Charles Mack v. Warden Loretto FCI, et al

Filing

PRECEDENTIAL OPINION Coram: MCKEE, Chief Judge*, FUENTES**, and ROTH, Circuit Judges. Total Pages: 42. Judge: FUENTES Authoring, Judge: ROTH, Concurring in part and Dissenting in part. *Judge McKee was Chief Judge at the time this appeal was argued. Judge McKee completed his term as Chief Judge on September 30, 2016. **Honorable Julio M. Fuentes assumed senior status on July 18, 2016. ***Law students were permitted to enter their appearances and participate in oral argument pursuant to Third Circuit L.A.R. 46.3.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-2738
_______________
CHARLES MACK,
Appellant
v.
WARDEN LORETTO FCI, TIM KUHN, Associate Warden,
JEFF STEVENS, Trust Fund Officer, Sued in their Individual
and Official Capacities; D. VESLOSKY, Correctional
Officer, DOUG ROBERTS, Correctional Officer, Sued in
their Individual Capacities
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-10-cv-0264)
District Judge: Hon. Kim R. Gibson
_______________
Argued April 18, 2016

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Before: MCKEE1, Chief Judge, FUENTES, and ROTH,
Circuit Judges
(Opinion Filed: October 11, 2016)
Sean E. Andrussier, Esq.
John Bailey, Law Student
Anne Showalter, Law Student
Russell Taylor, Law Student [ARGUED]
Duke University School of Law
Science Drive and Towerview Road
Box 90360
Durham, NC 27708
Counsel for Appellant

Judge McKee was Chief Judge at the time this appeal was
argued. Judge McKee completed his term as Chief Judge on
September 30, 2016
1



Honorable Julio M. Fuentes assumed senior status on July
18, 2016.


Law students were permitted to enter their appearances and
participate in oral argument pursuant to Third Circuit L.A.R.
46.3.

2

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Jennifer R. Andrade, Esq.
Jane M. Dattilo, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge.
Charles Mack is a Muslim inmate who claims that he
was terminated from his paid work assignment for
complaining to a prison official about two correctional
officers’ anti-Muslim harassment at work. He also claims
that the same officers’ harassment had caused him to refrain
from praying while at work. Mack brought this lawsuit pro
se against various prison employees seeking monetary relief
for alleged violations of his rights under the First
Amendment, Fifth Amendment, and the Religious Freedom
and Restoration Act (“RFRA”). The District Court dismissed
all of Mack’s claims.
Mack’s allegations raise several issues of first
impression in our Circuit, including (1) whether an inmate’s

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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. We answer
all three questions in the affirmative, and therefore conclude
that Mack has sufficiently pled a First Amendment retaliation
claim and a RFRA claim. We agree, however, that Mack’s
First Amendment Free Exercise claim and Fifth Amendment
equal protection claim must be dismissed. We will therefore
affirm in part, vacate in part, and remand to the District Court
for further proceedings.
I.
BACKGROUND
A.
Mack’s Allegations of Anti-Muslim
Harassment
Mack’s pro se complaint includes the following
allegations, which we assume are true for purposes of this
appeal.2 Mack is an inmate at the Federal Correctional
Institution in Loretto, Pennsylvania (“FCI Loretto”). He
worked for pay in the prison’s commissary from
approximately May 2009 until he was terminated in October
Finkelman v. Nat’l Football League, 810 F.3d 187, 190 n.11
(3d Cir. 2016). Because Mack proceeded pro se up until this
appeal, we will also consider his allegations made in response
to the defendants’ motion to dismiss, which incorporate and
are consistent with the allegations in his complaint. See
Hughes v. Rowe, 449 U.S. 5, 9-10 & n.8 (1980) (per curiam)
(considering pro se plaintiff’s amended complaint and
response to the defendants’ motion to dismiss to conclude that
plaintiff sufficiently stated a claim).
2

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2009. His job responsibilities included stocking shelves,
filling inmate commissary orders, and cleaning the work area.
As a practicing Muslim, Mack was provided certain religious
accommodations at work. For example, Mack did not have to
handle pork products at the commissary, he was provided a
suitable area in which he could pray during breaks, and he
was permitted to attend religious services on Friday.3
Defendants Doug Roberts and Samuel Venslosky are
correctional officers at FCI Loretto who were assigned to
supervise the commissary at the time Mack worked there.
They were responsible for the safety and security of the
inmates and the orderly operation of the commissary.
While Mack was at work one day, Officer Roberts
walked up behind him and slapped him hard on the back.
Mack asked Roberts why he had hit him, to which Roberts
responded, “do you have a problem with what I did?”4 Mack
said “yes,” and Roberts declared, “you’ll be looking for
another job soon!”5 Officer Venslosky and other inmates
witnessed this interaction and laughed. The officers and
inmates continued to laugh and snicker at Mack throughout
his shift. When Mack finished work and left the commissary,
a fellow inmate informed him that he had an “I LOVE
BACON” sticker affixed to the back of his shirt. Roberts
3

See, e.g., Williams v. Bitner, 455 F.3d 186, 191-92 & n.6 (3d
Cir. 2006) (recognizing that practicing Muslims do not handle
pork); Williams v. Morton, 343 F.3d 212, 219 (3d Cir. 2003)
(recognizing that practicing Muslims pray five times each
day).
4

Am. Compl. (J.A. Vol. II 56-62) ¶ 14.

5

Id.

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knew that Mack is Muslim and that Islam forbids the
handling and consumption of pork. The next day, Mack
asked Roberts why he had slapped the offensive sticker on his
back. Roberts asked Mack if he had a problem with that, and
then declared again, “don’t worry you’ll be looking for
another job soon!”6 A few days later, while Mack was at
work, Roberts loudly told Mack in the presence of Venslosky
and other inmates that “there is no good Muslim, except a
dead Muslim!”7 Venslosky and other inmates heard this
comment and laughed.
Mack claims that the officers’ anti-Muslim harassment
and animus created a tense work environment and caused him
to fear that he could be harmed at work because of his
religious beliefs. He “continued his work assignment very
carefully and nervously[,] not knowing whether an inmate
commissary worker [might] act out on Defendant Roberts[’]
statement and attempt to physically harm [him] for being
Muslim.”8 While Mack was permitted to pray at work, the
officers’ conduct “created a threatening [and] hostile
environment, that literally caused [him] to change his
behavior in that [he] would no longer pray in that area, and
would wait until he got off work.”9

6

Id. ¶ 17.

7

Id. ¶ 18.

8

Compl. (J.A. Vol. II 33-43) ¶ 35.

9

Mack v. Yost, No. 3:10-cv-264, ECF No. 42 (Pl. Mem. in
Opp’n to Defs.’ Mot. to Dismiss), at 4.

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B.

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Mack’s Complaints to Prison Staff

Seeking redress, Mack spoke with Jeff Stephens, who
was Roberts’ and Venslosky’s supervisor.10 Mack orally
complained to Stephens about Roberts’ anti-Muslim conduct
and statements, and about Venslosky’s inaction during both
incidents. Stephens agreed to “look into it.”11 Approximately
one week later, Venslosky told Mack that he was being fired
from his commissary position for “bringing in other inmates’
commissary slips.”12 Mack replied that this was untrue, and
that the only reason he was being fired was because he had
complained to Stephens. Venslosky did not respond.
Convinced that Venslosky’s reason for firing him was
a sham, Mack located Stephens during his lunch period and
orally complained to him about his termination. Stephens
again responded that he would look into it. When nothing
came of that, Mack filed an inmate request-to-staff form
seeking an explanation in writing for his termination.
Stephens provided Mack with a written response from
Venslosky asserting that Mack was “caught bringing slips in
for inmates.”13 Mack then orally complained to the Warden,
John Yost, during his next lunch period. The Warden

10

Am. Compl. ¶¶ 4, 21.

11

Id. ¶ 21.

Id. ¶ 22. It is unclear from the record what “bringing in
other inmates’ commissary slips” means and why it is a
punishable offense. For purposes of this appeal, this
ambiguity is irrelevant.
12

13

Id. ¶ 26.

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responded, “[w]hat do you expect me to do?”14 Finally,
Mack filed a formal grievance. Deputy Warden Tim Kuhn
repeated the same reason for Mack’s termination in his
response to Mack’s formal grievance. Mack then filed this
federal lawsuit.
C.

Procedural History

Mack filed suit pro se against Roberts, Venslosky,
Stephens, Warden Yost, and Deputy Warden Kuhn for
alleged constitutional violations pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of
Narcotics,15 and for violations of the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”).16 Among
other things, Mack alleged that the defendants violated his
rights under the Petition Clause of the First Amendment,
which protects “the right of the people . . . to petition the
Government for a redress of grievances.”17 In particular,
Mack claimed that he was retaliated against for seeking to
redress his grievances, that is, for orally complaining to
Stephens about Roberts’ and Venslosky’s anti-Muslim
conduct.
The District Court dismissed the complaint for failure
to state a claim under Federal Rule of Civil Procedure
14

Id. ¶ 28.

15

403 U.S. 388 (1971) (recognizing an implied private right
of action for damages against federal officials alleged to have
violated a person’s constitutional rights).
16

42 U.S.C. §§ 2000cc et seq.

17

U.S. Const. amend. I, cl. 4.

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12(b)(6). Mack appealed, and this Court vacated and
remanded.18 We directed the District Court to consider in the
first instance whether an inmate’s oral complaint to prison
staff constitutes protected activity under the First
Amendment’s right to petition.19 We noted that “[f]iling a
formal prison grievance clearly constitutes protected
activity,” but acknowledged that “certain informal, oral
complaints to prison personnel have been held to constitute
protected activity as well.”20 We also explained that Mack’s
allegations “clearly invite inquiry into” whether the
defendants violated Mack’s “First Amendment right to
practice as a Muslim,” and that Mack’s claims should not
have been dismissed without leave to amend.21
At the direction of the District Court, Mack filed an
amended complaint, which largely tracks his original
complaint. Construed liberally, Mack’s amended complaint
raises three constitutional claims and one statutory claim: (1)
First Amendment retaliation, invoking the Petition Clause; (2)
First Amendment Free Exercise Clause violation; (3) Fifth
Amendment equal protection violation; and (4) Religious
Freedom and Restoration Act violation.22 From Roberts and
18

Mack v. Yost, 427 F. App’x 70 (3d Cir. 2011).

19

Id. at 72.

20

Id.

21

Id. at 73.

22

42 U.S.C. § 2000bb-1(a). The District Court properly
construed Mack’s claim under RLUIPA, which does not
apply to federal government actions, as a claim under RFRA,
which does. See Mack v. Yost, 979 F. Supp. 2d 639, 650
(W.D. Pa. 2013) (“Because provisions under the RFRA are

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Venslosky only, Mack seeks back pay plus interest for each
month since he was removed from his commissary position.
He seeks from all defendants $75,000 each in punitive
damages.23
The District Court dismissed Mack’s amended
complaint, too, for failure to state a claim under Rule
12(b)(6). Addressing Mack’s First Amendment retaliation
claim, the District Court held that “[a]n oral complaint to a
prison guard is not a petitioning for the redress of grievances
guaranteed by the First and Fourteenth Amendments.”24 The
Court accordingly dismissed this claim, reasoning that Mack
“had not filed a petition with an administrative agency,
whether by formal or informal means,” until after the alleged
retaliation occurred.25 The District Court also rejected
Mack’s equal protection claim because Mack had not
identified any similarly situated individuals whom prison
officials treated differently.26 As for Mack’s Free Exercise
and RFRA claims, which the District Court construed as
“potential” claims, the District Court held that the defendants
neither intentionally nor substantially burdened Mack’s
‘nearly identical’ to those under the RLUIPA, the Court will
address whether Mack can assert an actionable RFRA claim.”
(internal citations omitted)).
23

Mack sued Stephens, Yost, and Kuhn for damages in both
their individual and official capacities. He has conceded,
however, that federal sovereign immunity precludes him from
suing the officers for damages in their official capacities.
Mack, No. 3:10-cv-264, ECF No. 42, at 12.
24

Mack, 979 F. Supp. 2d at 648.

25

Id.

26

Id. at 646-47.

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religious exercise, and it accordingly dismissed these claims
as well.27
Mack moved for reconsideration under Federal Rule of
Civil Procedure 59(e). The District Court denied that motion,
and Mack appealed. This Court then appointed pro bono
counsel to represent Mack.28

27

Id. at 650-52.

28

We extend our gratitude to the Duke University law
students who have done a commendable job representing
Mack on appeal. We also applaud Mr. Russell Taylor for his
impressive performance representing Mack at oral argument.

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II.

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DISCUSSION29

There are many layers to this case. First, we will
discuss Mack’s First Amendment retaliation claim and the
Government’s corresponding defenses. With respect to this
claim, we conclude that Mack has alleged sufficient facts to
survive a motion to dismiss and that the defendants are not
entitled to qualified immunity at this juncture. We will
dismiss this claim, however, as to Defendants Yost and Kuhn.
Second, we will discuss Mack’s RFRA claim. We
conclude that (i) Mack can properly bring this claim against
prison officers for their individual conduct, (ii) he can seek
monetary damages from the officers, and (iii) his allegations
sufficiently allege a substantial burden on his religious
exercise.

29

The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a district court’s decision dismissing a complaint.
Finkelman, 810 F.3d at 192. We note that “the standards of
review for an underlying dismissal order and for the denial of
a motion for reconsideration of the dismissal order are
functionally equivalent, because we exercise plenary review
of the dismissal order as well as of the legal questions in the
denial of reconsideration.” Wiest v. Lynch, 710 F.3d 121, 128
(3d Cir. 2013).

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Third, we will turn to Mack’s claim under the Free
Exercise Clause. We conclude that there is no available
remedy for Mack under this claim and we will accordingly
dismiss it.
Finally, we will discuss Mack’s equal protection claim.
We conclude that this claim is insufficient to survive a motion
to dismiss.
A.

First Amendment Retaliation Claim

i.
Mack’s First Amendment Retaliation
Claim Against Warden Yost and Deputy Warden Kuhn
Must Be Dismissed
Mack claims that he was retaliated against for orally
complaining to Stephens about Roberts’ and Venslosky’s
conduct. While Mack brings this claim against Warden Yost
and Deputy Warden Kuhn as well, his complaint makes it
clear that he only spoke to these defendants after the alleged
retaliation occurred. There is nothing alleged from which we
can infer that Yost and Kuhn were personally involved in any
purported retaliation. Because plaintiffs in a Bivens suit
“must plead that each Government-official defendant, through
the official’s own individual actions, has violated the
Constitution,”30 Mack’s First Amendment retaliation claim
against Yost and Kuhn must be dismissed.

30

Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).

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ii.
Mack Properly Exhausted His
Administrative Remedies as to His First Amendment
Retaliation Claim
The Prison Litigation Reform Act (“PLRA”) requires
prisoners to exhaust any and all prison grievance remedies
before filing suit in federal court.31 “Failure to exhaust is an
affirmative defense the defendant must plead and prove.”32
The Government contends that Mack’s First Amendment
retaliation claim must be dismissed because Mack did not
exhaust his administrative remedies. It concedes that Mack
described in his formal grievance much of the alleged
wrongdoing in this case. Nevertheless, it argues that because
Mack’s grievance never mentioned his oral complaint to
Stephens about Roberts’ and Venslosky’s anti-Muslim
conduct—the alleged protected speech that forms the basis of
his retaliation claim—this claim was not properly exhausted.
We find this argument unconvincing.
Under the PLRA, a grievance must be described in a
level of detail sufficient to satisfy the prison’s standards.33
The Government describes the Bureau of Prison’s (“BOP”)
procedures as “silent or vague” regarding the level of detail
required in a grievance.34 When this is the case, an inmate’s
31

42 U.S.C. § 1997e(a).

32

Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013).

See Jones v. Bock, 549 U.S. 199, 218 (2007) (“The level of
detail necessary in a grievance to comply with the grievance
procedures will vary . . . but it is the prison’s requirements . . .
that define the boundaries of proper exhaustion.”).
33

34

Gov’t Br. 15.

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grievance must at least “alert[] the prison to the nature of the
wrong for which redress is sought.”35 As the Supreme Court
has explained, “the primary purpose of a grievance is to alert
prison officials to a problem.”36 We think Mack did just that.
Before beginning the formal grievance process, Mack
submitted a form requesting a written reason for his
termination. In his formal grievance, Mack claimed that the
response to his request was vague, and that he was “fired
from [his] job for no reason.”37 He went on to explain the
anti-Muslim harassment he endured at work. When his
grievance was rejected, Mack explained in his appeal that the
prison’s proffered explanation for his termination was a
“cover-up attempt.”38 He claimed that he was fired from his
job for “NO real reason related to [his] work.”39
Mack clearly alerted prison officials to his principal
allegation – i.e., that he was removed from his commissary
position for a pretextual reason. Even if Mack did not detail
his allegedly protected speech, his grievance nonetheless
notified officials that he believed he was unlawfully
terminated from his work assignment as retaliation for
exercising his First Amendment rights. Exhaustion merely
requires “inmates [to] provide enough information about the
conduct of which they complain to allow prison officials to
35

Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002).

36

Jones, 549 U.S. at 219.

37

Mack v. Yost, No. 3:10-cv-264, ECF No. 38-3 (Defs.’ Mot.
to Dismiss Am. Compl.), Ex. 1b, at 2.
38

Id. at 8.

39

Id.

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take appropriate responsive measures.”40 Given this fairly
lenient standard, and with no specific guidance from BOP
grievance procedures, we conclude that Mack exhausted his
administrative remedies before bringing his First Amendment
retaliation claim.
iii.
A Bivens Action Exists for Mack’s
First Amendment Retaliation Claim
The Government next argues that Mack cannot bring a
First Amendment retaliation claim under Bivens. In Bivens,
the Supreme Court “recognized for the first time an implied
private action for damages against federal officers alleged to
have violated a citizen’s [Fourth Amendment] rights.”41
Thus, a Bivens action is a private cause of action for money
damages implied directly from the Constitution.
The
Supreme Court has extended Bivens to two other contexts:
suits brought under the equal protection component of the
Due Process Clause of the Fifth Amendment, and suits
brought under the Cruel and Unusual Punishment Clause of
the Eighth Amendment.42 Although the Supreme Court has

40

Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).

41

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)
(citing Bivens, 403 U.S. 388 (1971)); see also Iqbal, 556 U.S.
at 675-76 (“In the limited setting where Bivens does apply,
the implied cause of action is the federal analog to suits
brought against state officials under . . . 42 U.S.C. § 1983.”
(internal quotation marks and citation omitted)).
42

Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green,
446 U.S. 14 (1980).

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never formally extended Bivens to First Amendment claims,43
it seems to have occasionally assumed that First Amendment
retaliation claims can proceed under Bivens.44 Our Court,
however, has explicitly recognized a Bivens action when a
prisoner has been retaliated against for exercising his or her
First Amendment right to petition.
In Paton v. La Prade,45 we held that a Bivens action
may be implied directly from the First Amendment.46
Relying on this general principle, we held in Milhouse v.
Carlson47 that a Bivens action was available to an inmate who
was harassed and transferred to a less desirable prison cell
43

See Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012)
(“We have never held that Bivens extends to First
Amendment claims.”).
44

See Hartman v. Moore, 547 U.S. 250, 256 (2006) (noting
that “the law is settled that as a general matter the First
Amendment prohibits government officials from subjecting
an individual to retaliatory actions . . . for speaking out,” and
stating that “[w]hen the vengeful officer is federal, he is
subject to an action for damages under the authority of
Bivens”); see also George v. Rehiel, 738 F.3d 562, 585 n.24
(3d Cir. 2013) (stating that “we will proceed on the
assumption that there is a Bivens cause of action for First
Amendment retaliation claims” (citing Hartman, 547 U.S. at
256)).
45

524 F.2d 862 (3d Cir. 1975).

Id. at 870 (“[W]e believe the extension of the Bivens rule to
violations of first amendment rights to be both justifiable and
logical.”).
46

47

652 F.2d 371 (3d Cir. 1981).

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location in retaliation for filing a lawsuit against prison
officials.48 Interpreting the pro se complaint as alleging a
violation of the First Amendment right of access to the courts,
we explained that “[p]ersons in prison, like other individuals,
have the right to petition the Government for redress of
grievances.”49 This right “must be freely exercisable without
hindrance or fear of retaliation.”50 Similarly, in Mitchell v.
Horn,51 we held that a Bivens action was available to an
inmate who was falsely charged with misconduct in
retaliation for exercising his First Amendment petition
rights.52 In light of these cases, we reject the Government’s
plea to not “extend” Bivens to Mack’s First Amendment
retaliation claim. Our precedents make clear that, in this
context, a Bivens action is already available.
iv.
Mack’s Oral Complaint to Stephens
was Constitutionally Protected
We next address whether Mack has sufficiently
pleaded a First Amendment retaliation claim. “A prisoner
alleging retaliation must show (1) constitutionally protected
conduct, (2) an adverse action taken by prison officials
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights, and (3) a causal link
between the exercise of his constitutional rights and the
48

Id. at 373-74.

49

Id. at 373.

50

Id. at 374.

51

318 F.3d 523 (3d Cir. 2003).

52

Id. at 530-31.

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adverse action taken against him.”53 The previous panel of
this Court to address Mack’s retaliation claim found the latter
two elements satisfied: adverse action in the form of loss of
employment, and a causal connection because Mack claims
he was fired one week after engaging in the allegedly
protected conduct.54 The panel remanded to the District
Court to determine whether Mack’s oral grievance to
Stephens was constitutionally protected under the Petition
Clause, and the District Court held that it was not. We
disagree.
The Petition Clause embraces a broad range of
communications, and the availability of its protections has
never turned on a perceived distinction between written and
oral speech.55 Both the Free Speech Clause and the Petition
Clause protect “personal expression” – both expression
generally and expression directed towards the government for
the specific purpose of asking it to right a wrong.56 In this
context, form is secondary to content.
53

Id. at 530 (internal quotation marks omitted and
punctuation modified).
54

Mack, 427 F. App’x at 72-73.

55

See, e.g., Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir.
2006) (“Nothing in the First Amendment itself suggests that
the right to petition for redress of grievances only attaches
when the petitioning takes a certain form.”).
56

See Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379,
388 (2011) (“Beyond the political sphere, both speech and
petition advance personal expression, although the right to
petition is generally concerned with expression directed to the
government seeking redress of a grievance.”).

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The Government concedes that some informal, oral,
and even non-verbal expressions of grievances to the
government are protected under the Petition Clause.57 It
argues, however, that an oral grievance lodged by a prisoner,
in particular, should not be entitled to constitutional
protection. The Government stresses that prison is a unique
setting in which inmates and guards are in constant and often
contentious contact with each other. In its view, holding that
every oral complaint by a prisoner to a prison guard is
constitutionally protected would provide too many
opportunities for prisoners to lodge frivolous lawsuits.
While we appreciate the Government’s concerns, we
are not persuaded that an oral grievance should not receive
constitutional protection solely because it is lodged by a
prisoner as opposed to a civilian. It is well-established that
inmates do not relinquish their First Amendment right to
petition by virtue of being incarcerated.58 It is also true, as
the Government emphasizes, that an inmate only “retains
those First Amendment rights that are not inconsistent with
57

See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S.
886, 909 (1982) (boycott of merchants was protected activity
under Petition Clause); Brown v. Louisiana, 383 U.S. 131,
136 (1966) (silent protest at racially segregated library was
protected activity under Petition Clause); Edwards v. South
Carolina, 372 U.S. 229, 235 (1963) (peaceful march and
demonstrations were protected activity under Petition
Clause); Holzemer v. City of Memphis, 621 F.3d 512, 520-23
(6th Cir. 2010) (business owner’s oral, informal request to
city councilman regarding his company’s ability to park at
city venue was protected activity under Petition Clause).
58

See Turner v. Safley, 482 U.S. 78, 84 (1987).

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his status as a prisoner or with the legitimate penological
objectives of the corrections system.”59 But under the facts
alleged, there is no reason for us to think that the First
Amendment rights Mack seeks to vindicate here are
incompatible with his status as a prisoner.
Mack’s allegations make clear that he complained to
Stephens for the specific purpose of seeking redress. His
complaint concerned a prison guard’s conduct that the prison
itself proscribes—religious harassment.60 His complaint was
not obscene or inappropriate. In fact, the Government
concedes that Mack’s oral grievance was “minimally
disruptive and arguably valuable.”61 And Mack complained
almost immediately after the harassment occurred,
undermining any contention that Mack formulated some sort
of plan to lodge a complaint in order to bring a frivolous
lawsuit. In short, Mack’s 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. Under the circumstances of this case, these factors
lead us to conclude that Mack’s oral grievance is entitled to
constitutional protection.
Significantly, moreover, prison officials at FCI Loretto
may have actually encouraged inmates to communicate their
concerns orally. BOP procedures require inmates to present
an issue “informally to staff” before filing a formal grievance,
59

Pell v. Procunier, 417 U.S. 817, 822 (1974).

60

See 28 C.F.R. § 548.15.

61

Gov’t Br. 25.

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and require wardens to “establish procedures to allow for the
informal resolution of inmate complaints.”62 FCI Loretto’s
inmate handbook explains that, “Executive Staff and
Department Heads regularly stand mainline at the lunch meal
and you are encouraged to bring legitimate concerns to their
attention.”63 We can reasonably assume that this is why
Mack approached Stephens and Yost in person during his
lunch hour. It would be illogical to allow prison officials to
retaliate against Mack for his oral complaint if FCI Loretto
encourages the type of informal resolution that Mack
attempted.
To our knowledge, only one other circuit has
addressed this specific issue. In Pearson v. Welborn,64 the
Seventh Circuit held that an inmate’s oral complaints to
prison guards about the use of shackles in group therapy and
the denial of yard time were constitutionally protected under
the Petition Clause.65 The court explained that “[n]othing in
the First Amendment itself suggests that the right to petition
for redress of grievances only attaches when the petitioning
takes a specific form.”66 And while “certain types of
‘petitioning’ would be obviously inconsistent with
62

See 28 C.F.R. 542.13(a).

U.S. Dep’t of Justice, Fed. Bureau of Prisons, FCI Loretto
Inmate Admission and Orientation Handbook, 14 (May
2015), available at
https://www.bop.gov/locations/institutions/lor/LOR_aohandb
ook.pdf (emphasis added).
63

64

471 F.3d 732.

65

Id. at 741.

66

Id.

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imprisonment (marches or group protests, for example),”67
the inmate’s oral complaints in that case did not fall into that
category. We find the Seventh Circuit’s rationale to readily
apply to the circumstances of this case.68
For these reasons, we conclude that Mack’s oral
grievance to Stephens regarding the anti-Muslim harassment
he endured at work constitutes protected activity under the
First Amendment.69

67

Id.

68

See also Williams v. Wahner, 731 F.3d 731, 734 (7th Cir.
2013) (“Many prisoners can explain themselves orally but not
in writing. They may be illiterate in English, or they may
simply be such poor writers that they can’t convey their
thoughts other than orally.”).
69

The Government urges us to impose a public concern
requirement on oral grievances in the prisoner-work context.
In the public employment context, public employees who
assert First Amendment free speech or right to petition claims
against their government employers must show that their
speech addressed a matter of public concern. See Connick v.
Myers, 461 U.S. 138, 145-48 (1983); Guarnieri, 564 U.S. at
398-99. We have explicitly stated, however, that the rationale
for the public/private concern distinction in the public
employment context does not apply in other contexts,
including prison settings. Eichenlaub v. Twp. of Indiana, 385
F.3d 274, 284 (3d Cir. 2004). Several other circuits have held
the same. See, e.g., Watkins v. Kasper, 599 F.3d 791, 795
(7th Cir. 2010); Friedl v. City of New York, 210 F.3d 79, 87
(2d Cir. 2000).

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v.
Roberts, Venslosky, and Stephens are
Not Entitled to Qualified Immunity
The remaining question we must answer with respect
to Mack’s First Amendment retaliation claim is whether
Roberts, Venslosky, and Stephens are entitled to qualified
immunity.70 “[G]overnment officials performing discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”71 To be clearly
established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.”72 “The dispositive question is
whether the violative nature of particular conduct is clearly
established.”73 That is not to say that qualified immunity
applies “unless the very action in question has previously
been held unlawful,” only that “in light of pre-existing law
the unlawfulness must be apparent.”74

70

Because the District Court found no First Amendment
retaliation violation, it did not address whether the officers
were entitled to qualified immunity. As this issue is purely a
question of law at this stage, we address it in the first
instance.
71

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

72

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

73

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(internal quotation marks omitted).
74

Anderson, 483 U.S. at 640.

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We have long recognized that prisoners have a right to
be free from retaliation for exercising their First Amendment
right to petition. Indeed, “[r]etaliating against a prisoner for
the exercise of [any of] his constitutional rights is
unconstitutional.”75
Retaliatory termination is clearly
unlawful, both inside and outside the prison context.76 The
fact that the officers retaliated against Mack before he
reduced his grievance to writing is inconsequential. While
we have never held before today that a prisoner’s oral
grievance, in particular, is constitutionally protected, we have
certainly never suggested that such a grievance is entitled to
lower protection than one reduced to writing. And there are
myriad cases outside the prison context that make no
distinction between oral and written grievances.77 Thus we
have little doubt concluding that prisoners’ oral grievances
are indeed entitled to constitutional protection. A reasonable
official in the prison officers’ position should therefore have
known that retaliating against Mack for exercising his right to
petition, whether in the form of an oral or written grievance,
was unlawful.78 This is especially so if the prison actually
encourages its inmates to communicate their concerns orally.
75

Bistrian, 696 F.3d at 376.

76

Although prisoners have no liberty or property interest in
prison employment, James v. Quinlan, 866 F.2d 627, 629-30
(3d Cir. 1989), it is unlawful to terminate a prisoner’s
employment in retaliation for them having exercised a
constitutional right, see Rauser v. Horn, 241 F.3d 330, 333
(3d Cir. 2001).
77

See supra note 57.

See, e.g., Holzemer, 621 F.3d at 529 (“[N]o reasonable
officer could believe that retaliation for the exercise of a First
78

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Because we conclude that Mack has sufficiently stated
a First Amendment retaliation claim, and that the remaining
defendants are not entitled to qualified immunity, we will
vacate the District Court’s dismissal of this claim and remand
to the District Court for further proceedings.
B.

Religious Freedom and Restoration Act

Claim
We next address Mack’s claim that the prison officers’
anti-Muslim conduct violated RFRA, which prohibits the
government from “substantially burden[ing] a person’s
exercise of religion.”79 Mack brings this claim against only
Officers Roberts and Venslosky in their individual capacities.
He alleges that their anti-Muslim harassment and hostility
towards him caused him to refrain from praying at work.
These allegations are sufficient to state a claim under RFRA.
i.

RFRA’s Remedial Scope

Mack’s claim raises two threshold questions: (1)
whether RFRA is the appropriate vehicle for relief when the
challenged government action is an official’s individual
conduct, as opposed to a law, regulation, or policy, or conduct
pursuant to such; and (2) whether RFRA allows a litigant to
Amendment right is permitted when that exercise takes the
form of speech but is not permitted when the same expression
is written.”); Pearson, 471 F.3d at 742 (“[W]e think a
reasonable public official in [the defendant’s] position would
understand that retaliating against a prisoner on the basis of
his [oral] complaints about prison conditions is unlawful.”).
79

42 U.S.C. § 2000bb-1(a).

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sue a government official for money damages. We answer
both questions in the affirmative.
Congress enacted RFRA “in order to provide very
broad protection for religious liberty.”80 RFRA prohibits the
“Government” from “substantially burden[ing] a person’s
exercise of religion even if the burden results from a rule of
general applicability,” unless the “Government” can
“demonstrate[] that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that
compelling governmental interest.”81 The statute explicitly
provides a private cause of action against the “government”
for “appropriate relief.”82 “Government” is defined as
“includ[ing] a branch, department, agency, instrumentality,
and official (or other person acting under color of law) of the
United States.”83
The plain language of RFRA establishes that a plaintiff
may bring claims for “appropriate relief” against “persons,”
either federal “officials” or those acting under color of federal
law, whose individual conduct substantially burdens one’s
religious exercise. Nothing in the text of RFRA suggests that
the “official” or “person” must be acting in furtherance of an
official policy. This interpretation is consistent with the

80

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760
(2014).
81

42 U.S.C. § 2000bb-1(a)-(b).

82

Id. § 2000bb-1(c).

83

Id. § 2000bb-2(1) (emphasis added).

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Supreme Court’s view of RFRA’s “[s]weeping coverage.”84
According to the Court, RFRA “intru[des] at every level of
government, displacing laws and prohibiting official actions
of almost every description and regardless of subject matter,”
and its restrictions apply to “every agency and official of the
Federal Government[].”85
Our conclusion that RFRA permits suits against
individual officers for their ultra vires acts is reinforced by
the similarities between RFRA and 42 U.S.C. § 1983.
Section 1983 creates a private cause of action against
“person[s]” acting “under color of [state law]” whose
individual conduct violates a plaintiff’s constitutional rights.86
Under § 1983, state officials or private persons acting under
color of state law may be held liable for their personal
unlawful conduct, irrespective of the existence or nonexistence of an unconstitutional law, regulation, or policy.
Because RFRA’s definition of “government” tracks the
language of § 1983, it is reasonable to assume that liability
can be imposed similarly under both statutes. Indeed, several
of our sister circuits have concluded that this word choice was
not coincidental and that Congress intended for courts to
borrow concepts from § 1983 jurisprudence when construing

84

City of Boerne v. Flores, 521 U.S. 507, 532 (1997).

Id. In fact, it is this “sweeping coverage” that led the Court
to invalidate RFRA as applied to the states for exceeding
Congress’s enforcement power under the Fourteenth
Amendment. Id. at 532-34.
85

86

42 U.S.C. § 1983.

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RFRA.87 As the Ninth Circuit has explained, “[w]hen a
legislature borrows an already judicially interpreted phrase
from an old statute to use in a new statute, it is presumed that
the legislature intends to adopt not merely the old phrase but
the judicial construction of that phrase.”88 Under this
presumption, RFRA, like § 1983, provides for relief from
individual government conduct whether or not it is
undertaken pursuant to an official rule or policy. Thus,
contrary to the Government’s contentions, Mack’s failure to
challenge a prison policy or regulation does not defeat his
RFRA claim.
We also read RFRA as providing for monetary relief
from officers who commit unlawful conduct.89 Under
87

See, e.g., Listecki v. Official Comm. of Unsecured
Creditors, 780 F.3d 731, 738 (7th Cir. 2015), cert. dismissed,
136 S. Ct. 581 (2015) (applying § 1983 “under color of” law
analysis to determine whether private defendant was the
“government” for purposes of RFRA); Sutton v. Providence
St. Joseph Med. Ctr., 192 F.3d 826, 834-35 (9th Cir. 1999)
(same).
88

Sutton, 192 F.3d at 834-35 (quoting Long v. Director,
Office of Workers’ Comp. Programs, 767 F.2d 1578, 1581
(9th Cir. 1985)).
89

Although we have never held before today that damages
suits are available under RFRA, we and several other circuits
have assumed this to be the case. See, e.g., Jama v. Esmor
Corr. Servs., Inc., 577 F.3d 169, 174 (3d Cir. 2009)
(assuming RFRA damages were available against corporate
and individual defendants when reviewing attorney fee
award); Mack v. O’Leary, 80 F.3d 1175, 1177 (7th Cir. 1996),
cert. granted, judgment vacated on other grounds, 522 U.S.

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RFRA’s judicial relief provision, persons whose religious
exercise has been substantially burdened by the government
may “obtain appropriate relief against a government.”90 The
statute does not define “appropriate relief.” Hence we look to
the traditional presumption articulated in Franklin v.
Gwinnett County Public Schools91 that “any appropriate
relief” is available unless Congress expressly indicates
otherwise.92

801, district court partially aff’d, 1998 WL 416151 (7th Cir.
1998) (assuming that prisoner was entitled to sue prison
officials for damages under RFRA because the statute defines
“government” to include government employees); Brown v.
Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 538 (1st Cir.
1995), abrogation on other grounds recognized by Martinez
v. Cui, 608 F.3d 54, 63-64 (1st Cir. 2010) (assuming that
damages were available under RFRA in concluding that
RFRA does not apply retroactively to plaintiffs’ claim for
damages).
90

42 U.S.C. § 2000bb-1(c).

91

503 U.S. 60 (1992).

92

Because Mack brings his RFRA claim against only Officers
Roberts and Venslosky in their individual capacities, the
federal government’s sovereign immunity to suits for
damages is irrelevant here. Cf. Davila v. Gladden, 777 F.3d
1198, 1210 (11th Cir. 2015), cert. denied sub nom. Davila v.
Haynes, 136 S. Ct. 78 (2015) (“Congress did not
unequivocally waive its sovereign immunity in passing
RFRA. RFRA does not therefore authorize suits for money
damages against officers in their official capacities.”).

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In Franklin, the Supreme Court considered whether
Title IX of the Education Amendments of 1972, which the
Court previously held creates an implied right of action,
provides for damages relief.
The Court applied the
longstanding presumption that, “absent clear direction to the
contrary by Congress, the federal courts have the power to
award any appropriate relief in a cognizable cause of action
brought pursuant to a federal statute.”93 “Finding no express
congressional intent to limit the remedies available under the
implied right of action, the Court held that compensatory
damages were available” under Title IX.94
The same presumption applies here – more so, we
think, because Congress expressly stated that a claimant may
obtain “appropriate relief” against the government – the exact
language used in Franklin. Congress enacted RFRA one year
after Franklin was decided and was therefore well aware that
“appropriate relief” means what it says, and that, without
expressly stating otherwise, all appropriate relief would be
available.95 Of course, the relief has to be appropriate vis-àvis the purposes of the statute. As we have explained, the
93

Franklin, 503 U.S. at 70-71.

94

Sossamon v. Texas, 563 U.S. 277, 288 (2011) (citing
Franklin, 503 U.S. at 73).
95

See Availability of Money Damages Under the Religious
Freedom and Restoration Act, 18 Op. O.L.C. 180, 183 (1994)
(“Because RFRA’s reference to ‘appropriate relief’ does not
clearly exclude money damages, there is a strong argument
that under the Franklin standard money damages should be
made available to RFRA plaintiffs in suits against nonsovereign entities.”).

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purposes of RFRA are to provide broad religious liberty
protections. We see no reason why a suit for money damages
against a government official whose conduct violates RFRA
would be inconsistent with those purposes.
Our conclusion is bolstered, again, by the similarities
between RFRA and § 1983, which has long provided for
money damages against state officials sued in their individual
capacities.96 We are unmoved, however, by the similarities in
the text of RFRA and its sister statute, RLUIPA, which we
have held does not provide for damages against state officials
sued in their individual capacities.97 Although the judicial
relief provision in RLUIPA mirrors that in RFRA,98 RLUIPA
was enacted pursuant to Congress’s powers under the
Spending Clause, thereby allowing Congress to impose
certain conditions, such as civil liability, on the recipients of
federal funds, such as state prison institutions.99 Because
state officials are not direct recipients of the federal funds,
and thus would have no notice of the conditions imposed on
them, they cannot be held individually liable under
RLUIPA.100 RFRA, by contrast, was enacted pursuant to

96

United States ex rel. Jones v. Rundle, 453 F.2d 147, 150
n.11 (3d Cir. 1971) (“Money damages may constitute
appropriate relief in Section 1983 cases.” (citing Monroe v.
Pape, 365 U.S. 163, 187 (1961))).
97

See Sharp v. Johnson, 669 F.3d 144, 154-55 (3d Cir. 2012).

98

See 42 U.S.C. § 2000cc-2(a).

99

Sharp, 669 F.3d at 154.

100

Id. at 154-55.

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Congress’s powers under the Necessary and Proper Clause
and thus does not implicate the same concerns.101
For these reasons, we conclude that federal officers
who violate RFRA may be sued in their individual capacity
for damages.
ii.
Mack Has Alleged a Substantial
Burden on His Religious
Exercise
We now address the merits of Mack’s RFRA claim.
To establish a prima facie case under RFRA, Mack must
allege that the government (1) substantially burdened (2) a
sincere (3) religious exercise.102 The Government does not
dispute the sincerity of Mack’s exercise of his religious
beliefs. Thus, the only issue is whether Mack has sufficiently
alleged a substantial burden on his religious exercise.
Although RFRA does not explicitly define the term
“substantial burden,” we have explained that a substantial
burden exists where (1) “a follower is forced to choose
101

We are also unmoved by the conclusion of one district
court that RFRA does not provide for damages against
individual officers because that form of relief was unavailable
under the Supreme Court jurisprudence that RFRA sought to
restore. See Tanvir v. Lynch, 128 F. Supp. 3d 756, 777-78
(S.D.N.Y. 2015). As noted by the Supreme Court in Hobby
Lobby, RFRA provides “even broader protection for religious
liberty than was available” previously. 134 S. Ct. at 2761 n.3.
102

See Gonzales v. O Centro Espirita Beneficiente Uniao do
Vegetal, 546 U.S. 418, 428 (2006).

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between following the precepts of his religion and forfeiting
benefits otherwise generally available to other inmates versus
abandoning one of the precepts of his religion in order to
receive a benefit;” or (2) “the government puts substantial
pressure on an adherent to substantially modify his behavior
and to violate his beliefs.”103
Mack argues that the combination of Officer Roberts’
anti-Muslim harassment and Officer Venslosky’s tacit
approval created a hostile work environment that caused him
to stop praying at work. We can reasonably infer from these
allegations that Mack previously was in the practice of
praying at work before the harassment took place. Although
Mack concedes that the officers did not directly command
him to cease praying, a burden can be “substantial” even if it
involves indirect coercion to betray one’s religious beliefs.104
Because we think the indirect pressure the officers placed on
Mack may very well have substantially burdened his religious
exercise, we conclude that his allegations are sufficient to
survive a motion to dismiss. We will therefore vacate the
District Court’s dismissal of Mack’s RFRA claim and remand
to the District Court for further proceedings.

103

Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).
Although Klem examined the definition of “substantial
burden” in the context of RLUIPA, the two statutes are
analogous for purposes of the substantial burden test.
See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 450 (1988) (“[I]ndirect coercion or penalties on the
free exercise of religion, not just outright prohibitions, are
subject to scrutiny under the First Amendment.”).
104

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Free Exercise Claim

Next, we address Mack’s claim that the prison
officers’ anti-Muslim conduct violated his First Amendment
right to freely exercise his religion.105 Mack seeks only
monetary relief, asserting that he has an implied right of
action for damages pursuant to Bivens. But neither the
Supreme Court nor this Court has ever extended Bivens to
Free Exercise claims. In view of RFRA’s broad protections
for religious liberty, we decline to do so here.
The Supreme Court in Wilkie v. Robbins106 set forth a
two-part framework for considering whether to extend Bivens
to new contexts. First, we ask whether there is an alternative
remedial scheme available to the plaintiff and, if so, whether
the existing scheme “convinc[es]” us to refrain from
providing a new, freestanding damages remedy.107 If not,
then we consider whether “special factors” counsel hesitation
in creating a new cause of action for damages.108 “Special
factors” typically relate to the question of who should decide
whether and how a remedy should be provided.109 We must
keep in mind, however, that “‘Congress is in a far better

105

The Free Exercise Clause of the First Amendment
provides that “Congress shall make no law . . . prohibiting the
free exercise [of religion.]” U.S. Const. amend. I, cl. 1.
106

551 U.S. 537 (2007).

107

Id. at 550.

108

Id.

109

See Bush v. Lucas, 462 U.S. 367, 380 (1983).

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position than a court to evaluate the impact of a new species
of litigation’ against those who act on the public’s behalf.”110
Mack’s argument fails at step one because the
religious liberty protections provided by RFRA strongly
militate against creating a Bivens action for Free Exercise
claims. As detailed in our preceding section, RFRA provides
Mack with a comprehensive remedial scheme for violations
of substantial burdens on his religious exercise. Indeed,
“Congress enacted RFRA in order to provide greater
protection for religious exercise than is available under the
First Amendment.”111 Under RFRA, burdens on religious
exercise need not be intentional, only substantial. And, as we
have explained, RFRA provides claimants with all
“appropriate relief” for such violations. Given this alternative
remedial scheme, we can conceive no adequate justification
for extending Bivens to Free Exercise claims. We will
therefore affirm the District Court’s dismissal of Mack’s Free
Exercise claim.
D.

Equal Protection Claim

Finally, we address Mack’s equal protection claim
under the Fifth Amendment.112 To state an equal protection
110

Wilkie, 551 U.S. at 562 (quoting Bush, 462 U.S. at 389).

111

Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015).

112

Although the Fifth Amendment does not contain an equal
protection clause, the Supreme Court has construed the Fifth
Amendment’s Due Process Clause as containing an equal
protection guarantee. See Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 616 (1991).
Accordingly, “Fifth
Amendment equal protection claims are examined under the
same principles that apply to such claims under the

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claim, Mack must allege that he was treated differently than
other similarly situated inmates, and that this different
treatment was the result of intentional discrimination based
on his membership in a protected class, such as religious
affiliation.113
Mack did not specifically raise an equal protection
claim in his amended complaint, though he argued in his first
complaint that he was denied equal protection of prison
regulations and/or policies.114 He elaborated in his opposition
to the defendants’ motion to dismiss that he was “targeted”
and “singled out . . . due to his faith, and that no other inmate
who[] worked in the commissary was treated with hostility
because of their religion.”115 On appeal, Mack contends that
these allegations, construed liberally, support two plausible
inferences: (1) that the defendants terminated him from his
work assignment because of his religion, and (2) that the
defendants harassed him because of his religion.
Even construing his pleadings liberally, we are not
convinced that Mack has sufficiently stated a claim for
discriminatory termination based on his religion.
His
allegations certainly make out the claim that he was fired
because he complained of the anti-Muslim harassment against
him: “Plaintiff then stated . . . ‘[t]he only reason I’m being
Fourteenth Amendment.” Abdul-Akbar v. McKelvie, 239
F.3d 307, 317 (3d Cir. 2001).
113

See Hassan v. City of New York, 804 F.3d 277, 294, 298
(3d Cir. 2015).
114

Compl. 1.

115

Mack, No. 3:10-cv-264, ECF No. 42, at 5.

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fired is because I spoke to [Defendant] Mr. Stevens [sic]
about what Mr. Roberts did and said to me.’”116 But we find
it much harder to construe his pleadings as making out the
claim that he was fired because he is Muslim, or that the
officers’ anti-Muslim animus played a role in their decision to
fire him.
Mack’s discriminatory harassment claim fares no
better. Mack alleges two instances of discriminatory conduct
by Officer Roberts – first placing the Islam-offensive sticker
on his back, and then shouting that “there is no good Muslim
except a dead Muslim.” While these instances certainly
provide strong evidence of Roberts’ anti-Muslim animus,
they do not, standing alone, state an equal protection
violation.117 We will therefore affirm the District Court’s
dismissal of Mack’s equal protection claim.
III.

CONCLUSION

At first blush, this case may seem to lack merit. But
Mack’s allegations, taken as true, raise legitimate concerns
about how he was treated in prison. This case has also raised
116

Am. Compl. ¶ 23. See id. ¶ 35 (alleging that Roberts and
Venslosky “retaliate[d] against [Mack] by firing him from the
commissary job, because of plaintiff exercising his right to
seek redress by way of (oral) grievance”).
117

In other words, the behavior that Mack sets forth in his
complaint – i.e., two instances of anti-Muslim harassment –
does not force us to confront whether and to what extent
persistent harassment may make out a claim for an equal
protection violation. We are confident that two instances of
harassment are insufficient.

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several unsettled issues about how or if a litigant such as
Mack may obtain relief. For reasons we have explored, we
conclude that Mack’s First Amendment retaliation and RFRA
claims may proceed, and his First Amendment Free Exercise
and Fifth Amendment equal protection claims may not. We
will therefore affirm in part, vacate in part, and remand to the
District Court for further proceedings consistent with this
Opinion.

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Mack v. Yost, et al.,
No. 14-2738
_________________________________________________
ROTH, Circuit Judge, concurring in part and dissenting in
part:
I respectfully dissent from the holding of the majority
in Part II A of its opinion that Mack has stated a First
Amendment retaliation claim against defendants Roberts and
Venslosky. I believe that, with regard to a retaliation claim
made by the inmate of a prison, oral complaints should not be
considered protected conduct under the First Amendment.
Oral complaints, unlike written grievances, do not create a
record. In fact, oral complaints may generate uncertainty
about the content, or even the existence, of the grievance. In
addition, a written complaint better provides notice to prison
officials about the nature of the grievance and the individuals
implicated in it.1 This written notice is important because, in
the prison setting, inmates constantly interact with multiple
prison officials, and “virtually any adverse action taken
against a prisoner by a prison official—even those otherwise
not rising to the level of a constitutional violation—can be
characterized as a constitutionally proscribed retaliatory act.”2

1

Johnson v. Johnson, 385 F.3d 503, 526-27 (5th Cir. 2004)
(letters and forms filed by inmate provided prison officials
notice of the substantial risk that inmate faced for his safety).
2
Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal
quotations omitted).

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Drawing a line between oral, informal complaints and
written, formal grievances reflects some of the difficulties in
the administration of prisons and in the handling inmate
grievances. Congress had these concerns in mind when it
enacted the Prison Litigation Reform Act, which directs
inmates to comply with the correctional institution’s policy
on grievance resolution.3 The institution’s policy here, found
in the Loretto inmate handbook, directs that inmates file
written grievances; the handbook makes no mention of oral
complaints.
As we set out above, the logic behind encouraging
written rather than oral complaints is obvious when viewed in
the context of effective administration of the prison grievance
system. The majority’s conclusion that an oral, informal
complaint constitutes protected conduct under the First
Amendment renders the administration of grievance
procedures more difficult and risks vastly increasing the
number of prisoner lawsuits involving retaliation claims.
Furthermore, our precedent is clear that written
grievances do constitute protected conduct under the First
Amendment. In Milhouse, we held that the inmate stated a
claim that he was subjected to a conspiratorially planned
series of disciplinary actions as retaliation for initiating a civil
rights suit against prison officials.4 In Bistrian, we concluded
that the inmate stated a claim that prison officials confined
him in the segregated housing unit in retaliation for written
complaints he filed through his attorney.5
A written
3

42 U.S.C. § 1997e(a) (2000).
Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981).
5
Bistrian v. Levi, 696 F.3d 352, 362-63 (3d Cir. 2012).
4

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grievance protects the prisoner as well as the prison
administration.
In conclusion, considering the policy behind the Prison
Litigation Reform Act’s requirement that a grievance be in
writing and that it comply with the correctional institution’s
policy, along with the Loretto inmate handbook’s requirement
that grievances be in writing, I find that these requirements
are “legitimate penological objectives of the corrections
system.”6
I consider, therefore, that it is not a violation of a
prisoner’s First Amendment rights to require that any
grievance that would form the basis for a retaliation claim be
in writing and to refuse to find a retaliation claim arising from
an oral complaint. Thus, I would affirm the District Court’s
dismissal of the First Amendment retaliation claim.
I do, however, join the majority in its holding in Part
II B that the allegations of the RFRA violation survive a
motion to dismiss and that that claim should be remanded to
the District Court. I also join the majority in its holding in
Part II C and D that the District Court’s dismissal of the First
Amendment Free Exercise claim and the RLUIPA claim be
affirmed.

Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding that in
the First Amendment context “a prison inmate retains those
First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological
objectives of the corrections system.”).
6

3