Bader v. NH Department of Corrections, Commissioner

Filing 40

///ORDER granting 34 Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Seth Bader,
Plaintiff
v.

Case No. 11-cv-43-SM
Opinion No. 2012 DNH 076

William Wrenn, Commissioner,
New Hampshire Dept. of Corrections,
Defendant
O R D E R
Seth Bader is currently incarcerated in the New Hampshire
state prison system.

He was confined at the State Prison for Men

in Concord for twelve years, but, in December of 2010, Bader was
transferred to the Northern New Hampshire Correctional Facility
in Berlin, New Hampshire (the reasons for the transfer are not
pertinent to this case).

Bader then brought this suit seeking

preliminary and permanent injunctive relief, compelling the State
to move him back to Concord.

Bader says he is entitled to be

returned to Concord because the State violated his rights under
the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc, et seq. (“RLUIPA”) when it transferred him to
the Berlin facility.

Specifically, he claims the transfer

imposed a substantial burden upon his ability to practice his
Jewish faith.

The State moves for summary judgment, asserting that the
facts of record establish, as a matter of law, that it did not
impose a substantial burden on Bader’s exercise of religious
practices.

For the reasons discussed below, that motion is

granted.

Discussion
Bader is an Orthodox Jew who actively practices his
religion, to the extent he is able, within the prison system.
While housed in Concord, he and other inmates participated in a
number of religious programs that were led by lay volunteers,
rabbinical students, and a local rabbi.

He alleges that he

cannot properly perform some religious practices without the
assistance of someone intimately familiar with them, such as a
rabbi.

And, a rabbi who testified in support of Bader, noted

that group worship is an important component of the Jewish faith.

When Bader was transferred to Berlin, prison authorities
attempted to recruit volunteers to assist with Jewish religious
services at the prison.
successful.

Those efforts were only partially

A rabbi and a cantor agreed to visit the prison

during the spring and summer, but prison authorities were unable
to locate volunteers willing to lead group Jewish worship on a
regular basis.

Additionally, during the period of time relevant

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to this action, there was only one other practicing Jewish inmate
at the Berlin facility.

Accordingly, Bader had no congregation

with which to worship.

Bader sought a transfer back to Concord,

which request was denied.

This litigation ensued.

Bader claims that by transferring him to a prison facility
that does not afford the same range of religious services and
practices as are available in Concord, the State violated his
rights under RLUIPA.

That statute provides, in relevant part,

that the government shall not:
impose a substantial burden on the religious exercise
of a person residing in or confined to an institution,
as defined in section 1997 of this title, even if the
burden results from a rule of general applicability,
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.A. § 2000cc-1 (emphasis supplied).

On February 18, 2001, the magistrate judge held a hearing on
Bader’s motion for preliminary injunction.

She later issued a

Report and Recommendation, concluding that Bader failed to show
that the State actually imposed the described burden(s) upon his
religious practices and, therefore, he was unlikely to succeed on
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the merits of his underlying RLUIPA claim.

Accordingly, she

recommended that Bader’s request for preliminary injunctive
relief be denied.

Report and Recommendation (document no. 12).

By order dated May 25, 2011, the court approved the Report and
Recommendation and denied Bader’s request for preliminary
injunctive relief.

Bader appealed, but the United States Court of Appeals for
the First Circuit recently affirmed the decision, observing that:
Bader’s problems at NCF-Berlin derive from a lack of
outside clergy, volunteer visitors, and practicing coreligionists in the prison. Bader does not charge that
the government precludes visits from rabbis or
volunteers or deliberately limits the number of Jewish
prisoners; officials at NCF-Berlin appear to have done
what they can to encourage visitors.
Bader v. Wrenn, __ F.3d __, 2012 WL 1058564 *3 (1st Cir. March
29, 2012).

Accordingly, the court of appeals concluded that

“Bader’s disadvantages in the Berlin prison depend importantly on
proximate actions and decisions not attributable to the
government and are too attenuated from the transfer decision to
be considered government imposed burdens under RLUIPA.”
*4.

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Id. at

Conclusion
In light of the court of appeals’ determination, Bader
cannot demonstrate that the State violated provisions of RLUIPA
when it transferred him from Concord to Berlin.

That is to say,

the circumstances that burden Bader’s ability to practice his
faith while housed in the Berlin facility are not circumstances
for which the State is responsible.

The State is, then, entitled

to judgment as a matter of law and its motion for summary
judgment (document no. 34) is granted.

The Clerk of Court shall

enter judgment in accordance with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
April 23, 2012
cc:

Michael J. Sheehan, Esq.
Laura E. B. Lombardi, Esq.
Nancy J. Smith, Esq.

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