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A prisoner who objects to the religious nature of Alcoholics Anonymous cannot be required to participate in AA as a condition of becoming eligible for parole, a federal judge has ruled. And in a second victory for Pennsylvania prisoner Henry Rauser, a federal appeals court has now revived his claim of retaliation in which he alleged that prison officials moved him to a distant prison, far from his family, and put him in a much lower paying job after he complained about AA. The appellate court did not directly address the religious nature of AA because prison officials never appealed the decision by U.S. District Judge William L. Standish that said a policy of requiring AA violates the Establishment Clause of the First Amendment. Instead, the only issue on appeal in Rauser v. Horn was whether Standish had erred in dismissing Rauser’s retaliation claim because he had no “protected liberty interest” in early parole, prison wages or a specific place of confinement. A unanimous three-judge panel reversed, saying, “The relevant question is not whether Rauser had a protected liberty interest in the privileges he was denied, but whether he was denied those privileges in retaliation for exercising a constitutional right.” Senior U.S. Circuit Judge Max Rosenn said the case presented a question of first impression on the issue of the burden of proof that a prisoner must shoulder when he alleges that prison officials have retaliated against him for exercising his constitutional rights. Rauser is an inmate serving his eighth year of a five- to 10-year sentence for a drug-related offense. In 1997, while housed at the state prison at Camp Hill, Rauser became eligible for parole. But prison officials said he was required to complete a series of behavioral programs before he would be recommended for release. Among the programs was AA and/or NA (Narcotics Anonymous). As Judge Rosenn put it, both programs “are centered on a belief in a Supreme Being and require participants to accept God as a treatment for their addictions.” Rauser objected to continuing in AA or NA on the basis of his own religious beliefs. In spite of this objection, prison officials refused to consider recommending him for parole unless he participated. Rauser was never offered a non-religious alternative until after he filed suit. Rauser claims prison officials took three actions in retaliation for his insistence on religious freedom. He was transferred from Camp Hill, Pa., to Waynesburg, Pa., far from his home and family. And when he arrived at Waynesburg, he learned that his job classification had been reduced from the highest to the lowest, resulting in a dramatic loss of his already paltry pay — from 41 cents per hour to 18 cents. U.S. Magistrate Judge Francis X. Caiazza of the Western District of Pennsylvania issued a report that said the AA/NA requirement violated the Establishment Clause and recommended that prison officials be ordered to allow Rauser to decline to participate in religious programs and that his non-participation could not affect his parole eligibility. But Caiazza also recommended that Rauser’s retaliation claim be dismissed. Judge Standish adopted all of Caiazza’s findings and conclusions. On appeal, Rauser’s lawyer, professor Jon Romberg of the Seton Hall University School of Law in Newark, N.J., argued that Rauser had a valid claim of retaliation since he was punished for exercising his First Amendment rights. Romberg said the lower court had erred in focusing on the liberty interests since the proper focus of a retaliation claim is the motive of the defendants. The 3rd Circuit agreed, citing one of its own recent cases which held that “government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for the exercise of a constitutional right.” As a result, Rosenn said, “the law of this circuit is clear that a prisoner litigating a retaliation claim need not prove that he had an independent liberty interest in the privileges he was denied.” Rosenn found that Rauser easily cleared the first two hurdles in his retaliation claim because he was able to show that the conduct that led to the alleged retaliation was “constitutionally protected,” and that he suffered “adverse action” at the hands of the prison officials. More complicated, Rosenn found, was the question of how a prisoner-plaintiff must go about proving a “causal link” between the exercise of his constitutional rights and the adverse action taken against him. In the public context, Rosenn said, the Supreme Court established a burden — shifting framework in Mount Healthy Board of Education v. Doyle, which requires the plaintiff to show first that his protected activity was a “substantial factor” in the discipline he received. If that burden is met, the defendant must show that it would have taken the same disciplinary action even in the absence of the protected activity. But Rosenn found that in the prison context, the Mount Healthy burden shifting must be tempered to account for the Supreme Court’s 1987 decision in Turner v. Safely, which held that a prison regulation that impinges on the constitutional rights of an inmate is nonetheless valid if it is “reasonably related to legitimate penological interests.” “In adopting the Mount Healthy framework, we do not discard the deferential standard articulated in Turner. Rather, we incorporate the balancing test announced in Turner into the Mount Healthy burden-shifting framework,” Rosenn wrote. “This means that, once a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.” Rosenn found that Rauser “presented a great deal of evidence from which a reasonable jury could conclude that the prison officials penalized him because he insisted on exercising his First Amendment rights.” At one point, Rosenn noted, Rauser claims he was warned not to “try and disrupt” the alcohol programs. And the timing of the discipline also suggested a connection, Rosenn found. “A reasonable jury could determine that Rauser’s protected conduct was a motivating factor in the [Department of Corrections'] decision to transfer him, cut his wages and deny him parole. The DOC has offered no evidence to suggest that these actions were taken for any other reason, penologically legitimate or otherwise,” Rosenn wrote. The DOC was represented by Deputy Attorney General Calvin R. Koons. Rosenn was joined on the opinion by U.S. Circuit Judges Richard L. Nygaard and Samuel A. Alito.

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