JAILS / CORRECTIONS
Inmates and Freedom of Religion
by Jack Ryan, J.D.
JAIL/CORRECTIONS CASE LAW & LEGAL UPDATES BY CIRCUIT:
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Inmates in jails and prisons make a variety of complaints based upon freedom of religion. There are many cases based on a complaint that the jail has failed to provide religious meals; complaints based on the allegation that the jail has failed to provide religious materials; and claims based on an allegation that the jail is restricting a prisoner’s right to worship.
At the outset it is noted that jails and prisons which accept federal prisoners place themselves under the more restrictive federal law known as RLUIPAi an acronym for the Religious Land Use of Institutionalized Persons Act. The act provides for the protections of religious rights unless the jail or prison can establish a compelling state interest in the denial and the manner of denial is the least restrictive means possible to meet the compelling state interest.ii Thus, jails that accept federal prisoners must look at policies to determine whether or not the policies/practices are compliant with RLUIPA.
A case from the United States District Court for the Eastern District of Wisconsin provides a good summary of the various types of claims a prisoner may make.iii The district court outlined the facts of the case as follows:
“Akida Berry is currently incarcerated at Racine Correctional Institution. However, the complaint concerns events that occurred while the plaintiff was incarcerated at the Waushara County Jail. He asserts the defendants violated his right to free exercise of religion under the First and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The plaintiff names the Waushara County Jail and Jail Administrator Lt. Peterman as defendants. The plaintiff seeks to sue the defendants in their individual and official capacities.
The plaintiff attached thirteen Waushara County Jail Inmate Communication Forms to the complaint, documenting his correspondence with various jail staffers, a list from food service of current products containing pork, excerpts from the Wisconsin Administrative Code regarding the Department of Corrections and a canteen order sheet. These attachments are considered part of the complaint. See Fed. R. Civ. P. 10(c).
The plaintiff alleges: "Defendants failed to accommadate [sic] my religious dietary rules [an Halal diet], even though they serve Kosher approved products, but will not serve Halal approved products."
On March 29, 2008, the plaintiff communicated a request for a list of items the jail serves that contain pork and pork by-products. He also asked about alternative diets available for Muslims. Staff Member McElroy responded by giving the plaintiff the pork product list from food service.
The plaintiff made a complaint on March 30, 2008, stating that he is not a vegetarian but practices the Halal diet consistent with his Muslim religion. Jail staff responded the next day, "You can choose to have vegetarian meals or do self-select which means you choose not to eat what's on the tray. Kitchen will do only one or the other."
On April 13, 2008, the plaintiff submitted a communication form marked as a Complaint/Concern and an Appeal. He wrote that he was forced to have a vegetarian diet because the jail would not give him a Halal diet. He alleged the vegetarian diet caused him medical problems, including gas, that resulted in him changing his religious behavior. Specifically, the plaintiff stated that the gas broke his wudu cleansing and prevented him from praying his salal until he did the wudu ritual of cleaning again. Nurse Dave Reich responded by encouraging the plaintiff to increase fluids, walk moderately and consider antacid from the canteen. Nurse Reich also scheduled a medical visit for the plaintiff that week.
Also on April 13, 2008, the plaintiff submitted an appeal again requesting the Halal diet. The plaintiff complained that the vegetarian diet is still forbidden because the food is prepared with the same kitchen equipment and utensils as pork and pork by-products. Lt. Peterman responded, "We do not offer a Halal diet at this time. I contacted DOC and they advised that the state facilities also do not have a Halal diet option."
On April 21, 2008, the plaintiff submitted another appeal complaining that he was being given pork in forms other than meat. He complained that the vegetarian diet is not an alternative because it contains pork by-products. Lt. Peterman responded as follows:
I am aware of your concerns, as is DOC. What we offer for alternative meals has been approved by DOC via the jail inspection process. Also, after reviewing your canteen orders, are you certain the items you are purchasing are halal compliant? Are you sure the 15 bags of hot fries you purchased last week were not processed by the same machine, utensils, or facility that processes pork rinds? Or that Now & Laters or Skittles do not contain some sort of Gelatin?
The plaintiff asserts that "[d]efendants refused to let me order my Islamic religious items." On March 30, 2008, the plaintiff submitted a written request for several Islamic religious items, including an Islamic prayer book, an Islamic prayer rug, an Islamic kufi-cap and Islamic prayer oil. Lt. Peterman asked for clarification regarding whether the plaintiff was asking the jail to provide the items or whether the plaintiff already had these items and was asking to retain them in his cell.
The plaintiff submitted an appeal form on April 1, 2008, asking if he could have the religious items in his cell. Lt. Peterman responded that he had contacted the Department of Corrections and learned that all of the requested items were allowable and available for purchase through the Department of Corrections Chaplain/Canteen or direct from a designated vendor/retailer. Lt. Peterman asked the plaintiff to let him know which avenue he wished to use to get the items. Lt. Peterman informed the plaintiff that the Department of Corrections does not authorize inmates to receive religious property directly from family or visitors.
The plaintiff submitted a complaint on April 14, 2008, that stated he had no one to buy him new Islamic religious items and indicated he would need to order the items himself direct from a designated vendor/retailer and pay out of his inmate account. Lt. Peterman responded that the plaintiff is not allowed to send money out from his account while he is staffed in a county jail. Lt. Peterman volunteered to ask about getting the items through the DOC chaplain/commissary and having them sent to the jail. The same day, the plaintiff responded that he wanted Lt. Peterman to ask about getting the religious items through the DOC chaplain/commissary. Lt. Peterman forwarded the request.
The plaintiff avers: "Defendants [Waushara County Jail and Lt. Peterman] unlawfully denied me the right to group worship, even though Christians and other religious groups were permitted communal worship, the Muslims were not." On March 30, 2008, the plaintiff asked about the religious services held at the Waushara County Jail. A staff member responded that bible study groups are held twice a week and that "Bible Bob" comes to the jail every other Tuesday and Thursday and visits each block.
The plaintiff alleges: "Defendants forced me and other Muslims to buy a Q'uran off canteen, even though Christians and other religious groups were given Bibles for free every other Tuesday and Thursday. Nowhere on the canteen is there a Bible for sale, and or is the Q'uran given to Muslims at no cost." On April 14, 2008, the plaintiff asked whether Bible Bob passes out bibles when he visits the jail. Jail staff confirmed that he does.
On April 16, 2008, the plaintiff asked if the Waushara County Jail provided a copy of the Q'uran or if he had to buy it from the canteen. Jail staff responded that the jail does not provide copies of the Q'uran, but informed the plaintiff he could buy one from the canteen.
On April 18, 2008, the plaintiff asked if the Waushara County Jail provided a copy of the Bible. Jail staff responded that the county does not purchase or provide bibles, but that copies of the bible are available from the canteen, from Bible Bob, or from the library (where they are provided by the Gideons). The staff member also indicated that a family member can purchase a bible and have it shipped directly from the retailer.”
In its analysis of the various claims the court asserted:
The plaintiff alleges that the defendants violated his rights under the First and Fourteenth Amendments and RLUIPA by: (1) failing to provide him with a Halal diet while Kosher meals are available; (2) refusing to let him order his religious items; (3) denying Muslims group worship; and (4) forcing him to purchase a Q'uran while Bibles were given out for free.
First and Fourth Amendment Claims
In the prison context, the free exercise and equal protection analyses turn on the same question of reasonableness. The Free Exercise Clause protects a prisoner's right to practice his religion as long as doing so does not unduly burden the institution. Richards v. White, 957 F.2d 471, 474 (7th Cir. 1992). A prison regulation that infringes upon an inmate's free exercise rights may be valid "'if it is reasonably related to legitimate penological interests,'" Alston v. DeBruyn, 13 F.3d 1036, 1039 (7th Cir. 1994) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)); see also Al-Alamin v. Gramley, 926 F.2d 680, 687 (7th Cir. 1991) (prison staff "need only make reasonable efforts to afford inmates an opportunity to practice their faith"). Likewise, the Equal Protection Clause requires inmates to be treated equally; however, a prison regulation that treats inmates unequally will be upheld if it is reasonable in light of legitimate penological interests. May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000). In sum, a plaintiff who alleges an equal protection claim stemming from an assertion that the government has denied him the free exercise of his religion beliefs, can have his claim examined in light of the Free Exercise Clause. Mack v. O'Leary, 80 F.3d 1175, 1180 (7th Cir. 1996).
A prison may restrict a prisoner's ability to adhere absolutely to a particular tenet of his religion, and if the prison has sound penological interests supporting the restriction and, if those interests outweigh the prisoner's religious interests, the restriction does not violate the First Amendment." Canedy v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996). A standard of reasonableness, rather than the heightened scrutiny standard, applies in the prison context "to permit prison administrators 'to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration[,]' and thereby prevent unnecessary federal court involvement in the administration of prisons." Al-Alamin, 926 F.2d at 685 [*13] (quoting Turner, 482 U.S. at 89).
To establish a claim under RLUIPA, a prisoner must show that a prison receiving federal funds has enacted a regulation that renders his exercise of a religious practice effectively impractical. See 42 U.S.C. § 2000cc-1; Koger v. Bryan, 523 F.3d 789, 796, 799 (7th Cir. 2008); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). If the inmate succeeds, the burden shifts to prison officials to demonstrate that the regulation is the least restrictive means of furthering a compelling government interest. See 42 U.S.C. § 2000cc-1; Koger, 523 F.3d at 796. A prison has a compelling interest in maintaining security, see Borzych v. Frank, 439 F.3d 388, 391 (7th Cir. 2006); Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir. 1987), and courts are particularly deferential to the judgment and expertise of prison administrators when they analyze whether a regulation is necessary to further that interest, see Cutter v. Wilkinson, 544 U.S. 709, 722-23, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005); Koger, 523 F.3d at 800…
The plaintiff identifies defendant Lt. Peterman as the "Jail Administrator" and seeks to sue him in his official and individual capacity. Prison officials cannot be liable under a theory of respondeat superior in §1983 claims. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Title 42 U.S.C. § 1983 does not create a claim based on collective or vicarious responsibility. See Pacelli v. deVito, 972 F.2d 871, 875 (7th Cir. 1992). An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1240 (7th Cir. 1994), cert. denied, 513 U.S. 1128, 115 S. Ct. 937, 130 L. Ed. 2d 882 (1995); Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986). To the extent Lt. Peterman was not personally involved in a particular decision, he cannot be liable individually under § 1983.
However, the plaintiff's complaint appears to be challenging policies of the Waushara County Jail in addition to the specific actions of its employees. As such, Lt. Peterman in his official capacity is an appropriate defendant.”
In finding for the prisoner on much of his complaints, the court held:
“The court finds that the plaintiff has alleged sufficient facts to support claims regarding his religious items and Halal diet against Lt. Peterman individually. The court also finds that the plaintiff has alleged sufficient facts to support the following claims against Lt. Peterman in his official capacity as jail administrator: (1) failure to provide the plaintiff with a Halal diet while Kosher meals are available; (2) refusal to let the plaintiff order his religious items; (3) denying Muslims group worship; and (4) forcing the plaintiff to purchase a Q'uran while Bibles were given out for free.”
i 42 U.S.C. §2000 cc.
ii Id. § 2000cc. Protection of land use as religious exercise: provides: (a) Substantial burdens.
(1) General rule. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application. This subsection applies in any case in which--
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
(b) Discrimination and exclusion.
(1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits. No government shall impose or implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
iii Berry v. Waushara County Jail, 2008 U.S. Dist. LEXIS 91540 (E.Dist. Wisconsin 2008).