collado
requested an explanation for Davis’s request for four Quarterly Meetings per
year since, according to the approved special events calendar, the Quakers had
no special holy days in 2014 other than the common Christian holidays of Easter
and Christmas. In a response memo, Davis explained Quaker practices and the
religious significance of Quarterly Meetings, but he did not identify any
particular significance to holding the Quarterly Meetings on Saturdays.
Green Haven officials determined that it was not possible to implement the
preferred schedules for all religious denominations in the community given
“security concerns” and “logistical considerations” at the prison. J. App’x at 540.
11
Thus, prison administration moved the Quarterly Meetings to Friday evenings,
after 5:30 p.m., and distributed the 2015 special events calendar with Quarterly
Meetings scheduled for March 20, June 5, September 11, and December 11. Green
Haven Meeting objected to the move, in part, because it already held worship
services from 6:00 p.m. to 8:30 p.m. on Friday evenings. Prison administration
offered to move the Quarterly Meetings to another weekday evening, but Green
Haven Meeting declined the offer. As a result, the Quarterly Meetings were
removed from the special events calendar in the years following 2015. Since then,
DOCCS and Green Haven Meeting have negotiated about the Quarterly
Meetings, which has resulted in DOCCS offering to schedule one of the Quarterly
Meetings as a special event, with an out count that would permit a longer
meeting along with a meal paid for by the Quakers.
B. MFWCBs
Green Haven also made changes that affected MFWCBs. Green Haven
Meeting would typically hold MFWCBs on Saturdays from 12:30 p.m. to about
2:00 p.m. in the J School. Incarcerated Plaintiff Johnson facilitated these meetings,
which were attended by inmates who had to “call out,” or in other words, receive
permission in advance to be away from their cells in order to attend. Correctional
12
officers must accompany an inmate who has called out from his cell to the
location of the event, where one or more other correctional officers must stay to
monitor the inmate throughout the event.
Defendant Marlyn Kopp (“Kopp”) succeeded Collado as Deputy
Superintendent for Program Services at Green Haven in March 2017. By January
2018, Kopp and other administrators identified overcrowding as an issue in the J
School building, where some Quaker activities were held. The overcrowding
stemmed in part from too many call outs by non-Quaker inmates, including
several maximum security inmates, attending call-out gatherings such as Green
Haven Meeting’s MFWCBs. On January 6, 2018, for instance, 21 inmates attended
the MFWCB, 9 of whom were registered Quakers and 12 of whom were not
registered Quakers. The unusually high ratio of non-Quakers to Quakers
prompted Kopp to take action to reduce what officials perceived to be excessive
call outs, which she deemed were more likely to be subject to abuse since no
chaplain or community volunteer was present.3
3
Section VI(B)(3) of Directive 4202 limits inmates to attending up to three services
or classes per year of religions other than the one for which they are registered in
order to “learn more about the religious practices of another faith” (hereinafter,
the “Three Times Rule”).
13
On February 9, 2018, Johnson corresponded with Green Haven
administration in response to an inquiry about the purpose of the MFWCB and
irregularities in the attendance of non-adherents. Kopp responded by informing
Johnson of her decision to revoke permission for MFWCBs. She wrote, in part,
“The Quakers, just like any other religion, are already approved to have worship
services and study classes. They have Friday Worship and Thursday [b]ook
study. The Saturday call-out does not appear to be a study group or a worship
service and therefore does not appear necessary. With a congregation of a total of
8 inmates, having a Thursday study group and Friday worship service appears to
be sufficient.” J. App’x at 560.
C. The Holy Day Calendar
Separate from the regular weekly religious activities, DOCCS prepares and
distributes a Religious Holy Day Calendar applicable to all of its correctional
facilities, which identifies dates of religious significance throughout the year. The
administration of an individual correctional facility, however, may schedule
additional religious activities for the various faith groups within each facility.
Plaintiffs object to the DOCCS Calendar’s identification of the Society of Friends
as “Protestant” and the designation of Pentecost as the “Family Event” day for
14
the Society of Friends, along with other groups characterized as Protestant. A
Family Event Day enables outside family and friends to join inmates of their faith
for worship and celebration. Plaintiffs argue that Quakers do not celebrate
Pentecost and that DOCCS is unjustified in its refusal to revise the Calendar to
add Quarterly Meetings.
V. District Court Proceedings
The Incarcerated Plaintiffs did not file administrative grievances about any
of the rule changes concerning the various Quaker meetings at Green Haven.
Instead, Plaintiffs filed the present complaint in September 2018, bringing claims
under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc et seq., the Free Exercise Clause of the First Amendment, the
Establishment Clause of the First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, the freedom of religion guarantees in the New York
State Constitution, art. I, § 3, and New York Correction Law § 610(1), which
guarantees to inmates “the free exercise and enjoyment of religious profession
and worship, without discrimination or preference.”
In particular, as concerning their RLUIPA claim, the Incarcerated Plaintiffs
allege that Defendants’ termination of and refusal to reinstate Quarterly Meetings
15
and MFWCBs imposes a substantial burden on their exercise of religion and is
neither in furtherance of a compelling government interest nor the least
restrictive means of furthering any such interest. They also asserted claims under
the Free Exercise Clause of the First Amendment (and corresponding claims
under Section 610 of the New York Correction Law), alleging, in relevant part,
that Defendants’ cancellation of Quarterly Meetings and MFWCBs imposes a
substantial burden on their sincerely held religious beliefs and religious exercise
and is not reasonably related to legitimate penological interests. Finally, they
alleged that Defendants' actions – including their designation of Quakers as
"Protestants" and celebrants of Pentecost – violate the Establishment Clause.4
The Non-Incarcerated Plaintiffs asserted claims under the Free Exercise
Clause of the First Amendment, alleging that Defendants’ cancellation of
Quarterly Meetings deprived them of their ability to exercise their religion, a
deprivation not reasonably related to legitimate penological interests.
All plaintiffs also asserted corresponding claims under the Free Exercise
Clause of the New York State Constitution. Finally, all plaintiffs asserted a claim
4
The Incarcerated Plaintiffs also raised separate claims for “retaliation,” alleging that
Defendants' decision to terminate the MFWCBs were retaliatory and were intended to
deter the Incarcerated Plaintiffs from “vindicating” their rights. J. App'x 317.
16
under the Equal Protection Clause of the Fourteenth Amendment, alleging that
DOCCS allows other unspecified faith groups to hold religious events that “are
the equivalent of” Quarterly Meetings and MFWCBs. J. App’x at 314. Plaintiffs
sought an order directing Defendants to reinstate MFWCBs and Saturday
meeting times for Quarterly Meetings at Green Haven Correctional Facility.
Plaintiffs moved for a preliminary injunction on March 29, 2019. The
district court heard oral argument on October 30, 2019 and denied the motion
orally at the conclusion of the hearing. The district court concluded that the
deprivation of religious rights alleged by Plaintiffs was sufficient to establish
irreparable harm but Plaintiffs were unable to show a likelihood of success on the
merits. First, the district court held that the Incarcerated Plaintiffs’ claims were
unlikely to succeed because those plaintiffs had failed to exhaust their
administrative remedies. Further, the court determined that none of the plaintiffs
had shown that the actions of prison administration placed a “substantial
burden” on their religious rights. J. App’x at 907. A written order denying the
motion was filed the same day. Plaintiffs moved for reconsideration, which was
denied on December 3, 2019.
17
DISCUSSION
I. Standards of Review
We review a district court’s denial of a preliminary injunction for abuse of
discretion, examining the legal conclusions underpinning the decision de novo
and the factual conclusions for clear error. County of Nassau v. Leavitt, 524 F.3d
408, 414 (2d Cir. 2008); Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.
1998). We review de novo whether a plaintiff has exhausted administrative
remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
Amador v. Andrews, 655 F.3d 89, 95 (2d Cir. 2011).
A plaintiff “seeking a preliminary injunction must ordinarily establish (1)
irreparable harm; (2) either (a) a likelihood of success on the merits, or (b)
sufficiently serious questions going to the merits of its claims to make them fair
ground for litigation, plus a balance of the hardships tipping decidedly in favor
of the moving party; and (3) that a preliminary injunction is in the public
interest.” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.
2015) (internal quotation marks omitted), citing Oneida Nation of N.Y. v. Cuomo,
645 F.3d 154, 164 (2d Cir. 2011). The PLRA requires that any preliminary
injunctive relief concerning prison conditions “be narrowly drawn, extend no
18
further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C.
§ 3626(a)(2). In weighing a request for preliminary injunctive relief, “[t]he court
shall give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the preliminary relief.” Id.
II. Standing
Before turning to the merits of the appeal, we address the threshold issue
of standing. Because the question of standing goes to the constitutional
limitations on the “judicial Power of the United States,” which is limited to
resolving “Cases” or “Controversies,” U.S. Const. art. III, we”are entitled at any
time sua sponte to delve into the issue” of standing even if defendants do not raise
the issue. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace
Young Inc., 109 F.3d 105, 108 (2d Cir. 1997).
A. Non-Incarcerated Plaintiffs’ Standing
Plaintiffs assert that the Non-Incarcerated Plaintiffs have constitutional
rights in the prison setting which were infringed upon by Green Haven’s policy
changes and that the organizational Non-Incarcerated Plaintiffs have standing to
represent the constitutional rights of their parishioner-members. We agree.
19
At the preliminary injunction stage, “a plaintiff’s burden to demonstrate
standing will normally be no less than that required on a motion for summary
judgment. Accordingly, to establish standing for a preliminary injunction, a
plaintiff cannot rest on . . . mere allegations . . . but must set forth by affidavit or
other evidence specific facts” that establish the “three familiar elements of
standing: injury in fact, causation, and redressability.” Cacchillo v. Insmed, Inc.,
638 F.3d 401, 404 (2d Cir. 2011) (internal quotation marks and citation omitted).
Here, the Non-Incarcerated Plaintiffs allege injury on the ground that the
prison administration’s scheduling changes and treatment of the Society of
Friends in the Religious Holy Day Calendar, which they characterize as the
“eliminat[ion]” of “entire programs of a church,” adversely impact their First
Amendment rights. Appellants’ Br. at 22. Defendants do not challenge the
sufficiency of these harms to establish standing. In the prison context, the
Supreme Court has recognized the rights of non-incarcerated individuals under
other provisions of the First Amendment. See Thornburgh v. Abbott, 490 U.S. 401,
408 (1989) (“[T]here is no question that publishers who wish to communicate
with those who, through subscription, willingly seek their point of view have a
legitimate First Amendment interest in access to prisoners.”).
20
Not all of the changes in Green Haven’s practices that are challenged in
this case affect the Non-Incarcerated Plaintiffs, however. As far as the record
reflects, the weekly Saturday MFWCBs have never been attended by outsiders
and involve only Green Haven inmates. While the Non-Incarcerated Plaintiffs are
understandably distressed by restrictions on their incarcerated co-religionists’
opportunities to conduct MFWCBs and by the Green Haven administrators’
arguably brusque and incurious response to the Quaker inmates’ effort to explain
the religious function of these meetings, the Non-Incarcerated Plaintiffs
themselves are not directly affected by any changes in the frequency of religious
services that they do not attend and claim no right to attend.
The Quarterly Meetings, on the other hand, are a different matter. The
well-pleaded allegations of the complaint allege that Quarterly Meetings at which
members of affiliated regional Preparative or Monthly Meetings gather play a
significant role in Quaker religious practice, and the Green Haven authorities
have for many years allowed non-incarcerated visitors to attend. The different
injuries alleged flow directly from the challenged policy changes, and could be
redressed by an injunction reversing those changes. Accordingly, we are satisfied
that the Non-Incarcerated Plaintiffs have alleged injuries to their constitutional
21
rights sufficient to confer Article III standing to challenge the scheduling changes
with respect to the Quarterly Meetings.
B. Green Haven Meeting Standing
Plaintiffs further argue that Green Haven Meeting has associational
standing to pursue both constitutional and statutory claims as an unincorporated
association. Defendants “do not contest Green Haven Preparative Meeting’s
standing to sue based on the alleged injuries to its members.” Appellees’ Br. 25 n.
9. “It is common ground that . . . organizations can assert the standing of their
members.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). However,
Defendants argue that Green Haven Meeting lacks standing as an institution,
independent of its members’ standing, to challenge the changed Green Haven
policies because it is not a “person residing in or confined to an institution”
under RLUIPA. 42 USC § 2000cc-1(a). That argument is really a merits question
about the scope of RLUIPA’s protections, which we address below.
We conclude that the Non-Incarcerated Plaintiffs have Article III standing
to challenge the policy changes relating to the Quarterly Meetings, and Green
Haven Meeting has Article III standing to challenge all the policy changes. And
of course, in any event, the individual Incarcerated Plaintiffs unquestionably
22
have Article III standing to challenge all of the policy changes at issue.
Accordingly, we have jurisdiction to address the merits of Plaintiffs’ claims, and
we thus turn to the merits of the appeal.
III. Irreparable Harm to Plaintiffs
In order to obtain a preliminary injunction, Plaintiffs must show that they
are likely to suffer irreparable harm in the absence of injunctive relief. The district
court correctly found that there is “no question” that the injury alleged by
Plaintiffs satisfies the irreparable harm requirement. Sp. App’x at 11. “The loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion). We thus conclude that, at least insofar as they challenge substantive
restrictions on their ability to conduct religious services and meetings in
accordance with their beliefs, Plaintiffs have established that any violation of
their religious liberties would satisfy the irreparable injury standard.5
IV. Likelihood of Success on the Merits
5
To the extent that Plaintiffs seek to challenge portions of DOCCS's Holy Day Calendar,
Plaintiffs have waived any such challenge because their request for injunctive relief
below did not specifically seek an order that DOCCS alter the calendar. See Anderson
Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir. 2015).
23
We consider next whether Plaintiffs are likely to succeed on the merits of
their claims, a prerequisite for obtaining a preliminary injunction and the basis of
the district court’s denial of Plaintiffs’ injunction. First, we consider whether,
pursuant to the PLRA, the Incarcerated Plaintiffs exhausted their administrative
remedies prior to seeking relief in the district court. Next, we consider whether
Plaintiffs have otherwise shown a likelihood of success on the merits of their
claims. Plaintiffs principally challenge the policy changes under the Free Exercise
clause of the First Amendment and RLUIPA.6
A. Legal Framework
6
Plaintiffs allege claims under the Establishment Clause of the First Amendment,
the Equal Protection Clause of Fourteenth Amendment, and state law. However,
although they recite the applicable legal standards for assessing the
constitutionality of state actions under the constitutional provisions, they make
no argument applying those standards to the facts of this case that are separate
from or independent of their arguments under the Free Exercise Clause and
RLUIPA, and do not explain why they are entitled to a preliminary injunction on
those claims. Appellants’ Br. 31-34. Moreover, they make no attempt to address
their claims under New York state law. Accordingly, those arguments have been
waived for purposes of this appeal, and we do not consider them in addressing
Plaintiffs’ entitlement to a preliminary injunction.
24
Under the PLRA, “a prisoner confined in any jail, prison, or other
correctional facility” may not bring an action “with respect to prison conditions
. . . until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Under RLUIPA, “[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an institution . . .
unless the government demonstrates that imposition of the burden on that
person—(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.”42
U.S.C. § 2000cc-1(a). The Free Exercise Clause of the First Amendment, which is
applicable to the States through the Fourteenth Amendment, prohibits the
government from making a law “prohibiting the free exercise” of religion. Cruz v.
Beto, 405 U.S. 319, 322 (1972).
B. The Incarcerated Plaintiffs: Exhaustion of Administrative Remedies
The Incarcerated Plaintiffs, as “prisoner[s] confined in any . . . correctional
facility,” 42 U.S.C. § 1997e(a), are subject to the exhaustion requirements of the
PLRA. The PLRA requires “proper exhaustion” of administrative remedies,
meaning exhaustion in “compliance with an agency’s deadlines and other critical
procedural rules,” Woodford v. Ngo, 548 U.S. 81, 90 (2006), “using all steps that the
25
agency holds out, and doing so properly.” Amador, 655 F.3d at 96 (internal
quotation marks omitted). The PLRA requires the exhaustion of remedies only
insofar as such remedies are “available to the inmate.” Hubbs v. Suffolk County
Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (internal quotation marks omitted).
“An administrative procedure is unavailable when (1) it operates as a simple
dead end – with officers unable or consistently unwilling to provide any relief to
aggrieved inmates; (2) the scheme is so opaque that it becomes, practically
speaking, incapable of use, meaning that some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it; or (3) when prison
administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Hayes v. Dahlke, 976
F.3d 259, 268 (2d Cir. 2020) (internal quotation marks omitted).
DOCCS regulations establish a three-step Inmate Grievance Program
(“IGP”) consisting of: (1) a complaint to the Inmate Grievance Resolution
Committee (the “IGRC”) at the individual correctional facility; (2) an appeal to
the facility’s superintendent; and (3) a further appeal to the Department's Central
Office Review Committee (“CORC”). See N.Y. Comp. Codes R. & Regs.
(“N.Y.C.R.R.”) tit. 7, §§ 701.1(c), 701.5(a)-(d). The parties agree that the
26
Incarcerated Plaintiffs failed to take any of these steps. Indeed, neither Johnson
nor Thompson nor anyone else from Green Haven Meeting filed a complaint
with the IGP clerk regarding the availability of religious gatherings, much less
pursued such grievance through the final level of review provided by DOCCS’s
IGP. At issue here is whether they should be required to do so. We hold that they
are.
Plaintiffs argue, based on language in DOCCS’s IGP (Directive 4040)
§701.3(d) that excludes claims brought on behalf of a class of prisoners, that the
administrative procedures were not available to them because DOCCS’s
grievance process does not apply to a matter which affects a class of inmates. The
district court was unpersuaded by that argument. See Sp. App’x at 13-14. We
similarly find it unavailing.
Directive 4040 states that individuals “personally affected by a matter
which affects a class of inmates may only file a grievance on their own behalf.”
N.Y.C.R.R. tit. 7, § 701.3(d). As the district court correctly found, this language
makes clear that an individual prisoner may still file a grievance on his own
behalf, even if other prisoners could benefit from the outcome. That inmates may
not pursue actions formally designated as class actions does not mean that they
27
may not pursue grievances “on their own behalf,”even if their success could
benefit others; to the contrary, the regulations specifically provide that they may.
And if, under the DOCCS regulations, they may, then, under the PLRA, they
must. See Ngo, 548 U.S. at 85 (noting that the PLRA "strengthened" the exhaustion
requirement and that exhaustion of remedies is "mandatory").
Plaintiffs also appear to make a futility argument, claiming that the
grievance process was “a dead end” such that they were not required to exhaust
administrative remedies. Appellants’ Br. at 52-53. The bar for the availability of
remedies, however, is low. To constitute an “available” remedy, a process
requires only “the possibility of some relief.” Ross v. Blake, 136 S. Ct. 1850, 1859
(2016) (emphasis added) (quotation marks omitted). Here, the Incarcerated
Plaintiffs provide no evidence that a grievance asserting that a prisoner’s
religious liberty has been violated by a limitation on the number or timing of
religious services or celebrations could not lead to a change in the challenged
prison policies. Plaintiffs are thus unable to avoid the exhaustion requirement,
and the Incarcerated Plaintiffs’ RLUIPA claims fail.
Nor can the Incarcerated Plaintiffs avoid the exhaustion requirement by
suing under the banner of Green Haven Meeting, of which they are members.
28
Plaintiffs argue that Green Haven Meeting is an institutional entity distinct from
its individual members, and that, under RLUIPA, it is a “person” whose religious
exercise cannot be substantially burdened absent a compelling government
interest. But they also contend that at the same time, Green Haven Meeting is not
a “prisoner” within the meaning of the PLRA and thus is not bound by the
exhaustion mandate. Plaintiffs rely on Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682 (2014), in support of their argument. However, while Burwell held that a
for-profit corporation had standing to assert religious rights, it did not involve
either a prison setting or an unincorporated association of individuals, and did
not discuss an organization’s obligations to exhaust administrative remedies
under the PLRA. It is thus of little utility in answering the question before us.
The problem with Plaintiffs’ attempt to avoid the PLRA’s exhaustion
requirement is that it attempts to whipsaw the relevant statutes (RLUIPA and the
PLRA) in a manner that vitiates the PLRA’s requirements. Moreover, their
argument ignores the full context of the word “person” in RLUIPA. We can
readily agree that Green Haven Meeting is a “person” within the meaning of
RLUIPA; the Dictionary Act, 1 U.S.C. § 1, provides that “[i]n determining the
meaning of any Act of Congress, unless the context indicates otherwise[,] . . . the
29
word[ ] “person” . . . include[s] . . . associations . . . as well as individuals.” But
the relevant portion of RLUIPA does not grant rights to all “persons.” Rather, it
applies to “person[s] residing in or confined to an institution.” 42 U.S.C. § 2000cc-
1(a). To the extent that Green Haven Meeting can be, for statutory purposes, a
“person,” it plainly is not the kind of person that can “resid[e] in or [be] confined
to an institution.” Id. An incorporeal entity cannot be imprisoned, even if all of its
human members are prisoners. To whatever extent one might metaphorically
consider an association composed entirely of prisoners to reside, in some sense,
in prison, it derives that status entirely from the status of its members. The action
brought by Green Haven Meeting is brought to vindicate the rights of its
members, and those members, as prisoners, are bound by the requirements of the
PLRA. In short, the Incarcerated Plaintiffs may not avoid the exhaustion
requirement simply by forming an organization and then suing in the name of
that organization.
Accordingly, the claims of Green Haven Meeting, as well as those of the
Incarcerated Plaintiffs suing in their own names, must be dismissed for failure to
exhaust administrative remedies. We thus turn to the claims of the Non-
Incarcerated Plaintiffs.
30
C. The Non-Incarcerated Plaintiffs
As discussed above, the Non-Incarcerated Plaintiffs make no claims under
RLUIPA, nor can they, not being “person[s] residing in or confined to an
institution.” 42 U.S.C. § 2000cc-1(a). Moreover, they lack standing to raise claims
on any theory relating to the limitation of the MFWCBs, which they have not
attended and which they claim no right to attend, and they have not pressed on
appeal their claims under the Establishment Clause, the Equal Protection Clause,
or state law. Accordingly, we confine our discussion to their claims that the
changes in the times of the Quarterly Meetings, and the eventual cancellation of
those meetings, infringed their rights under the Free Exercise Clause of the First
Amendment.
In their briefs on appeal, Plaintiffs do not clearly distinguish between the
Free Exercise claims of the Incarcerated and Non-Incarcerated Plaintiffs, arguing
generally that the undifferentiated “Plaintiffs [s]uffered a ‘[s]ubstantial [b]urden’”
on their religious practice. Appellants’ Br. at 40 (emphasis added). But while the
law applicable to prisoners’ religious rights is well developed, Plaintiffs cite no
authority addressing a prison regulation that affects the religious liberty of non-
31
prisoners who wish to attend religious services with prisoners, relying for the
most part on the law applicable to prisoners.
That law must take account of both the rights of prisoners to religious
liberty and the security needs inherent in prison administration. Precisely
because prisoners’ lives are (and for the most part must be) closely controlled in
ways that non-inmates’ lives are not, courts must take care to ensure that
prisoners’ ability to exercise their religions is not unnecessarily impeded.
“Although we recognize that great deference should be accorded to prison
officials as they undertake the difficult responsibility of maintaining order in
prisons, we have long held that prisoners should be afforded every reasonable
opportunity to attend religious services, whenever possible.” Young v. Coughlin,
866 F.2d 567, 570 (2d Cir. 1989). “A prisoner’s first amendment right to the free
exercise of his religious beliefs may only be infringed to the extent that such
infringement is reasonably related to legitimate penological interests.” Id.(internal quotation marks omitted), citing O’Lone v. Estate of Shabazz, 482 U.S. 342,
349 (1987). We afford deference to prison administrators and judge prison
regulations alleged to infringe constitutional rights under a “reasonableness test
less restrictive than that ordinarily applied” to claims of violations of
32
constitutional rights outside the prison setting. O’Lone, 482 U.S. at 349 (internal
quotation marks omitted).
Courts have had fewer occasions to address prison regulations alleged to
infringe the religious liberty of non-prisoners. In principle, it could be argued
that different considerations apply in such cases. Unlike sentenced prisoners, the
Non-Incarcerated Plaintiffs are free citizens who have committed no crime
justifying restrictions on their liberty. At the same time, however, prison officials
exercise no direct control over the religious observance of persons residing
outside prison, as they do over prisoners. In this case, for example, Quakers not
confined at Green Haven are free to schedule the number, location, and timing of
their meetings, both for worship and for the conduct of business, at their own
discretion and as suits their interest and convenience. Still, as the Supreme Court
has noted in cases involving marriage and mail censorship, regulations limiting
association of prisoners with outsiders do not affect inmates alone, but can
“work[] a consequential restriction on the [constitutional] rights of those who are
not prisoners.” Procunier v. Martinez, 416 U.S. 396, 409 (1974), overruled on other
grounds by Thornburgh, 490 U.S. 401.
33
Here, the Non-Incarcerated Plaintiffs claim a right to associate with
incarcerated persons for purposes of collective worship and religious discussion.
Like non-incarcerated persons who claim a First Amendment right to associate
with prisoners for other protected purposes, such as family relationships and
political or artistic expression, they seek to enter the domain of the prison itself,
where security concerns are pressing. After earlier suggesting that prison rules
affecting the rights of non-prisoners may be subject to more searching scrutiny
than regulations affecting only prisoners, see Procunier, 416 U.S. at 409-12, the
Supreme Court ultimately concluded that even where prison regulations affect
the First Amendment rights of non-prisoners, the “proper inquiry” remains the
standard, derived from Turner v. Safley, 482 U.S. 78 (1987), that asks “whether the
regulations are ‘reasonably related to legitimate penological interests,’”
Thornburgh, 490 U.S. at 404, quoting Turner, 482 U.S. at 89. We think that the same
considerations apply to Free Exercise claims, such that the Non-Incarcerated
Prisoners cannot claim a right to more searching review of prison regulations
affecting religious liberty than the reasonableness standard applied to their
incarcerated co-religionists.
34
“Courts must evaluate four factors in making the reasonableness
determination: whether the challenged regulation or official action has a valid,
rational connection to a legitimate governmental objective; whether prisoners
have alternative means of exercising the burdened right; the impact on guards,
inmates, and prison resources of accommodating the right; and the existence of
alternative means of facilitating exercise of the right that have only a de minimis
adverse effect on valid penological interests.” Salahuddin v. Goord, 467 F.3d 263,
274 (2d Cir. 2006) (footnote omitted). “The prisoner must show at the threshold
that the disputed conduct substantially burdens his sincerely held religious
beliefs.” Id. at 274–75. “The defendants then bear the relatively limited burden of
identifying the legitimate penological interests that justify the impinging
conduct; the burden remains with the prisoner to show that these articulated
concerns were irrational.” Id. at 275 (internal quotation marks, alteration, and
citation omitted).
Plaintiffs argue that moving Quarterly Meetings from Saturdays to
weekdays “means that some Friends cannot attend because of work
commitments, parental obligations, transportation limitations and age.” Id. at 40.
In support of their position, Plaintiffs point out that “[s]pending extended time
35
together is a basic element of Quaker religious practice because that is how Jesus
taught his disciples to be a loving community.” Appellants’ Br. at 30. Plaintiffs
accordingly contend that DOCCS should modify the Religious Holy Day
Calendar to restore Quarterly Meetings scheduled on Saturdays.
Defendants respond that Plaintiffs have failed to clearly establish that
Defendants’ actions concerning Quarterly Meetings substantially burden
Plaintiffs’ exercise of religion since Defendants rescheduled the meetings for
Friday evenings and did not terminate them. Defendants argue that Plaintiffs’
desire to hold Quarterly Meetings on Saturdays is driven by convenience rather
than religious significance and is therefore insufficient to show a substantial
burden. Moreover, Defendants point out that they sought to accommodate Green
Haven Meeting’s concerns about meeting length by offering to hold at least one
of the four Quarterly Meetings as a special event.
We conclude that Defendants have the better argument. In finding that
Plaintiffs “ha[d] not established a clear likelihood of success in proving that the
restrictions create a substantial burden on their free exercise rights,” the district
court noted that Plaintiffs themselves “describe[d] the moving of the meetings as
an inconvenience.” Sp. App’x at 18. The district court properly cautioned that it
36
was “not making light of the inconvenience.” Id. at 19. Plaintiffs noted that the
scheduling change, inter alia, “restricted the number of participants” at Quarterly
Meetings, “converted a full day (6 hours) religious gathering to 2 hours,” and
“eliminated food from the event.” Appellants' Br. at 41-42. While these are
genuine burdens, particularly in light of the 35-year history of Saturday
Quarterly Meetings in Green Haven without adverse incident, we conclude that
these burdens do not rise to the level of “substantial” burdens on Plaintiffs’
religious exercise, at least in the constitutional sense. Like the district court, we
find it significant that nowhere in the record do Plaintiffs claim that Saturdays
have religious significance in the Quaker community. The point is not that only
restrictions on practices mandated by a prisoner’s religion can be a substantial
burden. To the contrary, we have noted that “[n]either the Supreme Court nor we
. . . have ever held that a burdened practice must be mandated in order to sustain
a prisoner’s free exercise claim.” Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir.
2003). Rather , the point here is that Plaintiffs have failed to establish that
scheduling the Quarterly Meetings on Saturdays (as opposed to any other day)
bears any religious significance whatsoever; the inconveniences they suffer as a
37
result of Defendants' decision, therefore, cannot constitute substantial burdens on
their religious exercise.
The scheduling shift proposed by the Green Haven administration did not
forbid Quarterly Meetings between incarcerated and non-incarcerated Quakers
for communal religious services.7 Unquestionably, holding the services on
weekday evenings rather than Saturdays would inconvenience some of the Non-
Incarcerated Plaintiffs, even to the point that it might be impossible for some of
them to attend. But the particular Non-Incarcerated Plaintiffs have no
constitutional right to have services at Green Haven scheduled to suit their
convenience. Nor does any inconvenience to particular individuals defeat the
ability of inmates and non-inmates to conduct joint services, as other non-
incarcerated Quakers might find a weekday event easier to attend. Thus, the
various rescheduling proposals provided alternative means for Quaker prisoners
and their non-incarcerated brethren to fulfill the religious goal of communal
7
Although Plaintiffs argue that the issue here is the cancellation of the Quarterly
Meetings, the record does not support their claim that the issue should be so conceived. It
is true that after the Incarcerated Plaintiffs rejected the rescheduled meetings proffered by
the administration, the result was that no Quarterly Meetings at all were scheduled. But
that outcome appears to have resulted as much from Plaintiffs’ intransigence as from any
decision of Defendants. There is no indication that Defendants ever rescinded their
various proposals for rescheduled Quarterly Meetings, and Defendants even offered to
hold one of those meetings as a “special event” with extended hours.
38
discussion and worship services, in ways that imposed lessened security risks
and a lesser burden on prison staff than the risks and burden posed by Plaintiffs’
preferred schedule.
Moreover, the record reinforces the district court’s conclusion that
Defendants’ rescheduling decision was supported by legitimate concerns –
specifically, that there were irregularities in attendance at Quarterly Meetings,
excessive call-outs, and overcrowding in the meeting space. Thus, even if we find
that the scheduling changes do create a substantial burden, we conclude that
Defendants have met their “burden of identifying the legitimate penological
interests that justify the impinging conduct.” Salahuddin, 467 F.3d at 275. Here,
the Quarterly Meetings create additional security concerns and disrupt equitable
allocation of scarce staffing and resources, since special events involving outside
visitors require extra security to protect civilian visitors and to maintain safety in
the facility – a burden that is heightened on weekends, when fewer staff
members are on duty. Defendants thus have a legitimate penological interest in
limiting Saturday gatherings. It is possible that other accommodations or
solutions could be imagined that would serve that interest while preserving at
least some Saturday meetings involving non-incarcerated Friends. But as the
39
Supreme Court reminds us, “the realities of running a penal institution are
complex and difficult,” such that “wide-ranging deference [must] be accorded
[to] the decisions of prison administrators.” Jones v. N. C. Prisoners' Lab. Union,
Inc., 433 U.S. 119, 126 (1977). Whatever the result may be once the record is fully
developed in this case, at this stage of the proceedings, we cannot say that
Plaintiffs have established a likelihood of success on the merits.
V. Balance of Equities and the Public Interest
The final consideration in the preliminary injunction analysis concerns
whether the balance of equities tips in favor of granting the injunction and
whether that injunction is in the public interest. Defendants suggest that they
have an important interest in maintaining “institutional order and security” and
proper “allocation of prison resources.” O’Lone, 482 U.S. at 350, 352. While there
is no doubt that Plaintiffs have a strong interest in their religious freedoms, in the
prison setting, we think that on balance, the equities tip on favor of Defendants,
particularly where, as here, Defendants have offered to hold Quarterly Meetings
on any weekday that Plaintiffs choose and continue to support and allocate
resources to the Quaker inmates.
40
Thus, Plaintiffs have not met their burden of showing that a preliminary
injunction is warranted in this case.
CONCLUSION
For the reasons stated above, we agree with the district court that a
preliminary injunction is not warranted. The order of the district court is
therefore AFFIRMED.
41