Kravitz v. Purcell

22-764
Kravitz v. Purcell
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2022
No. 22-764
JAY S. KRAVITZ ,
Plaintiff-Appellant,
v.
S AMUEL PURCELL, A DOLPHUS BAKER , L UIS A NDREU, DAVID
MCC RAY , G REGORY S T . V ICTOR, DAVID M CM AHON , JOSEPH
WASSWEILER, AND JOHN Z UPAN ,
Defendants-Appellees.*
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: MAY 3, 2023
D ECIDED: NOVEMBER 27, 2023
Before: K EARSE , JACOBS , and MENASHI, Circuit Judges.
* The Clerk of Court is directed to amend the caption as set forth above.

-- 1 of 33 --

2
Plaintiff-Appellant Jay S. Kravitz, formerly incarcerated,
appeals from the grant of summary judgment in favor of the
defendants-appellees—corrections officers at Downstate Correctional
Facility—on Kravitz’s claims under 42 U.S.C. § 1983 for the violation
of his First Amendment right to the free exercise of religion.
According to Kravitz, the corrections officers violated his right to free
exercise by preventing him from observing the Jewish holiday of
Shavuot. The district court held that Kravitz failed to show a
“substantial burden” on his religious beliefs because he was able to
observe some aspects of the holiday. We conclude that a § 1983
plaintiff need not show a substantial burden in order to prevail on a
claim for the violation of the First Amendment. Because Kravitz has
shown that his sincere religious beliefs were burdened by the officers’
conduct, we vacate the judgment of the district court insofar as the
district court decided that Kravitz had failed to establish a genuine
dispute of material fact as to whether his right to free exercise was
violated. We affirm the judgment insofar as the district court granted
summary judgment to certain defendants for whom there was no
evidence of personal involvement. We remand for further
proceedings consistent with this opinion.
Jay S. Kravitz, pro se, Earlton, NY, for Plaintiff-Appellant.
MARK S. G RUBE , Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, and Judith N. Vale,
Deputy Solicitor General, on the brief), for Letitia James,
Attorney General of the State of New York, New York,
NY, for Defendants-Appellees.

-- 2 of 33 --

22-764
Kravitz v. Purcell
MENASHI, Circuit Judge:
Plaintiff-Appellant Jay S. Kravitz, proceeding pro se, appeals
from a judgment of the U.S. District Court for the Southern District of
New York granting summary judgment to the defendants-appellees,
corrections officers at Downstate Correctional Facility. See Kravitz v.
Purcell, No. 16-CV-8999, 2022 WL 768682 (S.D.N.Y. Mar. 4, 2022).
Kravitz, who was formerly incarcerated at Downstate
Correctional Facility, brought claims under 42 U.S.C. § 1983 against
the officers for violating his First Amendment right to the free exercise
of religion. In his third amended complaint, Kravitz named as
defendants corrections officers Samuel Purcell, Adolphus Baker, Luis
Andreu, David McCray, Gregory St. Victor, David McMahon, Joseph
Wassweiler, and John Zupan.1 He alleged that the officers violated
his First Amendment right to the free exercise of religion by
preventing him from observing the Jewish holiday of Shavuot on two
consecutive evenings. The district court granted summary judgment
to the officers because (1) some named officers were not personally
involved in the alleged violation on the first night of Shavuot, and
(2) Kravitz’s observance of the second night of the holiday was only
shortened, not denied entirely, which did not rise to the level of a
1 Third Amended Complaint (“TAC”) ¶¶ 4-11, Kravitz v. Purcell, No. 16-
CV-8999 (S.D.N.Y. Dec. 5, 2019), ECF No. 80. Kravitz’s complaint misspells
Wassweiler as “Waseiler.” Id. ¶ 10. Kravitz also named as a defendant
Anthony Annucci as the commissioner of the New York State Department
of Corrections and Community Supervision (“DOCCS”). The district court
dismissed the claims against Annucci following Annucci’s unopposed
motion to dismiss.

-- 3 of 33 --

4
“substantial burden” on his religious beliefs. Kravitz, 2022 WL 768682,
at *10.
We vacate in part and affirm in part the judgment of the district
court. The district court erred in holding that Kravitz could not
prevail on his claim because he did not make the threshold showing
of a “substantial burden” on his religious beliefs. Such a showing is
not required. Rather, because Kravitz has shown a burden on his
sincere religious beliefs, he has established a genuine issue of material
fact sufficient to defeat a motion for summary judgment. We vacate
the judgment insofar as the district court granted summary judgment
because of a purported “substantial burden” requirement, and we
affirm the judgment insofar as the district court granted summary
judgment to those officers for whom there was no evidence of
personal involvement. We remand for further proceedings consistent
with this opinion.
BACKGROUND
In this appeal, we consider the factual assertions in the parties’
Local Rule 56.1 statements and the admissible evidence submitted. See
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). 2 We
“constru[e] the evidence in the light most favorable” to Kravitz.
Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011).
2 Kravitz did not submit a Rule 56.1 Counter-Statement in response to the
defendants’ Rule 56.1 Statement. But given Kravitz’s pro se status, the
district court properly exercised its discretion to review the entire record—
including Kravitz’s Rule 56.1 Statement, affidavit, and deposition
testimony—when deciding the defendants’ motion for summary judgment.
Kravitz, 2022 WL 768682, at *1.

-- 4 of 33 --

5
I
Kravitz practices Judaism and as part of that practice he
celebrates the holiday of Shavuot. Shavuot “is one of the three major
festivals in Judaism,” and it “celebrate[s] the giving of the Torah or
Law on Mount Sinai.” Affidavit of Plaintiff ¶ 7, Kravitz v. Purcell,
No. 16-CV-8999 (S.D.N.Y. Mar. 26, 2021), ECF No. 140. Kravitz
considers Shavuot to be “the most important holiday of the Jews.”
Plaintiff’s Deposition Transcript (“Kravitz Dep.”) at 64, Kravitz v.
Purcell, No. 16-CV-8999 (S.D.N.Y. Mar. 10, 2021), ECF No. 129-1. He
observes the holiday by praying and eating together with other Jews
for two consecutive evenings. In 2014, Kravitz requested that his
name be added to the list of inmates who would participate in
Shavuot observances at Downstate Correctional Facility for the
evenings of June 3 and June 4.
A
On June 3, 2014, Kravitz was released from his housing unit—
Block 3a in Complex 3—at approximately 8:00 pm to attend Shavuot
services. Kravitz and other Jewish inmates walked to what Kravitz
calls a “staging area” and what the defendants identify as the East
Lobby of Complex 3. But rather than allowing the inmates to continue
to the dining hall for the scheduled prayer and meals, corrections
officers threw paper bags containing peanut butter sandwiches, apple
sauce, pudding, and juice at the inmates, “laughing and say[ing], here
is your kosher meal. You Jew, blah, blah, and F-U.” Kravitz Dep. at
67. The officers then announced that “everyone got their big holiday
dinner, now go back to your cages.” Id. at 68. The inmates complained
to the officers that they were supposed to receive a “very good festive
meal” and time to gather as a community, and Kravitz asked if the

-- 5 of 33 --

6
inmates could at least eat the sandwiches together. Id. at 69. The
officers responded, “[F]uck you. Shut up.” Id. Kravitz’s time in the
staging area lasted about five minutes. Id. at 70. At approximately 8:25
pm, he walked back to his housing block, where he ate, prayed, and
studied religious texts alone in his cell. Id. at 83.
At the time, Kravitz did not know the officers’ names. In his
complaint and affidavit, he alleged that the officers present in the
staging area were Officers Andreu, Baker, McCray, Purcell, and
St. Victor. These officers testified that they were not involved in the
events underlying Kravitz’s complaint; they either did not work on
June 3 and 4 or they worked in different areas of the prison at the
relevant times. On appeal, Kravitz instead identifies McMahon and
Wassweiler “as the religious services officers [who] completely
prevented him from observing Shavuot on the first night of the
holiday.” Appellant’s Br. 17.
That night, Kravitz wrote a letter to prison officials
complaining about his experience. A prison chaplain visited Kravitz’s
housing block and assured him that he would be permitted to observe
the second night of the holiday.
B
On June 4, 2014, at around 7:50 pm, officers escorted Kravitz
from his housing block to a dining area that Kravitz calls an “auxiliary
dining hall,” Supp. App’x 17, and the defendants call the “#4 Dining
Room,” id. at 10.
About ten inmates sat at a table, and the “cadre”—an inmate
who ran the Jewish programs—asked Kravitz to lead the prayer
services in Hebrew. Kravitz Dep. at 89-90. After only twenty or thirty

-- 6 of 33 --

7
seconds, a corrections officer stopped the prayers. The “minute
[Kravitz] started to speak in Hebrew and [pray],” the officer who was
“running the meals” “put his hands between [Kravitz and the cadre],
and like weaseled in between [them], and got in [Kravitz’s] face and
said, I don’t want to hear that. You need to stop and get eating that
food. I got things to do.” Id. at 92. The corrections officer said, “yo, yo,
stop that crap. I don’t want to hear it. ... [L]ook, just shut the fuck up
and get to eating. I got things to do.” Id. at 94.
Kravitz attempted to resume his prayers, but after a few
seconds the officer started “screaming” and “hit the table.” Id. at 95.
The officer “really got in [Kravitz’s] face, nose to nose ... he was an
inch from [him]. And he said, maybe you didn’t hear me ... shut the
fuck up, get to eating. All of you’s now. I got things to do.” Id. at 94-
95.
Kravitz rushed to say a blessing over the bread so that the
group could eat. He skipped the customary blessing and drinking of
grape juice because, according to Kravitz, “I didn’t want to piss him
off. I seen guys in a puddle of blood there every day.” Id. at 96. The
inmates ate, but the same officer repeatedly returned to the table over
the next ten minutes, ordering them, “Let’s go. Let’s go. Hustle,
hustle.” Id. at 97. Other officers directed the inmates to hurry and said
that they did not have “time for your crap.” Id. at 97. About twenty
minutes after the inmates arrived in the dining area, they finished
their meals and were escorted back to their blocks. Id. at 100. Kravitz
returned to his housing block at about 8:45 pm.
Kravitz again did not know the officers’ names. The defendants
represented to the district court that on June 4, the “officers assigned
to the Jewish holiday services were Officers D. McMahon and

-- 7 of 33 --

8
Wassweiler” and that “Zupan was the area supervisor.” Valentin
Order Response (“Valentin Response”) at 1, Kravitz v. Purcell, No. 16-
CV-8999 (S.D.N.Y. Feb. 15, 2017), ECF No. 11. Based on that
representation, Kravitz alleged in his complaint that these officers
escorted the inmates to the dining hall and interfered with the
religious observance. Zupan testified, however, that he was not in the
dining hall on June 4. Accordingly, Kravitz now maintains that
McMahon and Wassweiler “directly participated in the thwarting of
his religious observance as the religious service officers throughout
the holiday of Shavuot.” Appellant’s Br. 18.
II
On November 18, 2016, Kravitz commenced this § 1983 action
alleging the violation of his right to the free exercise of religion under
the First Amendment as well as his rights under the Eighth
Amendment, the Fourteenth Amendment, and the New York State
Constitution. The initial complaint was brought against New York
State, the DOCCS, Anthony Annucci as commissioner of the DOCCS,
and “unknown members” of the DOCCS. Complaint, Kravitz v.
Purcell, No. 16-CV-8999 (S.D.N.Y. Nov. 18, 2016), ECF No. 2. Pursuant
to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), in which this court
recognized that a pro se litigant is entitled to assistance in identifying
defendants, the district court ordered the New York State Attorney
General to identify the officers who were involved in the alleged
incidents. In response, the Attorney General identified Purcell, Baker,
Andreu, McCray, and St. Victor as the escort officers assigned to the
gym and lobby in Complex 3 at Downstate Correctional Facility. The
prison advised that these spaces may have been the “staging area” in
which the alleged June 3 incident occurred. In addition, the Attorney

-- 8 of 33 --

9
General identified McMahon and Wassweiler as the “officers
assigned to the Jewish holiday services” and Zupan as the “area
supervisor.” Valentin Response at 1.
Kravitz amended his first amended complaint to identify these
officers as defendants. On March 29, 2019, the district court dismissed
all of Kravitz’s claims in his second amended complaint except for his
free exercise claims against Purcell, Baker, Andreu, McCray,
St. Victor, McMahon, Wassweiler, and Zupan.3 On December 5, 2019,
Kravitz filed a third amended complaint that included only his free
exercise claims. The parties proceeded to discovery and filed motions
for summary judgment.
The district court granted the officers’ motion and denied
Kravtiz’s motion. For the evening of June 3, 2014, the district court
determined that Kravitz had not shown the personal involvement of
the officers as required to establish liability under § 1983. The
“undisputed evidence demonstrates that Zupan, Purcell, Baker,
St. Victor, McCray, and Andreu were not personally involved in the
alleged deprivation of Plaintiff’s free exercise rights.” Kravitz, 2022
WL 768682, at *6. McMahon and Wassweiler, moreover, were not
alleged to have been personally involved in the events of that
evening. Id. at *9. For the evening of June 4, 2014, the district court
concluded that Kravitz had not met “his burden of demonstrating
that his religious beliefs were substantially burdened.” Id. at *10.
“[T]he undisputed facts demonstrate that [Kravitz’s] Shavuot
3 The district court dismissed Kravitz’s claim against Annucci without
prejudice. After filing his third amended complaint, Kravitz submitted an
affidavit informing the district court that he did not oppose Annucci’s
motion to dismiss the third amended complaint.

-- 9 of 33 --

10
celebration was only shortened, not denied,” because he was able to
“congregate, pray, and eat a festive kosher meal with a group of other
Jewish inmates until approximately 8:45 pm.” Id. Kravitz “was able to
observe the Shavuot holiday, albeit in a shortened and perhaps
substandard manner,” the district court said. Id. For that reason, he
suffered only “a de minimis burden” on his free exercise rights. Id.
(quoting Hamilton v. Countant, No. 13-CV-669, 2016 WL 881126, at *7
(S.D.N.Y. Mar. 1, 2016)).
This appeal followed.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013).
“Summary judgment is proper only when, construing the evidence in
the light most favorable to the non-movant, ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Doninger, 642 F.3d at 344 (quoting Fed. R. Civ. P.
56(a)).
Pro se litigants receive “special solicitude” when “confronted
with motions for summary judgment.” Graham v. Lewinski, 848 F.2d
342, 344 (2d Cir. 1988). “We liberally construe pleadings and briefs
submitted by pro se litigants, reading such submissions to raise the
strongest arguments they suggest.” Publicola v. Lomenzo, 54 F.4th 108,
111 (2d Cir. 2022) (internal quotation marks omitted).
DISCUSSION
The Supreme Court has explained that inmates “retain
protections afforded by the First Amendment, including its directive

-- 10 of 33 --

11
that no law shall prohibit the free exercise of religion.” O’Lone v. Estate
of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). In the prison
context, alleged violations of the right to free exercise are “judged
under a ‘reasonableness’ test less restrictive than that ordinarily
applied to alleged infringements of fundamental constitutional
rights.” Id. at 349. Therefore, “[w]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Id. (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)); see also Young v. Coughlin, 866 F.2d 567,
570 (2d Cir. 1989) (“A prisoner’s first amendment right to the free
exercise of his religious beliefs may only be infringed to the extent
that such infringement is reasonably related to legitimate penological
interests.”) (internal quotation marks omitted).
The district court did not reach the question of whether the
officers’ actions were justified by legitimate penological interests.
Instead, the district court granted the officers’ motion for summary
judgment on two grounds: the lack of a substantial burden on
Kravitz’s religious beliefs on June 4 and the lack of personal
involvement by certain defendants on June 3. We address each issue
in turn.
I
The defendants argue that Kravitz cannot show that the events
of June 4 amounted to a “substantial burden” on his religious beliefs
because Kravitz “received a substantial kosher group meal,” “prayed
to bless the food,” and “led the group in congregate prayers.”
Appellees’ Br. 13-14.

-- 11 of 33 --

12
The religion clauses of the First Amendment, applicable to the
states through the Fourteenth Amendment, provide that “Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” In prior cases, we have
assumed—without holding—that to state a free exercise claim under
§ 1983, a “prisoner must show at the threshold that the disputed
conduct substantially burdens his sincerely held religious beliefs.”
Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). 4 This
“substantial burden test,” we have explained, “requires courts to
distinguish important from unimportant religious beliefs” in order to
decide whether a “belief or practice is so peripheral to the plaintiff’s
religion that any burden can be aptly characterized as constitutionally
de minimis.” Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003). The
“relevant question” under the test is whether engaging in the
religious observance “is considered central or important to [the
plaintiff’s] practice of [his religion].” Id. at 593-94.
The substantial burden test originated in the Supreme Court’s
decision in Sherbert v. Verner, 374 U.S. 398 (1963). After a Seventh-day
Adventist was fired for refusing to work on her Sabbath, she was
denied unemployment benefits under a law that disqualified
claimants who “failed, without good cause ... to accept available
suitable work.” Id. at 401. The Court explained that a state must justify
“any incidental burden on the free exercise … of religion” by showing
that the law serves a compelling state interest. Id. at 403. The Court
4 See also Salahuddin, 467 F.3d at 275 n.5 (“Resolution of this appeal does not
require us to address Salahuddin’s argument that a prisoner’s First
Amendment free-exercise claim is not governed by the ‘substantial burden’
threshold requirement.”).

-- 12 of 33 --

13
decided that the denial of benefits amounted to a “substantial
infringement” of the plaintiff’s free exercise rights and was not
justified by a compelling state interest. Id. at 407.
While Sherbert did not expressly create a substantial burden
requirement, subsequent decisions identified the requirement as part
of the Sherbert framework of applying strict scrutiny to general laws
that burden religious belief. “A regulation neutral on its face may, in
its application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of
religion,” the Court explained. Wisconsin v. Yoder, 406 U.S. 205, 235-36
(1972) (emphasis added). “The free exercise inquiry asks whether
government has placed a substantial burden on the observation of a
central religious belief or practice and, if so, whether a compelling
governmental interest justifies the burden.” Hernandez v. Comm’r, 490
U.S. 680, 699 (1989) (emphasis added).5
Later, in Employment Division v. Smith, the Supreme Court held
that the Sherbert framework did not apply when the challenged law
was “neutral” and “generally applicable,” even if the law incidentally
burdened religious exercise. 494 U.S. 872, 879-80 (1990); see also Holt v.
Hobbs, 574 U.S. 352, 357 (2015) (“Smith largely repudiated the method
5 See also Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 717-18
(1981) (“Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith ... thereby putting substantial pressure
on an adherent to modify his behavior and to violate his beliefs, a burden
upon religion exists.”) (emphasis added); Hobbie v. Unemployment Appeals
Comm’n of Fla., 480 U.S. 136, 143 (1987) (“The immediate effects of
ineligibility and disqualification [for unemployment benefits] are identical,
and the disqualification penalty is substantial.”) (emphasis added).

-- 13 of 33 --

14
of analysis used in prior free exercise cases like Wisconsin v. Yoder and
Sherbert v. Verner.”) (citations omitted). Smith explained that the “right
of free exercise does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).” 494 U.S. at 879 (internal quotation
marks omitted).
In rejecting the Sherbert approach, Smith “took issue with the
premise that courts can differentiate between substantial and
insubstantial burdens.” Ford, 352 F.3d at 592. “It is no more
appropriate for judges to determine the ‘centrality’ of religious beliefs
before applying a ‘compelling interest’ test in the free exercise field,
than it would be for them to determine the ‘importance’ of ideas
before applying the ‘compelling interest’ test in the free speech field,”
the Court said in Smith. 494 U.S. at 886-87. “What principle of law or
logic can be brought to bear to contradict a believer’s assertion that a
particular act is ‘central’ to his personal faith?” Id. at 887.
After Smith, Congress adopted the Religious Freedom
Restoration Act (“RFRA”) to “restore the compelling interest test as
set forth in Sherbert v. Verner.” 42 U.S.C. § 2000bb(b)(1) (emphasis
added). RFRA expressly adopts a substantial burden requirement. See
id. § 2000bb-1 (providing that the “Government shall not substantially
burden a person’s exercise of religion even if the burden results from
a rule of general applicability” unless “application of the burden”
furthers “a compelling governmental interest” through “the least
restrictive means”) (emphasis added). In light of the statute, “we
dutifully applied RFRA’s substantial burden test to prisoners’ free
exercise claims” while RFRA “was still good law” as applied to state

-- 14 of 33 --

15
governments. Ford, 352 F.3d at 592. RFRA no longer applies to state
governments,6 but we have continued to assume that the substantial
burden test applies to prisoners’ free exercise claims.
Despite doing so, we have acknowledged that applying the
substantial burden test is “a task for which … courts are particularly
ill-suited” and raises “the danger that courts will make conclusory
judgments about the unimportance of the religious practice to the
adherent rather than confront the often more difficult inquiries into
sincerity, religiosity and the sufficiency of the penological interest
asserted to justify the burden.” Ford, 352 F.3d at 593. And we have
recognized that, since Smith, the legal validity of the substantial
burden test remains an open question. “It has not been decided in this
Circuit whether, to state a claim under the First Amendment’s Free
Exercise Clause, a ‘prisoner must show at the threshold that the
disputed conduct substantially burdens his sincerely held religious
beliefs.’” Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014) (quoting
Salahuddin, 467 F.3d at 274-75). “Whenever the question has arisen in
our Circuit, the panel has avoided answering it by noting either that
the parties did not brief the issue or that the requirement, even if
applied, would have been satisfied.” Brandon v. Kintner, 938 F.3d 21,
32 n.7 (2d Cir. 2019).7
6 In City of Boerne v. Flores, the Supreme Court held that “[b]road as the
power of Congress is under the Enforcement Clause of the Fourteenth
Amendment, RFRA contradicts vital principles necessary to maintain
separation of powers and the federal balance.” 521 U.S. 507, 536 (1997).
7 See also Ford, 352 F.3d at 592 (proceeding “on the assumption that the
substantial burden test applies”); McEachin v. McGuinnis, 357 F.3d 197, 203

-- 15 of 33 --

16
The district courts of this circuit have followed our example by
proceeding “on the assumption that the substantial burden test
applies.” Ford, 352 F.3d at 592. Thus, despite the Second Circuit
having “expressed doubt as to whether a prisoner is required to make
this threshold showing,” the “[d]istrict courts within this circuit
continue to apply the substantial burden test when addressing free
exercise claims.” Nicholson v. Ferreira, No. 20-CV-1214, 2021 WL
327529, at *5 n.3 (D. Conn. Feb. 1, 2021).8 That is what the district
(2d Cir. 2004) (“[W]e need not, at this stage, consider whether the plaintiff
must demonstrate that the burden on his beliefs was ‘substantial’ in order
to state a constitutional claim.”); Salahuddin, 467 F.3d at 275 n.5 (declining
“to address [the] argument that a prisoner’s First Amendment free-exercise
claim is not governed by the ‘substantial burden’ threshold requirement”);
Holland, 758 F.3d at 221 (declining to address the “continued vitality of the
substantial burden requirement”); Williams v. Does, 639 F. App’x 55, 56 (2d
Cir. 2016) (“[a]ssuming that the substantial burden requirement applies”);
Brandon, 938 F.3d at 32 n.7 (“assum[ing], without deciding, that [the
plaintiff’s] free exercise claim is subject to the substantial burden
requirement”).
8 See, e.g., McLeod v. Williams, No. 18-CV-115, 2020 WL 2512164, at *3
(S.D.N.Y. May 15, 2020) (“Absent any contrary instruction from the Second
Circuit, and because neither party argues that the substantial burden test is
inapplicable to Plaintiff's claims here, the Court will proceed—as other
courts in the district repeatedly have—by assuming the substantial burden
requirement continues to apply.”); Lombardo v. Freebern, No. 16-CV-7146,
2018 WL 1627274, at *8 n.12 (S.D.N.Y. Mar. 30, 2018) (“The Second Circuit
chose not to confront this question—or rather, not to alter the previous
assumption that the substantial burden test is a threshold question. This
Court has already chosen to follow the analysis in Holland and thus will
proceed under the assumption that the substantial burden test is still
valid.”) (citation omitted); Jones v. Annucci, No. 16-CV-3516, 2018 WL

-- 16 of 33 --

17
court did in this case. “To succeed on a free exercise claim,” the
district court explained, “an inmate must show at the threshold that
the disputed conduct substantially burdens his sincerely held
religious beliefs,” meaning that “participation in the religious
activity, in particular, is considered central or important to the
inmate’s religious practice.” Kravitz, 2022 WL 768682, at *8 (internal
quotation marks and alterations omitted).
This case requires us to resolve this open question. Over the
thirty years that the question has remained open, its irresolution has
compelled courts to make questionable religious determinations that
we must review on a standardless basis. See Wiggins v. Griffin, No.
21-533, 2023 WL 8009312, at *10 (Menashi, J., concurring) (“Three
decades is too long for federal judges to be telling litigants which of
their religious beliefs are ‘unimportant.’”) (quoting Ford, 352 F.3d at
593). Today we hold that a prisoner claiming a violation of the right
910594, at *13 n.8 (S.D.N.Y. Feb. 14, 2018) (same); Washington v. Chaboty,
No. 9-CV-9199, 2015 WL 1439348, at *9 n.12 (S.D.N.Y. Mar. 30, 2015) (“In
Ford, the court assumed that the substantial burden test applies, because the
plaintiff had not argued otherwise. Similarly here, because [the plaintiff]
has not argued that the substantial burden test is inapplicable, this Court
has assumed that it applies.”) (internal quotation marks, alteration, and
citation omitted); Rossi v. Fishcer, No. 13-CV-3167, 2015 WL 769551, at *6 n.8
(S.D.N.Y. Feb. 24, 2015) (“[T]he Second Circuit and judges in this district
have continued to require ... a threshold showing [of a substantial burden],
particularly in cases where the parties have not argued otherwise.”); Vann
v. Fischer, No. 11-CV-1958, 2014 WL 4188077, at *8 n.14 (S.D.N.Y. Aug. 25,
2014) (“It is customary in this District, absent any contrary instruction from
the Second Circuit, to assume that the substantial burden test survives.”).

-- 17 of 33 --

18
to the free exercise of religion under § 1983 need not make a showing
of a substantial burden.
A
We have expressed “reluctance to measure the devotional
import of certain religious practices” because “passing judgment on
the ‘centrality of different religious practices’” is “a misguided
enterprise that the Supreme Court has called ‘akin to the unacceptable
business of evaluating the relative merits of differing religious
claims.’” McEachin, 357 F.3d at 202 (quoting Smith, 494 U.S. at 887). In
a non-prison context, we have even explained that “[b]ecause the free
exercise of religion means, first and foremost, the right to believe and
profess whatever religious doctrine one desires, courts are not
permitted to inquire into the centrality of a professed belief to the
adherent’s religion.” Fifth Ave. Presbyterian Church v. City of New York,
293 F.3d 570, 574 (2d Cir. 2002) (emphasis added) (internal quotation
marks and alteration omitted). For that reason, “[a]n individual
claiming violation of free exercise rights [under § 1983] need only
demonstrate that the beliefs professed are ‘sincerely held’ and in the
individual’s ‘own scheme of things, religious.’” Id. (quoting Patrick v.
LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)). There is no reason why this
same standard should not apply to a prison inmate alleging a
violation of his free exercise rights under § 1983.
The Supreme Court has emphasized that courts should not
inquire into the centrality of a litigant’s religious beliefs. It is not
“appropriate for judges to determine the ‘centrality’ of religious
beliefs,” and indeed the Court has “warned that courts must not
presume to determine the place of a particular belief in a religion.”
Smith, 494 U.S. at 887. It is simply “not within the judicial ken to

-- 18 of 33 --

19
question the centrality of particular beliefs or practices to a faith, or
the validity of particular litigants’ interpretations of those creeds.” Id.
(quoting Hernandez, 490 U.S. at 699).
Smith held that neutral laws of general applicability are not
subject to strict scrutiny based, at least in part, on the recognition that
a regime of exemptions from generally applicable laws requires some
type of substantial burden inquiry. “[I]f general laws are to be
subjected to a ‘religious practice’ exception, both the importance of the
law at issue and the centrality of the practice at issue must be
reasonably considered.” Smith, 494 U.S. at 888 n.4. The Smith Court
rejected that view.
But opposition to the centrality inquiry was not limited to the
Smith majority. The concurrence in the judgment “agree[d] with the
Court” that “our determination of the constitutionality of Oregon’s
general criminal prohibition cannot, and should not, turn on the
centrality of the particular religious practice at issue.” Id. at 906-07
(O’Connor, J., concurring in the judgment). And the dissent similarly
“agree[d]” that “courts should refrain from delving into questions
whether, as a matter of religious doctrine, a particular practice is
‘central’ to the religion.” Id. at 919 (Blackmun, J., dissenting). All nine
justices in Smith agreed that courts cannot inquire into the centrality
or importance of a free exercise plaintiff’s religious beliefs.
That broad agreement was based on longstanding precedent.
See, e.g., Thomas, 450 U.S. at 716 (“[I]t is not within the judicial function
and judicial competence to inquire whether the petitioner … more
correctly perceived the commands of [his] … faith.”); Serbian E.
Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 720
(1976) (explaining that civil courts may not decide “quintessentially

-- 19 of 33 --

20
religious controversies”); Presbyterian Church in the U.S. v. Mary
Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 450 (1969)
(noting that, “[p]lainly, the First Amendment forbids civil courts”
from evaluating “the interpretation of particular church doctrines and
the importance of those doctrines to the religion”).9
The Supreme Court has reiterated this principle since Smith.10
Indeed, the “consistent and resounding theme echoed throughout
9 “The notion of judicial incompetence with respect to strictly ecclesiastical
matters can be traced at least as far back as James Madison, ‘the leading
architect of the religio[n] clauses of the First Amendment.’” Fratello v.
Archdiocese of N.Y., 863 F.3d 190, 203 (2d Cir. 2017) (quoting Arizona Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 141 (2011)); see James Madison,
Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in
5 The Founders’ Constitution 82, 83 (Philip B. Kurland & Ralph Lerner eds.,
1987) (rejecting the notion that “the Civil Magistrate is a competent Judge
of Religious Truth”); see also Ira C. Lupu, Where Rights Begin: The Problem of
Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 959 (1989)
(“[A]ny imaginable process for resolving disputes over centrality creates
the spectre of religious experts giving conflicting testimony about the
significance of a religious practice, with the state’s decisionmaker
authoritatively choosing among them. A horary and well-respected line of
cases, concerning disputes over property between warring factions within
a church, strongly suggests that judicial resolution of theological
controversy is both beyond judicial competence and out of constitutional
bounds.”).
10 See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,
2055 (2020) (“Judicial review of the way in which religious schools
discharge [religious] responsibilities would undermine the independence
of religious institutions in a way that the First Amendment does not
tolerate.”); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. 171, 185 (2012) (“[I]t is impermissible for the government to contradict

-- 20 of 33 --

21
many Supreme Court opinions” is that courts may not purport to
evaluate the centrality or importance of religious beliefs. DeHart v.
Horn, 227 F.3d 47, 56 (3d Cir. 2000).
Accordingly, since Smith the Supreme Court has treated a
showing of the plaintiff’s sincerity to be sufficient to establish a prima
facie free exercise violation and has not referenced a substantial
burden requirement. See Kennedy v. Bremerton Sch. Dist., 142 S. Ct.
2407, 2421-22 (2022) (“Under this Court’s precedents, a plaintiff may
carry the burden of proving a free exercise violation … by showing
that a government entity has burdened his sincere religious practice
pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’”)
(quoting Smith, 494 U.S. at 879); Fulton v. City of Philadelphia, 141 S. Ct.
1868, 1877 (2021) (“[T]he City has burdened the religious exercise of
[the plaintiff] through policies that do not meet the requirement of
being neutral and generally applicable.”); Lukumi, 508 U.S. at 531-47
(noting that no party has “questioned the sincerity of petitioners’”
religious beliefs and addressing the free exercise violation without
considering whether the burden was substantial).
When we are considering government policies that are not
neutral and generally applicable—that is, policies that discriminate
against religion rather than burden it incidentally—there is no
justification for requiring a plaintiff to make a threshold showing of
substantial burden. “The indignity of being singled out for special
burdens on the basis of one’s religious calling is so profound that the
a church’s determination of who can act as its ministers.”); Mitchell v. Helms,
530 U.S. 793, 828 (2000) (plurality opinion) (“It is well established, in
numerous … contexts, that courts should refrain from trolling through a
person’s or institution’s religious beliefs.”).

-- 21 of 33 --

22
concrete harm produced can never be dismissed as insubstantial. The
Court has not required proof of ‘substantial’ concrete harm with other
forms of discrimination.” Locke v. Davey, 540 U.S. 712, 731 (2004)
(Scalia, J., dissenting).
B
Courts that apply the substantial burden test have reached
puzzling conclusions. In Levitan v. Ashcroft, for example, the district
court granted summary judgment to the prison officials on the
ground that “consuming wine during Communion is not an essential
aspect of [the Catholic inmates’] religious practice.” 281 F.3d 1313,
1315 (D.C. Cir. 2002). In Ford, the district court decided that the denial
of a religious meal to a Muslim inmate celebrating Eid al-Fitr was not
a substantial burden because the postponed feast was “devoid of
religious significance under the tenets of Islam” and the prison
officials should not be required to “accommodate [the inmate’s]
particularized view of Islam, after having been advised of Islam’s
actual requirements by religious experts.” Ford v. McGinnis, 230
F. Supp. 2d 338, 347 (S.D.N.Y. 2002), vacated and remanded, 352 F.3d
582 (2d Cir. 2003). In Thompson v. Holm, the district court decided that
a Muslim inmate who was denied Ramadan meal bags for two days—
and therefore did not receive a meal he could consume consistent
with his religious obligations for fifty-five hours—did not suffer a
substantial burden because he was still able to fast, pray, and read the
Koran. Thompson v. Holm, No. 13-CV-930, 2015 WL 1478523, at *6 (E.D.
Wis. Mar. 30, 2015), vacated and remanded, 809 F.3d 376 (7th Cir. 2016).
The district court’s decision in this case marks another entry in
this line of troubling decisions. The admissible evidence indicates
that, on June 4, 2014, a corrections officer terminated Kravitz’s holiday

-- 22 of 33 --

23
prayer after about thirty seconds. The officer said “I don’t want to
hear that. You need to stop [praying] and get eating that food. I got
things to do” and “stop that crap. I don’t want to hear [prayers]. …
[J]ust shut the fuck up and get to eating.” Kravitz Dep. at 92-94.
Nevertheless, the district court concluded that Kravitz did not suffer
a substantial burden on his religious beliefs because Kravitz managed
to pray for thirty seconds and to eat a communal meal. Kravitz, 2022
WL 768682, at *10. The district court determined that thirty seconds
of prayer and a hurried meal meant that Kravitz was “able to observe
the Shavuot holiday.” Id. How did the district court reach that
determination? It did not rely on Kravitz’s beliefs about Shavuot or
on authoritative statements of Jewish law. Evidently, the district court
relied on its own authority to determine what the observance of
Shavuot requires.
The Supreme Court long ago recognized that “no jurisdiction
has been conferred” on civil courts to adjudicate “a matter which
concerns theological controversy, church discipline, ecclesiastical
government, or the conformity of the members of the church to the
standard of morals required of them.” Watson v. Jones, 80 U.S. 679, 733
(1871). In the context of an inmate’s § 1983 action, however, we have
persisted in the “misguided enterprise” of “measur[ing] the
devotional import of certain religious practices.” McEachin, 357 F.3d
at 202.
We now join those circuits that have held that an inmate does
not need to establish a substantial burden in order to prevail on a free
exercise claim under § 1983. See Williams v. Morton, 343 F.3d 212, 217
(3d Cir. 2003) (“The Prison Officials argue that it is also a prerequisite
for the inmate to establish that the challenged prison policy

-- 23 of 33 --

24
‘substantially burdens’ his or her religious beliefs. There is no support
for that assertion.”) (citation omitted); Butts v. Martin, 877 F.3d 571,
585 (5th Cir. 2017) (“[T]his Court has not required a preliminary
showing that a regulation substantially interferes with an inmate’s
religious rights before assessing whether the regulation is reasonably
related to a penological interest.”); Shakur v. Schriro, 514 F.3d 878, 885
(9th Cir. 2008) (“Given the Supreme Court’s disapproval of the
centrality test, we are satisfied that the sincerity test … determines
whether the Free Exercise Clause applies.”).11
When adjudicating claims under RFRA, courts must conduct a
substantial burden inquiry because the statute requires it. See
42 U.S.C. § 2000bb-1. This difference between RFRA and § 1983
makes sense because RFRA authorizes “a ‘religious practice’
exception” from generally applicable laws while First Amendment
11 We disagree with those circuits that continue to apply the substantial
burden test. See Wilcox v. Brown, 877 F.3d 161, 168 (4th Cir. 2017) (“In order
to state a claim for violation of rights secured by the Free Exercise Clause,
an inmate … must demonstrate that … a prison practice or policy places a
substantial burden on his ability to practice his religion.”); Mbonyunkiza v.
Beasley, 956 F.3d 1048, 1054 (8th Cir. 2020) (“We agree with the district
court’s interpretation and application of the substantially burdens
requirement in this case.”); Williams v. Hansen, 5 F.4th 1129, 1133 (10th Cir.
2021) (“To state a valid constitutional claim, a prisoner must allege facts
showing that officials substantially burdened a sincerely held religious
belief.”); Levitan, 281 F.3d at 1319 (“[T]he First Amendment is implicated
when a law or regulation imposes a substantial, as opposed to
inconsequential, burden on the litigant’s religious practice.”).

-- 24 of 33 --

25
doctrine—and by extension § 1983—does not. Smith, 494 U.S. at 887
n.4.12
Even in the RFRA context, however, the substantial burden
inquiry does not authorize courts to determine the centrality of the
burdened practice to the plaintiff’s religion. See 42 U.S.C.
§ 2000cc-5(7)(A) (defining “religious exercise” to include “any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief”); id. § 2000bb-2(4) (providing that, for
purposes of RFRA, “the term ‘exercise of religion’ means religious
exercise, as defined in section 2000cc-5 of this title”). Instead, RFRA
requires an objective inquiry into the extent of the governmental
pressure on the plaintiff’s exercise of religion. See Jolly v. Coughlin, 76
F.3d 468, 477 (2d Cir. 1996) (explaining that a substantial burden
under RFRA “exists where the state ‘put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs’”) (quoting
Thomas, 450 U.S. at 718); see Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 719-20 (2014) (deciding that a mandate “‘substantially burdens’
the exercise of religion” because it imposes “severe” and “substantial
economic consequences” on the plaintiffs’ adherence to their “sincere
religious belief”) (alteration omitted) (quoting 42 U.S.C.
§ 2000bb-1(a)); Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 140 S. Ct. 2367, 2383 (2020) (explaining that “under
12 The Religious Land Use and Institutionalized Persons Act (“RLUPIA”),
which applies to inmates such as Kravitz and authorizes religious
exemptions, also requires a substantial burden inquiry. 42 U.S.C. § 2000cc-
1(a). RLUIPA “allows prisoners to ‘seek religious accommodations
pursuant to the same standard as set forth in RFRA.’” Holt, 574 U.S. at 358
(quoting Gonzales v. O Centro Espírita Beneficente Uniõ do Vegetal, 546 U.S.
418, 436 (2006)).

-- 25 of 33 --

26
RFRA, the Departments must accept the sincerely held complicity-
based objections of religious entities” and could not decide that “the
connection between what the objecting parties must do and the end
that they find to be morally wrong is simply too attenuated”) (internal
quotation marks and alterations omitted).13
In the context of a § 1983 claim for a violation of the First
Amendment, there is no requirement to show that the governmental
burden on religious beliefs was “substantial.” Rather, “a plaintiff may
carry the burden of proving a free exercise violation ... by showing
that a government entity has burdened his sincere religious practice
pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’”
Kennedy, 142 S. Ct. at 2421-22 (quoting Smith, 494 U.S. at 880).
C
Courts that apply the substantial burden test suggest that it
disposes of free exercise claims that “find [no] support in the religion
to which [plaintiffs] subscribe” or that are “self-serving.” Levitan, 281
F.3d at 1321. For a claim under § 1983, the “threshold question of
sincerity” serves that function. United States v. Seeger, 380 U.S. 163, 185
13 See also Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill.
L. Rev. 1771, 1775 (“[I]n order to determine whether a burden is substantial,
courts must examine the substantiality of the civil penalties triggered by
religious exercise. By focusing on the substantiality of civil penalties—as
opposed to the substantiality of religious or theological burdens—courts
can avoid Establishment Clause concerns, while still enforcing the
threshold inquiry required by RFRA. In this way, courts can both avoid
allocating government burdens on the basis of a judicial inquiry into
theology, while still ensuring that RFRA’s protections are not granted
simply on the say so of claimants who assert that the burdens they have
experienced are substantial.”).

-- 26 of 33 --

27
(1965). A court’s inquiry into sincerity “properly extends to
determining ‘whether the beliefs professed by a claimant are sincerely
held and whether they are, in his own scheme of things, religious.’”
Patrick, 745 F.2d at 157 (quoting Seeger, 380 U.S. at 185). The sincerity
test “provides a rational means of differentiating between those
beliefs that are held as a matter of conscience and those that are
animated by motives of deception and fraud.” Id.
While “the judiciary is singularly ill-equipped to sit in
judgment on the verity of an adherent’s religious beliefs,” id., courts
“are clearly competent to determine whether religious beliefs are
‘sincerely held,’” Jackson v. Mann, 196 F.3d 316, 321 (2d Cir. 1999).
Such an inquiry is “largely a matter of individual credibility” rather
than an examination of “applicable religious tenets.” Davis v. Fort
Bend Cnty., 765 F.3d 480, 485-86 (5th Cir. 2014). And the inquiry can
dispose of claims that are “so clearly nonreligious in motivation” as
not to merit First Amendment protection. Thomas, 450 U.S. at 715.
“The distinction between questions of centrality and questions of
sincerity and burden is admittedly fine, but it is one that is an
established part of our free exercise doctrine and one that courts are
capable of making.” Smith, 494 U.S. at 907 (O’Connor, J., concurring
in the judgment) (citation omitted).
D
Although Kravitz was incarcerated, “prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979).
“Inmates clearly retain protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of
religion.” O’Lone, 482 U.S. at 348 (citation omitted). Indeed,

-- 27 of 33 --

28
“[p]risoners have long been understood to retain some measure of the
constitutional protection afforded by the First Amendment’s Free
Exercise Clause.” Ford, 352 F.3d at 588.
In the prison context, however, “the right to free exercise of
religion” is balanced against “the interests of prison officials charged
with complex duties arising from administration of the penal
system.” Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990).
Therefore, an infringement of the free exercise of religion is
permissible only if it is “reasonably related to legitimate penological
interests.” Id. (quoting Turner, 482 U.S. at 89).14 In short, “[t]o assess
a free exercise claim, a court must determine (1) whether the practice
asserted is religious in the person’s scheme of beliefs, and whether the
belief is sincerely held; (2) whether the challenged practice of the
prison officials infringes upon the religious belief; and (3) whether the
challenged practice of the prison officials furthers ... legitimate
penological objective[s].” Farid v. Smith, 850 F.2d 917, 926 (2d Cir.
1988).
In this case, the district court addressed only the threshold
substantial burden test without proceeding to consider the
relationship to legitimate penological interests. The district court
14 In Turner, the Supreme Court identified four factors to be considered in
assessing whether a regulation is reasonably related to legitimate
penological interests: (1) “whether there is a rational relationship between
the regulation and the legitimate government interests asserted,”
(2) “whether the inmates have alternative means to exercise the right,”
(3) “the impact that accommodation of the right will have on the prison
system,” and (4) “whether ready alternatives exist which accommodate the
right and satisfy the governmental interest.” Benjamin, 905 F.2d at 574
(citing Turner, 482 U.S. at 89-90).

-- 28 of 33 --

29
reasoned that, “had McMahon and Wassweiler caused Plaintiff to
miss the Shavuot prayers and meal on June 4, 2014, that single missed
celebration would have constituted a substantial burden on Plaintiff’s
free exercise given Shavuot’s central importance.” Kravitz, 2022 WL
768682, at *9 (emphasis added). According to the district court,
however, Kravitz’s “Shavuot celebration was only shortened, not
denied” because he was able to “congregate, pray, and eat a festive
kosher meal.” Id. at *10.
Kravitz can prevail on his claim because he has shown a burden
on his sincere religious beliefs. It is not in dispute that Kravitz
practices Judaism and considers the observance of Shavuot with
communal prayer to be a religious practice. Nor do the officers
dispute that Kravitz observes the holiday pursuant to sincerely held
religious beliefs. Memorandum in Support of Defendants’ Motion for
Summary Judgment at 5, Kravitz v. Purcell, No. 16-CV-8999 (S.D.N.Y.
Mar. 10, 2021), ECF No. 128; see also Oral Argument Audio Recording
at 8:09 (“[W]e are not questioning the sincerity of his religious
beliefs.”). The admissible evidence shows that Kravitz was unable to
observe his religious holiday due to the abusive conduct of
corrections officers. On the first night, corrections officers obstructed
all communal prayer and threw paper bags at the inmates, “laughing
and say[ing], here is your kosher meal. You Jew, blah, blah, and F-U.”
Kravitz Dep. at 67. On the second night, an officer interrupted
Kravitz’s prayer after approximately thirty seconds, stating, “I don’t
want to hear that. You need to stop and get eating that food. I got
things to do.” Id. at 92.
The district court erred in deciding that the burden on Kravitz’s
observance was insufficient to establish an infringement of his right

-- 29 of 33 --

30
to free exercise under the First Amendment. The district court could
reach that conclusion only by deciding that thirty seconds of prayer
or a blessing over bread suffices for Shavuot observance.15 But what
the observance of Shavuot entails is beyond the competence of a
federal court. Kravitz has produced evidence showing that his sincere
religious beliefs were burdened, and that is enough to survive a
motion for summary judgment.
II
Under 42 U.S.C. § 1983, “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State …
subjects, or causes to be subjected, any citizen of the United States …
to the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws” is “liable to the party injured.”
To “establish a defendant’s individual liability in a suit brought
under § 1983, a plaintiff must show ... the defendant’s personal
involvement in the alleged constitutional deprivation.” Grullon v. City
of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To do so, “a plaintiff
must plead and prove ‘that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). “The factors
necessary to establish a § 1983 violation will vary with the
15 To the extent that the district court thought that the blessing over bread
constituted a Shavuot prayer rather than a component of the meal, the
district court misunderstood Kravitz’s observance. See Kravitz Dep. at 94
(“[B]efore you eat, ... you pray over the meal, the bread. ... Well, first the
wine, and then the bread, and then we eat.”).

-- 30 of 33 --

31
constitutional provision at issue because the elements of different
constitutional violations vary.” Id. (internal quotation marks and
alteration omitted). In the context of the Free Exercise Clause, we have
explained that liability depends on an officer-defendant acting with
at least deliberate indifference in depriving an inmate of the ability to
engage in a religious practice. Wiggins, 2023 WL 8009312, at *8.
Officers Zupan, Purcell, Baker, St. Victor, McCray, and Andreu
testified that they did not participate in the alleged incidents. They
either did not work on the evenings of June 3 and 4 or they worked in
different areas of the prison at the relevant times.
Although Kravitz stated in an affidavit that these officers were
present on the evening of June 3, he conceded in deposition testimony
that this statement was not based on personal knowledge. When a
party relies on an affidavit to establish facts on summary judgment,
“the statements ‘must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant … is
competent to testify on the matters stated.’” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)). The district
court properly dismissed the claims against these officers because
Kravitz could not identify admissible evidence that the officers were
personally involved in the alleged deprivation of Kravitz’s rights.
Kravitz does not challenge that determination on appeal. He
now claims that McMahon and Wassweiler were involved in the
events of both nights of Shavuot, rather than only those of June 4.
McMahon and Wassweiler were the “religious services officers [who]
completely prevented him from observing Shavuot on the first night
of the holiday and on the second night stopped the prayer service at
its inception.” Appellant’s Br. 17 (emphasis omitted).

-- 31 of 33 --

32
The district court did not err in recognizing that Kravitz’s
claims against McMahon and Wassweiler did not extend to the events
of June 3. See Kravitz, 2022 WL 768682, at *9 (“In the TAC, Plaintiff
alleges that Purcell, Baker, Andreu, McCray, and St. Victor were
responsible for the deprivation of Plaintiff’s free exercise rights via
the incident on June 3, 2014, and McMahon, Wassweiler, and Zupan
were responsible for the deprivation of Plaintiff’s free exercise rights
via the incident on June 4, 2014.”). Kravitz’s complaint and Rule 56.1
Statement do not state that McMahon and Wassweiler were involved
in the June 3 incident.16 But to identify the defendants involved in
each incident, Kravitz relied on the Attorney General’s response to
the district court’s Valentin order. As it turns out, the Attorney
General identified officers who were not involved in the events of
June 3. On remand, the district court may decide to issue a new
Valentin order, permit additional discovery, or permit leave to amend.
In other words, “[t]he district court may pursue any course that it
deems appropriate to a further inquiry into the identity” of the
defendants. Valentin, 121 F.3d at 75; see also Lurch v. Doe Officers, No.
22-CV-2324, 2022 WL 17617837, at *2 (S.D.N.Y. Dec. 13, 2022) (noting
that a district court may take additional steps when the “accuracy or
sufficiency” of a Valentin response is in question).
16 The record as a whole is ambiguous as to whether McMahon and
Wassweiler participated in the events of June 3. The record does not contain
declarations from McMahon or Wassweiler. The Attorney General,
however, represented that McMahon and Wassweiler were the “officers
assigned to the Jewish holiday services.” Valentin Response at 1. While
Kravitz testified that he interacted with different officers on the two
evenings, he also testified that the officers “all look the same to me” and
that he was careful not to look directly at them. Kravitz Dep. at 79-80.

-- 32 of 33 --

33
CONCLUSION
Kravitz has sufficiently demonstrated a burden on his sincere
religious beliefs such that the district court erred in granting summary
judgment to the defendants. We vacate the judgment insofar as the
district court granted summary judgment because Kravitz did not
show a substantial burden. We affirm the judgment insofar as the
district court granted summary judgment based on the lack of
personal involvement of Zupan, Purcell, Baker, St. Victor, McCray,
and Andreu. We remand for further proceedings consistent with this
opinion.

-- 33 of 33 --