Abdulhaseeb v. Calbone

ABDULHASEEB, Jerry Madyun a/k/a Thomas, Plaintiff-Appellant,

L. Warden; Wood, CALBONE, Ken

Sam Barger, Disciplinary

Chaplain; Lt. Of Warden;

ficer; Smith, Deputy Travis Coordinator; Haskins, Grievance

J. Manager; Elizondo,

Vanwey, Case Branum, Investigator; Manager;

Unit Ward, Director; Melinda Guil

Ron

foyle, Manager Re Administrative Morton, Designee; Debbie

view &

Manager Administrative Review & Kirby,

Designee; Richard General Anderson, Deputy

Counsel; Ron Gen Warden; Counsel; Mullin, Mike

eral Franzese, Chaplain; Kameron Har

G. Warden; Mock,

vanek, Deputy Supervisor; Ms. Cart

Food Service Supervisor;

wright, Ma Food Service Security;

jor Devaughn, Lt. Chief

Beasley; Jacques, Deputy Z. Warden GPCF; Dishman, Grievance Coor

dinator, Defendants-Appellees,

Kenny Demby, Food Service

Supervisor, Defendant.

No. 08-6092. Appeals, States Court of

United

Tenth Circuit.

April $25,000, injuries, bodily injury only up dolph regarding and that Moser his sister’s such, $25,000 policy's damages, arguable the Allstate automobile and losses. As no above provision "gap” poli- exclusion is enforceable exists between the automobile household recovery pol- cy’s coverage policy's and forecloses further under the and the umbrella cov- Thus, bodily injury. icy by "gap” erage Moser. there is a between for automobile related $25,000 Therefore, policy's the automobile maximum the district court’s conclusion $100,000 minimum; policy’s policy and the umbrella that the umbrella does not or cannot coverage contemplated by coverage the um- provide any is in error. excess however, have, policy play into under KAIRA brella does not come We determined that coverage requires these circumstances. automobile insurance (Andrew L. Myers Elizabeth Harris brief), with her on the Jacobs Chase Frick LLC, Kelley, Denver, CO, Kleinkopf & for Plaintiff-Appellant. Rytter, Attorney

Kim M. Assistant Gen- eral, Office, Attorney Oklahoma General’s Section, OK, Litigation City, Oklahoma Ward, Defendants-Appellees Guilfoyle, Morton, Anderson, Kirby, Mullin, Franzese, and Harvanek. Pope, Associates,

Don G. Don Pope G. & P.C., Norman, OK, Defendants-Appel- for Calbone, Wood, Branam, Vanwey, lees Eli- zondo, Haskins, Beasley, Jacques, De- Dishman, Vaughn, Barger, and Smith. Coppinger Peter M. Gregory and D. Cote, LLP, Boston, English, McCarter & MA, Defendants-Appellees for Mock and Cartwright. HENRY, Judge,

Before Chief EBEL GORSUCH, Judges. and Circuit HENRY, Judge. Chief Abdulhaseeb, Madyun in- Oklahoma faith, mate who follows the Islamic filed Religious suit under the Land Use and Institutionalized Persons Act of 2000 (RLUIPA), §§ 42 U.S.C. 2000cc to 2000ce- 5,1 § setting and U.S.C. forth concerning seventeen claims his conditions of incarceration. The district court dis- sistance, applies programs presume RLUIPA to or we activities that it does. See Wilkinson, receiving financial assistance. Cutter v. federal 544 U.S. 716 n. 2000cc-l(b)(l). U.S.C. Defendants have 125 S.Ct. 161 L.Ed.2d 1020 argued ("Every accepts funding that the Oklahoma correctional State ... federal for system prisons.”). does not receive federal financial as- its GPCF, a that contracts with private prison several of his prejudice without missed claims exhaust administrative the state of Oklahoma to hold Oklahoma to failure for Calbone, summary judgment prisoners. Vanwey, Defendants granted remedies remaining Wood, Branum, Elizondo, claims. Beasley, on to defendants Initially appeals. he Haskins, DeVaughn, Barger, Abdulhaseeb Jacques, Mr. se, appointed (the coun- pro but proceeded Dishman, and Smith GPCF Defen- supplemental him for represent dants) sel employees are or were at GPCF. argument.2 briefing and oral (the Cartwright Defendants Mock and Defendants) are or were em- Canteen jurisdiction under 28 U.S.C. have We third-party company ployed work judgment affirm the favor § 1291. We in the canteen. GPCF majority of Mr. Ab- of defendants claims, we vacate and re- but dulhaseeb’s GPCF, among other issues re- While on two proceedings further mand prison’s lated to the treatment of Muslims established that claims. Mr. Abdulhaseeb religion, to his and issues unrelated proceed with his RLUI- he was entitled sought provided to be halal claims, first, that his exercise PA request he filed a foods. October substantially burdened when officials was concerning grievance being to staff and a (OSP) Penitentiary at the Oklahoma State accept puddings jello forced to on his and, for a halal diet request denied staff, tray. request In his he stated second, officials at the Great Plains when that some of the GPCF Defendants and (GPCF) Facility denied his Correctional representing the Canteen Defendants “are halal meat for an Islamic feast. request for kosher, jello halal pudding & Morton, See, e.g., Williams U, K, but it doesn’t have an or H. So it is (3d Cir.2003) (“A Halal, lawful, unlawful, containing monogly- forbidden fruits, seafood, vegetables, diet includes ceride, lecithin, whey.” and R. Doc. from herbivorous animals such and meat 2, p. Exh. 4 of 4. A GPCF staff member properly chickens that are as cows and (apparently DeVaughn), defendant re- regard The record with slaughtered.”). Thomas, sponded, you “IM [Inmate] will these two RLUIPA claims is insufficient be served in accordance with the approved for us to determine whether the burden on menu.” Id.3 Mr. Abdulhaseeb followed up Mr. Abdulhaseeb’s exercise is (defendant grievance awith to the warden in- justified by compelling governmental Calbone), noting that puddings/jello “[t]he restrictive means of terest and is the least They carry are not Halal. don’t Halal or Thus, that interest. these accomplishing U).” Id., p. (H, K, symbols kosher and proceed- for further claims are remanded requested provided of He that he be ings in the district court. jello,” “with an to pudding alternative & id., purchase and that GPCF halal-certi- I. BACKGROUND or fied kosher-certified desserts or allow underlying litigation. A. The events him fruit an alternative. Defendant relief, 4, 2001, indicating Calbone denied January Between and Mr. June place was incarcerated at Abdulhaseeb had not been forced to time, Department appointment pur- 2. Our of counsel 3. At that Oklahoma of Cor- was (ODOC) poses appeal only. request of the We that the rections did not offer kosher meal option. pertinent portions appoint district court for Mr. Abdul- of ODOC Poli- counsel 26, 2002, OP-030112, cy evidentiary haseeb effective June and its on remand so hear- ings pursued properly. appended opinion. can be amendments are this tray fed, jello pudding raised, on his and that the which animals are and slaugh- pork-free did jello pudding and were and according tered to Islamic dietary laws pork by-products, not contain “thus meet- ingredients and are clearly Halal and foods ing your Islamic beliefs.” R. Doc. ingredients and questionable which are Exh. 3 at 2. (unknown) avoided, are completely such as jello puddings.” and Id. Defendant

In November Mr. Abdulhaseeb responded, Franzese per policy OP- “[a]s request griev- filed another to staff and a VILA., the Department of Correc- requesting ance halal GPCF provides tions two types of diets for reli- general for the population chickens for the (1) gious non-pork, reasons: vegetari- in January Islamic feast of Eid-ul-Adha diet, an. you For a modified health must 2005. Defendant Calbone denied contact the medical staff.” Id. Mr. Abdul- you grievance, stating, policy “DOC allows grievance, haseeb then filed a in which he purchase through ap- Hallal meal an GPCF, stated: proved practice vendor. The year, to provide

which includes is Qur’an I am a Muslim. The and Sunnah Hallal meal at the conclusion of Ramadan. (traditions) Prophet Muhammad or- R. Doc. Exh. p. Relief denied.” 3 of der me to eat good food that unsuccessfully appeal- 4. Mr. Abdulhaseeb pursuant lawful to Islamic dietary laws. Department ed to the Oklahoma of Correc- Circuit, In this 10th inmates have a con- (ODOC), arguing tions that under Tenth right stitutional to a diet consistent with precedent Circuit he should not have to sincerely their held religious beliefs. purchase religious food or have it donated. You feed me a non-pork common fare vegetarian diet or a January diet[ ]. On Mr. Abdulhaseeb Those diets OSP, repugnant transferred to are sinful and to me facility was run and vio- Mullin, Franzese, requirements ODOC. Defendants late the of Halal Islamic (the Defendants) dietary Harvanek OSP are or laws. I require a Halal diet employed were The remaining Sunnah, OSP. Qur’an defined in- (Ward, Morton, Guilfoyle, defendants Kir- raised, cluding meats and poultry grain Anderson) by, and are or employees were fed, steroids, no slaughtered accord- (the Defendants). of ODOC ODOC ing My to Islamic laws. diet also re- quires that I avoid foods that are ques- OSP, among Soon after his arrival at regard tionable with up to its make and prison’s other issues related to the treat- ingredients. questionable Doubtful or Muslims, ment of Mr. again Abdulhaseeb ingredients are forbidden. requested February halal foods. In a staff, request to he wrote: Id., p. 2 of 4. requested He that OSP request I am a Muslim. I a Halal provide diet him “with a Halal diet that is my sincerely that is consistent with my sincerely consistent with held Islamic religious beliefs and does not substan- Mullin, dietary law.” Id. Defendant then tially my burden freedom of OSP, responded, you warden at “as expression and is the least restrictive were informed in response your to vindicating your penological means of staff, request February to dated Your non-pork interests. common fare provides OP-030112 two diets for reli- vegetarian diet and diet are diets gious reasons. You elect either the diet____Your dietary that are consistent with Islamic non-pork vegetarian or the laws. request for a special Islamic diet is de- Id., Id., 4. p. requested p. Exh. of 4. He nied.” of Mr. Abdulhaseeb ODOC, “[p]rovide unsuccessfully appealed OSP Islamic diet to arguing [him] [an] underly- parentheticals indicating erred in with Reviewing Authority The 1. request for a diet for the claim: my ing legal basis denying my sincerely held reli consistent with Concerning A. Initial Claims GPCF the color of state under gious belief him full- Failing provide Claim 1: to Holy The Facts. Supporting laws. at paid spiritual time Muslim leader mandate that I eat Sunnah Qur’an and (RLUIPA); GPCF slaughtered good and all lawfully meats jello him Forcing accept Claim 2: to in OP-030112. The two diets foods. tray on his food at pudding GPCF the Islamic stan me[et] do not VII.A (RLUIPA); Suthers, Beerheide dard. Cir.2002). Denying request Claim 3: his to add 1179, 1194 visiting second friend to his list GPCF in that authority erred Reviewing (§ 1983); not the least restric- his resolution was substantially] my burdens free tive and Failing 4: to host an Islamic re- Claim religion. Supporting expression (RLUIPA); vival at GPCF re- nonpork diet is most Facts. Failing 5: halal meats Claim and forces me to eat meats strictive for the Islamic feast of Eid-ul-Adha (not slaughtered Islamically) prohibited (RLUIPA); January 2005 GPCF vegetarian usurps to survive. The diet Establishing Christianity Claim 6: prescribe what is power of God (RLUIPA); religion the state at GPCF and is a form of prohibited lawful and Printing passing Claim 7: out (Association of Part- [indiscipherable] religious pamphlets Christian at GPCF God). says lawful ners with God eat during holiday the winter season (God) says Allah avoid doubtful meats. (RLUIPA); I am forced to do without food matters. ingredi- food I don’t know what eat Retaliating against Claim 8: him for are in it like or what it is made of ents exercising right petition for re- jello pudding. like See U.S.C. (§ 1983); grievances dress of at GPCF (2000). seq. 2000cc et Id. Failing Claim in- 9: to allow Muslim mates to halal 3, 2005, purchase meats for the re-

On March GPCF, feast of Islamic Eid-ul-Fitr at GPCF turned to where he remained for (RLUIPA). again time until he was transferred. He currently is incarcerated at the Lawton B. Concerning Claims OSP which, Facility, Correctional we were in- Denying Claim 10: him a halal diet at argument, subject formed at oral also is (RLUIPA); OSP the current policies. ODOC Under ODOC 11: Spending state-appropriated Claim policy, prisoners may non-pork select a money only on secular needs and not on vegetarian option, prison- meal and Jewish needs; treating religion differ- option. ers select a kosher meal (RLUIPA, 1983); ently § proceedings in the 12: Failing paid B. The district Claim to (RLUI- court. Muslim spiritual leader at OSP PA); (and Mr. Abdulhaseeb’s second amended

verified) Failing replace Claim to his confis- 13: complaint asserted seventeen claims cated hardcover Islamic books with soft- under RLUIPA and 1983. The (RLUIPA); number, claims are summarized cover books at and below OSP opportunity Concluding that the Denying 14: him the claims are not moot Claim though attend Jumu’ah services OSP Mr. to even Abdulhaseeb has been (RLUIPA). GPCF, away transferred from OSP we hold that the Concerning grant- district court erred Further Claims GPCF C. summary ing judgment to the OSP Defen- adjust his classifi- Refusing 15: Claim dants and the ODOC Defendants on Claim after a misconduct cation level GPCF (§ 1983); 10 and the GPCF Defendants and overturned was ODOC Defendants on Claim 5. In Part Denying promotion 16: Claim H.D., we consider the claims on which we after a earned credit at GPCF miscon- (§ 1983); grant summary judgment affirm the overturned duct was defendants, and, III, finally, in Part we Denying special pay 17: for a Claim our (§ 1983). state conclusion. special project at GPCF summary All defendants moved for II. ANALYSIS judgment, magistrate judge and the issued comprehensive report properly and recommenda- A. district court dis- tion. He concluded that Mr. Abdulhaseeb missed the unexhausted claims. had not exhausted his administrative rem- Mr. challenges Abdulhaseeb first regard through edies with to Claims 6 9 district court’s determination that he failed through and 14 17. He recommended a properly to exhaust his administrative on the grant summary judgment merits regard remedies with through Claims 6 remaining of all the claims. Mr. Abdulha- through 9 and 14 17. Having reviewed the objected. Arguing magis- seeb determination of failure to exhaust de judge stayed discovery pending trate had novo, see Fields v. Okla. State Penitentia preparation special report, of a defendants’ Cir.2007), ry, we requested time to conduct discov- he also not persuaded are that the administrative ery pursuant to Federal Rule Civil Pro- process inadequate, was whether because 56(f). cedure The district court denied the parte of the ex communications of which 56(f) motion. The district court Rule Mr. complains or otherwise. and recommendation adopted report substantially For the reasons set forth in on all in fa- judgment and entered claims magistrate judge’s report and recom vor of the defendants. Mr. Abdulhaseeb mendation, accept the conclusion that appeals. through Claims 6 14 through were not exhausted and affirm the dismiss Summary opinion. C. of our prejudice al without of those claims. II.A, In Part we affirm the district through court’s dismissal of Claims 6 9 and B. The district court did not err through 17 for failure to exhaust admin- staying discovery pending the de- H.B., istrative remedies. In Part we re- preparation fendants’ of a Martinez ject Mr. Abdulhaseeb’s contention that he report denying or in Mr. Abdulha- improperly conducting was barred from 56(f) subsequent seeb’s Rule mo- discovery separate ground revers- tion. decision, ing the district court’s and we argues Abdulhaseeb next hold that the district court did not abuse 56(f) court in granting the district erred sum denying its discretion in the Rule mary II.C., judgment to defendants on his ex In Part we turn our atten- motion. that we hausted claims because he was not allowed tion to the two RLUIPA claims require proceedings. any discovery. magistrate conclude further to conduct The 1310 Cir.1996) (“Issues first raised for the time report, pursuant for order

judge’s (10th Aaron, F.2d 319 objections judge’s 570 magistrate v. the rec- Martinez banc) curiam), Cir.1978) (en stayed (per waived.”); ommendation are deemed see discovery the court ordered until Inc., Stores, further v. also Adler Wal-Mart 144 complains Mr. Abdulhaseeb otherwise. (10th (“[T]he Cir.1998) 664, 672 non- F.3d his re- judge entered magistrate the that in the carry movant must its burden dis- lifting without port and recommendation in a ... timely trict court fashion or ex- moreover, and, discovery, that stay on the 56(f). it plain why pursuant cannot to Rule dis- staying plaintiffs’ of practice local the Otherwise, acts, the nonmovant fails of preparation defendants’ covery pending (citation omitted)). act, peril.” at its is inconsistent report with a Martinez Second, litigants pro while se are of the Federal Rules discovery provisions reading to a liberal of their filings, entitled of Procedure. Civil Kerner, 519, 520-21, Haines v. 404 U.S. mat scheduling are Discovery (per 30 L.Ed.2d 652 cu S.Ct. dis the district court’s broad within ters riam), they still follow the must established Consulting King v. PA cretion. See 56(f) motions, procedures governing Rule (10th Inc., 577, 591 Cir. 485 F.3d Group, (10th Stuart, v. DiCesare 12 F.3d 2007). ordering a Mar practice The of Cir.1993). “A party seeking to defer a approved which report, was tinez ruling summary judgment on under Rule assembly of allows the circuit 56(f) explains must file an affidavit “necessary orderly consider record why summary judgment facts precluding Martinez, 570 F.2d at of the issues.” ation presented. cannot be includes This identi persuaded staying not are 319. We fying probable not available facts an of the re discovery pending evaluation steps what have taken to obtain port abuse of discretion or been these constitutes Trask, discovery impermissibly (quotation contravenes facts.” at 1042 F.3d provisions the federal rules. omitted); of see v. U.S. also Garcia Air (10th Force, Cir.2008) 533 F.3d the extent be To Mr. Abdulhaseeb (“A 56(f) party not invoke Rule opportuni he not have sufficient lieved did simply stating discovery is incomplete evidence, necessary Federal ty to discover specificity but must state with how the 56(f) provided Procedure Rule of Civil his additional material the summary will rebut 56(f) remedy. He filed a Rule motion motion.”) omitted). judgment (quotations court, argues the district and he before conclusory Mr. Abdulhaseeb’s declaration that the court did not construe appeal penalty of perjury under failed to liberally. denial of a motion Rule specific required information for relief 56(f) abuse of dis motion is reviewed for 56(f). Franco, under Rule We will not reverse the Trask cretion. Cir.2006). (10th reasons, grant summary judgment For two on the basis 56(f) discretion district court did abuse its in of the Rule ruling.

denying the motion. granting C. The district erred in court First, failed Mr. Abdulhaseeb summary judgment on two claims 56(f) magistrate Rule before the invoke under RLUIPA. filing in the dis judge, instead his motion raises several re magistrate judge’s trict court after the arguments regarding the merits the dis Thus, port and recommendation was filed. 56(f) summary judgment grant trict court’s Rule Mar he waived his issues. See Chater, through 1 through shall v. on Claims 5 and 10 F.3d

1311 omitted). summary court reviews an award of (quotation “This “In deciding whether novo, judgment viewing moot, de the record in a case is question the crucial is most to the light non-moving favorable granting present whether determination Moreover, party. this court construes a of the issues offered will have some effect party’s pleadings liberally.” se Ham pro in the real world. itWhen becomes im- (10th Saffle, v. F.3d 1254 mons 348 possible for a court grant effective re- Cir.2003) (citation omitted). Summary lief, exist, a live controversy ceases to and “if judgment appropriate pleadings, the case becomes moot.” Kan. Jud. Re- discovery and disclosure materials on view, (citation 562 F.3d 1246 quota- and file, any affidavits show that there is omitted). tion genuine any no issue toas material fact provides RLUIPA for an award “ap- judg and that the movant is entitled to propriate against government,” relief ment as a matter of law.” Fed.R.Civ.P. 2000ec-2(a), § U.S.C. but it does not speci- complaint may 56. verified be “[A] treated fy exactly type(s) what may of relief be purposes summary affidavit for “appropriate.” Mr. request- judgment if it satisfies the standards for ed both money damages injunctive 56(e).” affidavits set out in Rule Conaway relief. (10th Smith, Cir.1988) v. 853 F.2d Because Mr. Abdulhaseeb has been curiam). (per While we affirm the district away GPCF, transferred from OSP and it disposition majority court’s of the of the appears that declaratory injunctive re claims, below, II.D. see Section we con lief will not be against available the OSP clude that RLUIPA Claims 5 and 10 must Defendants, Defendants, the GPCF proceedings. be remanded for further

the Canteen Defendants. See Green v. 1. The RLUIPA claims are not moot. Branson, (10th 108 F.3d Cir. 1997) (holding that prisoner once was re

First, however, we must consider prison system, leased from the neither de jurisdiction whether we retain to consider claratory injunctive nor relief would have claims, in light RLUIPA of Mr. Abdul any behavior); effect on defendants’ Love away haseeb’s transfer from OSP and v. Summit County, 776 F.2d GPCF, 910 n. representation and his to this court (10th Cir.1985) (indicating brought he his RLUIPA claims general against applies rule to a capaci defendants in their official transfer between Attach, ties, Br., Aplt. Opening prisons). see Pro Se

p. 24.4 Further, he not be able to recover money damages claims, on his RLUIPA juris

“Article III delimits the against least not the OSP Defendants and courts, diction of allowing federal us to the ODOC Defendants. Several circuit only consider actual cases or controver held, courts have under the principles of Stout, sies.” Kan. Jud. Review v. (Eleventh Amendment) (10th Cir.2009). sovereign immuni F.3d “[A]n ty, money damages are not controversy actual extant available must be at all review, for stages official-capacity not merely at the time RLUIPA claims. See Reisch, complaint Wyhe is filed.” Van v. Arizonans 654-55 for Of Arizona, English 43, 67, Cir.2009), (Jan. 520 U.S. petition cert. ficial for filed 2010) (No. 09-821), S.Ct. 137 L.Ed.2d 170 petition cert. available, ey damages Mr. Abdulhaseeb also asserts that he are mootness is not an brought against 1983 claims defendants regard issue with to those claims. capacities. in their individual Because mon- 1312 2010) (No. 09-953); authority Mr. Abdulhaseeb re- (Feb. Nelson v. for ODOC. 9,

filed (7th 868, Miller, 884-85 Cir. custody, F.3d incarcerated in 570 mains ODOC’s Metrish, 794, 2009); 564 F.3d v. Cardinal subject policies, judgment to and a ODOC (6th Cir.), filed, cert. 78 petition 801 may modify require in his favor ODOC to for 2009) (No. 22, 09- (July 3065 U.S.L.W. Thus, relief remains avail- policies. those Tex., 109); v. Lone Star State Sossamon of able, claims are not and the RLUIPA (5th Cir.), petition 331 560 F.3d for Randolph Rodgers, moot. See v. 170 F.3d (May 3657 77 U.S.L.W. filed, cert. (8th Cir.1999) (holding that an 857 2009) (No. 08-1438); Virginia, Madison v. Americans With Disabilities Act claim was (4th Cir.2006). This 131 474 F.3d moot, a despite plaintiffs not transfer to by one by the statement supported view is prison, plaintiff different state where sued in of sponsors the House of RLUIPA’s Corrections, Department “which Cong. 146 Rec. Representatives. See prisons funding controls both and the nec- (statement 2000) Rep. (Sept. essary sign language inter- (“These and defenses lie Canady) claims requested”). preter Act does not against government, a but the Amendment immu abrogate the Eleventh purposes avoiding summary 2. For states.”). hand, the other one nity of On judgment on Mr. Ab- his Claim monetary circuit court has concluded that adequately dulhaseeb demonstrat- against official-capacity relief is available genuine ed a material fact issue of (although, in RLUIPA suits defendants whether the denial of halal foods acknowledged, prisoner for a the court also substantially burdened his OSP Litigation Reform plaintiff, the Prisoner religious exercise. Act will limit such relief to nomi generally Allen, damages). nal Smith In Claim Mr. Abdulhaseeb Cir.2007). 1255, 1271 complains that at OSP he was denied meat, halal diet that included in violation But need not decide the issue of part, of RLUIPA. relevant RLUIPA immunity ap in this Eleventh-Amendment provides that: peal. The defendants have not raised the us, unnecessary it issue before and we find government impose No shall a substan- sponte time decide whether sua tial burden exercise of against offi money damages are available in to an person residing or confined in a cial-capacity defendants RLUIPA ... government institution unless the ex rel. Burlbaw v. Oren case. See U.S. demonstrates that of the bur- imposition (10th Cir.2008) F.3d duff person— den on that (noting that Eleventh-Amendment immu (1) a compelling is furtherance of waivable, raised nity is and need be interest; governmental if sponte). the court sua Even Mr. Abdul (2) fur- is the least restrictive means of money damages haseeb cannot recover thering compelling governmental against any injunctive relief defendant interest. defendants, against the prison-specific 2000cc-l(a). Thus, proceed U.S.C. courts effective re still fashion some claim, with his Mr. Abdulhaseeb RLUIPA Defendants, particularly lief. The ODOC engage must demonstrate he wishes to ODOC, parties the director of remain (1) (2) motivated religious exercise litigation. given deny The reasons belief, sincerely which exercise ing requests for halal Abdulhaseeb’s imposed by subject to a substantial burden policies, foods involved ODOC and the di government. final See Kikumura v. Hur- policymaking rector of ODOC has (10th Cir.2001) (re questionable because of their ley, F.3d unclear ori- in prisoner gins; they may elements suit un halal quiring these be or haram. See Religious IFANCA, Halal?; ISA, of the language der the similar What is What is Act of 1993 Organizations Freedom Restoration Halal?. such as IFANCA McCotter, (RFRA))5; see also Werner v. offer a procedure, by and ISA certification (10th Cir.1995) 1476, n. 1 F.3d 1479 halal products which are marked with a (holding that “the burdened belief must be logo that confirms their halal status. See sincerely plaintiff’); held IFANCA, Grace About http://www. IFANCA City Chey Methodist Church v. (last United ifanca.org/about/ 26, February visited of (10th Cir.2006) enne, 643, 451 F.3d 660-61 2010); ISA, Process, The Certification a (assuming that exercise under http://www.isaiowa.org/content.asp7ID held); sincerely RLUIPA must be Cutter (last 2010). February =1680 visited Wilkinson, 544 U.S. 725 n. The record is not entirely clear as to S.Ct. 161 L.Ed.2d 1020 whether a seeks halal- (“[RLUIPA] preclude inquiry does not into diet, certified or simply halal-certified a sincerity prisoner’s professed of reli part meats as of a diet that is “halal” in giosity.”). the sense that the provided foods are not “haram.” Giving him the benefit of all a. Mr. Abdulhaseeb believes he should inferences in his favor at this summary- a consume halal-certified diet that judgment stage, proceed on the under- includes meats. standing that he seeks a halal-certified diet varying dietary There are Islamic tradi- Thus, that includes halal-certified meats. Muslims, among tions some more strict appeal does not involve a request for According than others. to the Islamic halal-certified meats in the context of a Food and Nutrition Council of America diet that otherwise is “halal” in the sense (IFANCA) and Islamic Services of Amer- simply “haram,” of not being and we do (ISA), “halal,” diet, ica or “lawful” pro- not address those circumstances. (or hibits items deemed “haram” “unlaw- The district court Mr. Abdul- ful”), including pork and by-products, its haseeb had not presented evidence that improperly slaughtered killed, animals or vegetarian pork-free OSP diets intoxicants, alcohol and blood and blood forced him modify or violate his reli- by-products, and foods contaminated with beliefs, gious noted other courts products. haram See Islamic Food and upheld have refusals to America, halal Nutrition Council of What is Ha- lal?, (last diet. Mr. Abdulhaseeb counters that he http://www.ifanca.org/halal/ visit- 26, 2010); sincerely believes that he February ed must eat a halal Islamic Services of (ISA), Halal?, meats, diet that America includes halal http:// What belief that is not www.isaiowa.org/content.asp7ID=1677 vegetarian satisfied the OSP’s (last 26, 2010); See, February pork-free visited e.g., see also diets. Lewis v. Williams, (NLS), Ryan, 343 F.3d 215. Food contain- No. 04cv2468JLS 2008 WL (S.D.Cal. 2008) ing gelatin, enzymes, and emulsifiers are at *19 May recognized Religious 5. This legislative history. court has that the Cong. RLUIPA's See 146 (RFRA), Freedom Restoration Act 2000) (statement U.S.C. (Sept. Rec. 19123 2000bb-4, §§ 2000bb to and First Amend- (“Section 3(a) Rep. Canady) applies the RFRA precedent provides guidance ment in inter- protect standard to exercise of preting RLUIPA. See Grace United Methodist persons residing in or confined to institutions City Cheyenne, Church v. 451 F.3d prisons....”). ... such as (10th Cir.2006). supported by This view is in requir- that the district court erred Qur’an passages sup- ing specific (referring requires adher- activities to be ing Islam the burdened the belief porting meats); “fundamental”). includes halal considering whether a a diet ence to Prisons, Bureau exercise,” v. U.S. “religious also Patel practice see is a we cer- (8th Cir.2008) (sum- 807, 810-11 F.3d prohibited referring are not from tainly that adherence belief marizing plaintiffs religious practice interpreta- standard him not allow to con- does a halal diet Ashcroft, Levitan v. tion. See unless the animal has been meat any sume (D.C.Cir.2002) in the (stating, Allah, a during prayer slaughtered context, that First Amendment court “[a] can be vegetarian even dishes noting that may litigants’ consider whether the also “haram”). any religion in support beliefs find subscribe, liti- they which or whether the and, burden” “substantial define b. We merely relying self-serving are on a gants analy- with the RLUIPA proceeding religious practice.... view of court [A] sis, that Mr. Abdulhaseeb conclude may litigants’ determine whether the views genuine of mate- a issue has shown any have basis whatsoever in the creed or to substantial burden. fact as rial community they purport on which to rest The standards under RLUIPA claim.”).6 Contrary their to defendants’ from those under the Free are different however, arguments, the issue is not Bemis, Kay v. 500 F.3d Clause. Exercise in- whether the lack of a halal diet that Cir.2007). (10th “[RLUIPA] 1221 substantially cludes meats burdens the re- ‘any exercise’ to include ‘religious defines any exercise of ligious practitioner, Muslim religion, whether or not com exercise of substantially it but whether burdens to, system a reli by, or central pelled Abdulhaseeb’s own exercise of his sincere- ” 42 (quoting Id. U.S.C. gious belief.’ ly religious held beliefs.7 2000cc-5(7)(A)); 42 § see also U.S.C. There is no evidence in this that record (mandating that RLUIPA 2000ec-3(g) sincerely Mr. Abdulhaseeb does not hold protection in of broad construed favor “be expressed beliefs that he eat a should Cutter, exercise”); 544 at religious U.S. meats, though halal that diet includes even (“RLUIPA 725 n. 125 S.Ct. 2113 bars Muslims find a vegetarian other or particular belief or inquiry into whether non-pork satisfy diet sufficient Islam. practice prisoner’s ‘central’ to a reli is Grace, apparently defendants not chal- gion.”); (recogniz- 451 F.3d 663 do burden, (10th Cir.1991) ("Differ- assessing 6. courts must not 936 F.2d 1119 "In judge significance particular ing practices of the belief beliefs and are not uncommon creed.”); practice question. inquiry among particular or in RLUIPA bars followers of a see Nelson, ("It practice simply or ‘cen [the] into whether belief also 570 F.3d at 881 is not prisoner’s religion. appropriate prison argue tral’ to a RLUIPA does for a with official to however, not, preclude inquiry prisoner regarding objective into the sinc truth of a Sossamon, belief.”); erity prisoner's professed religiosity.” prisoner’s religious aof 560 Lee, (4th (“Prison chaplains Lovelace v. 472 F.3d 187 n. 2 at 333 are not arbi- F.3d Cir.2006) omitted). (quotations religious and citations ters of the measure of devotion that may enjoy way prisoners or the discrete that Levitan, quali- they may practice religion.”); nor defendants their Neither this court are vegetari- (recognizing that the non-pork fied to determine that a or 281 F.3d 1321 court’s “deciding satisfy inquiry require an does not whether diet should Mr. Abdulhaseeb’s reli- gious Maynard, appellants’ every particular beliefs accord in beliefs. See Mosier v. (10th Cir.1991) ("Intrafaith religious orthodoxy with the of their church” F.2d "adjudicating intrafaith differences in differences are common and cannot be re- or courts.”); belief”). Saffle, practice v. solved secular LaFevers of Mr. lenge religious engage nature Abdulha adherent either in Koger v. Bryan, beliefs. See sincerely seeb’s conduct motivated held re- Cir.2008) (7th (holding that F.3d ligious belief or to in engage conduct con- vegetarian request diet plaintiffs trary sincerely religious belief, to a held as a exercise because qualified government presents such where the plaintiffs from the request stemmed plaintiff with a Hobson’s choice—an Orientis, not Templi of Ordo secu practice illusory only choice where the realistically concerns); Hart, Baranowski lar possible course of action trenches on an Cir.2007) (5th (stating F.3d sincerely adherent’s belief. question” keeping is no ko “[t]here do We not believe the first and purposes is a exercise for sher parts require second of this test further RLUIPA); v. Mey see also States United explanation. part, The third the “sub ers, Cir.1996) 1482-83 test, pressure” stantial stems from the factors (stating, enumerating relevant to Supreme Court’s decisions Thomas v. determining belief is religious, whether a Review Board Employment Indiana of “[rjeligions prescribe prohibit that often or Division, 707, Security 450 U.S. 101 S.Ct. eating of and the the certain foods drink (1981), 67 L.Ed.2d 624 and Sherbert particular ing liquids days of certain on or Verner, 374 U.S. 83 S.Ct. during particular (quotation omit times” (1963), L.Ed.2d 965 in accordance with ted)). Therefore, before question the us is Congress’s desires that “substantial bur whether, in light of Mr. Abdulhaseeb’s sin by den” “should be interpreted reference beliefs, cerely religious held he has estab Supreme jurisprudence” to Court and that genuine a of material fact lished issue given any it “is not religious exercise is substan intended be broad whether tially by burdened the of a halal diet interpretation denial er than the Supreme Kikumura, includes that meats. See Court’s the concept articulation of of sub F.3d at 961 substantial bur (focusing on religious stantial burden [on] exercise.” plaintiffs in RFRA the den case where 146 Cong. (July Rec. request protected a appeared to be reli 2000) (joint statement of Hatch Sen. gious exercise and the defendants did not Thomas, Kennedy). Supreme the Sen. challenge sincerity). plaintiffs the Court held that the receipt [w]here state conditions of an Defining i. burden” “substantial important upon pro- benefit conduct 2000cc-l(a). § under faith, by religious scribed or where it yet Because we have had the denies such a benefit because of conduct meaning to determine the of opportunity belief, by religious thereby mandated term in the “substantial burden” the con putting pressure substantial on an 2000cc-l(a), § appointed of text we coun modify adherent his behavior and to for Mr. sel Abdulhaseeb and ordered beliefs, violate his burden upon reli- supplemental briefing on the issue. We gion compulsion may exists. the While that a exercise religious conclude is sub indirect, infringement be upon free stantially burdened under U.S.C. exercise is substantial. nonetheless 2000ec-l(a) (1) government when a re 717-18, at 450 U.S. 101 S.Ct. 1425. Simi- activity quires participation prohib in an Sherbert, stated, larly, in the Court belief, sincerely religious ited held apparent (2) only appel- [h]ere not is it that in prevents participation or conduct ineligibility lant’s declared sincerely benefits motivated belief, (3) places pressure solely practice derives substantial from her upon religious practice important her to at issue is pressure but

religion, (footnote is unmistakable. practice forgo religion.” the free exercise of his forces her to choose between ruling Levitan, (stat- omitted)); 281 F.3d at 1321 religion of her precepts following context, in ing, the First Amendment hand, benefits, on the one forfeiting a practice “a rule that bans that is not abandoning precepts one of the religious practice ‘central’ to an adherent’s work, on accept in order to religion her might impose nonetheless a substantial hand. the other burden, if practice important is 1790; S.Ct. see also id. 374 U.S. belief’). based on a sincere (“[T]o condition the 83 S.Ct. appellant’s availability upon of benefits ii. Mr. Abdulhaseeb has shown a principle a cardinal unwillingness to violate genuine issue of material fact effectively penalizes faith of her as to substantial burden. of her constitutional lib- the free exercise burden,” Having defined “substantial erties.”). also note Court We now must consider whether Mr. Abdulha- recognized aspect a “coercion” substan- genuine seeb has shown a issue of material Lyng v. Northwest Indian tial burden fact as to substantial burden. This case Ass’n, Protective 485 U.S. Cemetery grant summary comes before us from a 1319, 99 L.Ed.2d 534 108 S.Ct. judgment, in which all reasonable infer- (“It repeatedly true that this Court has ences must be construed favor of the penalties indirect coercion or held that light procedural non-movant. In of that religion, just of out- the free exercise record, subject scrutiny posture and the state of the are right prohibitions, Amendment.”). First that genuine under the conclude there are issues of material fact on the of issue whether the recognizing that RLUIPA’s While regarding halal policy ODOC foods sub- beyond practices extends that protection stantially burdened Mr. Abdulhaseeb’s re- religion, to a we do not intend are central See, ligious at e.g., exercise OSP. Shakur v. every a imply infringement on reli Schriro, 878, Cir.2008) 514 F.3d 889 constitute a substantial gious exercise will practice “The burdened need not (holding burden. extent to which the “[t]he system, be central to the adherent’s belief prison’s policies pressured Shakur to be- but the adherent must have an honest tray religious his beliefs is another factual practice important belief that the his dispute to be resolved the district Sossamon, religion.” exercise of 560 free court.”); v. Dennehy, Hudson 538 Smith, 332; F.3d at see also 502 F.3d at (D.Mass.2008) F.Supp.2d (finding, 411 (“[A]t minimum bur 1278 a the substantial trial, after bench that refusal of halal menu plaintiff den that a requires test RLUIPA “substantially consistent with them beliefs government’s that the denial demonstrate their plaintiffs’ burdened exercise of reli- particular religious of a item or observance gious by creating pressure plain- beliefs than an to one’s was more inconvenience tiffs to consume meals that do not conform religious practice.”); Kaspar, Adkins v. understanding require- with their of the (5th Cir.2004) (“[T]he 393 F.3d 570 law”). ments of Islamic of Supreme express disapproval Court’s According to Mr. Abdulhaseeb’s verified any require test that would a court to complaint amended and the at- second of centrality religious divine the a belief exhibits, prison tached refused his re- complaining does not relieve a adherent of quest for a halal diet that included meat. honesty demonstrating the burden of It inference that accuracy of his contention that is a reasonable ODOC’s halal pre failure to diet either er the lack of a halal diet may create exercise, vents Mr. Abdulhaseeb’s Shakur, substantial burden. See least, or, places pressure at the substantial 889; at Crosby, Muhammad v. No. engage on Mr. Abdulhaseeb not to in his 4:05cv193-WS, 2008 WL at *15 by presenting him religious exercise with (N.D.Fla. 29, 2008); Lewis, May 2008 WL Hobson’s choice—either he eats a non- 1944112, *29; Fayson Earle, No. Civ. sincerely halal diet in violation of his held 04-219-KAJ, 2006 WL at *9 Nelson, beliefs, or he does not eat. See (D.Del. 2006). Nov. (“We 570 F.3d at 879 have held that a And the not finding cases such a burden prisoner’s dietary practice is sub clearly distinguishable are from our pres stantially prison burdened when the forces ent In facts. Patel v. United Bu States him to choose between his religious prac Prisons, reau although Eighth Cir nutrition.”); Shakur, adequate tice and cuit held that the inmate had not set forth (noting prisoner’s argument F.3d at 889 enough evidence to show a substantial bur prison’s dietary that the policy forced him den, there was uncontested evidence that into “a choice options Hobson’s between he could consume Common Fare mutually that are kosher unacceptable prac to his non-meat meals (quotation purchase tice of his faith” omit and could ted)); Baranowski, see also meals, F.3d own halal commissary and he had (holding prison’s “policy of not not shown that the financial burden would providing kosher food be deemed to 814-15; be substantial. 515 F.3d at see upon work substantial burden [Plain Am., also Pratt v. Corp. Corr. 267 Fed. faith”). practice of his In exhausting tiffl’s (8th Cir.2008) Appx. 482-83 (citing remedies, his administrative Mr. Abdulha burden). finding Patel in no substantial dilemma, explained stating, seeb “I am Shabazz, Watkins v. Fed.Appx. forced do without food or eat food I (9th Cir.2006), the Ninth Circuit held ingredients don’t know what in it....” are that there was no substantial burden be R. Doc. Exh. p. “It is one cause gave defendants the inmate two al thing ways to curtail various of expressing eating the nutritionally ade ternatives — belief, ways for which alternative of ex quate meat-substitute meals or finding an pressing may belief be found. It is anoth organization outside provide halal meat. thing er to require a believer to defile Again, Patel, prisoner unlike the in himself, according to the believer’s con Abdulhaseeb has not been given oppor- science, by doing something that is com tunity meals; fact, to eat kosher in ODOC pletely forbidden the believer’s reli policy restricts kosher meals to certain Suthers, gion.” Beerheide v. 286 F.3d religions, not including any Islam. In 1179, Cir.2002) 1192 (quotation omit event, ted). to the extent that the above-cited rely cases prisoners being pur- able to than More one court has held the lack of chase or foods, obtain donated halal they a halal diet to abe substantial burden on a unpersuasive. First, are any ability to Hudson, Muslim’s religious exercise. See purchase plaintiff is chimerical where a is 411; F.Supp.2d 538 at Thompson v. indigent, Second, as is Mr. Abdulhaseeb. Williams, C06-5476FDB-KLS, No. 2007 the record in this case contains an affidavit 3244666, (W.D.Wash. WL at *19 Oct. Chaplain from the 2007); GPCF in which he ad- Zenon, v. Caruso No. 95-MK-1578 * (BNB), (D.Colo. mits that regards [Appellant’s] “[a]s 2005 at 12 re- WL 2005). meals, July quest Other for Halal courts have found a no Halal vendors genuine issue of material fact as to wheth- approved by have been policy DOC and of Sen. Hatch and Sen. (joint in statement brought be food must that such

specifies omitted). 125, Kennedy) (quotation R. Doc. vendor.” approved is inference The reasonable at 2. Exh. 8 and the OSP Defendants appeal, On rele- periods time for some that, least at argue providing Defendants ODOC action, could Mr. Abdulhaseeb to this vant meat “would have halal diet that includes if he halal foods even purchased not have unreasonably cost-prohibitive and been free exercise Finally, in the funds. had costs, time-consuming. Reducing stream- rejected the asser- has context, circuit this limiting the lining production, its food had an alterna- inmates tion that Jewish staff, maintaining con- required number of religion by their practicing means of tive vendors, preventing and of its solidation kosher obtaining donated or purchasing justifications security compelling risks are canteen meals “Purchasing foods. Br. at Aplee. ODOC under the RLUIPA.” impossible prisoners financially more of these interests 39. One or community The Jewish limited means. “compelling governmental as a qualify well required expected or cannot be Sossamon, interest.” See Beerheide, 286 prisoners.” to the food (“Texas obviously compelling govern- has (noting 1187; at 1189 see also id. F.3d security rea- interests in the and mental for “essentials pay had to prisoners operation pris- of its sonably economical calls, telephone medi- station[e]ry, such as Lee, ...”); Lovelace v. F.3d ons. visits, cation, clothing,” and medical (“[T]he (4th Cir.2006) policy’s burdens “[fjorcing prisoners to decide be- stating, justified by com- could be or restrictions family legal communicating with tween security good considerations of pelling treat- seeking medical representatives, order.”); Cong. Rec. consti- ment, following religious tenets 2000) (joint statement Sen. (July a true rather than tutes a Hobson’s choice Kennedy) (mentioning Hatch and Sen. alternative”). costs, order, security, discipline, good of material genuine Even with issues resources); Hosp. but see Mem’l limited burden, howev- concerning substantial fact County, 415 Maricopa U.S. er, that Mr. necessarily follow it does (reject- 39 L.Ed.2d 306 S.Ct. has a RLUIPA established in- compelling governmental as a ing cost Rather, proof the burden violation. justify penalizing terest sufficient the sub- to the defendants to show shifts to travel to and settle another right “compelling from a burden results stantial state). however, appeal, we need gov- that the interest” and governmental satisfy these interests not decide whether “least restric- employed ernment has standard, there sim- because the RLUIPA accomplishing of its interest. tive means” regarding record evidence ply is no 2000cc-l(a). “antic- Congress 42 U.S.C. Beerheide, contentions. See defendants’ apply [RLUI- that courts would ipated (noting, in the constitu- 286 F.3d at 1189 to the standard with due deference PA’s] context, order to warrant defer- “[i]n tional jail and experience expertise prison of ence, present must credible prison officials Cutter, administrators.” 544 U.S. penologi- their stated support evidence omitted). “At (quotation 125 S.Ct. 2113 Shakur, 514 F.3d at see also goals”); cal time, however, inadequately for- the same (reversing remanding district regulations policies prison mulated of Plaintiffs summary disposition court’s exaggerat- grounded speculation, on mere record, factual sparse on a claims based fears, rationalizations will post-hoc ed or sufficiently record is not de- stating, “the requirements.” not suffice to meet the act’s 2000) weight precise 16698,16699 (July veloped to ascertain Cong. Rec. afforded”); Lovelace, request Mr. Abdulhaseeb’s to serve halal that cost should be (refusing January at 190-92 to hold that for the 472 F.3d meat 2005 Eid-ul-Adha (the Sacrifice). compelling interests were Feast of the asserted district failure given government’s matter of law court held that evidence). Further, there has present provide any does not [Mr. Abdulhaseeb] refusing to been no discussion of whether that Halal necessary evidence meat is is the least provide a halal-certified diet Feast, celebration or even that can em- restrictive means which the state failure to celebrate the Feast itself Lovelace, satisfy ploy to its interests. See substantially would his religious burden (holding at 192 is no “[t]here 472 F.3d Furthermore, policy exercise. ODOC in this case for a court ... to declare basis allows food for festive or ceremonial the least restrictive means test satisfied purchased by meals to be the faith com- any explanation from without substantive donated, munity or and for the meals to officials”); Murphy Dep’t v. Mo. prison together by be eaten the faith communi- (8th Cir.2004) (“It Corr., ty- seri- prison system] is not clear that [the R. Doc. 137 at 69. disagree We with the alternatives, any ously considered other analysis. district court’s any the district explored nor were before Mr. Abdulhaseeb’s verified second court.”). complaint amended describes the Eid-ul- record, there is factual “On this where [h]oliday Adha feast as “an Islamic that is to the extent of the burden on dispute as central to Islamic practices.” beliefs and activities, the extent [Plaintiffs] V; Id. Doc. Count see also id. Doc. that would be created of the burden 1, 2003, 2 (April Attach. 27-D at ODOC request, accommodating [Plaintiffs] “Religious Programs” addendum to policy least restrictive alterna- the existence of listing Eid feasts as occasions on which tives, summary cannot conclude Muslim inmates must abstain from work claim judgment ap- on the RLUIPA was participate in a service at a Shakur, 514 Ac- propriate.” F.3d time). specific not specifi While he does remand Mr. cordingly, we Abdulhaseeb’s cally express why halal meat is desirable proceedings RLUIPA Claim 10 for further feast, for Eid-ul-Adha it ais reasonable against the ODOC Defendants and the inference from this record that he wishes capaci- Defendants in their official OSP to observe a halal diet for both feast and ties.8 days, and that halal meat im

non-feast summary purposes avoiding 3. For feast, portant to this see id. Doc. At judgment on his Claim Mr. Ab- 1, 2003, 27-D at (April tach. ODOC adequately dulhaseeb demonstrat- “Religious Programs” addendum to policy genuine ed a issue of material fact listing having sweets and halal meats as whether the denial of halal meat feasts). religious significance for Eid If an substantially for an Islamic feast inability proper to eat foods for a burdened his exercise. holiday prevents engaging in one from by sincerely conduct motivated alleges that the defen held reli

Claim in they gious engage dants violated RLUIPA when refused belief or forces one to regarding Accordingly, no that the GPCF Defen- halal foods at OSP. we 8. There is indication any dants or the Canteen Defendants had grant summary judgment affirm the of to underlying involvement in the events Claim defendants on Claim 10. those implementation policy 10 or the of ODOC's by sincerely held reli bration of the Eid-ul-Adha in prohibited conduct belief, may it constitute substantial substantially therefore burdened his reli- gious McGinnis, F.3d Ford Thus, See burden. gious exercise. we must remand (2d Cir.2003); also Makin see 593-94 proceedings against this claim for further Corr., Dep’t v. Colo. and the De- of GPCF Defendants ODOC Cir.1999) (discussing the 1211-13 in capacities.9 fendants their official fast); of the Ramadan importance spiritual (noting, in Meyers, 95 F.3d 1482-83 correctly granted D. The district court factors relevant to determin enumerating summary judgment to the defen- that religious, a belief is ing whether “Re dants on the remainder of Mr. Ab- prohibit or the eat ligions prescribe often claims. dulhaseeb’s drinking of ing of certain foods and the 1. Defendants were entitled to sum- particular days during or liquids certain mary judgment remaining on the omitted)); (quotation times” particular 2000) claims. RLUIPA (July Cong. Rec. (statement Hatch) that (stating of Sen. Mr. Abdulhaseeb’s second amended prisoners “some Jewish have been denied complaint included six other exhausted matzo, the unleavened bread Jews are re claims under following RLUIPA. For the Passover”). quired during to consume We reasons, agree we with the district court in believe that the district court erred not that summary defendants are entitled to giving Mr. Abdulhaseeb the benefit of judgment on each of those claims. in summary judgment

these inferences its analysis. We first address the RLUI involving PA events at claims OSP. Further, above, as discussed ODOC’s alleges Claim Mr. Abdulhaseeb that policy is that halal meats and sweets for policy of spending money ODOC’s purchased can from approved feasts be needs, needs, secular vio vendors or donated. The record contains lates RLUIPA. In Claim he con an affidavit from the Chaplain then-GPCF that requires tends RLUIPA to ODOC in regards [Ap- which he admits that “[a]s pay spiritual a Muslim leader. And meals, pellant’s] request for Halal no Halal complains poli Claim he have been ODOC’s approved by vendors DOC and cy policy specifies paying that such of not for soft-cover Islamic food must be brought approved R. prisoners vendor.” books for who cannot keep Doc. Exh. 8 at 2. To the extent that their hardback Islamic books violates there or periods were have been when RLUIPA. The district court vendors, there are no approved halal requires governments RLUIPA to refrain district court in holding erred that an abili- substantially from burdening religion, not ty purchase halal meats translates into affirmatively religion. subsidize We no substantial burden on a in- Muslim 2000cc-3(c) agree. See 42 U.S.C. mate’s exercise. (“Nothing chapter in this shall create ... a right any religious organization

A jury reasonable could determine funding to receive or other prevented ODOC Mr. Abdulhaseeb from assistance consuming part halal meats government, any person of his cele- from ing Accordingly, 9. There is no indication that the Canteen De- halal foods at GPCF. any fendants or the OSP in- Defendants had grant summary judgment affirm underlying in the volvement events Claim 5 or those defendants on Claim 5. implementation policy regard- of ODOC's funding tray a reli contaminated and inedible for government receive chapter may re activity, conclude, but him. gious willing We are not to how expenses incur to quire government ever, a every single presentation of a imposing to avoid operations own its impermissible meal an inmate considers exercise.”) religious burden on substantial constitutes a substantial burden on an in Cutter, added); 544 U.S. at (emphasis religious mate’s Rapier exercise. See v. (“Directed at ob n. 125 S.Ct. 2113 (7th Harris, 172 F.3d 1006 n. Cir. arrangements structions institutional 1999) (characterizing unavailability observances, RLUIPA place on pork-free meals on three out of 810 occa require pay a State to for an does not burden”). sions as a “de minimis Al accessories.”); May inmate’s devotional though we assume that the frequency Newland, 314 F.3d weathers presenting unacceptable foods increas Cir.2002) (holding RLUIPA 1068-69 es, point at some the situation would rise constitutional under Establishment burden, to the level of a substantial af impose because does not “[i]t Clause question. need not decide that In this on states that would re firmative duties case, the record contains evidence of one to facilitate or subsidize the quire them specific pur incident of Mr. Abdulhaseeb Werner, religion”); exercise of see also portedly being accept jello forced to (“[RFRA] 49 F.3d at 1480 need not drive Otherwise, pudding tray. on his he sub employ clergy every from prison to only general mits allegations that walls.”). or creed found within its sect practice purpose continues. “The of a appropriately granted The district court summary motion, judgment unlike that of summary judgment to the defendants on dismiss, a motion to is to determine 11 and on aspect the RLUIPA Claim support whether there is evidence to 12 and 13. Claims party’s factual Unsupported claims. con remaining three RLUIPA clusory allegations thus do create a claims concern events GPCF. Claim Enter., genuine fact.” L issue of & M that defendants violated RLUIPA alleges Co., Inc. v. BEI Sys. Sensors & failing paid a full-time Mus to (10th Cir.2000). By identifying just lim leader. As we have stat spiritual only one occasion when he was forced to ed, oblige government does not RLUIPA objectionable accept products and fail affirmatively religion. to subsidize Sum ing provide any specific to other evidence mary judgment appropriate was on Claim support allegations, his Claim Mr. ground. 1 on that a genuine Abdulhaseeb failed to establish 2 alleges Claim that defendants issue of material fact as to substantial by forcing violated RLUIPA Mr. Abdulha burden, summary judgment and thus was accept tray jello seeb his food appropriate. he pudding, ques which considered be Claim ar tionable at best and contaminated with Mr. Abdulhaseeb pork products at worst. The district court gues that the defendants violated RLUIPA that he failed to show a substantial revival, failing host Islamic while on his exercise. burden We hosting a Christian revival. Abdulha agree. him seeb lists several benefits to from revival, participating an Islamic but as accept Mr. Abdulhaseeb’s conten-

We held, the district court there is no evidence jello pudding tions that were best, that the defendants’ failure to host a reviv questionable placing and thus substantially tray them on his rendered all the food on al burdened his ex- 1322 reasons other those in grant summary of than stated the affirm the

ercise. We magistrate report on judge’s this claim. and recommen- judgment to defendants 11, pleaded as dation. Claim in the Sec- entitled to sum- 2. Defendants were Complaint, complains ond that Amended § mary judgment on the 1983 money spends ODOC on nonreligious claims. religious items but not ones. In arguing claim, the briefly Mr. Abdulhaseeb assert- ap- of Mr. Abdulhaseeb’s claims Several ed that provides issues ODOC Jewish inmates peared to invoke constitutional such meals, Clause and the with kosher but Free refuses to as the Establishment Clause, in an abundance of Muslim halal ap- Exercise inmates with meals. It analyzed court them as caution the district pears that the district court this addressed in addition to claim, constitutional claims RLUI- argument separate granting as a Further, 11 of his PA. Claim second on summary judgment ground the that Mr. Abdulhaseeb complaint spe- amended allege “Plaintiff does not treatment stem- rights cifically invoked his constitutional to ming membership from his a suspect equal the free of protection and exercise class, not any and he has submitted evi- religion. The district court found no groups dence to that other of show similar- regard any constitutional violations with ly-situated inmates received different of his claims. better than he did.” R. treatment Doc. disagree judgment 137 61. We appears

It that Mr. Abdulhaseeb has not basis, would be proper this had Mr. appealed analyses arising the out of the actually asserted a claim (he con- district court’s abundance of caution trasting of the treatment Jewish inmates appeal states on that his claims and Muslim inmates.10 But he not RLUIPA, 1983). did brought were under claim, assert that and we shall not Thus, reverse rulings. we do not consider those disposition the district of court’s the claim appealed To the extent that he has 11, actually he did assert. portion free exercise of Claim af-we substantially firm for reasons stated in Finally, alleges 3 Claim that Mr. magistrate report judge’s recom- right Abdulhaseeb’s to equal constitutional mendation. protection was violated because the defen regard equal pro With dants refused to amend his visitor list 11, portion tection of Claim we affirm for include more than one friend. As the dis- 2008) (“From Equal protection essentially beginning, “is a direction this nation’s persons similarly included, that all situated conception liberty should be of City treated alike.” Cleburne v. minimum, Cleburne equal treatment of all of Ctr., 432, 439, Living 473 U.S. 105 S.Ct. preference.”). faiths without discrimination or (1985). Religion 87 L.Ed.2d 313 is a suspect previous involving appellant, In a we case Batchelder, classification. See United States v. stated, appellant allege properly must "[a]U 442 U.S. 99 S.Ct. n. equal protection state an claim is that he was (“The (1979) Equal L.Ed.2d 755 Protection personally equal denied treatment on the ba prohibits Clause selective enforcement based Saffle, religion.” sis of his Abdulhaseeb v. race, unjustifiable on an standard such as (10th Cir.2003). Fed.Appx. In that religion, arbitrary or other classification.” case, grant summary judg of reversed omitted)); (quotation City New Orleans v. ment and the of claims where the dismissal Dukes, 427 U.S. 96 S.Ct. district court had determined Mr. Abdul curiam) (listing L.Ed.2d (per reli deprived haseeb had not shown he was gion example "inherently suspect an prison opportunities suspect because of a ]”); distinction[ see also Colo. Christian Univ. 673-75. classification. Id. at Weaver, Cir. concluded, Mr. Abdulhaseeb’s court trict merely of for this claim consisted support approved 2. Menus for festive religious conclusory allegations, without

vague and meals will be taken from the stan- facts, that white inmates were any specific dard menu served to the rest of the favorably. Accordingly, more treated inmate population day, unless summary judgment in favor of defendants specific food restrictions are re- Enter., Inc., See L & M appropriate. was quired by pork- the faith such aas 1287. free meal. (emphasis R. Doc. Attach. 27-A at 6 III. CONCLUSION added). policy The was amended effective summary grant AFFIRM the We 1, 2003, April following to add the lan- 1, 2, to all defendants on Claims judgment guage: 13, 14, 15, 16, 3, 4, 6, 7, 9, 11,12, and 17. special D. No accommodations will be claims are Claims 5 only remaining The Religious made for Feasts and Fes- claims, regard 10. With to these and except tive meals as follows: summary grant judgment AFFIRM the a. program space security Where and the Canteen to the OSP Defendants allows, level inmates who are cele- and to the GPCF Defendants Claim brating a recognized religious feast and the Defendants Defendants Canteen or festive meal will be able to eat grant the on Claim We VACATE together their meal as a faith com- REMAND for summary judgment and munity. The food will be the same consistent with this proceedings, further as that which is served to the rest of against the opinion, regard with to Claim general population the for that meal. Defendants and the ODOC Defen- GPCF b. Foods that have reli- verifiable dants, capacities, all their official gious significance may be donated regard against with to Claim 10 the OSP by religious organization an outside Defendants, and the ODOC all Defendants purchased by the inmate from capacities. request official We their authorized vendor ceremonial for appoint district court counsel for the purchased by meals. Foods an indi- proceed- Abdulhaseeb for the remand vidual inmate will be for that in- ings. pro- Mr. Abdulhaseeb’s motion to only. purchased by mate’s use Foods GRANTED, pauperis ceed in forma group may among a faith be shared obligation he is reminded of his continue group. religious signifi- The making partial payments until the entire cance must be verified faith appellate filing paid. balance of his fee is group’s sacred text and reli- outside gious authority. All donations or APPENDIX purchases arranged must be record, According Policy to the ODOC facility through Chaplain OP-030112, 26, 2002, effective June stated approved facility head or part: in relevant designee.... following their The religious sig- faiths have established Special Religious Foods Cere- VII. for specific nificance for foods: monies religious 1. All restricted meals will be (a fruit) ii. Muslim—Dates traditional through pork-free a common offered Ramadan, for the month of Sweets or meat meal. No test free and Hallal Meats for the Eid cele- applied

will be meals.... brations. prohibits government

RLUIPA from creating prison- a substantial burden on a sincerely er’s beliefs. As added). (emphasis at 3 Id., Attach. 27-D notes, panel opinion the defendants in revised on Decem- was again policy religiosity ease do contest the or id., Attach. 27-E. The 29, 2004. See ber sincerity Mr. the Abdulhaseeb’s beliefs. language was moved Sec- diet religious Maj. Op. Accordingly, See at 1314-15. changes other are not VI, the tion but opportunity pris- have no to decide when a issues before this court. to the material qualify religious oner’s beliefs as or when 5, 2005, ODOC be- Effective December they sincerely only question are held. The option, kosher meal offering a gan govern- before the court is whether the to state Section VI.A.: policy the revised a imposed ment has substantial burden. restricted meals will be religious All In that evaluating question, say we will through pork-free a common or offered or kosher diet. The meat meal free religious substantially a exercise is bur- provided only will be to in- kosher diet 2000cc-l(a) dened under U.S.C. that their reli- mates that demonstrate (1) government requires partic- when a compliance mandates with a gious faith ipation activity in an prohibited by a An inmate who wishes to kosher diet. (2) belief, sincerely religious held pre- or religious of these diets for receive one participation vents in conduct motivated a “Religious reasons must submit Diet (3) belief, by sincerely religious a held or ... Request facility chap- Form” to the places pressure substantial on an adher- lain. engage ent either not to in conduct moti- added). Id., (emphasis Attach. 27-G at 1 by sincerely vated a religious held belief “Religious required Request Diet engage or to contrary conduct to a religious Form” provided diet re- belief, sincerely religious held such as quests by religious be verified “must offi- government where the presents the faith specified group. cials from the Reli- plaintiff with Hobson’s choice—an illu- gious verify that officials must the inmate sory choice only realistically where the requirements group meets the of the faith possible course of action trenches on an recognized to be as a member and that the sincerely adherent’s held belief. group requires special faith 2. diet.” Id. at Maj. at Op. 1315. The policy again April was amended in evaluating whether Mr. Abdulhaseeb id., 27-H, see Attach. but those test, has struggled satisfied we have changes are not relevant to the issues parameters to ascertain the exact of his appeal. pro complaint. se example, Claim

GORSUCH, Judge, diet, Circuit concurring. obviously daily concerns his but it’s fairly susceptible of at least three possible today The court holds that Religious (1) Mr. interpretations: Abdulhaseeb can Land Use and Institutionalized Persons only expressly eat food that certified (RLUIPA) prohibits Act government by authority, halal an Islamic much as forcing prisoner from to choose between some members of the faith Jewish eat sincerely his following be- food, only nothing certified kosher this, staying agree. liefs and alive. With I provided by Department the Oklahoma clarify I write only what the court does (ODOC) pur- not hold but instead Corrections or available for entrusts to future panels to approved decide. chase from vendors meets that “[wjhere us, exists,” told (2) that isn’t Court any food standard.; he can eat forbidden), important of an (that receipt but is, state conditions explicitly haram (or by a reli- placement proscribed conduct sporadic) upon benefit periodic foods, jell-o pud- faith, as such or where it denies such bene- gious questionable all of tray renders his cafeteria ding, onto mandated reli- fit of conduct because inedi- haram and thus tray’s Thomas, 717-18, contents 450 U.S. gious belief.” can, with ble; he consistent say To that access to S.Ct. vegetarian diet the non-haram religion, eat important “an ben- qualifies food edible ODOC, reli- also has a but provided put mildly, it Abdulha- efit” is with eat halal meat obligation to gious squarely 10 thus falls within seeb’s Claim frequency, yet level of unspecified some prohibition. the Sherbertr-Thomas available provided neither nor meat is such other We evaluate Mr. Abdulhaseeb’s vendors. approved from the same frame- RLUIPA claims under non- summary judgment the As both that ODOC failed work. Claim 5 asserts Mr. Abdulha- litigant, se pro movant any food vendors approve Muslim doubt. the benefit deserves seeb pur- from prevented thus interpret Claim charitably Accordingly, we chasing allegedly the halal meat he re- first, most trouble- only the allege 10 to mandatory significant re- quired for re- Mr. Abdulhaseeb some scenario—that holiday. This claim satisfies the ligious that he is a halal-eertified diet quires claim be- standard for a triable RLUIPA has receiving and that ODOC currently could, if jury even it need not cause procure him to no means for provided necessarily, that the restrictions find ren- Or, way, he has another put himself. religious exer- dered Mr. Abdulhaseeb’s violating to choose between been forced mandatory of a holi- cise—the celebration starving to death. beliefs and his the other day' impossible. Claim on — about RLUI- might be said else Whatever hand, By meet threshold. doesn’t choice PA, of Hobson’s redressing this sort placed alleging sporadically that ODOC heart. surely its lies foods, jell-o pud- as questionable such to Mr. Abdulhaseeb posed The choice tray, cafeteria thus ding, onto render- dire) (if position in a similar more puts him inedible, Mr. ing tray’s all of the contents Verner, in petitioners Sherbert v. only described Abdulhaseeb has moder- 1790, 10 L.Ed.2d 965 374 83 S.Ct. U.S. not a impediment to—and constructive ate Board, 450 (1963), v. Review and Thomas religious exercise. It’s prohibition of—his 67 L.Ed.2d 101 S.Ct. U.S. forgo surely a burden occasional (1981), Supreme Court two cases that burden, But not a substantial meal. it’s Division abrogated Employment only proscribes government and RLUIPA Smith, 110 S.Ct. 494 U.S. substantially burden actions that (1990), Congress and that L.Ed.2d exercise. passed when it RLUI sought to resurrect of Mr. Abdulhaseeb’s resolution 1315; Maj. Cutter v. Op. PA. See cf. many ques- still leaves RLUIPA claims 714-17, Wilkinson, 125 S.Ct. 544 U.S. particular, we do tions unanswered. (2005). In both L.Ed.2d possible interpreta- third not address the cases, First Supreme Court found no oppor- 10. We thus have tion Claim govern when Amendment violations tunity prisoner whether a to consider who to re unemployment ment benefits denied vegetarian diet but may eat who they followed ODOC’s because ligious adherents any access to halal-certified is denied upon religion burden “[A] their beliefs. can state a RLUIPA claim. And we meats suggest

certainly do not RLUIPA provide prisoners—

requires the state prisoners everything indigent

even —with religious purposes.

they need for See Cut

ter, at 720 n. 544 U.S. S.Ct. 2113

(“RLUIPA require a pay does not State to accessories.”).

for an inmate’s devotional compels only case us to address

This can prison

whether officials violate RLUI

PA an inmate in their by denying charge accessing

all food he can means eat (uncontested) sincerely

consistent with his effectively beliefs—thus

forcing him to choose between remaining

pious starving. We hold that RLUIPA apply

does indeed these circumstances.

Whether and to what extent the statute

goes question further is a for day. another America,

UNITED STATES

Plaintiff-Appellee, SNEED, Sneed,

Kevin Earl a.k.a. Evan

Defendant-Appellant.

No. 09-13195. Appeals,

United States Court of

Eleventh Circuit.

March Butler, Def., Kevin L. Fed. Pub. Mont- AL,

gomery, for Defendant-Appellant. Petersen, Def., Michael John Fed. Pub. AL, Montgomery, Matthew Shepherd, W. AL, Montgomery, for Plaintiff-Appellee. HULL, Before WILSON and FARRIS,* Judges. Circuit * Farris, Honorable Jerome designation. United Slates Court Circuit, Appeals sitting by the Ninth

Case Details

Case Name: Abdulhaseeb v. Calbone

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 2, 2010

Citation: 600 F.3d 1301

Docket Number: 20-3039

Court Abbreviation: 10th Cir.