APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]
The opinion of the court was delivered by: Boudin, Circuit Judge.
Before Torruella, Boudin and Lipez, Circuit Judges.
Seth Bader, an inmate serving a life sentence for murder without the possibility of parole, is currently held at New Hampshire's Northern Correctional Facility located in Berlin, New Hampshire ("NCF-Berlin"). Transferred there from the New Hampshire State Prison in Concord ("NHSP-Concord"), he sued unsuccessfully under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq., seeking a transfer back to NHSP-Concord. The papers and district court hearing reveal the following.
Before he was transferred to NCF-Berlin in December 2010, Bader--an Orthodox Jew--was confined for 12 years at NHSP-Concord and regularly participated in Jewish religious activities. He attended Sabbath services in the prison roughly twice a month, which included prayers, blessings, and the lighting of candles meant to be performed in a group setting. The regular group participating the Sabbath celebration included at least three inmates as well as an outside volunteer. New Hampshire prison regulations require group worship services to be led by the prison chaplain or an approved outside volunteer.
At NHSP-Concord, Bader also regularly participated in the group celebration of Jewish holidays, including Passover, Purim, Yom Kippur, Rosh Hashanah and Chanukah. A local rabbi would attend many of these holiday celebrations each year to help ensure that they were properly celebrated and to assist with the rituals. Aside from these regular group celebrations, Bader also followed dietary restrictions and met individually with a rabbi who visited the prison on a regular basis. The rabbi helped Bader pray with the proper accouterments,*fn1 and also provided counsel and assistance regarding personal and family matters.
On November 26, 2010, Major John Fouts, who serves as the director of security at NHSP-Concord, directed a search of the workplace facilities at the prison where Bader was assigned. At Bader's workstation, officers found classical music CDs and a floppy disk that Major Fouts believed to be for personal use. Bader was "written up" for a disciplinary violation--later dismissed when it was determined that all of the alleged contraband was given to Bader by staff or was in his possession with their approval.
Nevertheless, with the agreement of the warden, Bader was transferred to NCF-Berlin about a week after the incident. Major Fouts testified that Bader was not transferred because of this charge alone, but because Fouts' investigation uncovered "indications that [Bader] had undue influence in other areas of the prison." Fouts said he was concerned, for example, that Bader was accessing material from other parts of the workplace in an inappropriate way, was using the prison's educational facilities beyond what was required and was developing relationships with staff that Bader might exploit later.
At NCF-Berlin, Bader asked the prison chaplain about Jewish services and was told that none were currently offered, as none had been requested. The chaplain then made efforts, largely fruitless, to locate outside volunteers to lead such services. Prior to Bader's lawsuit, which he began several months after his transfer to NCF-Berlin, he had not met with a rabbi or any other volunteer; he had not celebrated any Sabbath services; and with no rabbinical visits, his ability to pray with the Tefillin was curtailed.
Bader acknowledges that between the February 2011 hearing held before the magistrate judge and the filing of his brief on appeal in September 2011, a Jewish cantor apparently conducted an "abbreviated" Seder service at Passover and two rabbinical students met with Bader and another inmate for 15 or 20 minutes in August 2011. But, as of the time of the lawsuit, only one other practicing Jewish inmate was housed at NCF-Berlin, thereby depriving Bader of a congregation with whom to worship.*fn2 NCF-Berlin is located in the less populated northern part of the state, resulting in a lack of volunteers willing to visit both to conduct services and to minister to Bader personally. Berlin is about two hours' drive north from Concord. Rabbi Krinsky and one of two regular volunteers at NHSP-Concord testified at the hearing that they were unable to travel to Berlin to lead services or otherwise minister to Bader because of the travel required.
Bader brought suit under RLUIPA against William Wrenn, Commissioner of the New Hampshire Department of Corrections, challenging his transfer; he sought preliminary and permanent injunctive relief requiring his return to NHSP-Concord, as well as attorneys' fees and costs under 42 U.S.C. § 1988(b). RLUIPA provides in pertinent part that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . 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.
After the preliminary injunction hearing, which adduced the evidence already described, the magistrate judge recommended that the injunction be denied. Centrally, the magistrate judge concluded that
"[t]he government action in transferring Bader to [NCF-Berlin] did not prevent him from receiving [religious] services. The volunteers themselves have been unable to travel to [NCF-Berlin] . . . . [T]hat failure of volunteers to appear, as long as their visits are not ...