*1
at whatever combination of considerations
less,
fewer details”.
Id.
provide
and to
more,
try
often
to
in
hand.
seems
the situation at
This
“[l]iars
What’s
best
58-59.
psychologically from
themselves
irration
say
may
distance
is not
that an IJ
make
to
falsehoods,
they
to in-
and so
tend
their
subju
al assumptions about how dictators
themselves, and
to
fewer references
clude
Gonzales,
citizens,
v.
gate their
see Banks
Id. at 59.
feelings,
their stories.”
their
(7th Cir.2006),
how
ignorance hearing, recited detailed first then hearing. topic at the second
story on paid atten- immigration judge close story, to the details of Mitondo’s
tion even after its hang together did not KOGER, Plaintiff-Appellant, which Gregory current explana- Mitondo’s amendment. shortcomings for the he tion —that Guth, BRYAN, Dennis Walter L. generic and would confused or nervous—is al., Pitchford, et Pearlene any story, impossible to disbelieve make Defendants-Appellees. obliged The IJ was not fanciful. however jittery too that Mitondo was to believe No. 05-1904. story. internally an consistent produce Appeals, Court of United States supports agency’s evidence Substantial Circuit. Seventh he credible. is not decision documentary proof way one or the When Sept. 2007. Argued unavailable, agency use must other April Decided story to an of an alien’s make the details its truth. Section evaluation
1158(b)(l)(B)(iii) so, using do it to permits *4 changed
was not because his did requirements necessary not meet the prisoners seeking such an accommodation requirements and that those lawful. were granted court The district the defendants’ claims, to all of Koger’s motion as Koger appeals. now We reverse the dis- grant summary judgment trict court’s claim, Koger’s RLUIPA and remand for further proceedings consistent opinion. I. appeal
The facts material to this are undisputed. Koger remanded to the custody of the Department Illinois Cor- (“IDOC”) *5 1996, originally in rections and housed at the Joliet Correctional Center. Upon entering prison, designated Koger religious Baptist. In his affiliation as 1999, while housed at the Cor- Centraba Center, changed rectional his reli- Koger Mayer L. Jeffrey (argued), Oldham Brown, houston, gious Koger affiliation to Buddhist. was TX, Plaintiff-Appel- required provide not officials with lant. IDOC origi- in of his support documentation Fabiano, Attorney E. Office of the Janon upon nal affiliation as a re- Baptist, General, Brian F. (argued), Barov Office affiliating September a In as Buddhist. Attorney General, Appeals Criminal Pontiac Koger was transferred to the Div., IL, Chicago, Defendants-Appel- after Center. A few months Correctional lees. transfer, eating he meat or stopped EVANS, SYKES, MANION, Before and anything tray on his meal that had touched Judges. Circuit adopted accom- Koger meat. this diet to yoga practices, his but claimed modate MANION, Judge. Circuit hunger subjected that it him to extreme Koger a former in- Gregory (“Koger”), pains. in at the Pontiac Center mate Correctional May Koger pris- In contacted the Illinois, against filed suit six Bryan (“Bryan”), Fr. chaplain, on’s Walter claiming they accommodate his failed to requesting religious that his affiliation for a non-meat religious-based requests longer a to reflect that he was no changed Koger this failure to diet. claimed Buddhist, a provided and that he be with a dietary request his accommodate religious prac- part non-meat diet as of his rights by the protected violation of his as period question, Pon- During tices. in Land Institutionalized Religious Use and kosher, three religious tiac served (“RLUIPA”), First Act and the Persons diets — last vegetarian. lacto-ovo The vegan, and Fourteenth of the Con- and Amendments meat, no would have satis- two contain moved for sum- stitution. defendants request. Bryan responded judgment, Koger’s Koger’s diet fied mary arguing Roger’s ure to stating change with a letter his affiliation and diet. Grievance, absent a granted Upon would not be letter from review of the Grievance “Rabbi-Imam, of Roger’s etc.” new reli- Counselor and Defendant Dennis Guth (“Guth”) gion. Bryan’s say- letter Roger replied responded stating that he had ing that he was not member of a formal- consulted with who Bryan, indicated that ly religion, accordingly established he needed a from “letter” there member clergy him, was no available to organization directly sent and that Bryan contact on his behalf. let- “information” not be considered. would ter some of explained further response Guth’s reviewed Griev- beliefs, stating “yoga practices ance Officer Defendant Pearlene required vegetarian a non-meat diet.” (“Pitchford”), Pitchford and on March Bryan did to this letter. respond finding she filed a report that Guth’s response adequately addressed Roger’s
Roger began searching religion for a determination, concerns. In making this beliefs, that fit and November expressly Pitchford noted language joined (“OTO”), Templi he Orientis Ordo from stating that Greenfield’s letter Thele- group with religion associated ma imposes general dietary restrictions. Thelema. Thelema was founded Aleis- Schomig Defendant (“Schomig”), James ter Crowley and has as its central Chief Administrative Officer Warden wilt,” tenet “Do what thou which its follow- Center, of Pontiac Correctional concurred ers consider divine mandate to discover Pitchford’s assessment. sub- purpose their true life. In December sequently appealed grievance under the Bryan, Roger again wrote requesting process. On March Administra- that his changed affiliation be from Bud- tive Review Douglas Board Member A. *6 OTO, given dhism to he and that be a non- (“Cravens”) Cravens and IDOC Director meat diet. Roger included with his re- Snyder (“Snyder”) Donald N. issued their quest an letter informational from T. Allen finding that of the decisions Pitchford and (“Greenfield”), Greenfield OTO’s Prison Schomig appropriately addressed Roger’s Coordinator, Ministry setting forth some grievance.2 Accordingly, they recom- practices.1 of Notably, OTO’s beliefs and mended that Roger’s grievance be denied. Greenfield’s letter stated that “Thelema imposes general dietary restrictions; 2002, In April Roger copy received a of though each individual may, Thelemite a letter Bryan Greenfield sent indicat- time, from dietary time to include restric- ing that Roger parishioner, was an OTO part tions as or her personal regi- his and discussing the organizational nature of spiritual discipline.” men of In response letter, OTO. Relying on this as well as a Bryan to this second request, again sent a letter from stating OTO’s Treasurer that letter indicating that affiliation OTO, he was a dues-paying member of and diet be changed would not without a Roger request filed a third with Bryan “Rabbi-Imam, letter from a etc.” asking that changed his affiliation be from 13, 2002, January OTO,
On
Roger filed an Buddhism to
that he
provided
and
IDOC
upon Bryan’s
2, 2002,
Grievance based
fail-
a non-meat diet.
December
On
Guth,
parties
1. While the
use “OTO"
Bryan,
and
We
“Thele-
hereafter refer to
Pitch-
record,
interchangeably
ford,
ma"
Cravens,
in the
Green-
Schomig,
Snyder
and
collec-
field's letter clarified that “[w]ithin the broad
tively
“prison
as the
officials.”
Thelema,
context of
O.T.O. functions as a
fraternal,
social,
initiatory,
and educational
organization
nature.”
clergy ver-
alleged
that the
officials’
Adella Jordan-Luster
Warden
Assistant
response
failure to
(“Jordan-Luster”)
Roger
requirement,
ification
and their
sent
change,
for affiliation
request
granting his
him on a non-meat diet because OTO
place
for a non-meat
denying
one,
but
violated the Establish-
require
did not
this
indicated
Jordan-Luster
diet.
of the
ment and Free Exercise Clauses
information she re-
upon
was based
denial
Equal
Amendment and the
Protec-
First
had no di-
that Thelema
indicating
viewed
Amendment,
of the Fourteenth
tion Clause
no indica-
There is
etary requirements.
2000cc-l(a).
§
and
U.S.C.
made
Roger
in the record
tion
declaratory
injunctive
and
Roger sought
or diet
for an affiliation
requests
further
relief,
puni-
and
compensatory
as well as
exchange. Ro-
following this last
change
23, 2004, Roger
damages.
tive
On June
custody from the
ger was released
responses
compel
filed a motion to
better
11, 2006.
on December
parole
IDOC on
on the
interrogatories
propounded
he
correspondence pro-
protracted
As
attempt
an
obtain
2002,
1,
ceeded,
Roger
pro-
filed
May
on
helpful to
discovery he believed would be
In
court.
in the district
complaint
se
on
pending
case. This motion was still
alleged violations
complaint, Roger
initial
2004,
Cravens,
Snyder,
when
August
of the First
Free Exercise Clause
Guth,
Pitchford filed a motion
Protection
Equal
and the
Amendment
Roger filed a re-
summary judgment.
pur-
Amendment
of the Fourteenth
Clause
September
arguing
sponse
the Reli-
U.S.C.
suant
of material
genuine
the existence of
issues
Act of
Restoration
gious Freedom
entry
summary judg-
prohibited
fact
Cravens,
Snyder,
§ 2000bb-l.
U.S.C.
ment,
or that the record established
pro-
Guth,
Pitchford waived service
summary judgment.
he was entitled to
Schomig were never
Bryan
cess.
Federal Rule
Additionally, Roger cited
they waive it.
nor did
process,
served
56(f)4
that be-
and stated
Civil Procedure
from the dis-
obtaining
After
summonses
discovery re-
outstanding
had
cause he
August
court,
filed motions on
trict
compel, and
subject to a motion to
quests
19, 2003, February
2, 2002, January
to his
information relevant
involving
Fed-
pursuant to
and June
claims,
summary judgment
the motion
requesting
Procedure
eral Rule of Civil
*7
until he had an
stayed
or
should be denied
by
made
a Unit-
process
of
be
that service
discovery. More
complete
in-
opportunity
In each of those
ed
marshal.
States
stances,
Roger’s response
court denied
the district
five months after
than
Roger
that because
finding
summary judgment,
motions
for
the motion
it
pauperis,
in forma
proceeding
compel
motion to
court denied his
district
the defendants.
to serve
responsibility
his
Roger had
moot
believing it to be
because
summary
the motion for
responded to
to file
eventually given leave
Roger was
not reference
The denial did
judgment.
In his amended
Complaint.
Amended
an
56(f).
Rule
invocation of
Roger Roger’s
complaint, filed October
by
shows
party opposing the motion
may
4. "If a
request,
the court
plaintiff's
3. "At the
reasons,
that,
it cannot
specified
for
affidavit
by
made
a United States
that service be
order
opposition,
justify its
essential to
present facts
person
by deputy marshal or
marshal or
motion; (2)
(1) deny
order
may:
the court
by the court. The court
specially appointed
to be ob-
enable affidavits
continuance to
plaintiff
is authorized
so order if
must
taken,
tained,
other dis-
depositions to be
or
pauperis under 28 U.S.C.
proceed in forma
undertaken;
(3)
any
issue
covery
be
4(c)(3).
§
Fed.R.Civ.P.
1915...."
56(f).
just
Fed.R.Civ.P.
order.”
other
subsequently granted
The
court
strate “that imposition
district
of the burden on
(1)
summary judgment.
the motion
for
that person
is in furtherance
aof
com
ruling
finding
court’s
on its
(2)
was based
interest;
pelling governmental
verify
the policy requiring Roger to
the least restrictive means
furthering
membership in OTO did not violate the
that compelling governmental
interest.”
First Amendment because was reason-
2000cc-l(a)(l)-(2).
§
42 U.S.C.
Unlike
ably
legitimate penological
related to a
arising
cases
under the Free Exercise
interest, and did not violate RLUIPA be-
Amendment,
Clause of the First
pro
policy
cause the
was the least restrictive
applies
hibition
even where the
on
burden
furthering
compelling govern-
means of
prisoner
“results from a
gener
rule of
Additionally,
mental interest.
the district
applicability.”
2000cc-1(a);
§
al
42 U.S.C.
Roger
court found that
support
could not
Cutter,
compare
U.S.
125 S.Ct.
equal protection
an
claim because he had
(Thomas, J.,
concurring) (citing 42
not introduced
showing
evidence
that he
2000ce-1(a)
§
U.S.C.
proposition
upon
suffered discrimination based
applies
general
RLUIPA
to rules of
membership
any
in
class. The district
applicability), with Church Lukumi Ba
summary
court
judgment
entered
in favor baluAye,
Hialeah,
City
Inc. v.
508 U.S.
officials on March
2005. 520, 531,
II.
2(b).
plaintiff
Once the
establishes this
We review the district court’s
case,
prima facie
the defendants “bear the
grant
summary
novo,
judgment de
ex
persuasion
burden of
ele
[other]
amining the record in the light most favor
claim,” id.,
ment of the
namely whether
McCann,
Roger.
able to
Peate v.
practice
them
“is the least
restrictive
Cir.2002).
As we noted
furthering
means of
a compelling govern
above, the material facts
are not
dis
*8
Lee,
mental
interest.” Lovelace v.
472
pute, and we are
presented
therefore
174,
(4th Cir.2006).
F.3d
186
As noted
legal question
the
of whether
prison
above, Roger challenges
practices
two
of
officials’ conduct accords with federal law.
prison
officials that
placed
he claims
a
601,
Charles v. Verhagen, 348 F.3d
606
(7th Cir.2003).
substantial burden on
religious
his
exer
prohibits prisons
RLUIPA
First,
cise.
receiving
federal funds5
imposing
expressly
from
a
officials
substantial burden on an
refused
religious
provide Roger
inmate’s
with a non«meat
exercise unless
officials can demon- diet because such a diet
required
was not
"Every
accepts
funding
state ...
federal
716 n.
125 S.Ct.
161 L.Ed.2d
prisons.”
Wilkinson,
(2005).
its
Cutter v.
544 U.S.
1020
Second,
faith,”
re-
...
a
rather
on
mainstream
but
by OTO.
“dealing
should be the beliefs
with issues
submit
clergy
that an OTO
member
quired
a
occupy
of ultimate concern that for her
of
Bryan written verification
in
parallel
by
to that filled
... God
place
For
in
tenets.
membership
OTO and its
(citations
traditionally religious persons”)
discussion,
first
refer to the
of
we will
ease
omitted). However,
quotation
and
we need
re-
practice
“religiously
a
challenged
as
solely
this
on Ro-
not decide
issue based
test,”
“clergy
a
and
second as
quired
by
initial
ger’s
request
unaffiliated
because
requirement.”
asking
he
for accom-
December
Religious
A.
Exercise
of his
as a
religious
modation
exercise
Along
member of OTO.
with this second
Roger met
considering
In
whether
from
request,
paperwork
he submitted
that his non-
establishing
of
his burden
that,
stating
religion
OTO
while his new
exercise,
we first
religious
meat diet
restrictions,
general dietary
had no
“each
under
term
“[t]he
recall
may,
individual Thelemite
from time to
any exercise of
exercise’ includes
‘religious
time,
dietary
part
include
of
restrictions as
compelled by,
or
or
religion, whether
not
personal
spiritual
or her
regimen
of
to,
system
belief.”
religious
central
brings Roger’s
This
discipline.”
document
2000cc-5(7)(A).
“Although
§
U.S.C.
dietary request squarely within the defini-
par
inquiry
bars
into whether
RLUIPA
by
religious
tion of
exercise set forth
practice
central
to a
ticular belief
is
2000cc-5(7)(A).
See
RLUIPA.
U.S.C.
religion,
pre
...
does not
prisoner’s
[it]
fact,
portion
In
this
letter
Greenfield’s
inquiry
sincerity
prison
into
clude
accurately
using
can be
restated
the statu-
Cutter, 544
professed religiosity.”
er’s
definition, i.e.,
tory
while there are no di-
(internal
at 725 n.
125 S.Ct.
U.S.
etary
“compelled by”
restrictions
or “cen-
omitted).
Because
quotation
citation
OTO, many
practitioners
tral
to”
of its
guarantor
sincerely
RLUIPA
part
such
as
of their
adopt
restrictions
beliefs, it
invoked
may not be
religious
con-
“exercise” of Thelema.
therefore
We
life, however
simply
protect any “way
Roger
refrain from
sought
clude that
admirable,
...
if it is based
virtuous
as a
as that
eating
religious
meat
exercise
secular
Wis
purely
considerations.”
defined
term is
RLUIPA.
Yoder,
U.S.
consin
time over
Additionally,
duration of
(1972).
example,
L.Ed.2d 15
For
dietary
sought
which
to have
Roger’s desire for a non-meat diet was
if
accommodated,
fact that
request
and the
bodily
solely
for his
rooted
concerns
as
sought
primarily
he
that accommodation
health,
it would not
RLUI
protected
member, clearly demonstrates
an OTO
PA.
sincerely
If
his beliefs were
held.
The record before us indicates
sincere,
if he
were
Roger’s beliefs
May
the time
first
from
other
a non-meat
for reasons
wanted
diet
for a
Roger stated that his desire
beliefs,
could have
than his
he
diet was
on his
non-meat
based
changed
attempted to have his affiliation
practices.
At the time of
beliefs
mem-
the denominations whose
to one of
not affil
request, Roger’s beliefs were
first
diets.
regularly received non-meat
bers
any organized religion. This
iated with
not, settling
he
instead
fact that
did
*9
claim.
necessarily
not
fatal to his
prison
itself is
the
officials
religion
on a
which
unfamiliar,
419 F.3d
be-
McCaughtry,
v.
that
See
indicates
were
Kaufman
(7th Cir.2005)
in na-
678,
per
liefs,
being religious
that a
(holding
681
addition
ture,
sincerely
not be based
were
held. While
religious
“need
son’s
beliefs
point,
giously required
bears the burden on this
is worth
employed
test was
in fur-
noting
prison
governmental
that the
officials introduced
therance of a
in-
compelling
terest,
finder
evidence from which fact
could
or the least restrictive means of
Koger’s
for a
furthering
Accordingly,
conclude
desire
non-
that interest.
we
meat diet
the
of anything
was
result
other
conclude that it was a violation of RLUI-
belief,
a sincerely
religious
than
held
such PA for the prison
deny Koger’s
officials to
as conduct
with that
request
inconsistent
belief.
for a non-meat diet simply because
us,
Based on the record before
and the
general dietary
OTO has no
restrictions.
“religious
provided
definition of
exercise”
Clergy
Requirement
C. The
Verification
RLUIPA,
that,
request-
we conclude
diet,
ing
Koger
asking
non-meat
test,
religiously required
Unlike the
religious
accommodation of a
exercise root-
clergy
requirement
does
sincerely
ed in
held beliefs.
clearly
violate the express provisions of
RLUIPA, and
requires
therefore
a more
Religiously
B. The
Required Test
weighing
extensive
of the record under
prison
officials
analytical
defend the reli RLUIPA’s
framework. To de
giously required
solely by arguing
test
Koger
termine whether
met his burden of
Koger
did not meet his burden of
showing that
the clergy verification re
showing
request
quirement
was based on
substantially burdened his reli
sincerely
exercise,
Having
gious
beliefs.
we must first determine the
sincerely
concluded that
held religious be
meaning
“substantial
burden”
prompted Koger’s request,
liefs
we further
context of RLUIPA.
considering
When
conclude that
prison
to the extent the
provision
offi
similar
Religious
Freedom
(“RFRA”)
cials’ denials of Koger’s requests were Restoration Act
prohibits
which
test,
religiously required
based on the
they
government
“substantially
from
bur
unlawfully
Koger’s religious
restricted
ex
dening]
person’s
religion,”
exercise of
ercise. The substantial
2000bb-1(a),
§
burden was mani U.S.C.
we held that “a sub
Koger repeatedly provided documen
stantial burden on the free exercise of
fest—
tation to
stating
that OTO religion ...
is one that forces
adherents
does not impose dietary restriction on all
a religion to refrain
religiously
from
moti
members,
of its
but that
conduct,
such restrictions
vated
inhibits or constrains con
practiced by
Koger’s
are
some.
requests
duct
expression
or
that manifests a central
made clear that he
among
the mem
person’s
beliefs,
tenet of a
or
choosing
bers
to practice the
compels
restrictions.
conduct
expression
that is con
accommodated,
To have
trary
how
to those beliefs.”
O’Leary,
Mack v.
ever,
officials would have re
Cir.1996),
vacated
quired him
exactly
Mack,
establish
what
O’Leary
522 U.S.
RLUIPA
require
(1997)
does not
his re
S.Ct.
799
understood,
ally
Bryan’s
it in-
or
fit
de-
Congress
who
enacted
When
religious
“Rabbi-Imam,
of
ex-
scription
Instead,
the broad definition
of
etc.”
cluded
above, 42 U.S.C.
2000cc-
ercise stated
that
the record indicates
has a hand-
OTO
5(7)(A),
part of the RFRA.
which was not
officers,
ful of
promote
most of whom
a renewed consid-
prompted
This inclusion
carry
group’s
out the
administrative af-
a
of what
substantial
eration
constitutes
however,
fairs.
important,
More
there are
Urban Believ-
burden. Civil Liberties
requirements
universal
that could even
City Chicago, 342 F.3d
760-
ers v.
leaders,
be
these
of
verified
at least when
Cir.2003).
(7th
Accordingly,
2003we
61
dietary
clergy
it
to
A
comes
restrictions.
“in
that
the context of RLUIPA’s
held
requirement
verification
therefore renders
exercise, a
religious
definition of
broad
impracticable religious
exercise
mem-
a
regulation
imposes
...
that
substantial
OTO,
religions
bers of
or other
without
is
religious
exercise
one that
burden
clergy
require-
traditional
universal
direct,
fun-
necessarily
primary,
bears
See,
Kaufman,
e.g.,
ments.
419 F.3d at
responsibility for rendering
damental
reli-
can,
(holding
681-82
atheism
effectively
...
gious
impractica-
exercise
“specialized sense” of applying First
determining
at 761. In
an
ble.” Id.
when
protections,
Amendment
be considered a
“effectively impracti-
has become
exercise
religion).
cable,”
helpful
it is
to remember that
Furthermore,
if
belonged
even Roger
to
Clause,
the context of the Free Exercise
religion
uni
clergy
a
with traditional
a
Supreme
govern-
Court held
practices,
clergy
form
verification re
on a
imposes
ment
substantial burden
quirement
forms an
facet of
attenuated
“put[s]
person’s beliefs when
substantial
regime be
religious accommodation
modify
on an
to
pressure
adherent
opinion
cause clergy
generally
has
been
his beliefs.” Thomas
behavior
violate
prison
to
deemed insufficient
override
Bd.,
707, 718,
v. Review
450 U.S.
101 S.Ct.
See,
sincerely
religious
er’s
belief.
(1981);
see
Hu-
raent
the
based
a program that allows
prisons
federal
Christianity,
Sundays
on his
to work on
accommodate the
dietary needs
protection
though
was entitled to
even
prisoners.”)
thousands of
(quotation
“there are assorted Christian denomina- omitted);
Horn,
see also DeHart v.
227
profess
tions that do not
compelled
to be
(3d Cir.2000)
47,
F.3d
52
(agreeing with
work”).
religion
Sunday
their
to refuse
prison officials that “a simplified and effi-
prison
We therefore conclude that the
offi- cient
legitimate
food service” is a
penologi-
clergy verification
im-
requirement
cials’
interest).
cal
problem
prison
for the
posed a
substantial burden on
reli-
officials, however,
that
appellate
gious exercise.
court has ever found these to
compel-
be
ling
Moreover,
interests.7
governmen-
Roger having
pri
established a
tal interest should
in light
be considered
ma facie case that the clergy verification
prisoner’s request
and circumstances
requirement violated
we now
at the
facility.
Hunafa,
detention
See
907
prison
consider whether the
officials estab
F.2d at
Roger’s request
47-48.
must
requirement
lished that such a
is the least
therefore be considered in light of the fact
restrictive means of furthering
compel
that
prison already
served two diets
ling governmental interest. Courts are to
that would have satisfied his request.
It
apply RLUIPA with “due deference to the
must also be
in light
considered
of the fact
experience
expertise
and
prison
jail
Roger
that
ultimately supplied
prison
administrators
in establishing necessary
officials, among other things,
the letter
regulations
procedures
to maintain
”
Greenfield,
from
the letter
from OTO’s
order,
good
security
discipline....
treasurer stating
that
was a dues-
Cutter,
statements *12 any compelling lenged furthered practices furthering compelling means of govern- interest). that the therefore conclude We mental interests. meet failed to their burden
prison officials that Summing up, we conclude clergy verification re- in that the showing establishing met his burden of that both govern- quirement compelling furthered religiously required clergy the test and the mental interest. operated requirement as sub- prison if the officials’assert Even stantial burdens on his exercise. to compel deemed be ed interests were prison The officials failed to meet their ling, support not their assertion they do showing practices burden in their requirement that a clergy verification were the means of least restrictive further- achieving means of the least restrictive ing a compelling government interest. Ac- means these ends. One less restrictive cordingly, the record establishes that the least simply comply, would have been to practices challenged by Roger violated part, in the Illinois Administrative with RLUIPA, in judgment his favor on only, requires prisoner that a Code which this claim is warranted. The district court provide verification” in order to “written summary judgment in entering erred religious-based dietary accommo receive a favor of on prison Roger’s the officials dation, requirement that the verifi RLUIPA claim. clergy 20 Ill. cation be from a member. 425.70(c). § prisoner When a Adm.Code. D. Roger’s Constitutional Claims verification, provides pris own written Compel to and Motion entitled to the benefit officials are still requirement that a long-standing Having concluded the de that his prisoner provide sufficient indicia fendants’ violated conduct we sincerely reli is borne principle call to the mind “federal Moreover, the Ad gious belief. Illinois they courts are to do what can to supposed provides a check ministrative Code further decisions, avoid making constitutional against provides it that “[a] abuse when doubly making unnecessary strive avoid who does adhere to person committed Int’l, ISI Inc. v. constitutional decisions.” the shall no receive longer alternative diet LLP, F.3d Borden Ladner Gervais the diet....” 20 Ill. alternative Adm.Code. Cir.2001); Borzych see also 425.70(e). Likewise, § prison the federal (7th Cir.2006) Frank, F.3d system dietary requires prisoners seeking (declining prisoner’s constitu consider “provide a written accommodations claims, considering solely tional articulating moti statement noting heightened after RLUIPA claim participation [religious vation offers). protections prison Because the program].” dietary accommodation Res- officials under RLUIPA for are liable nick, (citing F.3d at 765 28 C.F.R. in the conduct constitutional complained 548.20(a)). verify Having prisoners claims, to consider those latter we decline dietary request their is reli writing that need not Additionally, claims. we consider just example a less gious-based is one to the district court’s Roger’s challenge by prison means which the offi restrictive compel because the denial of motion furthered the cials could have interests sought Roger is additional evidence and verification. orderly administration his RLUIPA claim—that unnecessary to means, however, is One restrictive less on the record as it claim succeeds based for us to conclude that the sufficient discovery sought would their stands. failed to meet burden material, all, only if at rights therefore to his of his so that a reasonable official claims, constitutional which we are not re- could easily have discerned them. There viewing. are numerous leading reasons us to con- rights clude that the protected by RLUI- Qualified
E.
Immunity
PA, and
violated
officials as
above,
on his
set forth
clearly
success
RLUI
were
established
PA arguments
damages
during
period
will not result in
if
officials de-
*13
by
the prison
protected
quali
Roger’s dietary
First,
officials are
nied
requests.
immunity,
fied
and so we turn to their RLUIPA did not
a right having
announce
argument
they
protected.
are so
broad application
many
across
segments of
“Qualified immunity
per
Rather,
officers
protects
society.
prohibited
substantially
forming discretionary functions from civil burdening religious
only
exercise in
two
liability
long
so
as them conduct does not
by
contexts:
regulation,
land use
42 U.S.C.
dearly
violate
statutory
established
or con
2000cc,
§
or while a person
imprisoned.
rights
stitutional
that a
person
reasonable
42
Moreover,
§
U.S.C.
2000cc-l.
RLUI-
would know about.”
City
PA did not
standard,
announce a new
but
Mustafa
544,
Cir.2006)
Chicago, 442 F.3d
548
up protections
shored
Congress had been
in
(emphasis
original) (citing Saucier v.
attempting
provide
since
by
1993 means
Katz,
194, 201, 121
2151, 150
533 U.S.
S.Ct.
RFRA,
and which
frequent
had seen
(2001)).
L.Ed.2d 272
A plaintiff seeking to
litigation in
See,
e.g.,
context.
defeat an assertion
qualified immunity
Duckworth,
Craddick v.
83,
must establish “that
the law concerning
(7th Cir.1997)
(applying the standard
plaintiffs
right
asserted
clearly
by
shared
the RFRA and RLUIPA and
established at the time
challenged
con
concluding that a prohibition against wear-
Moreover,
duct occurred.” Id.
con
“[t]he
ing
RFRA).
bags
medicine
violated the
right
tours of the
sufficiently
must be
clear
Aside from the fact that RLUIPA em-
that a reasonable official would understand
ploys a
already
standard
contained in the
that what
doing
he is
right.”
violates that
RFRA, it is noteworthy that the compo-
Creighton,
635, 640,
Anderson v.
483 U.S.
analysis
nents of its
have been used in
(1987).
107 S.Ct.
RLUIPA was on Septem enacted the prohibition against ber 2-6, substantially §§ Pub.L. No. 106-274 bur- dening sincerely 114 Stat. religious 803-06. filed his re beliefs is quests for a non-meat diet in well-established Free May Exercise Clause See, December cases. April e.g., 2002. His in Hernandez v. Comm’n of grievance Revenue, ternal was filed in Internal January 2002. 490 U.S. (“The (1989)
Because of the dearth of S.Ct. dealing cases 104 L.Ed.2d during RLUIPA period, Roger free inquiry must exercise govern- asks whether itself, show that RLUIPA or ment principles placed has a substantial burden on established in other applica contexts and the observation of a central religious belief ble to practice-”). established the contours RLUIPA has a broader requirement clearly religious clergy than “central protection scope of Congress cleared but established when the officials em- practices,” beliefs or by expressly any resulting ambiguity up rights being clearly Those ployed both. within that what is included setting time, forth established at the relevant we con- scope “any exercise protective broader clude that the officials are not enti- — by, or compelled or not religion, whether immunity. to qualified tled to, religious belief.” system central 2000cc-5(7)(A). by F. Service United States Marshal
U.S.C. undoubtedly argument appeal arise final the case will While only ques- right asserts a plaintiff denying where a is that the district court erred RLUIPA, Roger as- tionably covered his motions for service a United States right accommoda- serted the filing he simply paid marshal because demonstrably practice tion for a proceeding pauper- fee instead of forma with, though compelled by, associated is. Federal Rule of Civil Procedure 4 *14 prison officials violated religion. his The plaintiffs request, that the provides “[a]t right they because clearly established may the court order that service be made provides required exactly what RLUIPA by deputy a marshal or United States com- they religious practice cannot—a by person a specially appointed marshal Likewise, in cler- by requiring pelled OTO. if by the court. The court must so order verification, the officials em- gy plaintiff proceed is authorized to the clergy-as-arbiter-of-orthodoxy ployed a under pauperis forma 28 U.S.C. rejected. long that had been See standard 4(c)(3). §1915....” Fed.R.Civ.P. Frazee, at 109 1514 489 U.S. S.Ct. misapplied Rule 4 because it district court that to claim the (rejecting “the notion it given failed to exercise the discretion Clause, Free Exercise protection of the plaintiff pays filing when the the fee. See to the commands responding one must be advisory Fed.R.Civ.P. committee’s note and particular religious organization” (1993) (“The ... court retains discretion sincerity is the holding that the believer’s a process a server on motion of appoint Jackson, consideration); appropriate Because these denials resulted party.”). (rejecting prison’s policy a F.3d by a its mistaken belief that service from on the deferring Jewish authorities who party marshal was unavailable to a an inmate is Jewish question of whether fee, court filing the district paid the a providing the kosher purposes by Rule the afforded abused discretion meal, directing and the States, 518 U.S. 4. Koon United sincerity inmate’s be- consider the (1996) (“A L.Ed.2d 392 liefs). only note other Finally, we that its dis by court definition abuses district this issue circuit court to have considered law.”) an error of cretion when it makes “[although that the outer boundaries remand, exer the district court should On uncharted at may of RLUIPA have been ser its discretion to discern whether cise conduct], the defendant’s its [of the time Bryan and upon made Scho vice should be Lovelace, 472 protections core were not.” 4(c)(3). mig to Rule pursuant (reversing grant qualified F.3d at 198 court found immunity where the district G. Additional Considerations constitutionality was not that RLUIPA’s reversing In district clearly because its constitution- established summary judgment for grant of effect). court’s ality when it took presumed claim, Roger’s RLUIPA prison officials on right not to be sub- Accordingly, Roger’s judgment for directing entry or a religiously required test jected to claim, RLUIPA, final Koger punitive damages we note few under but by points kept leaving open availability to be mind the district of nominal First, although Koger sought court. de- damages). relief,
claratory injunctive as well as III. compensatory punitive damages Complaint, Amended for in- We conclude the record establishes junctive relief has been rendered moot Roger’s officials violated prison. his release from Brown v. Bartho- rights as secured under Corp., lomew Consol. Sch. judgment in Roger’s favor on claim (7th Cir.2006) (“In seeking an action brought under that statute is warranted. only injunctive ... relief once the threat of Having conclusion, reached this we do not sought enjoined the act to be dissipates, consider Roger’s constitutional claims. If, the suit must be dismissed as moot. Additionally, the district court abused its however, plaintiff monetary also seeks failing discretion in to exercise the discre- damages, his case is not moot if even tion available to it under Fed.R.Civ.P. 4. underlying misconduct that caused the in- Accordingly, we REVERSEthe district ceased.”) (citations omitted). jury has grant summary court’s judgment in fa- Next, provides RLUIPA that a cause of vor of the prison officials on may action be asserted thereunder to ob- claims, RLUIPA as well as its denials of tain “appropriate relief.” 42 U.S.C. Roger’s motions for service a United 2000ce-2(a). However, because the re- marshal, States proceed- and RemaND *15 lief herein being sought by is a former ings opinion. consistent with this prisoner, Litigation Prisoner Reform (“PLRA”) Act applicable.8 is In particu- EVANS, Judge, Circuit concurring. lar, Roger’s suit is limited provision I join Judge opinion Manion’s fine with- of the PLRA provides “[n]o Federal any out reservations. It touches all the may civil action brought by prisoner be a bases that must be touched and a reaches jail, prison, confined in a or other correc- conclusion with which I agree. I write tional facility, inju- for mental or emotional separately, however, to note I can’t ry custody suffered while in without a help but feel what happened has is here prior showing physical injury.” of pretty close to a waste of time for all 1997e(e). U.S.C. previously We have concerned. held that provision damages limits the Start with the State of Illinois. Inmates prisoners to only available for constitu- prisons fed, in its must be torts, tional and the vast but for violations of federal majority of Corr., them receive a Cassidy statutes. v. standardized Dep’t Ind. of meal—which I Cir.2000); 199 F.3d assume is an offering 376-377 see Allen, reasonably also Smith v. healthy does, F.3d food. The prison (11th Cir.2007) however, (holding that PLRA “religious” offer three diets: ko- availability limits the sher, of compensatory vegan, and lacto-ovo vegetarian.1 question 8. We have held that the vegetarian of whether a 1. A vegetarian lacto-ovo is a who prisoner’s governed by former claim beef, is fish, shellfish, pork, poultry, does not eat by "looking] PLRA is determined to the sta- or animal willing flesh of kind but is plaintiff tus brings at the time he cheese, butter, yogurt, eggs consume Femal, suit.” Witzke (Lacto "egg”). means "milk” and ovo means (7th Cir.2004). Koger May filed suit on vegetarians vegetarians. Most are lacto-ovo prison and was released from on De- Generally, "vegetari- when one uses the term cember 2006. His claims are therefore an,” vegetarian a lacto-ovo is assumed. A governed by the PLRA. tem, Baptist. couple a A wonder, he said he was Roger asked I when Why, vegetarian he a Buddhist. years a lacto-ovo later he said vegan a or either diet, go to the mattresses he a years did the State after that he said Two way up to a all the fight Templi Orientis member “Ordo judicial in the federal appeals (“OTO”), court a with the reli- group associated if Even system? Judge of Thelema.2” As Manion gion “religious sincerity Roger’s doubted notes, religion the central tenet of this is beliefs,” case out of it? why make a federal (for me, tough a “Do what thou wilt” that’s opt for a if an inmate wanted Certainly out!), figure urges which its follow- one diet, require a rule that would vegetarian “a divine ers to consider the tenet year before with it for a him to stick true purpose mandate to discover their to be again mind would seem changing Roger3 obviously very Mr. is a life.” But what the State did quite reasonable. writer —a bright guy "accomplished and an no, here, saying digging its heels blog gregorykoger.com to his visit to me. quite unreasonable seems pretty clear. But was his re- makes it concern is with RLUIPA
My other prefer- diet a mere quest for nonmeat self, the books since that has been on law (he the result of a practiced yoga) ence RLUIPA, this case Clearly, without sincerely belief? On this when it dead the water would have been record, we no reason to doubt that it have Roger’s re declining was filed because But one not be was the latter. would not have nonmeat diet would quest for a terribly surprised Roger if Mr. has had Constitution. violated the United States Big Mac since he left tenderloin or a beef well-settled, that a before It was years ago. a little over two general applicability rule of neutral law or decision, Finally, the line to our bottom justified by a com required to be was not correct, why decidedly points out although if it had the interest even pelling state is a bit of a waste of time. this case burdening particular incidental effect of out of Because Mr. *16 —and Lukumi Ba religious practice. Church of re- December of 2006—his has been since Hialeah, 508 Aye, City Inc. v. U.S. balu injunctive relief is moot. And quest for 124 L.Ed.2d when the case he was because RLUIPA, (1993). So, litiga for but arose, under the Prisoner proceed he must tion, going on now which has been Act, takes com- Reform which Litigation long ago. have died years, almost six would damages off punitive pensatory submit, potential I fosters the injury” “physical table as he suffered game-playing. for mischief best, or emotional only, at a “mental but least, good is, pretty at potentially case recovery to limits his injury.” And in the that. arrived example of damages. nominal of Cor- custody Department the Illinois done, the State all is said and So when 19-year serving a begin in 1996 to rections money a lot of defend- spent Illinois has armed a conviction for following sentence may years. Roger this case for six sys- ing entering Upon violence. wikipedia.org, hand, cording entry at Green- to his no ani- vegan, consumes on the other subjects speaker on related “an avid field is products all. mal and the occult.” UFOs Greenfield, quoted T. Allen 2. The letter from of 2006 Koger paroled in December 3. that "Thelema opinion, to the effect in our years of his sen- serving more than 10 after general dietary restrictions” is imposes no tence. himself. Ac- interesting, as is Mr. Greenfield dollar, lawyer, with a and his Jef- up end Oldham, way has done
frey L. who job, outstanding get
an will limited attorney’s A waste of
amount fees. may I lean disagree,
time? Some but saying “yes.”
towards America,
UNITED STATES
Plaintiff-Appellee, THOMPSON, E.
Marc Defendant-
Appellant.
No. 06-1741. States Court of Appeals,
United
Seventh Circuit.
Argued Oct. 2007. April
Decided 2008. Amended on Rehearing
As Denial of Suggestion Rehearing
En Banc June