Dowl et al v. Williams et al
Filing
18
ORDER granting 2 Motion for Temporary Restraining Order. This temporary restraining order shall remain in effect until the court rules onplaintiffs motion for a preliminary injunction. Response to Motion for Preliminary Injunction due 5/31/18. Reply due 6/4/18. Signed by Judge H. Russel Holland on 5/25/18. (JLH, COURT STAFF) Modified on 5/25/2018 to correct typo in docket text (JLH, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
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ANAS A. DOWL, inmate #345639, and
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ERNEST A. JACOBBSON, inmate # 403566, )
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Plaintiffs, )
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vs.
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DEAN WILLIAMS, Commissioner,
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Alaska Department of Corrections, et al.,
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Defendants.
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_______________________________________)
No. 3:18-cv-0119-HRH
ORDER
Motion for Temporary Restraining Order
Plaintiffs Anas A. Dowl and Ernest A. Jacobbson are inmates at the Anchorage
Correctional Complex, and they are practicing Muslims.1 In their verified complaint,
plaintiffs state that during Ramadan, which this year started on May 16, 2018 and ends on
June 15, 2018,2 they are being provided two cold, bagged meals to eat in their cells after
sunset but that these meals do not contain sufficient nutrition and at times have contained
pork products.3 More specifically, plaintiffs state that the bagged meals contain only
1
Verified Complaint [etc.] at 4, ¶¶ 9-10, Docket No. 1.
2
Id. at 7, n.1.
3
Id. at 9, ¶¶ 35-37.
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approximately 500 to 1100 calories per day, “which is substantially lower than what is
required under [the Department of Corrections’] Policy and Procedure Directive 805.01
‘Food Service Standards,’ and the [federal] ‘Dietary Guidelines for Americans 2015-2020.’”4
Plaintiffs contend that per the federal guidelines, they should be receiving between 2600
and 2800 calories per day.5 Plaintiffs further contend that on the days that their bagged meals
contain bologna sandwiches, which they believe contain pork product and which they cannot
eat, they are receiving even fewer calories.6
Plaintiffs now move for a temporary restraining order7 compelling defendants to
provide plaintiffs and all other fasting Muslim inmates with nutritionally adequate, and porkfree, meals during Ramadan. A hearing on the motion was held on May 24, 2018, at which
counsel for plaintiffs and counsel for the Alaska Department of Corrections participated.
Discussion
“[T]he legal standards applicable to TROs and preliminary injunctions are ‘substantially identical.’” Wash. v. Trump, 847 F.3d 1151, 1159 n.3 (9th Cir. 2017) (quoting
Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir.
4
Id. at 8, ¶ 29.
5
Id. at ¶ 34.
6
Id. at ¶¶ 36-37.
7
Docket No. 2. Although the motion for a temporary restraining order was filed ex
parte, the court declined to consider the motion on an ex parte basis. See Order re Motion
for Ex Parte Temporary Restraining Order at 1, Docket No. 7.
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2001)). “A party seeking a preliminary injunction must meet one of two variants of the same
standard.” Alliance for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).
“Under the original Winter standard, a party must show ‘that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.’” Id.
(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “Under the ‘sliding
scale’ variant of the Winter standard, ‘if a plaintiff can only show that there are serious
questions going to the merits—a lesser showing than likelihood of success on the
merits—then a preliminary injunction may still issue if the balance of hardships tips sharply
in the plaintiff’s favor,’ and the other two Winter factors are satisfied.’” Id. (quoting Shell
Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). A plaintiff need
not establish that he is likely to succeed on the merits of all his claims. A TRO or
preliminary injunction may issue if a plaintiff can show he is likely to succeed on one claim
and that he meets the other three requirements for injunctive relief. League of Wilderness
Defenders/Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 n.3 (9th
Cir. 2014).
The Prison Litigation Reform Act of 1995 “‘requires that a prisoner challenging
prison conditions exhaust available administrative remedies before filing suit.’” Jackson v.
Fong, 870 F.3d 928, 933 (9th Cir. 2017) (quoting Albino v. Baca, 747 F.3d 1162, 1165 (9th
Cir. 2014)). Plaintiffs state that they each filed an emergency grievance on May 21, 2018,
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and that on May 22, 2018, defendants determined that these grievances were not emergencies.8 Because the Emergency Grievance procedure provides that the decision as to whether
an issue constitutes an emergency is not administratively appealable,9 plaintiffs have
exhausted the Emergency Grievance procedure. The court concludes that, for purposes of
the instant motion, plaintiffs have exhausted their available administrative remedies.
Turning then to the merits of plaintiffs’ motion for a TRO, plaintiffs only argue that
they are likely to succeed on their claim in Count II that defendants have violated The
Religious Land Use and Institutionalized Persons Act (RLUIPA).
Section 3 of RLUIPA provides, in relevant part, that “[n]o
government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
even if the burden results from a rule of general applicability,”
unless the government establishes that the burden furthers “a
compelling governmental interest,” and does so by “the least
restrictive means.”
Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (quoting 42 U.S.C. §
2000cc–1(a)(1)-(2)).
“[A] burden is substantial under RLUIPA when the state ‘denies [an important
benefit] because of conduct mandated by religious belief, thereby putting substantial pressure
on an adherent to modify his behavior and to violate his beliefs.’” Shakur v. Schriro, 514
F.3d 878, 888 (9th Cir. 2008) (quoting Warsoldier, 418 F.3d at 995). Courts “have
8
Verified Complaint [etc.] at 15, ¶¶ 75-76, Docket No. 1.
9
Id. at 15, ¶ 78.
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repeatedly held that forcing an inmate to choose between daily nutrition and religious
practice is a substantial burden.” Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016); see
also, McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (“[i]nmates . . . have the right
to be provided with food sufficient to sustain them in good health that satisfies the dietary
laws of their religion”). Plaintiffs contend that they are being provided with Ramadan meals
that contain only 500 to 1100 calories per day, rather than the recommended federal guideline
caloric intake of 2600 to 2800 calories per day. Even if plaintiffs received sufficient food
on some days, there is evidence that they have not received sufficient food every day.10 At
least one court has held that having insufficient food on only two days constituted a
substantial burden. Thompson, 809 F.3d at 380. The court cannot perceive of any
compelling governmental interest that would be furthered by providing plaintiffs with
Ramadan meals that do not contain sufficient nutrition or that contain pork product. That it
may cost slightly more to feed Muslim prisoners during Ramadan is not a compelling
interest, given that RLUIPA “‘may require a government to incur expenses in its own
operations to avoid imposing a substantial burden on religious exercise.’” Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2781 (2014) (quoting 42 U.S.C. § 2000cc-3). In sum,
based on the facts as stated in plaintiffs’ verified complaint, plaintiffs have shown that they
are likely to succeed on their RLUIPA claim in Count II.
10
Declaration of Lena F. Masri [etc.] at 2, ¶¶ 2-5, Docket No. 9.
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Because plaintiffs have shown that they are likely to succeed on one of their RLUIPA
claims, they have met the other requirements for a TRO. “[T]he loss of religious freedom
caused by a RLUIPA violation–standing alone–is sufficient to show irreparable harm. . . .”
Harris v. Wall, 217 F. Supp. 3d 541, 560 (D.R.I. 2016). Plaintiffs are also being irreparably
harmed because they may not be receiving adequate nutrition on a daily basis. As for the
balance of equities and public interest, “[i]t is clear that it would not be equitable or in the
public’s interest to allow the state . . . to violate the requirements of federal law[.]’” Ariz.
Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (quoting Valle del Sol
Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)).
“Although Federal Rule of Civil Procedure 65(c) generally provides that a” temporary
restraining order “will not issue except upon the giving of security, it is not required where
plaintiffs are indigent or where considerations of public policy make waiver of a bond
appropriate.” Miller v. Carlson, 768 F. Supp. 1331, 1340 (N.D. Cal. 1991). Because
plaintiffs are currently incarcerated, the court will waive the bond requirement.
Based on the foregoing, plaintiffs’ motion for a temporary restraining order is granted.
Effectively immediately, defendants are enjoined from
1)
providing plaintiffs, and other fasting Muslim inmates, Ramadan meals that
contain less than 2600 calories per day; defendants shall provide plaintiffs, and
other fasting Muslim inmates, with daily Ramadan meals that contain at least
2600 calories;
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2)
providing plaintiffs, and other fasting Muslim inmates, Ramadan meals that
contain pork products; and
3)
removing either or both of plaintiffs from the Ramadan Meal List for any
reason. If either or both of plaintiffs are not currently on the Ramadan Meal
List, defendants shall put them back on the list immediately.
This temporary restraining order shall remain in effect until the court rules on
plaintiffs’ motion for a preliminary injunction.
Defendants’ response to plaintiffs’ motion for a preliminary injunction shall be filed
by 4 p.m. Alaska Daylight Time, on May 31, 2018. Plaintiffs’ reply shall be filed no later
than June 4, 2018. In further briefing plaintiffs’ motion for a preliminary injunction, counsel
are again directed to consider D. Ak. Local Rule 7.2(b) as regarding hearings and evidentiary
hearings.
DATED at Anchorage, Alaska, this 25th day of May, 2018 at 9:12 a.m.
/s/ H. Russel Holland
United States District Judge
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