Misael Cordero v. Gregory Kelley

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1498
__________
MISAEL CORDERO,
Appellant
v.
GREGORY KELLEY, sued in their individual and official capacities; STEPHEN
D’LLIO, in his official capacity; BRUCE DAVIS, in his official capacity
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3:17-cv-01596)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 5, 2022
Before: RESTREPO, PHIPPS and COWEN, Circuit Judges
(Opinion filed: January 24, 2022)
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OPINION*
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Misael Cordero appealed after the District Court granted
summary judgment to the defendants. We will affirm in part and vacate in part the
District Court’s judgment.
I.
Cordero, a former inmate at the New Jersey State Prison (“NJSP”), asserted that
his Christian religion requires him to spread the Word of God and messages of salvation,
which he accomplishes by ordering religious pamphlets to send to friends and family.
Cordero attested to receiving hundreds of pamphlets at a time via mail at NJSP prior to
2015, but, from 2015 to 2017, Gregory Kelley, a correctional officer at NJSP, rejected
three such mailings. Cordero contended that Kelley’s actions violated the Religious Land
Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a) (“RLUIPA”), and the
Free Exercise Clause of the First Amendment, and that Stephen D’Ilio, NJSP’s former
administrator, acquiesced in Kelley’s conduct and violated Cordero’s right of access to
the courts by failing to properly decide his grievance appeals. Cordero, suing Kelley and
D’Ilio in their individual and official capacities, sought injunctive and declaratory relief
and damages.
Screening the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the District Court
dismissed with prejudice Cordero’s claim for money damages against the defendants in
their official capacities and dismissed his access-to-the-courts claim without prejudice for
failure to state a claim. The District Court also substituted Warden Bruce Davis, in his
2
official capacity, for D’Ilio since D’Ilio was no longer administrator of NJSP. See Fed.
R. Civ. P. 25(d) (providing that, when public officer who is a party in his or her official
capacity leaves office while action is pending, “[t]he officer’s successor is automatically
substituted as a party”). The District Court subsequently granted the defendants’ motion
for summary judgment on the remaining claims, concluding that rejection of Cordero’s
bulk religious mail did not violate RLUIPA or the First Amendment. Cordero timely
appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We exercise plenary review
over the District Court’s dismissal order, see Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000), and award of summary judgment, see Blunt v. Lower Merion Sch. Dist., 767
F.3d 247, 265 (3d Cir. 2014). To survive dismissal, a complaint must “state a claim to
1
The Appellees argue that we lack jurisdiction over the District Court’s sua sponte
dismissal of Cordero’s access-to-the-courts claim because it was not identified in his
notice of appeal. We disagree. Although Cordero’s notice of appeal specified only the
District Court’s March 1, 2021 order granting the defendants’ motion for summary
judgment, it can be “fairly inferred” that he intended to appeal the District Court’s earlier
decision addressing the same complaint. Sulima v. Tobyhanna Army Depot, 602 F.3d
177, 184 (3d Cir. 2010); see also Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992) (“We
have held that when an appellant gives notice that he is appealing from a final order,
failing to refer specifically to earlier orders disposing of other claims or other parties does
not preclude us from reviewing those orders.”). Moreover, although the District Court
dismissed the access-to-the-courts claim without prejudice, the order is final for purposes
of § 1291, since Cordero did not amend his complaint or seek leave to do so, and he
maintains that his allegations were sufficient to state a claim. See Frederico v. Home
Depot, 507 F.3d 188, 192-93 (3d Cir. 2007).
3
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
and quotation marks omitted). Summary judgment is appropriate only if, viewing the
evidence in the light most favorable to the nonmovant, “there is ‘no genuine issue as to
any material fact [such] that the moving party is entitled to judgment as a matter of law.’”
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citation omitted); see also
Fed. R. Civ. P. 56(a). We may affirm “on any basis supported by the
record.” See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III.
The District Court properly dismissed Cordero’s “access-to-the-courts” claim.
Prisoners do not have a constitutional right to grievance procedures, see Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001); Flick v. Alba, 932 F.2d 728, 729 (8th Cir.
1991) (per curiam), and a prisoner’s right of access to the courts “is not compromised by
the prison’s refusal to entertain his grievance,” Flick, 932 F.2d at 729. Accordingly, any
alleged failure on the part of D’Ilio to properly consider Cordero’s grievance appeals
does not give rise to a constitutional claim because it did not interfere with his ability to
file a civil rights action in the District Court, as he did here. See Flick, 932 F.2d at 729;
see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per curiam) (reasoning that
prisoners alleging violations of right of access to the courts must show “that they lost a
4
chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim” (citation omitted)).
The District Court thus properly dismissed this claim.2
We will also affirm the District Court’s grant of summary judgment as to
Cordero’s claims for injunctive and declaratory relief under RLUIPA and the First
Amendment, because these claims were mooted by Cordero’s transfer out of NJSP during
the pendency of this action. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003)
(per curiam). Although Cordero suggested that he may return to NJSP because “lifers”
such as himself are often transferred to make space in other facilities, see Dkt. #65 at 26-
27,3 this is speculative, see Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993).
Moreover, Cordero named only NJSP officials in this action and has maintained that he is
challenging discrete actions by the defendants. While the defendants have maintained
that Cordero’s religious pamphlets were confiscated pursuant to policy, they have not
indicated that any policy that may exist reaches beyond NJSP. Thus, any injunction or
declaratory judgment would pertain only to an institution in which Cordero is no longer
imprisoned and thus would not provide meaningful relief. See Abdul-Akbar, 4 F.3d at
206; Jordan v. Sosa, 654 F.3d 1012, 1027-29 (10th Cir. 2011). Additionally, Cordero is
2
In his opening brief, Cordero did not challenge the District Court’s dismissal of his
claims against the defendants in their official capacities insofar as he sought money
damages. He has thus forfeited those claims. See M.S. by & through Hall v.
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020).
3
For purposes of this opinion, we use the pagination given to the parties’ filings by the
CM/ECF docketing system.
5
not entitled to relief under RLUIPA since it does not allow for recovery of money
damages. See Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir. 2012) (“RLUIPA does not
permit an action against Defendants in their individual capacities.”).
As for Cordero’s claim for damages under the First Amendment, the District Court
accepted that Cordero’s pamphlets were rejected pursuant to NJSP policy providing that
bulk religious materials for distribution must be sent through the prison chaplaincy and
upheld the policy upon considering the factors described in Turner v. Safley, 482 U.S. 78,
89-90 (1987).4 However, Cordero has maintained that Kelley was not following any
policy from 2015 to 2017 and that he “is no[t] asking for a policy change[].” Appellant’s
Br. 28. He presented evidence that he obtained orders of 100 to 450 pamphlets at a time
without issue in prior years when they were processed by other correctional officers and
that New Jersey Department of Corrections (“DOC”) regulations generally permit
inmates “to receive through the mail and retain” religious literature without limitations on
quantity. See Dkt. #73 at 5-6, 42. Moreover, he declared that he was advised in 2017
that he could not obtain pamphlets through the chaplaincy since Kelley alleged risk of
distribution to other inmates, and he pointed to a 2016 grievance response providing that
“Religious and Educational materials do not require pre-approval from the
4
The defendants did not dispute that Cordero’s religious beliefs are sincerely held. See
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (en banc) (“[O]nly those beliefs which
are both sincerely held and religious in nature are entitled to constitutional protection.”).
6
Administration.” Id. at 7, 43.5 Cordero also asserted that defendants were unable to
provide information regarding the bulk mail policy in discovery, and that an open records
request submitted to the DOC returned no responsive results. Id. at 8.
Moreover, the defendants did not provide a written policy or describe the bulk
mail restriction or its implementation with specificity. Rather, they submitted a
declaration from a supervisor of NJSP’s chaplaincy services, Jamal El-Chebli, describing
“the procedure in place at this time regarding the receipt of bulk religious materials.” See
Dkt. #56-10 at 7 (emphasis added). The District Court relied substantially on this
declaration in granting summary judgment. But it was dated January 8, 2019—several
years after the events giving rise to Cordero’s claims—and in it, El-Chebli attested that
he did “not know whether bulk religious materials have been received through the [NJSP]
mailroom in the past.” Id. El-Chebli’s declaration therefore does not inform what, if
any, policy existed from 2015 to 2017 when Cordero’s pamphlets were confiscated.
Because the existence of a policy is in dispute based on the current record,
whether Kelley was acting pursuant to policy in rejecting Cordero’s religious mail is also
a matter of dispute. In light of these genuine issues of material fact, summary judgment
on Cordero’s claim for damages under the First Amendment was inappropriate. We will
vacate the judgment as to this claim and remand for further proceedings. If a more
5
Later grievance responses, from 2017, seemed to change course, explaining that
Cordero’s most recent order was rejected because it was received in bulk. Id. at 46, 51.
7
developed record demonstrates that Kelley was acting in accordance with policy at the
time, the District Court may then consider whether application of that policy to Cordero
ran afoul of the First Amendment. Cf. Wolf v. Ashcroft, 297 F.3d 305, 310 (3d Cir.
2002) (noting that “courts of appeals ordinarily remand to the trial court where
the Turner factors cannot be assessed because of an undeveloped record”); DeHart, 227
F.3d at 59-60 (reversing district court’s grant of summary judgment and remanding for
further development of the record and “a more thorough analysis of the reasonableness of
the restriction imposed on [the appellant’s] religious expression”).6 We will therefore
vacate the judgment of the District Court as to Cordero’s First Amendment claim for
damages and remand for further consideration. We will otherwise affirm the District
Court’s judgment.
6
We note that the defendants raised other grounds in support of their motion for
summary judgment, for example non-exhaustion and qualified immunity. The District
Court did not address those arguments, the parties have not raised them in this Court, and
we will not consider them in the first instance on appeal. The District Court is free to
consider them on remand.
8