In Wiggins v. Griffin, (2d Cir., Nov. 20, 2023), the U.S. 2nd Circuit Court of Appeals vacated and remanded a New York federal district court's dismissal of a suit against prison officials by a Baptist inmate who contends that his exercise of religion was burdened when there was a delay of over five months in updating the call-out list for Protestant religious services after plaintiff was moved to a new cellblock. Plaintiff was unable to attend religious services until the list was updated. Because one of the 3 judges on the appeals panel died after argument, the case was decided by a 2-judge panel. The court held that it did not need to decide whether plaintiff needed to show a "substantial burden" or just a "burden" on his free exercise rights since there was evidence from which a jury could find a substantial burden and defendants conceded that a substantial burden was present. In a concurring opinion, Judge Menashi said in part:
In an appropriate case, we should hold that a prisoner alleging a violation of the Free Exercise Clause under § 1983 need only show a burden on sincerely held religious beliefs—not a “substantial” burden that involves showing that the beliefs are “central.” Three decades is too long for federal judges to be telling litigants which of their religious beliefs are “unimportant.”
The court remanded the case for a jury determination of whether defendants had qualified immunity, saying in part:
[A] jury may find that one or more Defendants purposefully ignored or delayed processing Wiggins’s requests, seeking to deny his participation in communal worship, or may have been deliberately indifferent to Wiggins’s requests. In such a scenario, they would have violated Wiggins’s clearly established right.... But, on the other hand, a Defendant may have simply missed Wiggins’s requests or failed to take extra steps to ensure they were processed. If so, qualified immunity may be appropriate.
The court went on to decide the state of mind necessary to show a violation of the 1st Amendment's free exercise clause:
The First Amendment‘s command that government not “prohibit” the free exercise of religion... “connotes a conscious act, rather than a merely negligent one,”.... Given this understanding of the First Amendment, isolated acts of negligence cannot violate an individual’s free exercise of religion in this context....
Although mere negligence cannot support a First Amendment free exercise claim, we have previously held that deliberate indifference “clearly suffices.”...
With these principles to guide us, we affirm the district court’s dismissal of the claim against [prison Superintendent] Griffin. Wiggins sent Griffin two letters. Although Griffin left one letter unanswered, he quickly acted upon the second. ... [T]his evidence ... establishes (at most) that Griffin acted negligently in response to the first letter. Such a showing is insufficient. Whether the record suffices to permit a finding that any of the remaining [three] defendants were deliberately indifferent poses a closer question. Instead of single acts of negligence, the record contains sufficient evidence to allow a jury to conclude that one or more of the remaining defendants repeatedly failed to redress Wiggins’s exclusion from the call-out list....
