Barnes v. Fedele et al
Filing
226
DECISION AND ORDER Nuttall's motion for summary judgment 219 is granted. Barnes's cross motion for summary judgment 221 is denied. The sole remaining part of Barnes's complaint is, therefore, dismissed with prejudice. Signed by Hon. David G. Larimer on 12/21/2021. Copy of this Decision and Order sent by First Class Mail to plaintiff Arrello Barnes on 12/20/2021 to his address of record. (KAH)-CLERK TO FOLLOW UP-
Case 6:07-cv-06197-DGL Document 226 Filed 12/21/21 Page 1 of 15
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ARRELLO BARNES,
DECISION AND ORDER
Plaintiff,
07-CV-6197L
v.
FEDELE, et al.,
Defendants.
________________________________________________
INTRODUCTION
Pro se plaintiff Arrello Barnes (“Barnes”) filed this lawsuit in 2007, while he was confined
at Southport Correctional Facility (“Southport”), alleging claims pursuant to 42 U.S.C. § 1983,
based on the Free Exercise Clause of the First Amendment, and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., against various officials
and employees of the New York State Department of Corrections and Community Supervision
(“DOCCS”)1. (Dkt. ## 1; 89 at 4).
Since that time, various decisions from this Court and the Court of Appeals for the Second
Circuit have whittled down both the number of claims and the number of defendants. See Barnes
v. Fedele, 2014 WL 11460504 (W.D.N.Y. 2014) (the “2014 Decision”), aff’d in part & vacated in
part sub nom., Barnes v. Furman, 629 F. App’x 52 (2d Cir. 2015) (summary order) (the “2015
1
All relevant events in this case occurred when DOCCS was known as the New York State Department of
Correctional Services (“DOCS”). In each of my prior decisions regarding Barnes’s claims, I therefore chose to refer
to this entity as “DOCS.” When Barnes last appealed, however, the Second Circuit used “DOCCS” when referring to
this entity. For consistency, I will now do the same herein.
Case 6:07-cv-06197-DGL Document 226 Filed 12/21/21 Page 2 of 15
Decision”); Barnes v. Fedele, 337 F. Supp. 3d 227 (W.D.N.Y 2018) (the “2018 Decision”), aff’d
in part & vacated in part, 813 F. App’x 696 (2d Cir. 2020) (summary order) (the “2020 Decision”),
cert. denied, 141 S. Ct. 884 (2020); see also Barnes v. Fedele, 760 F. Supp. 2d 296 (W.D.N.Y.
2011). Familiarity with this case’s factual background discussed in these prior decisions and its
lengthy procedural history are assumed, and will be discussed only in relevant part, infra.
As it stands now, Barnes’s remaining claim concerns DOCCS’s denial to him of the
opportunity to wear his Tsalot-Kob (religious headwear also referred to as a “crown”) while at
Southport in 2007, a determination made pursuant to a version of DOCCS Directive 4202 (the
“Directive”) effective at that time. The last defendant remaining in this case is John Nuttall
(“Nuttall”), the former Deputy Commissioner for Program Services for DOCCS, who signed the
Directive on May 12, 2004. Of all the original defendants, Nuttall is the only one who was
involved in the creation of the Directive.
Pending now is Nuttall’s motion for summary judgment and Barnes’s cross motion for
summary judgment, both filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt.
## 219; 221). The principal issue raised in each motion is, again, whether Nuttall is entitled to
qualified immunity for his role in the creation of the Directive. More to the point, the Court must
decide whether it was objectively reasonable for Nuttall to believe, when he signed the Directive
in 2004, that the Directive was lawful.
For the following reasons, I find that Nuttall is entitled to qualified immunity as a matter
of law, and therefore grant his motion for summary judgment. Barnes’s cross motion for summary
judgment is denied and his complaint is therefore dismissed.
2
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BACKGROUND2
A.
Facts
1.
Nuttall and DOCCS Directive 4202
In his position as Deputy Commissioner of Program Services for DOCCS, Nuttall was
responsible for “overseeing the drafting and reviewing of directives pertaining to DOCCS Program
Services.” (Dkt. # 219-4 at ¶¶ 3, 5). This included oversight of “directives pertaining to religious
headwear,” such as Directive 4202, entitled “Religious Programs and Practices.” (Id. at ¶¶ 5, 13;
see also Dkt. # 219-2). Although Nuttall has “no independent recollection of drafting” the
Directive (Dkt. # 219-4 at ¶ 14), it is clear that he signed it on May 12, 2004 (see Dkt. ## 219-6 at
¶ 1; 221 at 2, ¶¶ 1, 3).
Section “M” of the Directive regulated inmates’ wearing of religious headwear, examples
of which included Kufis, Yarmulkes, Tsalot-Kobs, Fezzes, and Khimars, and “permitted [inmates]
to wear religious headcoverings in accordance with their religious beliefs and as permissible in a
correctional setting.” (Dkt. ## 219-2 at 7; 219-6 at ¶¶ 5, 9). In relevant part, this section of the
Directive only permitted inmates who were members of the Rastafarian faith to wear Tsalot-Kobs,
described as “hemispheric head cap[s] that can be made of cloth, knitted or crocheted,” and which
“measure[] approximately 12 [inches] long at [their] longest point in order to cover all
[dread]locks.” (Dkt. ## 219-2 at 7; 219-6 at ¶ 6).
2
The following facts, which are undisputed unless otherwise noted, are drawn from the parties’ Rule 56 Statements
and relevant exhibits cited therein, which include evidence in the record that was submitted on previous summary
judgment motions, (see Dkt. ## 219-6 (Nuttall’s Rule 56 Statement); 221 at 2 (Barnes’s Rule 56 Statement); 224-1
(Nuttall’s response to Barnes’s Rule 56 Statement)), as well as the prior decisions cited above. I note that neither
party submitted a proper statement of facts pursuant to Rule 56(a) of the Local Rules of Civil Procedure. For instance,
and rather unhelpfully, few of Nuttall’s statements (and none of Barnes’s statements) are supported with citations that
“identify with specificity the relevant page and paragraph or line number of the evidence cited.” W.D.N.Y. LOCAL R.
CIV. P. 56(a)(1). Moreover, Barnes entirely failed to submit a statement opposing Nuttall’s statement of facts, see
W.D.N.Y. LOCAL R. CIV. P. 56(a)(2), even though he did submit a Rule 56 Statement in support of his own motion.
These technical errors notwithstanding, after reviewing the parties’ papers and the relevant portions of the record, it
is clear that they do not dispute the facts material to the resolution of the remaining issues in this case.
3
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According to Nuttall, “[o]ne purpose of the Directive[] was to maintain the safety and
security of the correctional facility, while at the same time allowing incarcerated individuals the
right to practice their religion.” (Dkt. # 219-4 at ¶ 15). As Nuttall explains, “[h]ead coverings of
any kind pose a potential risk to staff and incarcerated individuals at the correctional facility”
because “[c]ontraband, including weapons, may be concealed in head coverings or in an
individual’s hair.” (Id. at ¶ 16). Thus, Nuttall continues, “[t]he Directive[] w[as] drafted in an
effort to balance safety and security with the ability of incarcerated individuals to freely practice
their religion.” (Id. at ¶ 17). In his summary judgment submissions, Barnes does not dispute any
of these representations.
Nuttall also states that the Directive was drafted “with the aid of legal counsel, namely
DOCCS Office of Counsel, and [he] relied on their legal advice,” as well as in “coordination with
religious leaders of all faiths, including the Board of Rabbis, Council of Churches and Catholic
Conference of New York.” (Id. at ¶¶ 19-20). In 2007, Nuttall believed that the Directive was “in
full compliance with the Constitution of the United States.” (Id. at ¶ 18).
2.
DOCCS’s Denial to Barnes of his Tsalot-Kob
As of August 15, 2006, and continuing through the relevant period, Barnes was registered
with DOCCS as a member of the Jewish faith.3 (See Dkt. # 219-6 at ¶ 10). On that basis, certain
of the former defendants confiscated Barnes’s Tsalot-Kob in January 2007 and provided it to thenSouthport Chaplain Theresa Stanley. (See id. at ¶¶ 11-15). Stanley “advised that the confiscated
[Tsalot-Kob] was not the proper headwear for a Jewish inmate,” and that because Barnes was
registered as a member of the Jewish faith, “only a yarmulke was approved [as religious headwear],
not a Crown.” (Id. at ¶¶ 16, 18).
3
As the Second Circuit has noted previously, “at various times, Barnes was registered as Muslim, Hebrew Israelite,
Jewish, Rastafarian, Protestant, and Nation of Islam.” Barnes, 629 F. App’x at 55 n.2.
4
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Barnes filed several prison grievances regarding the confiscation of his Tsalot-Kob,
complaining in part that a “Yarmulk[e] [was] too small to fit on [his] dreadlocks,” and that “[a]s a
Jewish person [he] must keep [his] headcover [on] all [the] time.” (Dkt. # 121 at 304). See also
Barnes, 629 F. App’x at 55 (noting Barnes’s contention “that a Tsalot-Kob was more appropriate
than a yarmulke because it fit over his extensive dreadlocks”).
Barnes’s grievances were
ultimately denied because the Directive only permitted Rastafarian inmates to wear Tsalot-Kobs,
and Barnes was not registered as Rastafarian. (See Dkt. # 219-6 at ¶ 20).
Throughout January and February 2007, Barnes also wrote several letters to various
DOCCS officials and employees concerning the denial of his ability to wear a Tsalot-Kob,
including Nuttall. (Id. at ¶ 21). In response, Nuttall informed Barnes, among other things, that
according to DOCCS’s religious advisors, the New York State Board of Rabbis, the “religious
head covering for the Jewish faith [was] a yarmulke.” (Dkt. # 219-5 at 1; see also Dkt. # 121 at
372-74).
Based on this advice, Nuttall believed that the Directive “did not allow Jewish
incarcerated individuals [such as Barnes] to wear religious head coverings other than a yarmulke,”
and that Barnes’s wearing of a Tsalot-Kob was therefore not consistent with the Directive. (Dkt.
# 219-4 at ¶¶ 21-25).
Barnes previously represented to this Court that DOCCS returned his Tsalot-Kob in
January 2008, see Barnes, 337 F. Supp. 3d at 230, and DOCCS represented to the Second Circuit
that it “has since changed its policy [embodied in the Directive] to remove the limitation that
Tsalot-Kobs be worn by Rastafarians only,” Barnes, 629 F. App’x at 55. This case has therefore
focused on the period of time when DOCCS confiscated Barnes’s Tsalot-Kob pursuant to a policy
that is no longer in effect.
5
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B.
Procedural History
1.
The 2014 Decision
In 2014, this Court determined that the Directive violated Barnes’s free exercise rights
under the First Amendment and the RLUIPA “insofar as it was enforced to prevent [him] from
adopting the religious crown specific to [his] sincerely-held beliefs, and permitted by [DOCCS]
for use by other religious adherents.” Barnes, 2014 WL 11460504 at *6. I noted at that time that
Barnes had “testified as to his sincere belief that the practice of his faith included the wearing of a
religious crown, and [DOCCS] d[id] not dispute the sincerity of that belief.”
Id. at *5.
Nonetheless, I held that all defendants, including Nuttall, were entitled to qualified immunity on
this claim, and granted summary judgment on that basis. See id. at *6-7.
Qualified immunity was appropriate, in my view, because there was no “clearly
established” law in 2004 “which would have informed the individual defendants that [the
Directive] w[as] unconstitutional or violative of RLUIPA when applied to [Barnes].” Id. That is,
defendants could have reasonably believed that their conduct in denying Barnes his Tsalot-Kob
did not violate a clearly established constitutional or statutory right because “[t]here [was] no
evidence that any of the defendants had reason to question the propriety of the [Directive] . . . and
research reveal[ed] no case law invalidating such [a] regulation[] that pre-existed the facts
presented here.” Id. at *7.
2.
The 2015 Decision
The Second Circuit disagreed that each defendant was entitled to qualified immunity as a
matter of law for the various roles they played in denying Barnes his Tsalot-Kob. See Barnes, 629
F. App’x at 55-57. In doing so, the Circuit initially laid out the right at issue in this case by
confirming that its “earlier decisions have clearly established that prison officials may not prohibit
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a sincere religious practice without some legitimate penological interest.” Id. at 56. In evaluating
the reasonableness of defendants’ conduct in the qualified immunity context, the Circuit noted the
importance of differentiating between those defendants who merely “follow[ed]” the Directive and
the defendants “responsible” for it. Id. at 57.
Ultimately, the Circuit’s decision to vacate my initial award of summary judgment to
defendants on qualified immunity grounds rested on an evidentiary gap in the record that existed
at that time; defendants had “not identified any penological interests supporting” the Directive,
and it was thus “not apparent whether there was a legitimate penological reason to limit only
Tsalot-Kobs to inmates registered as Rastafarian.” Id. As a result, the Circuit “c[ould not] say as
a matter of law that it was objectively reasonable for th[e] defendants to believe that denying a
Tsalot-Kob to an inmate registered as Jewish was constitutional,” and remanded for further
development of the record. Id.
3.
The 2018 Decision
On remand, it was my view, based on a supplemented factual record and the Second
Circuit’s reasoning in the 2015 Decision, that each defendant was entitled to qualified immunity
on Barnes’s claims relating to the denial of his Tsalot-Kob. See Barnes, 337 F. Supp. 3d at 23135. As far as penological interests supporting the Directive, I noted defendants’ reliance on the
declaration of Paul Chappius (“Chappius”) – the Deputy Superintendent of Security at Southport
in 2007 – who claimed that “the reason for the [Directive] was that Tsalot-Kobs c[ould] easily be
used to hide contraband, such as drugs and weapons” and that DOCCS thus “sought to limit the
number of inmates who were allowed to wear Tsalot-Kobs.” Id. at 233. According to Chappius,
“the more inmates wearing crowns, the longer it t[ook] to search the inmate population to find the
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contraband,” and therefore, the Directive “was designed to make the operation of the correctional
facility more efficient.” Id. (brackets and quotations omitted).
As I stated then, “[b]y any measure, reducing the risk of smuggled-in contraband is a
legitimate penological objective.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979), and
Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 573 (6th Cir. 2013)). Still, the “chief
question” for qualified immunity purposes was “whether defendants could reasonably have
thought that the means they adopted or used to effect those ends were constitutionally permissible.”
Id.
In answering this question in the affirmative, I recognized the distinction drawn by the
Second Circuit in the 2015 Decision between Nuttall, who was the only defendant responsible for
the creation of the Directive, and all other defendants, whose involvement amounted to following
an established DOCCS policy. Id. at 232. As for Nuttall, I determined that:
Until this Court and the Court of Appeals held that a policy restricting Tsalot-Kobs
to Rastafarians [was] constitutionally infirm, Nuttall could reasonably have
believed that such a restriction was constitutionally permissible, given the
legitimate penological interest in reducing the risk of smuggling contraband into
prisons. The policy was apparently intended to accommodate inmates’ religious
rights, while still taking account of genuine and serious security needs. That Nuttall
may not have foreseen courts’ eventual disapproval of that policy on constitutional
grounds [as described in the 2014 Decision] does not make his endorsement of the
policy objectively unreasonable. . . .
In this case, it does not appear that any higher courts had held, prior to Nuttall’s
‘signing off’ on Directive 4202, that religious headwear could not lawfully be
restricted to members of particular religions. Nuttall cannot be held accountable in
damages for failing to prognosticate that courts might later so hold.
Id. at 234. I therefore granted summary judgment in favor of Nuttall on the basis of qualified
immunity. See id. at 234-35.
8
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4.
The 2020 Decision
On appeal, the Second Circuit affirmed the dismissal of this case against all defendants
except for Nuttall; all other defendants were protected by qualified immunity. See Barnes, 813 F.
App’x at 700-701. In doing so, the Circuit reiterated the “clearly established” right at issue, that
“[p]risons may abridge [an inmate’s free exercise rights] ‘if reasonably related to some legitimate
penological interests,’” id. at 700 (citing Ford v. McGinnis, 352 F.3d 582, 594 (2d Cir. 2003)), and
agreed that “[p]reventing the flow of contraband in prison is certainly a legitimate penological
interest,” id. (citing Wolfish, 441 U.S. at 559-60, and Sec. & Law Enf’t Emps., Dist. Council 82,
Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Carey, 737 F.2d 187, 204 (2d Cir. 1984)).
Still, as to Nuttall, the Circuit reasoned that:
Importantly, Nuttall was the only Defendant involved in creating the Directive, yet
he did not provide a declaration explaining the penological purpose behind its
creation. Indeed, he did not provide any declaration. Nevertheless, the district
court imputed the penological interest articulated by Chappius onto Nuttall. This
was error, as nothing in the record sets forth Nuttall’s motivation or thinking. As
we indicated [in the 2015 Decision], the analysis for the Defendants who merely
applied the Directive is different than the analysis for the Defendant who
implemented it. It is possible, after all, that Chappius’s ‘understanding’ of the
policy was not aligned with Nuttall’s reason for signing the Directive. Accordingly,
on the record before us, Nuttall is not entitled to summary judgment.
Id. at 701 (citations and footnote omitted). The Circuit thus remanded the case “for further
proceedings consistent with [its] order.” Id.
5.
The Current Procedural Posture
Following the Second Circuit’s mandate that was filed on August 18, 2020 (Dkt. # 211),
Nuttall renewed his motion for summary judgment on August 23, 2021 (see Dkt. ## 215; 217;
219). As referenced above, and unlike defendants’ prior motions, Nuttall’s renewed motion
includes his signed declaration (see Dkt. # 219-4), purportedly to resolve the issue identified in the
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2020 Decision. Barnes filed his cross motion for summary judgment on August 30, 2021. (Dkt.
# 221). Both pending motions are opposed. (Dkt. ## 224; 225).
DISCUSSION
A.
Legal Standard
Qualified immunity shields a government official from liability for civil damages “if his
conduct did not violate plaintiff’s clearly established rights or if it would have been objectively
reasonable for the official to believe that his conduct did not violate plaintiff’s rights.” Mandell v.
Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). In assessing the applicability of this defense,
the court “must look to both the clarity of the law establishing the right allegedly violated as well
as whether a reasonable person, acting under the circumstances the[n] confronting a defendant,
would have understood that his actions were unlawful.” Ford, 352 F.3d at 596-97 (quotations
omitted). The issues on qualified immunity are thus “(1) whether plaintiff has shown facts making
out [a] violation of a constitutional right; (2) if so, whether that right was ‘clearly established’; and
(3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the officer
to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013) (citation omitted).
“Even where the plaintiff’s federal rights and the scope of the official’s permissible conduct
are clearly established, the qualified immunity defense protects a government actor if it was
‘objectively reasonable’ for him to believe that his actions were lawful at the time of the challenged
act.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citation omitted). “The objective
reasonableness test is met – and the defendant is entitled to immunity – if officers of reasonable
competence could disagree on the legality of the defendant’s actions.” Id. (quotations omitted).
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In this way, qualified immunity “gives government officials breathing room to make reasonable
but mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quotations omitted).
Moreover, the defense of qualified immunity “is often best decided on a motion for
summary judgment.” Walker v. Schult, 717 F.3d 119, 130 (2d Cir. 2013) (collecting cases). An
official is entitled to summary judgment on qualified immunity grounds when “no reasonable jury,
looking at the evidence in the light most favorable to, and drawing all inferences most favorable
to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant to believe
that he was acting in a fashion that did not clearly violate an established federally protected right.”
Lennon, 66 F.3d at 420 (brackets and quotations omitted). “An officer’s actions are objectively
unreasonable when no officer of reasonable competence could have made the same choice in
similar circumstances.” Id. at 420-21. Therefore, “if the court determines that the only conclusion
a rational jury could reach is that reasonable officers would disagree about the legality of the
defendants’ conduct under the circumstances, summary judgment for the officers is appropriate.”
Id. at 421.
B.
Analysis
At the outset, I note that I do not read the 2020 Decision as entirely foreclosing the
possibility of Nuttall’s entitlement to qualified immunity as a matter of law. Much like the 2015
Decision, the 2020 Decision’s analysis with respect to Nuttall focused on an evidentiary gap in the
record as it then existed – specifically, the absence of any declaration from Nuttall, himself,
“explaining the penological purpose behind” the Directive – which the Second Circuit believed
prevented it from assessing the reasonableness of Nuttall’s involvement in the creation of the
Directive. Barnes, 813 F. App’x at 701. Without any such evidence, the Circuit expressed concern
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over “imput[ing] the penological interest [supporting the Directive] articulated by Chappius onto
Nuttall.” Id. Given the difference between the former defendants, such as Chappius, “who merely
applied the Directive,” and Nuttall, who endorsed the Directive, it was “possible . . . that
Chappius’s ‘understanding’ of the policy . . . was not aligned with Nuttall’s reason for signing the
Directive.” Id. (emphasis supplied). So, at the time of the Circuit’s 2020 Decision, there was an
evidentiary gap in the record concerning Nuttall’s reasoning and rationale for implementing the
Directive.
That evidentiary gap has now been closed. Nuttall’s declaration submitted in support of
his summary judgment motion clearly sets forth the purpose for creating the Directive in 2004. In
my view, this new evidence warrants a finding that Nuttall is shielded by qualified immunity on
Barnes’s First Amendment and RLUIPA claims.
As mentioned, the evidentiary record is more complete and developed to specifically
include a declaration from Nuttall. (See Dkt. # 219-4). Significantly, Nuttall’s declaration
explains that at least one of the purposes underlying the Directive was to “maintain the safety and
security of the correctional facility, while at the same time allowing incarcerated individuals the
right to practice their religion.” (Id. at ¶ 15). “[A]ny kind” of head covering, Nuttall states,
“pose[s] a potential risk to staff and incarcerated individuals at the correction facility,” because
“[c]ontraband, including weapons, may be concealed in head coverings or in an individual’s hair.”
(Id. at ¶ 16). Nuttall confirms that the Directive was thus aimed to “balance safety and security
with the ability of incarcerated individuals to freely practice their religion.” (Id. at ¶ 17).
Based on the amplified record, I am still of the view that Nuttall is entitled to qualified
immunity for his role in the creation of the Directive in 2004. For purposes of this analysis, the
relevant question is whether it was objectively reasonable for Nuttall to believe that the Directive
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was constitutionally permissible when he signed it over seventeen years ago, in light of the
penological interest he proffers as justification for the Directive. See Barnes, 813 F. App’x at 700;
Barnes, 629 F. App’x at 56-57. For many of the same reasons I discussed in my 2018 Decision, I
find that it was objectively reasonable for Nuttall to have believed this.
Nuttall has now confirmed – from his own perspective and in his own words – that the
Directive was developed to balance dual interests: safety and security concerns in the prison
setting, such as the concealment of contraband, including weapons, in inmates’ head coverings, on
the one hand, and inmates’ ability to freely practice their religion, on the other. It follows from
this express rationale that the limiting of Tsalot-Kobs to only inmates of the Rastafarian faith (and,
by extension, denying the ability of non-Rastafarian inmates to wear Tsalot-Kobs), as the Directive
did at the relevant time, was designed, at least in part, to curb the risks associated with the
concealment and presence of contraband in prison, as well as, naturally, the effort necessary to
search for any such contraband. Nuttall’s reason for signing the Directive thus effectively mirrors
Chappius’s previously articulated understanding for the Directive, who was well aware of safety
and security concerns in the prison setting as Deputy Superintendent of Security at Southport. (See
Dkt. # 219-6 at ¶¶ 7-8 (referencing Dkt. # 194-4 at ¶ 11)). Accordingly, the Directive served a
legitimate penological interest. See Barnes, 813 F. App’x at 700 (“[p]reventing the flow of
contraband in prison is certainly a legitimate penological interest”) (citing Wolfish, 441 U.S. at
559-60, and Carey, 737 F.2d at 204).
Moreover, it was reasonable for Nuttall to believe, at the time he signed it, that the Directive
struck the appropriate balance between the important interests at stake and was lawful. Nuttall
relied on the advice and counsel of DOCCS Office of Legal Counsel and “religious leaders of all
faiths” in signing the Directive. (Dkt. # 219-4 at ¶¶ 19-20). In addition, as I have previously
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observed, at the time Nuttall signed the Directive, “it does not appear that any higher courts had
held . . . that religious headwear could not lawfully be restricted to members of particular
religions.” Barnes, 337 F. Supp. 3d at 234.
Given, then, that the Directive was rooted (according to Nuttall, himself) in a legitimate
penological interest, and in spite of the fact that the Directive was eventually found to violate
Barnes’s constitutional and statutory rights4, Nuttall could reasonably have believed in May 2004
that the restrictions contained in Directive were constitutionally permissible.
Accordingly, I find that “no reasonable jury . . . could conclude that it was objectively
unreasonable for [Nuttall] to believe that he was acting in a fashion that did not clearly violate an
established federally protected right.” Lennon, 66 F.3d at 420. Therefore, I grant Nuttall’s motion
for summary judgment on qualified immunity grounds. Furthermore, because Barnes’s cross
motion for summary judgment is based entirely on the argument that Nuttall is not entitled to
qualified immunity (see generally Dkt. # 221), an argument I reject in this decision, I deny
Barnes’s motion.
4
As I stated in the 2018 Decision, “[t]he fact that this Court and the Court of Appeals later found that the policy
[embodied in the Directive] of limiting crowns to self-identified Rastafarians, and allowing only yarmulkes for Jews,
violated [Barnes’s] First Amendment rights, does not mean that the defendants – even those responsible for the policy
[i.e., Nuttall] – are not entitled to qualified immunity.” Barnes, 337 F. Supp. 3d at 233. “The whole point of qualified
immunity is that in certain circumstances, a defendant can be immune from liability in spite of a constitutional
violation; in other words, the application of the doctrine presumes that there has been a violation of the plaintiff’s
rights, in the first place.” Id. (emphasis in original) (citing Duffy v. Wallace, 737 F. App’x 591, 591-92 (2d Cir. 2018)
(summary order)).
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CONCLUSION
For all the reasons stated above, Nuttall’s motion for summary judgment (Dkt. # 219) is
granted. Barnes’s cross motion for summary judgment (Dkt. # 221) is denied. The sole remaining
part of Barnes’s complaint is, therefore, dismissed with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 21, 2021.
15
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