Lute v. Johnson

Filing 60

MEMEMORANDUM DECISION AND ORDER denying 34 Motion for Summary Judgment; granting 32 Motion for Partial Summary Judgment; Pla's July 2006 retaliation claim is dismissed with prejudice; Pursuant to Federal Rule of Civil Procedure 56(f), the Court hereby notifies the parties that it intends to grant summary judgment to Defendants on Plaintiffs remaining claims under the Free Exercise Clause of the First Amendment and RLUIPA. Plaintiff shall have ten (10) days from the date of this Ord er to submit an affidavit or other evidence establishing that his belief that he must eat a kosher diet is a sincerely held religious belief notwithstanding his purchases of non-kosher food from the commissary and his lack of attendance at Jewish s ervices. The Court will then consider whether summary judgment on Plaintiffs remaining claims is appropriate. If Plaintiff files nothing further, summary judgment will be granted to Defendants and the case dismissed. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANIEL LUTE,
Case No. 1:08-cv-00234-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
MICHAEL JOHNSON and JOHN
HARDISON,
Defendants.

Pending before the Court are Plaintiff’s Motion for Summary Judgment, and
Defendants’ Motion for Partial Summary Judgment. (Dkts. 34, 32.) Having fully
reviewed the record, the Court finds that the facts and legal arguments are adequately
presented in the briefs and record. Accordingly, in the interest of avoiding delay, and
because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, this matter will be decided on the record before this
Court without oral argument. D. Idaho L. R. 7.1(b).
For the reasons that follow, the Court will deny Plaintiff’s Motion for Summary
Judgment and grant Defendants’ Motion for Partial Summary Judgment. Further,
pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, the Court notifies the
parties that it intends to grant summary judgment to Defendants on Plaintiff’s remaining
claims. Plaintiff shall have ten (10) days from the date of this Order to submit evidence
MEMORANDUM DECISION AND ORDER - 1

raising a genuine issue of material fact as to the sincerity of his belief that he must adhere
to a strict kosher diet. If Plaintiff does not do so, the Court will enter judgment in favor of
Defendants.
PROCEDURAL HISTORY
The Court has authorized Plaintiff, a prisoner in the custody of the Idaho
Department of Correction (IDOC), to proceed on his Amended Complaint. (Dkt. 6.) He
asserts four claims: (1) a claim that Defendants violated the Free Exercise Clause of the
U.S. Constitution by failing to provide Plaintiff with a kosher diet; (2) a claim that this
failure also violated the Religious Land Use and Institutionalized Persons Act (RLUIPA),
42 U.S.C. § 2000cc et seq.; (3) a claim that in July 2006, Defendants placed Plaintiff in
administrative segregation in retaliation for his request for a kosher diet; and (4) a similar
retaliation claim arising from his placement in administrative segregation in October
2008. Defendants filed a Motion to Dismiss Plaintiff’s retaliation claims, which the Court
granted in part and denied in part on January 26, 2011. Plaintiff’s October 2008
retaliation claim was dismissed for failure to exhaust administrative remedies as required
by the Prison Litigation Reform Act of 1995. (Memorandum Decision and Order, Dkt.
31.)1 Plaintiff was allowed to proceed on his claim arising from his July 2006 placement
in administrative segregation. (Id.)

1

Because the Court has already dismissed Plaintiff’s 2008 retaliation claim, it will not
address that claim in this Order, despite the parties’ discussion of it.
MEMORANDUM DECISION AND ORDER - 2

Both parties now move for summary judgment. Plaintiff moves for summary
judgment on all remaining claims. Defendants move for summary judgment only on
Plaintiff’s July 2006 retaliation claim.
FACTUAL BACKGROUND
This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.
On July 11, 2006, Plaintiff was transferred from the Idaho State Correctional
Institution (ISCI) to the Idaho Maximum Security Institution (IMSI). On July 12, 2006,
Plaintiff was moved to a medical cell on suicide watch. On an unknown date, Deputy
Warden Michael Johnson came to Plaintiff in the medical unit and asked why Plaintiff
was on a hunger strike. Plaintiff told Johnson that he would eat only kosher food and that
he was not on a hunger strike. (Plaintiff’s Statement of Material Facts, Dkt. 34-1 at 1-2.)
Plaintiff describes himself as an observant member of the Jewish faith. On July 18, 2006,
Plaintiff filed a formal notice, in writing, demanding a kosher diet. (Plaintiff’s Affidavit,
Dkt. 34-4, Ex. C.)
The request was denied because the IDOC does not offer a kosher diet. According
to Katie Hall, the IDOC’s Dietary Services Manager, inmates can choose to receive the
mainline diet or one of five specialized diets. IDOC policy defines the diets as follows:
•

Mainline: The menu for the general offender population that

MEMORANDUM DECISION AND ORDER - 3

provides an average daily caloric content of 2200 calories for female
offenders and 2900 calories for male offenders.
•

Healthy Choice Diet: A diet reduced in calories, fat, cholesterol,
sodium and sugar.

•

Modified Consistency Diet: A mainline diet with ground meats, soft
fruits and vegetables.

•

Non-pork diet: A diet provision for a pork-free alternative for food
items containing pork.

•

Ovo-Lacto Vegetarian Diet: A vegetarian diet with milk, cheese,
other dairy items and eggs.

•

Vegan Diet: A vegetarian diet with no animal products.

(Katie Hall Affidavit, Dkt. 58-2, Ex. A.)
Plaintiff claims that in retaliation for his efforts to obtain a kosher diet, Defendants
placed him in administrative segregation, a restrictive housing unit with fewer privileges
than general population. On July 15, 2006—after Plaintiff was moved to the medical unit
but before his formal request for a kosher diet—Sergeant Webb issued Plaintiff a
Disciplinary Offense Report (DOR) for sexual activity that had allegedly occurred on July
6, 2006, while Plaintiff was still housed at ISCI. (Kevin Burnett Affidavit, Dkts. 32-1, 52,
Ex. A & B.) Webb issued the DOR after a detective from the Ada County Sheriff’s Office
conducted a polygraph examination of Plaintiff. (Id., Ex. B.) The DOR states that during
this polygraph, Plaintiff “admitted to allowing another offender to perform oral sex on
him in the Gym.” (Id.) Although Plaintiff claims that he never admitted to sexual activity
(Pl. Stmt. of Mat. Facts at 2), he does not deny that he actually engaged in such activity.

MEMORANDUM DECISION AND ORDER - 4

The DOR noted that Plaintiff had previously been issued several DORs for sexual
activity. Sergeant Belz, the “reviewing supervisor,” signed the DOR on July 19, 2006.
(Burnett Aff., Ex. B.)
On July 21, 2006, Plaintiff received a notice from Defendant Johnson that he had
been referred to the Restrictive Housing Placement Committee. The notice listed three
reasons for the referral: (1) to protect Plaintiff from other inmates; (2) to protect other
inmates from Plaintiff; and (3) to “stabilize a volatile or difficult situation.” (Id., Ex. C.)
The notice also informed Plaintiff that he had the right to attend a hearing, after which the
committee would determine whether he should be placed in restrictive housing. (Id.)
Plaintiff states that Johnson told him he would be placed in administrative segregation
because he was an “admitted homosexual.” (Pl. Stmt. of Mat. Facts at 2.) Plaintiff also
states that he “denied being a homosexual or ever admitting any such thing[.]” (Id.)
Although the referral notice is dated nearly a week after Sergeant Webb issued
Plaintiff the DOR for prohibited sexual activity, Plaintiff claims that he was referred to
the Restrictive Housing Committee before he received the DOR. According to Plaintiff,
the DOR was an attempt to justify the restrictive housing referral so it would “appear as if
[J]ohnson had a legitimate governmental reason to place plaintiff in isolation.” (Id.)
Plaintiff’s restrictive housing hearing took place on July 25, 2006. (Burnett Aff.,
Ex. D.) The evidence adduced at the hearing showed that Plaintiff had an alert on file
under the Prison Rape Elimination Act and that he had engaged in sexual activity with
other inmates. According to the hearing report, Plaintiff admitted that he had consensual
MEMORANDUM DECISION AND ORDER - 5

sex with another inmate but insisted he did not rape anyone. (Id.) As the DOR did not
charge Plaintiff with rape—only with consensual sexual activity—Dr. Green and
Defendant Johnson found him guilty of the DOR. The committee recommended that
Plaintiff be placed in administrative segregation. (Id.) Plaintiff claims that “Dr. Green did
not want to sign the Ad/Seg referral, but [J]ohnson bullied her into signing it.” (Pl. Stmt.
of Mat. Facts at 2.) The warden at that time, John Hardison, now deceased, approved the
recommendation.2
On July 27, 2006, two days after the restrictive housing hearing, Plaintiff’s DOR
hearing on the July 15, 2006 DOR for sexual activity took place. Sergeant Link, the
hearing officer, found Plaintiff guilty of the DOR based on Sergeant Webb’s report and
Plaintiff’s testimony at the hearing. (Burnett Aff., Ex. B.) As a result of the guilty finding,
Plaintiff lost all property and commissary privileges for thirty days. Sergeant Link also
sentenced Plaintiff to thirty days’ detention but gave him credit for time served. (Id.)
MOTIONS FOR SUMMARY JUDGMENT
1.

Standard of Law

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the

2

In its September 20, 2011 Order, the Court noted that the Hardison’s death mooted
Plaintiff’s claims against him in his individual capacity and stated that the current warden “shall
be substituted for Warden Hardison for purposes of the official capacity injunctive relief claims.”
(Dkt. 49 at 5 n.1.)
MEMORANDUM DECISION AND ORDER - 6

summary judgment rule “is to isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored
procedural shortcut,” but is instead the “principal tool[] by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). Material facts are those “that might affect the outcome of the
suit.” Id. at 248.
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)
(en banc). To carry this burden, the moving party may “cit[e] to particular parts of

materials in the record,” show that “the materials cited do not establish the . . . presence
of a genuine dispute, or show that the “adverse party cannot produce admissible evidence
to support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The Court must consider “the cited
materials,” but it may also consider “other materials in the record.” Fed. R. Civ. P.
56(c)(3).
If the moving party meets its initial burden, the burden shifts to the non-moving
party to produce evidence sufficient to support a jury verdict in his favor. Anderson, 477
U.S. at 256-57. The non-moving party must go beyond the pleadings and show “by [his]
MEMORANDUM DECISION AND ORDER - 7

own affidavits, or by the depositions, answers to interrogatories, and admissions on file”
that a genuine issue of material fact exists. Celotex, 477 U.S. at 324 (internal quotation
marks omitted).

The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205,
1208 (9th Cir. 1988).

The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. If a party “fails
to properly support an assertion of fact or fails to properly address another party’s
assertion of fact,” the Court may consider that fact to be undisputed. Fed. R. Civ. P.
56(e)(2). The Court may grant summary judgment for the moving party “if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). Moreover, the Court may enter
summary judgment in favor of a non-moving party, provided the other party is given
“notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f).
2.

Discussion of Retaliation Claim
Defendants seek summary judgment on Plaintiff’s claim that Defendants placed

Plaintiff in administrative segregation in retaliation for requesting a kosher diet in 2006.
Defendant Johnson states that Plaintiff was placed in administrative segregation not
MEMORANDUM DECISION AND ORDER - 8

because of his diet requests, but because of several disciplinary convictions for prohibited
sexual activity.
A retaliation claim must allege the following: “(1) An assertion that a state actor
took some adverse action against an inmate (2) because of (3) that prisoner’s protected
conduct, . . . that such action (4) chilled the inmate’s exercise of his First Amendment
rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Although a
“chilling effect on First Amendment rights” is enough to state an injury, Gomez v.
Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation”
are insufficient to state a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th
Cir. 1985). “A prisoner suing prison officials under section 1983 for retaliation must
allege that he was retaliated against for exercising his constitutional rights and that the
retaliatory action does not advance legitimate penological goals, such as preserving
institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.
1994) (per curiam); see also Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”).
Defendants have met their initial burden of showing that there is no genuine issue
of material fact as to Plaintiff’s July 2006 retaliation claim. The documentary evidence in
the record supports Defendants’ assertion that Plaintiff was placed in administrative
segregation because of sexual activity, not because he requested a kosher diet. The
MEMORANDUM DECISION AND ORDER - 9

hearing officers at both of Plaintiff’s hearings relied on reports of Plaintiff’s sexual
activity. There is no evidence of retaliatory intent, nor is there evidence that Sergeant
Webb or Sergeant Belz issued the DOR to justify Defendants’ alleged retaliatory actions.
The burden now shifts to Plaintiff to bring forth evidence sufficient for a
reasonable jury to conclude that Defendants’ reliance on Plaintiff’s sexual activity was
pretextual and that Plaintiff was actually placed in administrative segregation in
retaliation for his kosher diet request. He has failed to do so. Plaintiff offers nothing more
than “bare allegations” that Defendants retaliated against him. Rizzo, 778 F.2d at 532 n.4.
And there is nothing more than Plaintiff’s own speculation that Defendant Johnson
“bullied” Dr. Green into recommending that Plaintiff be placed in administrative
segregation. Even if, as Plaintiff claims, the date on the DOR is incorrect and he was
issued the DOR after his referral to the Restrictive Housing Committee, he has still not
raised a genuine issue of material fact as to Defendants’ motive. Although the events of
which Plaintiff complains occurred within a few weeks of each other, there must
generally be something more than simply timing to support an inference of retaliatory
intent. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Even if Plaintiff could show that Defendants acted with a retaliatory motive, he
would still be unable to overcome Defendants’ evidence that Plaintiff’s placement in
administration segregation was “reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89. Plaintiff does not deny that he engaged in consensual sexual
activity with another inmate, and it is beyond dispute that prohibiting sexual activity in
MEMORANDUM DECISION AND ORDER - 10

prison is a legitimate governmental interest. As this Court has previously held,
“[P]rotecting inmates from sexually-transmitted diseases and keeping health care costs
low justify the prohibition on sexual activity between inmates.” Mintun v. Peterson, No.
1:06-00447-BLW, 2010 WL 1338148, at *11 (D. Idaho March 30, 2010); see also Veney
v. Wyche, 293 F.3d 726, 733 (4th Cir. 2002) (“[S]exual activity between [prisoners] . . .
would jeopardize prison security” and “raise concerns about the transmission of diseases,
such as HIV.”); Fields v. Smith, 712 F. Supp. 2d 830, 868 (E.D. Wis. 2010) (“The
correctional environment can be dangerous, and one major area of security concern is
sexual activity, especially sexual activity among inmates, which has a history of being
extremely dangerous and volatile.”). Reducing the risk of prohibited sexual activity by
segregating Plaintiff—an inmate with a history of disciplinary sexual offenses and a
recent DOR for sexual behavior—is rationally related to these legitimate interests.
Plaintiff has failed to raise a genuine issue of material fact as to his July 2006
retaliation claims. Therefore, the Court will deny Plaintiff’s Motion for Summary
Judgment on that claim and grant Defendants’ Motion for Partial Summary Judgment.
3.

Discussion of Kosher Diet Claims
Plaintiff claims he is entitled to summary judgment on his First Amendment and

RLUIPA claims based on Defendants’ failure to provide him with a kosher diet.
Defendants have not moved for summary judgment on these claims.
A.

First Amendment Standard

The Free Exercise Clause of the First Amendment absolutely protects the right to
MEMORANDUM DECISION AND ORDER - 11

believe in a religion; it does not absolutely protect all conduct associated with a religion.
Cantwell v. Connecticut, 310 U.S. 296 (1940). Inmates retain their free exercise rights in
prison. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). However, challenges to
prison restrictions that are alleged “to inhibit First Amendment interests must be analyzed
in terms of the legitimate policies and goals of the corrections system, to whose custody
and care the prisoner has been committed in accordance with due process of law.” Jones
v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 125 (1977) (internal quotation marks
omitted). As long as a restriction on an inmate’s religious practice “is reasonably related
to legitimate penological interests,” that restriction is valid. Turner, 482 U.S. at 89. To
serve as a basis for a viable claim challenging a prison restriction under the Free Exercise
Clause, an inmate’s belief must be both sincerely held and rooted in religious belief.
Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008); Malik v. Brown, 16 F.3d 330, 333
(9th Cir. 1994).
B.

RLUIPA Standard

RLUIPA provides 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 demonstrates
that imposition of the burden on that person . . . is in furtherance of a compelling
governmental interest and . . . is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). Under RLUIPA, the inmate bears the
initial burden of showing that the prison’s policy constitutes a substantial burden on the
MEMORANDUM DECISION AND ORDER - 12

exercise of the inmate’s religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th
Cir. 2005). In determining whether an inmate’s religious exercise is substantially
burdened, a court may not inquire “into whether a particular belief is ‘central’ to a
prisoner’s religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (quoting 42
U.S.C. § 2000cc-5(7)(A)). However, “the Act does not preclude inquiry into the sincerity
of a prisoner’s professed religiosity.” Id.
C.

Analysis

The first question the Court must consider, under both the Free Exercise Clause
and RLUIPA, is whether Plaintiff is sincere in his religious belief that he requires a
kosher diet. See Shakur, 514 F.3d at 884; Cutter, 544 U.S. at 725 n.13. According to
IDOC documentation, Lute first designated his religion as Jewish in 1986, after
previously identifying himself as Christian. (William Loomis Affidavit, Ex. B, Dkt. 58-4.)
In 1993, the prison received a letter from a New York rabbi stating that the rabbi
considered Lute to be Jewish. (Id., Ex. G.) The letter also stated that Lute should be
allowed to comply with Jewish dietary laws and that a vegetarian diet “would serve as
adhering to Kosher laws.” (Id.)
Despite this evidence of Lute’s longstanding self-identification as Jewish,
Defendants have submitted evidence that from 2006 to 2010, Plaintiff has consistently
purchased nonkosher food from the prison commissary, including rice noodles, nacho
chips, salsa, corn tortillas, chili, beef stew, barbeque beef, roast beef and gravy, chili
ramen noodles, beef ramen noodles, enchilada party mix, instant milk, and hot summer
MEMORANDUM DECISION AND ORDER - 13

sausage. (Hall Aff. at ¶ 26 and Ex. B.) Prison records also show that, from 2003 to 2009,
Lute attended more Catholic, LDS, Wiccan, and Buddhist services and classes than
Jewish services and classes. (Id., Ex. E.) Until his request for a kosher diet in 2006, the
only specialized diet Lute requested was a “lacto-ovo” diet, which had no red meat but
included fish and dairy products; Plaintiff made this request in 1993. (Id., Ex. C.)
Although “backsliding” or nonobservance of a religious practice is not dispositive,
it is evidence of a prisoner’s religious insincerity. Oram v. Hulin, No. 1:03-cv-00249EJL, 2007 WL 2363376, at *4 (D. Idaho Aug. 16, 2007). Such evidence is particularly
relevant where, as here, the prisoner’s own actions directly contradict the core of his
claim. Purchasing nonkosher foods—both before and after his kosher diet request—is
completely inconsistent with Plaintiff’s professed religious belief.
Plaintiff cannot prevail on either his First Amendment or RLUIPA claim unless his
request for a kosher diet is rooted in a sincere religious belief. Because Plaintiff has

“fail[ed] to properly address [Defendants’] assertion of fact” that Plaintiff’s professed
belief in a kosher diet is insincere, that fact as yet remains undisputed. Fed. R. Civ. P.

56(e)(3). Therefore, the Court will deny Plaintiff’s motion for summary judgment on his
First Amendment and RLUIPA claims. If Plaintiff wishes to avoid summary judgment
against him on those claims, he must come forward with admissible evidence raising a

genuine issue of material fact on the question of sincerity.

MEMORANDUM DECISION AND ORDER - 14

ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Summary Judgment (Dkt. 34) is DENIED.

2.

Defendants’ Motion for Partial Summary Judgment (Dkt. 32) is

GRANTED. Plaintiff’s July 2006 retaliation claim is dismissed with prejudice.
3.

Pursuant to Federal Rule of Civil Procedure 56(f), the Court hereby notifies

the parties that it intends to grant summary judgment to Defendants on Plaintiff’s
remaining claims under the Free Exercise Clause of the First Amendment and RLUIPA.
Plaintiff shall have ten (10) days from the date of this Order to submit an affidavit
or other evidence establishing that his belief that he must eat a kosher diet is a sincerely
held religious belief notwithstanding his purchases of non-kosher food from the
commissary and his lack of attendance at Jewish services. The Court will then consider
whether summary judgment on Plaintiff’s remaining claims is appropriate. If Plaintiff
files nothing further, summary judgment will be granted to Defendants and the case
dismissed.

DATED: March 16, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 15