Arnold et al v. Heyns et al

Filing 243

BENCH OPINION. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GERALD ACKERMAN and
MARK SHAYKIN,
Plaintiffs,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON,
Defendant.
_________________________/

BENCH OPINION
I.

Overview
Plaintiffs, and the Class1 and Sub-Class2 they represent, are Jewish prisoners

incarcerated in Michigan Department of Corrections (“MDOC”) facilities.

1

The Class is defined as follows:
[A]ll current and future prisoners in Defendant’s custody
who: (a) request, in writing, a religious diet (Kosher
meals); and (b) either (i) were, as of September 1, 2019,
designated or identified in Defendant’s records as being
Jewish, or (b) enter Defendant’s custody for the first time
after September 1, 2019 and designate or identify
themselves as being Jewish upon admission to
Defendant’s custody.
(Settlement Agreement at 2, ECF No. 213 at Pg ID 2177, footnote omitted).
2

The Sub-Class consists of:
[A]ll Jewish individuals confined with the Michigan
Department of Corrections who meet the requirements of
the main class AND who have a sincere religious belief,

Defendant is the Director of MDOC and is being sued in her official capacity.3
Based on their religious beliefs, Plaintiffs and Class members maintain a kosher
diet. MDOC has approved Plaintiffs to receive a kosher diet.
In 2013, MDOC decided to substitute vegan meals for the various religious
diets (e.g., kosher, halal) provided to inmates. Vegan meals contain no meat or
dairy items.
Plaintiffs allege that the vegan diet violates their First Amendment rights and
their rights under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1, because their sincere religious beliefs require
them to consume meat and dairy products on the Sabbath and four Jewish holidays:
Rosh Hashanah, Yom Kippur, Sukkot, and Shavuot (referred to as Plaintiffs’ “meat
and dairy claim”). (See First Am. Compl., ECF No. 90-1.) Plaintiffs further allege
that even if the vegan meals could be considered kosher, they are rendered nonkosher by how MDOC washes its trays and utensils (referred to as Plaintiffs’

which is seriously held, that they are to consume
Certified Kosher meat and dairy on each of the Sabbaths
and the following four Jewish holidays: Rosh Hashanah,
Yom Kippur, Sukkot, and Shavuot.
(Stip. Order, ECF No. 201, capitalization in original.)
3

Because Defendant is sued only in her official capacity as MDOC Director, the
Court will refer to Plaintiffs’ claims as against MDOC itself. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989) (explaining that “a suit against a state
official in his or her official capacity is not a suit against the official but rather is a
suit against the official’s office.”).
2

“cross-contamination claim”). (see id.) The parties settled Plaintiffs’ crosscontamination claim. (See Settlement Agreement, ECF No. 213.) Unable to
resolve their meat and dairy claim, the matter proceeded to trial before this Court
on October 4, 2019. As “RLUIPA provides greater protection” than the First
Amendment, Holt v. Hobbs, 135 S. Ct. 853, 862, 574 U.S. 352 (2015), Plaintiffs
focus on their statutory claim.
The trial lasted one day, with the parties presenting the following witnesses:
Plaintiff Gerald Ackerman; Plaintiff Mark Shaykin; the Director of MDOC’s Food
Service Management and Support Unit, Kevin Weissenborn; and the Assistant
Residential Unit Supervisor at MDOC’s Macomb Correctional Facility, Lisa
Walsh. At the close of Plaintiffs’ case, Defendant made an oral motion pursuant to
Federal Rule of Civil Procedure 52, which the Court took under advisement. The
parties thereafter filed closing briefs, including their proposed findings of fact and
conclusions of law. (ECF No. 217, 219.)
II.

Findings of Fact
Mr. Ackerman has been an MDOC detainee for twenty years. (10/4/19 Trial

Tr. at 19, ECF No. 233 at Pg ID 2314.) He is currently housed at MDOC’s
Macomb Regional facility, where he has been for almost six years. (Id.) Mr.
Ackerman practices Judaism. (Id. at 20, Pg ID 2315.) He was raised in a Jewish
household and his family was strict about religion as he grew up. (Id.)
3

Prior to his incarceration, Mr. Ackerman followed a kosher diet. (Id. at 21,
Pg ID 2316.) He has tried to adhere to a kosher diet for most of his life. (Id.) He
participates in Jewish traditions, celebrating the Sabbath and holidays. (Id. at 20,
Pg ID 2315.) Traditional Sabbath and holiday celebrations included kosher meat
or dairy meals. (Id. at 20-21, Pg ID 2315-16.) Before he was imprisoned, Mr.
Ackerman always ate cheesecake on Shavuot. (Id. at Pg ID 2377-78.) Mr.
Ackerman regularly attends religious services. (Id. at 21, Pg ID at 2316.)
When he was first incarcerated, Mr. Ackerman designated his religion as
Jewish. (Id. at 22, Pg ID 2317.) He has tried to maintain a kosher diet while
incarcerated, but it has been difficult. (Id.) For some time, MDOC did not serve
kosher meals. (Id.) In approximately 2000, while Mr. Ackerman was housed at
the Standish Maximum facility, MDOC began providing kosher meals. (Id.) The
kosher diet included kosher meat and dairy meals. (Id.) The meals were sealed
and double-wrapped. (Id. at 24, Pg ID 2319.)
Mr. Ackerman continued to receive kosher meals until he was transferred to
MDOC’s Bellamy Creek facility in approximately 2005. (Id. at 23, Pg ID 2318.)
Mr. Ackerman transferred to the Bellamy Creek facility to be closer to his mother,
who was dying. (Id.) MDOC did not provide kosher meals at this facility. (Id.)
Mr. Ackerman spoke with a rabbi about the choice he faced—that is, being closer
to his mother before she passed or keeping kosher—and the rabbi told him he was
4

making the right choice to be closer to his dying mother and would have to do the
best he could until he returned to a facility with kosher meals. (Id.) Subsequently,
a rabbi arranged for Mr. Ackerman’s transfer to MDOC’s Carson City facility,
where he could resume receiving kosher meals. (Id.)
In 2013, MDOC substituted a vegan meal plan for all religious diets. (Id. at
24, Pg ID 2319.) These meals are not kosher because they are prepared in a nonkosher kitchen and with pans and cooking utensils used in the main, non-kosher
kitchen. (Id.)
Mr. Ackerman sincerely believes that his religion requires him to consume
kosher meat and dairy foods on the Sabbath and four Jewish holidays. (Id. at 25,
Pg ID 2320.) This mandate comes from the Code of Jewish Law, The Shulchan
Aruch. (Id. at 24, Pg ID 2319.) The four Jewish holidays are as follows: Shavuot,
which celebrates the giving of the Torah to the Jewish people; Sukkot, also known
as the Feast of Tabernacles, which celebrates the Jewish people’s travels around
the desert for forty years and the portable huts they built as they stopped from
place to place; Yom Kippur, the day of atonement for one’s sins and when God
judges whether the coming year will be prosperous or a failure; and Rosh
Hashanah, the Jewish new year. (Id. at 25-27, Pg ID 2320-22.)
On Sukkot, it is traditional to build a sukkah (a one-man tent) and to eat
one’s meals inside. (Id. at 26-27, Pg ID 2321-22.) On Yom Kippur, Jewish people
5

fast for twenty-five hours and break the fast with fish (traditionally lox or smoked
fish). (Id. at 26, Pg ID 2321.) When Mr. Ackerman first arrived at the Macomb
Correctional facility, MDOC allowed rabbis to bring kosher food for prisoners,
specifically lox to break the Yom Kippur fast. (Id.) MDOC has discontinued that
practice, however. (Id.)
The lack of a traditional kosher meal “reduces the heartfelt meaning of [the
holiday] to [the Jewish people].” (Id. at 27, Pg ID 2322.) Mr. Ackerman
explained, with respect to Yom Kippur:
It’s like we’re trying to do everything we can to tell God that we’re
sorry for the things we’ve done over the last year, and these are the
things he’s asked us to do to show that, and when we can’t do those
things, it diminishes from the fullness of the holiday.
(Id.) While there are options to purchase food items in the prison store, most of the
kosher products are snack foods. (Id.)
There is tuna, but Mr. Ackerman opined that “most rational people couldn’t
afford [it].” (Id.) MDOC’s commissary list reflects that 4.32 ounces of tuna costs
$4.42.4 (Def.’s Ex. A at 2.) Several other seafood items (e.g. fish steaks, mackerel

4

Kevin Weissenborn, Director of MDOC’s Food Service Management and
Support unit, testified that Defendant’s trial exhibit “A” reflects the kosher
products available for purchase at MDOC’s commissaries, minus some cheese
products recently added. (10/4/19 Trial Tr. at 108-09, ECF No. 233 at Pg ID 240304.) Plaintiffs’ counsel has reported that he received letters from inmates at one
MDOC facility, complaining that the facility’s store sold only three kosher food
items. (See Pls.’ Br. in Supp. of Mot. at 6, ECF No. 232 at Pg ID 2294.) At the
hearing on Plaintiff’s motion to approve the settlement of their cross6

fillets, sardines) also are available, with portions ranging from 3.53-4 ounces and
costs between 95 cents and $3.00. (Id.) The commissary list also reflects a fiveounce beef and chicken sausage for $2.28. (Id.) Powdered milk is available in a
ten-ounce pouch for $3.57. (Id.) Plaintiffs testified that this is the only kosher
dairy product available for inmates to purchase.5 (10/4/19 Trial Tr. at 52, ECF No.
233 at Pg ID 2347.)
According to a list Defendant introduced at trial, three varieties of kosher
beef sticks can be purchased through the prison commissary for $1.35 each.
(Def.’s Ex. A at 2.) Plaintiffs introduced another list reflecting a different brand of
kosher beef sticks that are 1.5 or 2 ounces and cost $2.60 and $6.99, respectively.6
(Pls.’ Ex. 3 at 18.) Mr. Ackerman testified that beef sticks do not constitute a
meal. (10/4/19 Trial Tr. at 27-28, ECF No. 233 at Pg ID 2322-23.) He further
testified that it would cost him approximately $7 to purchase enough beef sticks to

contamination claim, defense counsel represented that all prison stores will have
the same kosher items available for sale as are set forth on Defendant’s trial exhibit
A.
5
The commissary list in fact includes some additional kosher dairy items, such as
cheesy rice and macaroni and cheese. Those items, however, must be cooked. As
discussed infra, this precludes them from being a viable choice for Plaintiffs on the
Sabbath and four holidays.
6
Mr. Weissenborn did not recognize the commissary list offered by Plaintiffs.
(10/4/19 Trial Tr. at 134-35, ECF No. 233 at Pg ID 2429-30.) He testified,
however, that MDOC’s Exhibit A is the current kosher grocery list. (Id.)
7

constitute a meal, or $784 annually for two meals on the Sabbath and four
designated holidays. (Id. at 29, Pg ID 2324.)
Based on his religious beliefs, Mr. Ackerman may not work on the Sabbath.
(Id. at 31, Pg ID at 2326.) This precludes him from cooking any kosher foods he
can purchase at the prison store. (Id. at 31-32, Pg ID 2326-27.) Mr. Ackerman’s
religious beliefs also prohibit him from asking someone else to perform work (e.g.,
cook) for him on the Sabbath. (Id. at 32, Pg ID 2327.)
Prisoners must purchase their personal toiletries and other necessities,
although MDOC does provide toilet paper and soap on a weekly basis. (Id. at 29,
148, Pg ID 2324, 2443.) If a prisoner is indigent or has just arrived from intake,
MDOC may also provide deodorant and a few small toothpastes and toothbrushes.
(Id. at 148-49, Pg ID 2443-44.) In a typical month, Mr. Ackerman purchases
various items needed for his well-being and hygiene, such as deodorant, soap,
allergy pills, over-the-counter medicine, envelopes, JPay7 stamps and phone cards,
shampoo, and conditioner. (Id. at 29-30, Pg ID 2324-25.) Pointing to his long,
bushy beard, Mr. Ackerman testified that he “use[s] a lot” of the latter two items.
(Id.)

7

JPay is a company that provides various services for inmates and their family and
friends, including methods of communicating such as email, videograms, and
phone calls. See jpay.com. JPay stamps are required to send and receive emails,
and an inmate must use money to purchase phone time. Id.
8

In addition to hygiene products, Mr. Ackerman regularly buys coffee from
the commissary.8 (See Def.’s Ex. C.) For example, on August 12, 2018, he
ordered ten, three-ounce pouches of freeze-dried coffee, totaling $36.20 ($3.62 per
pouch). (Id. at 12; see also Def.’s Ex. A at 1.) Approximately a month later, on
September 9, 2018, he ordered eight, three-ounce pouches totaling $28.96. (Id.)
Mr. Ackerman next purchased $28.96 worth of coffee in October and again in
November 2018. (Id. at 12-13.) Mr. Ackerman’s commissary purchases between
August 12, 2018 and July 28, 2019, regularly included coffee; they did not include
kosher meat or dairy items. (Id. at 12-16; see also 10/4/19 Trial Tr. at 46, ECF No.
233 at Pg ID 2341.)
According to Mr. Ackerman, he purchases coffee for his own consumption,
but also to trade with other inmates for items he was not able to purchase at the
store or that he runs out of before he is able to return to the store.9 (10/4/19 Trial
Tr. at 51, 53, ECF No. 233 at Pg ID 2346, 2348.) He explained that there is no
monetary system in prison other than store goods, and coffee is the most tradeable
commodity. (Id.)

8

Mr. Ackerman’s past purchases reflect that he buys coffee bi-monthly or
monthly. (See Def.’s Ex. C.)
9
Inmates are allowed to go to the store twice a month. (10/4/19 Trial Tr. at 53,
ECF No. 233 at Pg ID 2348.)
9

Mr. Ackerman works in the prison as a horticulture tutor. (10/4/19 Trial Tr.
at 30, Pg ID 2325.) He earns $2.62 a day in this position and had a monthly
average salary of $60.24 in 2019. (Id.) He has worked other prison jobs during his
incarceration and this is roughly the highest amount he has earned in any position.
(Id.) The lowest paid job he has held in prison was as a porter, for which he earned
84 cents per day. (Id. at 31, Pg ID 2326.) Most prisoners do not make what Mr.
Ackerman earns. (Id.) Even with what he earns, Mr. Ackerman is not able to
consistently purchase kosher meat and dairy items from the commissary. (Id.)
Mr. Shaykin has been an MDOC prisoner since 2009. (Id. at 55, Pg ID
2350.) He is presently confined at the Macomb Correctional facility. (Id.)
Mr. Shaykin was raised Jewish and grew up attending temple on the
Sabbath. (Id. at 54, Pg ID 2349.) His religious beliefs require him to keep a
kosher diet and he has kept kosher to the best of his ability his entire life. (Id. at
54-55, Pg ID 2349-50.) On the Sabbath and religious holidays, this meant eating
kosher meats and dairy. (Id. at 55, Pg ID 2350.) On Shavuot, he is required to
consume dairy, but traditionally he always had cheesecake. (Id. at 63, Pg ID
2358.) Mr. Shaykin testified that he believes any kosher dairy product would
satisfy his religious requirements; however, he feels that his religious beliefs are
better satisfied by consuming cheesecake on Shavuot. (Id. at 74, 75, Pg ID 2369,
2370.)
10

Mr. Ackerman also always had cheesecake on Shavuot, and he described its
consumption on the holiday as a “ritual”. (Id. at 85, Pg ID 2380.) When asked
whether consuming any dairy product on Shavuot would be acceptable, Mr.
Ackerman answered “No,” explaining:
Well, you know, I think with any religion, I don’t think Judaism is
exceptional in any case, like it’s not unlike other religions. These
ritual practices we have mean a great deal to us, so when we have the
ability to fulfill it properly, we feel obligated to do so.
…
And I guess that’s the best answer I can give you. Sure, I mean,
arguably, we could drink a glass of milk, and that’s fine, but that’s not
how we celebrate Shavuot in giving of the written law that we abide
by.
(Id. at 85-86, Pg ID 2380-81.)
The Shulchan Aruch does not specify that cheesecake must be consumed on
Shavuot. (Id. at 86-87, Pg ID 2381-82.) It does state that “[s]ome have a custom”
of eating “dairy mezonot, cake” on the holiday. (Id. at 88, Pg ID 2383; Pl.’s Ex. A
at 43.) To Mr. Shaykin, that means cheesecake. (10/4/19 Trial Tr. at 89, Pg ID
2384.)
Mr. Shaykin explained that kosher food is processed in a strict rabbinical
manner in that a rabbi blesses the food at the plant and oversees how it is processed
and, in the case of meat, the animal is slaughtered. (Id. at 55, Pg ID 2350.) When
Mr. Shaykin fails to adhere to a kosher diet, he believes he is not fulfilling God’s
commandment. (Id.) According to the Shulchan Aruch, he must consume meat
11

and dairy products and is “credited” for doing so. (Id. at 56-57, Pg ID 2351-52.)
By not consuming meat and dairy products, Mr. Shaykin believes he is “not
fulfilling what [he’s] supposed to do” and is “being empty of everything of what
[he’s] doing.” (Id.)
Prior to 2013, MDOC provided kosher double-wrapped packaged meals to
inmates approved for a kosher diet. (Id. at 58, Pg ID 2353.) These meals
contained meat and dairy products. (Id. at 57-58, Pg ID 2352-53.) Rabbis from
the Aleph Institute10 also brought Jewish inmates kosher pastrami, salmon, and
cheesecake on the high holidays. (Id. at 62-63, Pg ID 2357-58.) Beginning in
2013, MDOC stopped providing kosher meals to inmates, with the exception of the
Passover holiday, and inmates approved for a kosher diet stopped receiving meat
and dairy products. (Id. at 56-57, Pg ID 2351-52.) MDOC also stopped allowing
outside organizations to bring kosher food to the prisoners. (Id. at 62, Pg ID 2357.)
Prisoners may purchase kosher meat and dairy products from the
commissary. (Id. at 58, Pg ID 2353.) Mr. Shaykin acknowledged on crossexamination that the prison store sells several kosher meat and seafood items at the
prices listed on Defendant’s trial exhibit. (Id. at 64-67, Pg ID 2359-62; see also

10

The Aleph Institute is a “non-profit Jewish organization dedicated to assisting
and caring for the wellbeing of members of specific populations that are isolated
from the regular community” such as United States military personnel, prisoners,
institutionalized individuals, and individuals at risk of incarceration due to mental
illness or addiction. See https://aleph-institute.org/wp/about/.
12

Def.’s Ex. A.) He indicated that kosher beef sticks only became available at the
start of 2019. (10/4/19 Trial Tr. at 76-77, ECF No. 233 at Pg ID 2371-72.) There
were hardly any kosher products, but “lately they’ve been adding more and
more ….” (Id. at 77, Pg ID 2372.)
Mr. Shaykin also acknowledged that the prison store sells ten ounces of
kosher powdered milk for $3.57. (Id. at 58, 67, Pg ID 2353, 2362.) When asked
about the kosher cheesy rice and macaroni and cheese on the prison store list, Mr.
Shaykin did not contest that these items are sold. (Id. at 67, Pg ID 2362.) He
indicated, however, that these items do not satisfy his need for dairy on the
Sabbath and four holy days because they must be cooked and he would have to
double the amounts to constitute a meal. (Id.) Mr. Shaykin testified that he is not
able to afford the kosher meat and dairy products each week for the Sabbath. (Id.
at 58, Pg ID 2353.)
Mr. Ackerman elaborated on why purchasing the items on the store list
would not satisfy his and Mr. Shaykin’s religious beliefs, even if they could afford
to purchase them for the fifty-six Sabbath and specified holiday meals. (Id. at 9699, Pg ID 2391-94.) As he explained, the Torah refers in many places to amounts,
but the Shulchan Aruch talks about “meals” when referring to what should be
consumed on the Sabbath and holidays. (Id. at 96-97, Pg ID 2391-92.) As a
reference, Mr. Ackerman indicated that a “meal” in prison consists of a four-ounce
13

serving of meat. (Id. at 97, Pg ID 2392.) While Mr. Ackerman acknowledged that
four ounces of beef stick might then be a “meal,” he testified that it would not
comport with his religious belief that the Sabbath and holidays are supposed to be
a “celebration.” (Id. at 97-98, Pg ID 2392-93.) He explained:
[H]e [referring to God] didn’t say we need you to eat a side of beef,
but we need you to eat a meal, we expect you to eat a joyful meal, and
[the] code of Jewish law here says delicacy. Well, obviously, in
prison I’m not expecting any delicacies.
(Id. at 98, Pg ID 2393.)
Mr. Ackerman provided that supplementing the vegan meals (if they were
kosher) with a purchased beef stick, some powdered milk, or a cheese product
would not satisfy his religious beliefs because prison policy forbids inmates from
bringing food (except seasoning) into the chow hall and eating the items separately
would not be part of his meal. (Id. at 101-02, Pg ID 2396-97.) Moreover, the meat
or dairy item is supposed to be the main portion of the meal, that is, the entree. (Id.
at 102, Pg ID 2397.)
Mr. Shaykin makes $1.14 a day working in segregation, or roughly $7.98
per week or $416.10 a year. (Id. at 58-59, Pg ID 2353-54.) He earned the same
salary in his prior job as a porter. (Id. at 59, Pg ID 2354.) He knows of other
inmates who earn less. (Id.)
An MDOC policy allows for inmates whose accounts remain below $11 in a
calendar month to obtain an $11 loan from the department. (Id. at 143, Pg ID
14

2438.) An excerpt from the Shulchan Aruch, quoted by Mr. Ackerman during his
trial testimony, reads: “Every person should prepare fine meat, fish, choice wine,
and other delicacies for the Sabbath meals to the fullest extent of his means.” (Id.
at 97, Pg ID 2392.)
At the prison store, Mr. Shaykin typically buys coffee and envelopes. (Id.)
Every now and then he buys chips. (Id.) The record of Mr. Shaykin’s commissary
purchases reflect that on May 20, 2018, he bought $28.96 worth of coffee and
$15.30 worth of microwave popcorn. (Id. at 71-72, Pg ID 2366-67; Def.’s Ex. B at
9.) Approximately one month later, he purchased $37.52 worth of coffee and
$13.26 worth of microwave popcorn. (10/4/19 Trial Tr. at 72, ECF No. 233 at Pg
ID 2367; Def.’s Ex. B at 9-10.) On July 29, 2018, he purchased $21.72 worth of
coffee and $10.20 worth of microwave popcorn. (10/4/19 Trial Tr. at 72, ECF No.
233 at Pg ID 2367; Def.’s Ex. B at 10.) Mr. Shaykin also uses his earnings to put
money in his JPay account. (10/4/19 Trial Tr. at 59-60, ECF No. 233 at Pg ID
2354-55.) Mr. Shaykin uses the coffee he buys to barter with other inmates for
other goods, such as deodorant, because he can get items cheaper that way. (Id. at
60, Pg ID 2355.) Coffee, he explained, is worth more than a hygiene product.
(Id.)
Lisa Walsh, an assistant residential unit supervisor at MDOC’s Macomb
Correctional facility, testified that bartering is against housing unit rules. (10/4/19
15

Trial Tr. at 144, Pg ID 2439.) Ms. Walsh indicated that she and MDOC officers
have the discretion to discipline an inmate for bartering. (Id.) Discipline could
include a verbal reminder that bartering is prohibited or a misconduct charge. (Id.)
Ms. Walsh recognized, however, that bartering is part of the prison subculture. (Id.
at 150, Pg ID 2445.)
Mr. Shaykin has a lot of health care issues for which he receives medications
through the prison by paying a healthcare co-pay. (Id. at 60, Pg ID 2355.) One of
his issues is a vitamin B-12 deficiency. (Id.) For treatment, he receives vitamin B12 shots and was advised to be on a meat diet, which would require him to go off
the kosher diet. (Id. at 61, Pg ID 2356.) Mr. Shaykin chooses to remain on the
kosher diet. (Id.)
Kevin Weissenborn, Director of MDOC’s Food Service Management and
Support unit, testified that it currently costs MDOC $2.85 per meal to feed each
inmate in the general prison population. (Id. at 109-10, Pg ID 2404-05.) The cost
is approximately $2.97 for prisoners receiving the vegan meal. (Id. at 110, Pg ID
2405.) Mr. Weissenborn testified that it would cost an additional $10,000 annually
to provide meat and dairy products on the Sabbath and four holidays to the eightyfive Jewish inmates who are on a religious diet.11 (Id. at 110-11, 116, Pg ID 2405-

11

Mr. Weissenborn indicated that this $10,000 figure contemplates providing a
milk product at breakfast and a meat product at dinner on those occasions.
(10/4/19 Trial Tr. at 120, ECF No. 233 at Pg ID 2415.)
16

06, 2411.) He explained that the additional cost is really to provide meat at one of
the meals on those fifty-six days, as there is no additional cost to MDOC to
provide dairy products. (Id. at 122, Pg ID 2417.) MDOC reached this estimate by
working with its food vendor to identify suitable (i.e., good quality and good
quantity) food products. (Id. at 111-12, Pg ID 2406-07.)
Mr. Weissenborn acknowledged that this cost could be lower, but he
maintained that MDOC did not go with a lower cost due to the quality of the food
that would then be provided. (Id.) Mr. Weissenborn testified that it would cost
MDOC approximately $400,000 annually to provide prepackaged kosher meals,
three times a day, to inmates approved for a kosher diet. (Id. at 112, Pg ID 2407.)
The annual food service budget for the entire MDOC prison system is
approximately $39 million. (Id. at 134, Pg ID 2429.)
III.

Conclusions of Law
RLUIPA “protects institutionalized persons who are unable freely to attend

to their religious needs and are therefore dependent on the government’s
permission and accommodation for exercise of their religion.” Cutter v. Wilkinson,
544 U.S. 709, 721 (2005). Under RLUIPA, MDOC cannot “impose a substantial
burden on the religious exercise of [its inmates] … unless [MDOC] demonstrates
that [it] ... (1) is in furtherance of a compelling governmental interest; and (2) is the

17

least restrictive means of furthering that compelling governmental interest.” 42
U.S.C.§ 2000cc-1. A burden shifting framework applies to RLUIPA claims.
The plaintiff has the initial burden to make two showings: (1) he or she has a
“sincerely held religious belief” and (2) the government’s action or policy
“substantially burden[s] that exercise” by, for example, forcing the plaintiff “to
‘engage in conduct that seriously violates [his or her] religious beliefs.’ ” Holt v.
Hobbs, 135 S. Ct. 853, 862, 574 U.S. 352, -- (2015) (quoting Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 720 (2014)). If the plaintiff satisfies this burden,
the government must then show that its action or policy (1) is “in furtherance of a
compelling governmental interest” and (2) “is the least restrictive means of
furthering that … interest.” 42 U.S.C. § 2000cc-1.
When evaluating Plaintiffs’ claim, this Court must keep in mind RLUIPA’s
“expansive protection for religious liberty.” See Holt, 135 S. Ct. at 860; see also
42 U.S.C. § 2000-3(g) (“This chapter shall be construed in favor of a broad
protection of religious exercise, to the maximum extent permitted by the terms of
this chapter and the Constitution.”).
A.

Sincerely Held Religious Belief

RLUIPA protects “any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). This
protection “is not limited to beliefs which are shared by all members of a religious
18

sect.” Holt, 135 S. Ct. at 862-63 (additional quotation marks and citation omitted).
RLUIPA’s definition of religious exercise covers “not only belief and profession
but the performance of physical acts such as assembling with others for a worship
service [or] participating in sacramental use of bread and wine.” Cutter, 544 U.S.
at 720 (ellipsis, brackets, quotation marks and citation omitted).
However, a prisoner’s request for an accommodation must be based on a
religious belief and not some other motivation. Hobby Lobby, 573 U.S. at 717
n.28; Holt, 135 S. Ct. at 862. The court may inquire “into the sincerity of a
prisoner’s professed religiosity.” Cutter, 544 U.S. at 725 n.13. “ ‘While the truth
of a belief is not open to question, there remains the significant question of whether
it is truly held.’ ” Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d 781,
790-91 (5th Cir. 2009), aff’d sub nom. Sossamon v. Texas, -- U.S. --, 131 S. Ct
1651 (2011) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)).
While sincerity is important, “it must be handled with a light touch, or
‘judicial shyness.’ ” Id. at 792 (quoting AA ex rel. Betenbaugh v. Needville Indep.
Sch. Dist., 611 F.3d 248, 262 (5th Cir. 2010)). As the Tenth Circuit has advised,
the sincerity inquiry “ ‘is almost exclusively a credibility assessment[.]’ ” Kay v.
Bemis, 500 F.3d 1214, 1219 (2007) (quoting Snyder v. Murray City Corp., 124
F.3d 1349, 1352 (10th Cir. 1997)). “To examine religious convictions more
deeply[,]” the Fifth Circuit warned, “would stray into the realm of religious
19

inquiry, an area into which [courts] are forbidden to tread.” Moussazadeh, 703
F.3d at 792.
“Sincerity is distinct from reasonableness.” New Doe Child #1 v. Congress
of the United States, 891 F.3d 578, 586 (6th Cir. 2018). “[I]t is not within the
court’s purview to question the reasonableness of [a plaintiff’s sincerely held
religious beliefs].” Id. “Nor is it the court’s role ‘to say that [a plaintiff’s]
‘religious beliefs are mistaken or insubstantial.’ ” Id. at 586-87 (quoting Hobby
Lobby, 573 U.S. at 725). As the Sixth Circuit has stated: “RLUIPA protects a
broad spectrum of sincerely held religious beliefs, including practices that nonadherents might consider unorthodox, unreasonable or not ‘central to’ a recognized
belief system.” Haight v. Thompson, 763 F.3d 554, 565 (2014) (quoting 42 U.S.C.
§ 2000cc-5(7)(A)).
The Court has no trouble concluding from the evidence that Plaintiffs
sincerely believe their religion requires them to consume meat and dairy on the
Sabbath and the Jewish holidays of Rosh Hashanah, Yom Kippur, Sukkot, and
Shavuot. More specifically, it shows that Plaintiffs sincerely believe the quantity
of meat and dairy they consume must constitute or be part of a “meal”—“a joyful
meal.” They interpret the Code of Jewish Law as dictating this as God’s
commandment. Plaintiffs spoke about the specific meat and dairy dishes they

20

traditionally consumed on these occasions, prior to their incarceration. They also
testified that they have tried to follow this religious mandate their entire lives.
Based on Supreme Court and Sixth Circuit precedent, the Court also is
convinced that it must accept Plaintiffs’ assertion that eating cheesecake on
Shavuot is a Jewish ritual, which they sincerely believe must be followed to
observe the holiday properly. As noted above, RLUIPA defines “ ‘religious
exercise’ capaciously to include ‘any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.’ ” Holt, 135 S. Ct. at 860
(quoting 42 U.S.C. § 2000cc-5(7)(A)) (emphasis added). RLUIPA’s protections
are “not limited to beliefs which are shared by all of the members of a religious
sect.” Id. at 862-63. RLUIPA has been found to protect traditional rituals, such as
the drinking of wine for a communion service, the annual powwow of Native
Americans, and the consumption of specific traditional foods for certain Native
American ceremonies. See, e.g., Haight, 763 F.3d at 564 (“A powwow is
indisputably a religious ceremony for members of this Native American Church,
and, so far as this record shows, the inmates sincerely believe that a meal
accompanied by corn pemmican and buffalo meat is part of that ceremony. The
prison’s decision to bar corn pemmican and buffalo meat ‘effectively bars’ the
inmates from this religious practice and forces them to ‘modify their behavior’ by
performing less-than-complete powwows with less-than-complete meals.”)
21

(brackets omitted); Schlemm v. Wall, 219 F. Supp. 3d 924, 928 (W.D. Wis. 2016)
(“The court has no trouble concluding that plaintiff’s request for venison or other
game meat at the annual Ghost Feast is motivated by a sincerely held religious
belief. Plaintiff testified credibly at trial that: (1) the Ghost Feast is essential to his
Native American religious practice and (2) traditional foods, including game meat,
must be served for the feast. … Plaintiff testified that without the traditional foods
of game meat and fried bread, the Ghost Feast would lack religious significance for
him.”) Neither this Court nor the government may “inquire into the centrality to a
faith of certain religious practices—dignifying some, disapproving of others.”
Haight, 763 F.3d at 566.
The Court found Plaintiffs sincere and credible. The fact that they may have
consumed or purchased non-kosher food at some point does not alter the Court’s
conclusions:
A finding of sincerity does not require perfect adherence to beliefs
expressed by the inmate, and even the most sincere practitioner may
stray from time to time. “A sincere religious believer doesn’t forfeit
his religious rights merely because he is not scrupulous in his
observance; for where would religion be without its backsliders,
penitents, and prodigal sons?”
Id. at 791-92 (brackets omitted) (quoting Grayson v. Schuler, 666 F.3d 450, 454
(7th Cir. 2012)).

22

B.

Substantial Burden

Plaintiffs maintain that MDOC’s policy of serving a vegan diet in lieu of a
kosher diet that includes meat and dairy violates their sincere religious beliefs
because it completely precludes them from consuming kosher meat and dairy on
the occasions when their religion commands it. While MDOC makes kosher meat
and dairy items available for purchase through the prison store, Plaintiffs assert
several persuasive reasons why this does not alleviate the burden on them.12
First, the serving sizes of the items sold are insufficient to constitute a meal.
Second, prison policies prohibit Plaintiffs from bringing the items into the chow
hall and Jewish “law requires [them] to have a [Sabbath or holiday] meal, not to
have a meal and then supplement it later at some other time.” (10/4/19 Trial Tr. at
101, ECF No. 233 at Pg ID 2396.) Lastly, due to their indigency, Plaintiffs
maintain that they are not able to purchase meat and dairy products, generally, and
more specifically, in the quantities needed to constitute a Sabbath or holiday meal.
Highlighting Plaintiffs’ coffee purchases, MDOC attempts to dispute their
asserted inability to pay for the kosher commissary items. MDOC suggests that if
Plaintiffs can afford these coffee purchases, they can afford to purchase kosher
meat and dairy items from the commissary for Sabbath and holiday meals to satisfy

12

MDOC’s policies, including the prohibition on outside groups delivering kosher
food items for Jewish prisoners, result in Plaintiffs having no access to cheesecake.
It is not an item sold at the prison store.
23

their religious beliefs. Plaintiffs explained why they regularly purchase coffee,
however.
Notwithstanding that bartering is forbidden under MDOC policy, Plaintiffs
use the coffee to buy goods from other inmates in between their allowed purchases
at the prison store (for example, when they have run out of hygiene necessities)
and to purchase goods at prices lower than they are sold through the store. Coffee
is the most tradeable commodity. Thus, all of the coffee Plaintiffs purchase is not
for their own consumption. Rather, the purchases are a means for Plaintiffs to
obtain other necessities.
In any event, even if Plaintiffs forewent their coffee purchases and used the
same funds to purchase kosher meat and dairy products on the Sabbath and
designated Jewish holidays, this would not eliminate the additional reasons
Plaintiffs gave for why such commissary purchases would not satisfy the dictates
of their religious beliefs.13
The Seventh Circuit’s recent decision in Jones v. Carter, 915 F.3d 1147
(2019), also is instructive in responding to MDOC’s ability-to-pay argument. In

13

MDOC essentially ignores Plaintiffs’ additional arguments. It does contend in
its proposed findings of fact and conclusions of law that the evidence “proved that
suitable meat entrées are available for purchase by the Plaintiffs for as low as
$.95.” (Def.’s Closing Br. at 8, ECF No. 219 at Pg ID Pg ID 2237.) The ninetyfive cent items are not meat or dairy products, however. They are seafood
products. Further, the Court is hard-pressed to describe these items, or the meat
and dairy items, as “entrées.”
24

that case, a Muslim prisoner filed suit when the Indiana Department of Correction
substituted a vegan diet for pre-packaged kosher meal trays that included kosher
meat and were provided to inmates who requested them for religious reasons. Id.
at 1148. The plaintiff claimed that the holy Qur’an commands him to eat meat and
that the vegan diet therefore violated his religious beliefs. Id. The Seventh Circuit
affirmed the district court’s holding that the plaintiff was substantially burdened by
the vegan diet even though he could have purchased the halal meat he to needed to
supplement his diet at the prison commissary. Id. at 1152.
Looking to the Supreme Court’s decision in Hobby Lobby, the Seventh
Circuit declined to inquire deeply into the plaintiff’s ability to afford meat from the
commissary:
When the Supreme Court was presented with a far sparser record
supporting the claimed substantial burden in Hobby Lobby … the
Court declined to inquire further into the question of ability to pay,
despite criticism in dissent both at the Court and in the Tenth Circuit.
Instead, it gave greater weight to the religious freedom concerns and
implicitly disapproved the ability-to-pay aspect of the earlier opinions
from our sister circuits. Hobby Lobby, 134 S. Ct. at 2775-76 (finding
the large fines were clearly a substantial burden without requiring
Hobby Lobby to prove its inability to pay or whether the fines would
be “merely” significant or actually crippling); id at 2798 (Ginsburg, J.,
dissenting) (criticizing the majority opinion for “barely paus[ing] to
inquire whether any burden imposed ... is substantial”); Hobby Lobby
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1164 (10th Cir. 2013)
(Briscoe, J., concurring in part and dissenting in part) (“At the hearing
on plaintiffs’ motion for preliminary injunction, plaintiffs presented
no evidence of any kind. … As a result, we know very little about any
of the important facts of this case” including evidence of substantial
burden); id. at 1181, 1181 n.4 (10th Cir. 2013) (Matheson, J.,
25

concurring in part and dissenting in part) (expressing concern that
“plaintiffs have provided almost no evidence” including “plaintiffs
have failed, for example, to provide the district court with complete
information about the financial strain they would bear”). The Supreme
Court thus consciously chose not to require a demonstration of
hardship—or detailed findings on finances—before determining that
the fine at issue triggered protection for Hobby Lobby’s owners.
Hobby Lobby, 134 S. Ct. at 2759.
Jones, 915 F.3d at 1151. The Seventh Circuit concluded that the prisoner before it
was “entitled to no less” than the corporation before the Supreme Court in Hobby
Lobby. Id. The Seventh Circuit also found a substantial burden where the prison
was “in effect demanding that [the plaintiff], uniquely among all inmates, zero out
his account and forego purchasing other items such as hygiene products or over-the
counter-medicine, if he wants to avoid a diet that violates his religious beliefs.” Id.
at 1150.
MDOC also refers the Court to a portion of the Shulchan Aruch quoted by
Mr. Ackerman during his trial testimony: “Every person should prepare fine meat,
fish, choice wine and other delicacies for the Sabbath meals to the fullest extent of
his means.” (10/4/19 Trial Tr. at 104, ECF No. 233 at Pg ID 2399.) Referring to
the definition of “means” in Black’s Law Dictionary—“[a]vailable resources, esp.
for the payment of debt; income”—MDOC argues in its closing brief:
Therefore, with the limited means available to prisoners, Plaintiffs’
sincere religious beliefs do not require them to observe their religious
obligations with the same fervency and extravagance that they would
on the outside. In fact, Plaintiffs’ religious beliefs seem to account for
those who are less well-off, obliging them only to leap over the
26

highest hurdle that is economically feasible based on their own
personal circumstances.
(Def.’s Closing Br. at 9, ECF No. 219 at Pg ID 2238, emphasis added.) There was
no evidence presented as to what this excerpt from the Shulchan Aruch means,
most importantly, to Plaintiffs. Plaintiffs did testify, however, that they believe
their religious beliefs require them—despite their prison status and indigency—to
consume meat and dairy during the Sabbath and four holidays. And as stated
earlier, the Court found this belief to be sincere.
Further, in Holt, the Supreme Court concluded that the district court had
“committed … error in suggesting that the burden on [the inmate]’s religious
exercise was slight because, according to [the inmate]’s testimony, his religion
would ‘credit’ him for attempting to follow his religious beliefs, even if that
attempt proved to be unsuccessful.” Id. at 862. The Supreme Court reasoned that
“RLUIPA applies to the exercise of religion regardless of whether it is
‘compelled.’ ” Id. (quoting 42 U.S.C. § 2000cc-5(7)(A)). Therefore, this Court
would find a substantial burden on Plaintiffs’ religious beliefs even if evidence was
presented showing that the above-quoted excerpt means that those unable to afford
meat and dairy on the Sabbath are not compelled to partake in this religious
exercise.

27

C.

Compelling Governmental Interest

RLUIPA subjects governmental action to strict scrutiny, Haight, 763 F.3d at
566, and “does not permit … unquestioning deference” to a prison system’s
assertion of what will undermine its interests. Holt, 135 S. Ct. at 864.
Nevertheless, “courts should not blind themselves to the fact that the analysis is
conducted in the prison setting.” Id. at 866. Courts must remember that “[p]rison
officials are experts in running prisons and evaluating the likely effects of altering
prison rules, and … should respect that expertise.” Id. at 864. While the Court
must “respect prison officials’ expertise” it must not “abandon ‘the responsibility,
conferred by Congress, to apply RLUIPA’s rigorous standard.’ ” Id. (quoting
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434
(2006)).
MDOC argues that it “has a compelling governmental interest in the costly
and orderly administration of prisoner meals.” (Def.’s Closing Br. at 3, ECF No.
219 at Pg ID 2232.) Its evidence in support of this interest was not extensive and
suggested that MDOC had not given a lot of thought to alternative means to
achieve its desired goals. In fact, it appeared to the Court that MDOC had only
gathered figures related to cost for purposes of this litigation. As the Sixth Circuit
observed in Haight: “[E]xplanations offered for the first time in litigation ought to
come with a truth-in-litigating label, requiring the official to disclose whether the
28

new explanations motivated the prison officials at the time of decision or whether
they amount to post hoc rationalizations. Only the true explanations for the policy
count.” Id. at 562.
In any event, according to Mr. Weissenborn, it would cost an additional
$10,000 annually to provide a suitable meat product at dinner on the Sabbath and
four holidays to eighty-five prisoners approved for a kosher diet.14 MDOC’s total
annual food service budget is approximately $39 million. “ ‘Cost reduction, as a
general matter, is unquestionably a compelling interest of [a prison system].’ ” Ali
v. Stephens, 822 F.3d 776, 792 (5th Cir. 2016) (brackets omitted) (quoting
Moussazadeh, 703 F.3d at 795). Nevertheless, RLUIPA anticipates that it “may
require a government to incur expenses in its own operations to avoid imposing a
substantial burden on religious exercise.” 42 U.S.C. § 2000cc-3(c); Holt, 135 S.
Ct. at 860; Hobby Lobby, 573 U.S. at 695. Moreover, “in determining whether a
cost is compelling, a court may need to ‘put the amount in perspective’ by
measuring the projected expense against the resources devoted to that interest.”
Ali, 822 F.3d at 792 (quoting Moussazadeh, 703 F.3d at 795).

14

Mr. Weissenborn also presented the Court with a $400,000 annual cost for
providing complete pre-packaged kosher meals. However, MDOC already has
agreed to provide pre-packaged kosher meals in its settlement of Plaintiffs’ crosscontamination claim. Mr. Weissenborn did not provide a cost for adding meat and
dairy to the prepackaged meals on the Sabbath and four holidays.
29

In Moussazadeh, the evidence showed that the annual cost to provide kosher
food to all observant prisoners “would only be about $88,000 per year.” The
Texas Department of Criminal Justice’s total annual food budget was $183.5
million. Id. The Fifth Circuit was “skeptical that saving less than .05% of the food
budget constitutes a compelling interest.” Id. The court relied on Beerheide v.
Suthers, 286 F.3d 1179 (10th Cir. 2002), where the Tenth Circuit held that
excluding a $13,000 expenditure from a budget of over $8 million did not
constitute a compelling government interest, even under rational-basis review.
Beerheide, 286 F.3d at 1191; see also Ali, 822 F.3d at 797 (saving $39,221 per
year to accommodate the plaintiff’s religious belief, out of a total annual budget of
$1.045 billion, did not serve compelling interest in cost control). Similarly, here,
when put in perspective, the $10,000 asserted annual cost to accommodate
Plaintiffs’ religious beliefs is de minimis and does not demonstrate a compelling
interest justifying the burden placed on those religious beliefs.
Further, at least two Circuit Courts have found a State’s asserted interest less
compelling when the State previously accommodated the plaintiff’s religious
beliefs. United States v. Sec., Fl. Dep’t of Corrections, 828 F.3d 1341, 1347-48
(11th Cir. 2016) (“The Secretary … fails to explain how she has a compelling
governmental interest in not providing kosher meals to inmates now even though
she voluntarily provided them in 2013”); Moussazadeh, 703 F.3d at 794-95
30

(finding the strength of the State’s interest in denying kosher food “dampened by
the fact that it has been offering kosher meals to prisoners for more than two years
and provides them at no cost to all observant Jewish inmates that accepted a
transfer to [a certain prison].”).
Finally, Plaintiffs identify an alternative to MDOC incurring at least some of
these costs. According to Plaintiffs, until recently, MDOC allowed outside
organizations, such as Aleph, to donate kosher meat and dairy products for
inmates. MDOC has not offered any explanation for why this practice was
discontinued, nor has it set forth a reason why it cannot be allowed.
MDOC also argues that a ruling in Plaintiffs’ favor “will open the door for
requests to be granted to each of the 28 recognized religions.” (Def.’s Closing Br.
at 11, ECF No. 219 at Pg ID 2240.) According to MDOC, this threatens to put
further pressure on its budget and orderly administration of prison meals. (Id.)
The Court is somewhat surprised that MDOC asserts this argument, as the
Supreme Court, Sixth Circuit, and other courts routinely dismiss it out of hand.
See, e.g., Holt, 135 S. Ct at 866; Haight, 763 F.3d at 562; Secretary, Fl. Dep’t of
Corr., 828 F.3d at 1348. When the defendant raised a similar alarm in Haight, the
Sixth Circuit responded as follows:
Nor does the warden strengthen his claim by warning that, if he
grants this accommodation, he will have to grant others, having set a
precedent with the “first” accommodation. … the Supreme Court
already rejected a like-minded contention. This kind of argument, as
31

the Chief Justice put it, represents “the classic rejoinder of bureaucrats
throughout history: If I make an exception for you, I’ll have to make
one for everybody, so no exceptions.” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 436, 126 S. Ct. 1211,
163 L.Ed.2d 1017 (2006). Just as a no-exceptions policy failed to
work in O Centro, it fails to work here on this threadbare record. Keep
in mind that the idea behind offering statutory protection for faithbased practices is to make accommodations—exceptions—for
individuals who believe they must do certain things because their faith
requires it. Rejecting accommodation requests on the ground that an
exception to a general prison policy will make life difficult for prison
wardens is a fine idea in the abstract … But it has no place as a standalone justification under RLUIPA.
763 F.3d at 562.
MDOC has not identified a “compelling interest” related specifically to
Plaintiffs’ request for cheesecake on Shavuot. Had MDOC done so, the Court
expects that its argument would have been similar to the prison officials’ response
in Haight to the request of Native American inmates for specific foods for their
annual powwow:
[I]f failing to give Native American inmates corn pemmican and
buffalo meat for an annual powwow amounts to a RLUIPA-triggering
“substantial burden” on their religious beliefs, what’s next? Will not
prison officials, already faced with vexing security challenges, “be
held hostage to every inmate’s outlandish religious requests,”
including everything from requests for “Papa John’s pizza” to
“Jacuzzi[s]” to “daily conjugal visits” and all sorts of things in
between?
763 F.3d at 565. This Court will respond as the Sixth Circuit did in Haight: “The
point is a fair one. But there are at least three other ways to handle inmate
demands gone wild.” Id.
32

“First,” as the Haight court explained, “nothing in RLUIPA bars a prison
from ‘questioning whether a prisoner’s religiosity, asserted as the basis for a
requested accommodation, is authentic.’ ” Id. at 565 (emphasis removed) (quoting
Cutter, 544 U.S. at 725 n.13). “Second … [t]he State still may show that its policy
furthers a compelling governmental interest and does so in the least restrictive
way.” Id. at 566 (emphasis removed). “Third, RLUIPA … represents an effort to
protect religious liberties by statute . . . in a serious way.” Id. (emphasis removed)
(citing 42 U.S.C. § 2000cc-3(g)). “It goes without saying … that one virtue of
legislative protections, as opposed to constitutional ones, is that they can be
modified more readily if they over-protect or under-protect a right.” Id.
For these reasons, the Court concludes that MDOC has not met its burden of
demonstrating that it has a compelling interest in not providing meat and dairy
products to Plaintiffs and the Sub-Class on the Sabbath and holidays of Rosh
Hashanah, Yom Kippur, Sukkot, and Shavuot.
D.

Least Restrictive Means

“ ‘The least-restrictive-means test is exceptionally demanding,’ and it
requires the government to ‘show that it lacks other means of achieving its desired
goal without imposing a substantial burden on the exercise of religion by the
objecting party.’ ” Holt, 135 S. Ct at 864 (brackets omitted) (quoting Hobby
Lobby, 573 U.S. at 728). “ ‘If a less restrictive means is available for the
33

Government to achieve its goals, the Government must use it.’ ” Id. (quoting
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)). As
discussed above, MDOC fails to establish that it could not satisfy its cost concerns
by accepting donations of kosher meat and dairy items (including cheesecake on
Shavuot) from vetted, outside organizations, which previously provided such
items.
As such, MDOC has not demonstrated that its current policies are the least
restrictive means of achieving its asserted governmental interests.
IV.

Conclusion
In summary, the Court finds that Plaintiffs sincerely believe their religion

requires them to consume meat and dairy on the Sabbath and the holidays of Rosh
Hashanah, Yom Kippur, Sukkot, and Shavuot. Plaintiffs also sincerely believe that
cheesecake is imperative for the Shavuot celebration. MDOC places a substantial
burden on Plaintiffs’ religious beliefs by mandating a vegan diet for inmates
approved for a kosher diet. The burden is not alleviated by the availability of
kosher meat and dairy products in the prison stores. MDOC fails to demonstrate
that its policies further a compelling governmental interest or that they reflect the
least restrictive means of furthering its interests. As such, Plaintiffs prove that
MDOC has violated their rights under RLUIPA by failing to accommodate their

34

request for meat and dairy products on the Sabbath and the holidays set forth
above.
In light of this finding, the Court is denying Defendant’s Rule 52 motion and
concludes that Plaintiffs are entitled to permanent injunctive relief under RLUIPA.
The Court will grant the parties the opportunity to meet and confer to assess
whether they can agree on the language of a permanent injunction for this Court to
issue. Within fourteen (14) days of this Opinion, the parties shall submit agreed to
language or, if agreement cannot be reached, Plaintiffs shall submit proposed
language for a permanent injunction.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE

Dated: January 30, 2020

35