Monson v. Steward et al
OPINION & ORDER: The Court accepts Plaintiff's concession and Plaintiff's claims against Defendants Peters, Franke, Brockamp, Gower, and Howton are Dismissed. Plaintiff's Motion for Summary Judgment 78 is Denied. Defendants' Motion for Summary Judgment 100 and Supplemental Motion for Summary Judgment 129 are Granted. This action is Dismissed and a final judgment shall be entered. Signed on 7/6/17 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 2:15-cv-00513-PK
OPINION & ORDER
HEIDI STEWARD et al.,
PAP AK, Magistrate Judge.
This pro se prisoner civil rights case comes before the Court on cross motions for
ECF Nos. 78, 100, 129. For the reasons discussed below, Plaintiffs
Motion for Summary Judgment, ECF No. 78, is DENIED and Defendants' Motion for Summary
Judgment and Supplemental Motion for Summary Judgment, ECF Nos. 100, 129, are·
Page I - OPfNION & ORDER
Plaintiff Maurice Monson ("Monson") is currently incarcerated at Two Rivers
Correctional Institution ("TRCI"), an Oregon state prison located in Umatilla, Oregon. Am.
Comp!., ECF No. 31; Ans. to Am. Comp!., ECF No. 43.
Defendants are employees of the Oregon Department of Corrections ("ODOC"):
Defendant Heidi Steward ("Steward") is Assistant Director of Offender Management and
Rehabilitation; Defendant Stuart Young ("Young") is Assistant Administrator of Religious
Services; Defendant Dennis Holmes ("Holmes") is Administrator of Religious Services; .
Defendant Kelly Raths ("Raths") is Administrator of Inmate and Community Advocacy;
Defendant Cherie Jackson ("Jackson") is an Office Specialist 2 in Religious Services; Defendant
Don Rodney ("Rodney") is Chaplain at TRCI; Defendant John Myrick ("Myrick") is
Superintendent at TRCI; Defendant Nancy Howton ("Howton") was Administrator of Offender
Management and Rehabilitation until her retirement in April 2015; Defendant Michael Gower
("Gower") is Assistant Director of Operations and Acting Inspector General; Defendant Kim
Brockamp ("Brockamp") is Deputy Director of ODOC; Defendant Steve Franke ("Franke") is
Administrator of Eastside Institutions; and Defendant Collete Peters ("Peters") is Director of
ODOC. Ans. to Am. Comp!.
ODOC's Kosher Meal Policy
ODOC offers two dietary options to all inmates: the mainline meals and the non-meat
altemative line. Young Deel. Ex. 4, at 1, ECF No. 104. The non-meat alternative is a vegetarian
diet with optional dairy components and it complies with all Old Testament dietary requirements.
Young Deel. Ex. 3, at 7; Fanger Deel., ECF No. 102.
Page 2 - OPINION & ORDER
ODOC's "practice and mission" is to "make every effort to accommodate inmates'
This includes providing diets designed to satisfy the
requirements of an inmate's religion. Young Deel., Ex. 1, at 2. As part of this policy, ODOC
provides kosher meals to inmates with sincere religious beliefs requiring a kosher diet. Young
A kosher diet adheres to the Jewish laws of kashrut, and is derived from the laws of the
Bible (the "Written Torah") and from the rabbinic Oral Torah, which is preserved in the Talmud
and related texts. Vincent Deel. Ex. 3, at 3 (Affidavit of Martin Jaffee), ECF No. 103. 1 The
majority of kosher laws are not contained in the Old Testament, but were developed through the
oral tradition· and the Talmud. Vincent Deel. Ex. 3, at 6. ODOC's kosher diet was designed
specifically for Jewish inmates who adhere to the laws of kashrut and was originally available
only to Jewish inmates. Young Deel. Ex. 2, at 2. ODOC's kosher meals are produced in a
factory, frozen, and then shipped to the institution where they are reheated in a microwave before
being served to the inmate. Young Deel. Ex. 4, at l.; Fanger Deel. The kosher meals do not
contain meat, but do include soy products that are made to look and taste like meat. 2 Young
Deel. Ex. 4, at l .; Fanger Deel. ODOC kosher meals are served with a disposable tray, cup, and
tableware. Young Deel. Ex. 3, at 4. The TRCI canteen also cal1'ies kosher items available for
purchase by the inmates. Fanger Deel. Kosher canteen items are listed on the order fmm with a
"K" to indicate their kosher status. Fanger Deel. Ex. 3.
The Affidavit of Martin Jaffee, Professor of Jewish Studies and Comparative Religion at the University of
Washington, was originally submitted as patt of klcLenithan v. Williams, Case No. 3:09-cv-085-AC, a separate
action involving another ODOC inmate's claims related to the denial ofa kosher diet. It is submitted here as Exhibit
3 of the Declaration of Shannon Vincent, ECF No. 103. Dr. Jaffee's Affidavit provides historical and religious
context for the development of the kosher laws and their practical application.
The kosher meals are not intended as a vegetarian diet. Although the kosher diet is currently meat-free, it could be
revised to include meat, if that option proves more cost-effective. Fanger Deel.
Page 3 - OPINION & ORDER
In 2009, ODOC revised its kosher meal policy as part of a settlement agreement and
began to consider requests for kosher meals from non-Jewish inmates, if the inmates have
sincerely held religious beliefs that require a kosher diet and that belief can be sustained by an
organized religion. Young Deel. Ex. 2, at 11; Ex. 3, at 1. Under a policy adopted in 2012, ifan
inmate requests a religious accommodation, the prison chaplain will give the inmate a form to fill
out and will interview the inmate in order to better understand the request. Young Deel. Ex. 3, at
1-2, 9. The chaplain then forwards the request to the Religious Services central office, where a
final decision on the accommodation is made. Young Deel.
If an inmate is approved for the kosher diet, the inmate may not eat non-kosher food from
the kitchen or canteen. Young Deel. If an inmate violates this prohibition, he or she will be
counseled by the chaplain and risks losing the right to continue receiving a kosher diet. Young
Deel. Ex. 3, at 3.
The mainline and non-meat alternative meals cost $2.60 per inmate per day. Fanger
Deel. It costs $6.75 per inmate per day to supply kosher meals, exclusive of the additional costs
of maintaining kosher facilities and the additional staff time involved in preparation of the meals.
Fanger Deel. It costs an extra $3,029.50 per biellllium to supply an inmate with kosher meals.
Fanger Deel. ODOC has investigated other means of providing kosher meals and determined
that the cunent system is the most cost effective method of providing inmates with a kosher diet.
Fanger Deel. Purchasing the prepackaged kosher meals in larger quantities would not yield a
lower price. Fauger Deel. There are currently 58 inmates who receive kosher meals, costing
ODOC $175,711 in additional expenditures per biennium, out of a total kitchen budget of
$27,856,277 for the 2015-2017 biellllium. Fanger Deel.
Page 4 - OPINION & ORDER
ODOC has investigated how many inmates would request a kosher diet if it were made
more generally available. Vincent Deel. Ex. 2 (Declaration of Paul Bellatty). 3 Although the
investigation did not yield a specific number, the results indicated that a substantial percentage of
inmates would request kosher meals, with especially high interest indicated by Muslim and
Seventh Day Adventist inmates.
Vincent Deel. Ex. 2, at 6.
ODOC's security budget is
"strained," and budgetary limitations have already resulted in a reduction in the quality of
programming available for inmates and the amount of protection ODOC is able to offer to
inmates and staff. Morton Deel., ECF No. 101.
Monson describes himself as "a Rastafarian who is a biblical believer," or a "Rastafarian
Vincent Deel. Ex. 1, at 10-11.
Monson does not identify as Jewish or
Clll'istian, but does "adhere to Jewish laws." Vincent Deel. Ex. 1, at 5-6, I 0.
The "most observant" Rastafarians follow a dietary law called Ital, which encourages its
followers to eat a vegan or vegetarian diet and to avoid chemically altered foods, coffee, and
Vincent Deel. Ex. 1, at 9-10.
Unlike a kosher diet, Ital does not require
rabbinical oversight. Young Deel.
Monson asse1is that his practice of Rastafarianism does not include adhering to the
requirements of an Ital diet.
Vincent Deel. Ex. 1, at 9-10.
Although Rastafarians do not
ordinarily eat a kosher diet, Monson maintains that his sincerely held religious beliefs require
him to eat kosher meals. Vincent Deel. Ex. 1, at 5-6, 9.
In particular, Monson's religious
beliefs require him to strictly avoid contact with pork and pork products. Vincent Deel. Ex. 1, at
Paul Bellatty is the Administrator ofODOC's Research and Evaluation Unit. Dr. Bellatty submitted his
Declaration concerning the methodology and results ofODOC's inquiry into inmate interest in a kosher diet as pmt
of McLenithan v. Williams, Case No. 3:09-cv-085-AC. Given the factual and legal similarity between Mclenithan
and the present case, Dr. Bellatty's Declaration has been, like the Affidavit of Dr. Jaffee, submitted as an exhibit
attached to the Declaration of Shannon Vincent.
Page 5 - OPINION & ORDER
12. Monson testified that he believes all utensils should be disposable and that anything that has
come in contact with pork products must be destroyed. Vincent Deel. Ex. 1, at 8, 12. Monson
testified that he was unaware of the highly processed nature of ODOC's kosher meals. Vincent
Deel. Ex. 1, at 12.
On August 9, 2013, Monson first requested that he be provided with ODOC's kosher
diet, which Monson contends is required by his religion. Young Deel. Ex. 5, at 3. In making his
request, Monson identified his religion as Rastafarian. Young Deel. Ex. 5, at 3. Monson said
that, in the alternative, he would accept a vegetarian or vegan diet without coffee or milk.
Young Deel. Ex. 5, at 4. Monson said that he was aware that the non-meat alternative diet met
all Biblical dietary laws, but claimed that it caused him to lose weight, interfered with his blood
pressure, and "enticed [him] to buy commissary that also disagree with [his] blood pressure."
Young Deel. Ex. 5, at 4.
Manson's request was denied on September 5, 2013, "due to lack of factual evidence to
support that a kosher diet is rooted in Rastafari faith tenets and because his canteen purchases did
not confo1m to kosher requirements or standards." Young Deel.; Ex. 6, at 1. The letter of denial
also noted that Manson's medical file did not suppmt his claim that he required additional
calories or a special diet for his blood pressure. Young Deel. Ex. 6, at 1. Monson was info1med
that, even if a legitimate health issue existed, ODOC's kosher meals did not meet the health oi·
dietary requirements Monson described. Young Deel. Ex. 6, at 1. Monson was encouraged to
Monson's original request seems to be based on the belief that ODOC's kosher diet would most closely follow the
requirements ofltal: "Well for us the most observant Rastas follow a dietary law called ftal. Ital food is food which
is completely natural (not canned} free of chemicals and preservatives. Most Rastas are either vegetarians or
vegans. Coffee and milk are also rejected as unnatural. So if there is anything that could be done to meet these
standards.are well accepted." Young Deel. Ex. 5, at 4. ODOC's response informed Monson that the kosher meals
were "highly processed" and that he would have better access to fresh fruits and vegetables by eating the non-meat
alternative tray . .Young Deel. Ex. 6, at l.
Page 6 - OPINION & ORDER
use ODOC's non-meat alternative diet, which offered food most closely aligned to the
requirements of a Rastafarian religious diet. 5 Young Deel. Ex. 6, at 1.
On July 12, 2014, Monson once again requested a kosher diet. Young Deel. Ex. 7, at 1.
In this request, Monson identified himself as a "Rastafarian-Judea-Christian," and cited his belief
in the Old Testament of the Bible and the Quran. Young Deel. Ex. 7,.at 2. In this request,
Monson particularly objected to pork products and to eating food prepared in the same kitchen
where pork products had been prepared. 6 Young Deel. Ex. 7, at 3. Monson claimed that
ODOC's non-meat alternative meals did not meet Old Testament dietary standards because the
same pots, pans, and cooking utensils were used to prepare the mainline and non-meat alternative
meals. Young Deel. Ex. 7, at 3. ODOC's subsequent inquiry revealed that Monson attended two
Muslim religious services and one Protestant Christian service. Young Deel. Monson's second
request was· denied on August 5, 2014, "due to lack of factual evidence from Rastafari religious
leaders to support his request and his canteen purchases-which included pork rinds----did not
conform to kosher requirements or standards." Young Deel. Manson's canteen purchases,
which included a number of non-kosher items, were especially considered to demonstrate a lack
of sincerity. Young Deel. Ex. 8; Ex. 9. Monson was informed that all cookware, kitchen
utensils, and dining utensils were properly cleaned and sanitized for each meal to avoid crosscontamination with meat products. Young Deel. Ex. 8. Monson was once again encouraged to
use the non-meat alternative diet. Young Deel. Ex. 8.
Monson has previously submitted the Affidavit of Jason Powlette, a Rastafarian High Priest, ECF No. 94-1. On
the subject of religious diets, Dr. Powlette stated "Rastas are mostly vegan. Where in special circumstances a vegan
diet is not available for the Rasla then a vegetarian diet will suffice." This would seem to be consistent with
ODOC's findings on the dietmy laws ofRastafarianism. Notably, Dr. Powlette does not state that a kosher diet is a
tenet of Rastafarianism.
In making his second request, Monson states that he has no "Extra-Biblical" dietary requirements and requires
'just what's stated in the Bible: Leviticus/Deuteronomy." Young Deel. Ex. 7, at 3. This appears to disclaim interest
in the kosher requirements of the Jewish oral tradition.
Page 7 - OPINION & ORDER
On October 7, 2014, Monson filed a grievance requesting a kosher diet. Young Deel. Ex.
10. ODOC reviewed the grievance and did not discover any evidence that a kosher diet is a tenet
of the Rastafarian religious practice. Young Deel. Ex. 11. ODOC also noted that Monson's
canteen purchases did not reflect a sincere religious belief requiring a kosher diet. Young Deel.
Ex. 11. On November 10, 2014, ODOC denied the grievance. Young Deel. Ex. 11.
On December 7, 2014, Monson appealed the denial of his grievance, alleging that ODOC
had not adequately researched his request. Young Deel. Ex. 12. Monson stated that he is a
"Rastafarian J udeo-Christian who believes in and follows the Leviti cal and Deuteronomy laws of
the Old Testament in the Bible." Young Deel. Ex. 12, at !.
ODOC was unable to find any support for Monson's request in Rastafarian religious
Young Deel. Ex. 13.
On December 22, 2014, ODOC denied Monson's grievance appeal.
In its denial, ODOC requested that Monson provide docmnentation
"showing consistency in embracing selectively the doctrines of three separate religious belief
systems." Young Deel. Ex. 13, at 2. ODCO also informed Monson that they would be willing to
revisit Manson's request if he could demonstrate "clean" commissary purchases for a few
months and provide ODOC with evidence of the existence of a Rastafarian-Jewish-Christian
belief system. Young Deel. Ex. 13, at 2.
On Janumy 28, 2015, Monson filed a second grievance appeal asserting that he is a "12
Tribes of Israel Rastafarian" and that his father was born in the Rastafarian Bobo Shanti sect and
that he required a diet that complied with the standards of Leviticus and Deuteronomy. Young
Deel. Ex. 14. ODOC researched Manson's request and found no suppo1t for Monson's claim
that either the Twelve Tribes of Israel Rastafarians or the Bobo Shanti Rastafarians required or
encouraged a kosher diet prepared with rabbinic blessing or oversight, although ODOC found all
Page 8 - OPINION & ORDER
Rastafarian sources agreed on a vegetarian or vegan diet. Young Deel. Ex. 15, at 1. On March
9, 2015, Monson's second grievance appeal was denied and he was once again encouraged to use
ODOC's non-meat alternative diet. Young Deel. Ex. 15, at 2.
Monson commenced this action on March 27, 2015. ECF No. 1. On January 8, 2016,
ODOC placed Monson on a kosher diet during the pendency of this case. Suppl. Young Deel.
ECF No. 130. ODOC has since determined that Monson will receive a kosher diet for the rest of
his time in ODOC custody, unless he asks to be removed from the kosher diet or engages in
behavior that would render him ineligible for the kosher diet under ODOC rules. 7 Suppl. Young
Summary judgment is appropriate when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." Wash. ivlut. Inc. v. United States,
636 F.3d 1207, 1216 (9th Cir. 2011); Fed. R. Civ. P. 56(a). The moving party must show the
absence of a dispute as to a material fact. Rivera v. Philip lvforris, Inc., 395 F.3d 1142, 1146 (9th
Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving
party must go beyond the pleadings and show there is a genuine dispute as to a material fact for
trial. Id "This burden is not a light one. . . . The non-moving party must do more than show
there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citations omitted).
A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Vi/liarmo v. Aloha Island Air, Inc., 281 F.3d
Monson agrees that he has been provided with a kosher diet, but now alleges that he has been denied a special
Passover meal and that ODOC's kosher meals are of poor quality. Pl. 's Reply to Suppl. Mot. Summ. J., ECF No.
137. No claims related to Passover or the quality ofODOC's kosher meals have been alleged in the Amended
Complaint and the Court declines to consider new claims at this late stage of the case.
Page 9 - OPINION & ORDER
1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The court must draw all reasonable inferences in favor of the non-moving party. Sluimer v.
Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summmy judgment cannot be granted where
contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W
Fin., 381 F.3d 948, 957 (9th Cir. 2004). A "mere disagreement or the bald asse11ion that a
genuine issue of material fact exists" is not sufficient to preclude the grant of summary
judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). When the non-moving
party's claims are factually implausible, that pmiy must "come forward with more persuasive
evidence than otherwise would be necessary[.]" LVRC Holdings, LLC v. Brekka, 581 F.3d 1127,
113 7 (9th Cir. 2009) (quotation marks and citation omitted).
The substantive law goveming a claim or defense dete1mines whether a fact is material.
1'1Jiller v. Glenn lvfiller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a
factual dispute would not affect the outcome of the claim, the court may grant summary
Monson brings claims against a number of ODOC employees for their alleged roles in
denying him a kosher diet, which Monson claims violated his constitutional rights under the Free
Exercise Clause of the First Amendment; the Equal Protection Clause of the Fourteenth
Amendment; his right to be free from cruel and unusual punishment under the Eighth
Amendment; and his statutory rights under the Religious Land Use and Institutionalized Persons
Act ("RLUIPA"), 42 U.S.C. § 2000cc. 8 Monson seeks declaratory and injunctive relief, as well
as monetary damages. Both parties have moved for summary judgment.
The Amended Complaint alleges a violation of the Religious Freedom Restoration Act ("RFRA"). RFRA has been
supplanted by RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709, 714-16 (2005) (explaining the history ofRFRA and
Page I 0 - OPINION & ORDER
As a preliminary matter, Monson concedes that he cannot maintain claims against
Defendants Peters, Franke, Brockamp, Gower, and Howton. Pl.'s Reply, ECF No. 111, at 3.
The Coutt accepts Monson's concession and all claims against those Defendants are
Monson bring claims pursuant to the Religious Land Use and Institutionalized Persons
Act, which provides in relevant part that:
No govermnent 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 govermnent demonstrates that
imposition of the burden on that person-(1) is in fmtherance of a compelling
govermnental interest; and (2) is the least restrictive means of fmthering that
compelling governmental interest."
42 U.S.C. § 2000cc-l(a).
A. Claims for JVIonetary Relief Barred
RLUIP A was enacted pursuant to the Spending Clause and the Ninth Circuit has
recognized that, within the constitutional limitations of that clause, RLUIP A does not authorize
suits for damages against an official in his or her individual capacity. Woods v. Yordy, 753 F.3d
899, 903-04 (9th Cir. 2014). "If an individual acts under color of state law to burden a plaintiffs
rights to religious exercise, the plaintiff can sue [only] the government." Id. at 904. To the
extent that Monson seeks monetary damages against Defendants in their individual capacities,
those claims are bmTed.
Nor can Monson recover monetary damages against Defendants sued in their official
capacities. The Supreme Coutt has held the sovereign immunity shields states from suits for
RLUIPA). In his Responses, Replies, and other pleadings, Monson appears to agree that his RFRA claims are better
characterized as RLUIPA claims. See, e.g., Pl. 's Reply to Suppl. Mot. Summ. J., ECF No. 137. Accordingly, the
Court interprets Monson's RFRA claims as being brought pursuant to RLUIPA.
Page 11 - OPINION & ORDER
monetary damages brought under RLUIPA. Sossamon v. Texas, 563 U.S. 277, 280, 293 (2011).
For the purposes of sovereign immunity, courts "treat [a] suit against state officials in their
official capacities as a suit against the state." Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir.
2012) (quotation marks and citation omitted).
Accordingly, Manson's RLUIPA claims for
monetary damages against Defendants in their official capacities are barred by sovereign
B. RLUIPA's Safe Harbor Provision
Defendants contend that their decision to provide Monson with a kosher diet on a
pe1manent basis entitles them to the benefit of RLUIPA's "safe harbor" provision, which
A government may avoid the preemptive force of any provision of this chapter by
changing the policy or practice that results in a substantial burden on religious
exercise, by retaining the policy or practice and exempting the substantially
burdened religious exercise, by providing exemptions from the policy or practice
for applications that substantially burden religious exercise, or by any other means
that eliminates the substantial burden.
42 U.S.C. § 2000cc-3(e).
There is little in the way of Ninth Circuit authority construing the safe harbor provision,
but district courts have generally construed it according to its plain meaning. See, e.g., Forter v.
Geer, 868 F. Supp.2d 1091, 1098-99 (D. Or. 2012), ajf'd 536 F. App'x 724 (9th Cir. 2013); see
also Bilal v. Lehman, No. C04-2507 JLR, 2006 WL 3626808, at *4 (W.D. Wa. Dec. 8, 2006)
(institution's decision to provide a Muslim inmate with halal meals eliminated the substantial
burden on the inmate's religious exercise and mooted the inmate's RLUIPA claim).
In this case, ODOC has provided Monson with the requested kosher diet and will
continue to do so until Monson is either released from ODOC custody, requests to be removed
from the diet, or violates the rules for inmates receiving kosher diets. Suppl. Young. Deel.
Page 12 - OPfNION & ORDER
Construing the safe harbor provision according to its plain meaning, ODOC has either provided
Monson with an exemption from the policy or otherwise "eliminate[d] the substantial burden" to
Manson's religious exercise.
Manson's claims for injunctive and declaratory relief under
RLUIPA are therefore moot and Defendants are entitled to summary judgment on those claims.
Monson brings claims for violation of the First, Eighth, and Fourteenth Amendments to
the U.S. Constitution based on Defendants' decision to deny him kosher meals. Title 42 U.S.C.
§ 1983 "provides a federal cause of action against any person who, acting under color of state
law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). To
maintain a claim under§ 1983, "a plaintiff must both (1) allege the deprivation of a right secured
by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by
a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.
Monson seeks injunctive relief requiring Defendants to provide him with a kosher diet, as
well as declaratory relief stating that Defendants' decision to withhold a kosher diet was a
violation of Manson's constitutional rights.
Defendants contend that ODOC's decision to
provide Monson with a kosher diet on a pennanent basis renders these claims moot.
"A case becomes moot-and therefore no longer a 'Case' or 'Controversy' for purposes
of A1ticle III-'when the issues presented are no longer 'live' or the pmties lack a legally
cognizable interest in the outcome."' Already LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting
}vfurphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).
"The voluntary cessation of
challenged conduct does not ordinarily render a case moot because dismissal for mootness would
Page 13 - OPINION & ORDER
permit a reswnption of the challenged conduct as soon as the case is dismissed." Knox v. Serv.
Emps. Int'/ Union Local 1000, 567 U.S. 298, 307 (2012). Nevertheless, "voluntary cessation can
yield mootness if a 'stringent' standard is met: 'A case might become moot if subsequent events
made it absolutely clear that the allegedly wrongful behavior cannot be expected to recur."'
Rosebrock v. 1'.1athis, 745 F.3d 963, 971 (9th Cir. 2014) (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). "The party asserting mootness
bears a 'heavy burden' in meeting this standard." Id.
In cases where a governmental entity has changed its policy, comts presume that the
govermnent is acting in good faith. Rosebrock, 745 F.3d at 971. This presumption does not free
the agency from its burden of demonstrating mootness, especially when the voluntary cessation
is based on a change of policy that is not reflected in changes to statutes, ordinances, or
regulations. Id. at 971-72. Mootness is most likely when the policy change: (1) is "broad in
scope and unequivocal in tone;" (2) "fully addresses all of the objectionable measures that [the
Government] officials took against the plaintiffs in the case;" (3) the case in question was the
catalyst for the agency's adoption of the new policy; (4) the policy has been in place for a long
time when the court considers a mootness argument; and (5) since the policy's implementation,
the agency officials have not engaged in conduct similar to the conduct challenged by the
plaintiff. Id. at 972 (internal quotation marks and citations omitted). Mootness is less likely to
be found where the new policy "could be easily abandoned or altered in the future." Id. (quoting
Bell v. City ofBoise, 709 F.3d 890, 901 (9th Cir. 2013)).
On this record, it appears that the policy permitting Monson to receive kosher meals is
limited to Monson personally and was adopted in response to the filing of this case. The scope
of the change in policy is not entirely clear from this record. Although the accommodation
Page 14 - OPINION & ORDER
permitting Monson to receive kosher meals has been in place since early 2016, the change
otherwise lacks the indicia of permanence that would permit the Court to find mootness based on
voluntary cessation. The Court therefore concludes that, although Defendants are presumed to
have acted in good faith, they have not met their "heavy burden" on the issue of mootness.
B. Cruel and Unusual Punishment
Monson contends that Defendants' decision to deny him a kosher diet constituted cruel
and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. "The
Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not
only from inhumane methods of punishment, but also from inhumane conditions of
confinement." 1Vforgan v. ,\;Jorgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). While conditions of
confinement "may be, and often are, restrictive and harsh," they must not involve "the wanton
and unnecessary infliction of pain." Id. (internal quotation marks and citation omitted). The
Eighth Amendment also imposes duties on prison officials, who must provide all prisoners with
the basic necessities of life, such as food, clothing, shelter, sanitation, medical care, and personal
safety. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
To establish a violation of the Eighth Amendment, the prisoner must show that the
officials acted with "deliberate indifference." Labatad v. Corr. Corp. of Am., 714 F.3d 1155,
1160 (9th Cir. 2013) (citations omitted). To establish deliberate indifference, "[p]laintiffs must
satisfy both the objective and subjective components of a two-part test." Hallett v. iv/organ, 296
F.3d 732, 744 (9th Cir. 2002).
First, the alleged deprivation must be, in objective terms,
Farmer, 511 U.S. at 384. The plaintiff must demonstrate that the
defendants have deprived him of the "minimal civilized measure of life's necessities." Hallett,
296 F.3d at 744. (internal quotation marks and citation omitted).
Page 15 - OPINION & ORDER
If an objective deprivation is shown, a plaintiff must show that the officials subjectively
acted with a sufficiently culpable state of mind. Farmer, 511 U.S. at 834. An official is liable
for. inhumane conditions of confinement only if "the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of harm exists, and he must also draw the
inference." Id at 837. A plaintiff "must show that the defendant officials had actual knowledge
of the plaintiffs' basic human needs and deliberately refused to meet those needs." Johnson v.
Lewis, 217 F.3d 726, 734 (9th Cir. 2000).
The Ninth Circuit has observed that this is "not an easy test," and it requires that the
officials' conduct constitute "unnecessary and wanton infliction of pain." Hallett 296 F.3d at
744-45 (internal quotation marks and citation omitted). "Mere negligence is not sufficient to
establish liability." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
The denial of a kosher diet simply does not rise to the level of "unnecessary and wanton
infliction of pain."
See lvlcLenithan v. Williams, Civil No. 3:09-cv-00085-AC, 2016 WL
1312314, at *8-9 (D. Or. April 4, 2016) (denial of kosher meals does not satisfy the objective
prong of an Eighth Amendment violation). As in 1vfcLenithan, Manson's claim cannot meet the
objective prong of the test for a violation of the Eighth Amendment. Accordingly, Defendants
are entitled to summary judgment on this claim.
C. Free Exercise of Religion
Monson contends that the decision to deny him a kosher diet violated his right to the free
exercise of his religion.
"Inmates retain the protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of religion." Shakur v. Schriro,
514 F.3d 878, 883-84 (9th Cir. 2008) (internal quotation marks and citation omitted).
Page 16 - OPINION & ORDER
implicate the Free Exercise Clause, a prisoner must show that the belief at issue is both
"sincerely held" and "rooted in religious belief," and not purely secular philosophical concerns.
Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur, 514 F.3d at 884-85 (noting
the Supreme Court's disapproval of the "centrality test" and finding that the "sincerity" test in
Malik determines whether the Free Exercise Clause applies). The right to religious practice "is
not limited to beliefs which are shared by all members of a religious sect." Thomas v. Review
Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 715-16 (1981). The Supreme Comi has held that the
question of sincerity "is, of course, a question of fact." United States v. Seeger, 380 U.S. 163,
185 (1965). 9
If the inmate makes his initial showing of a sincerely held religious belief, he must
establish that the prison officials substantially burdened the practice of his religion by preventing
him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur,
514 F.3d at 884-85. A substantial burden exists where the state "put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs[.]" Thomas, 450 U.S. at 718. Even
where the pressure to modify behavior is indirect, "the infringement upon free exercise is
nonetheless substantial." Id
If a plaintiff "establishes that his need for a kosher diet is a
sincerely held religious belief, denial of the diet is a substantial burden to his religious practice."
White v. Linderman, No. CV 11-8152-PCT-RCB (SPL), 2013 WL 4496364, at *6 (D. Ariz. Aug.
22, 2013) (citing Greene v. Solano Cnty. Jail, 513 F.3d 982, 987 (9th Cir. 2008)).
In United States v. Seeger, the Court was addressing the sincerity ofreligious belief in the context of conscientious
objectors under the Universal Military Training and Service Act. 360 U.S. 163, 164 (1965). More recently, district
courts within the Ninth Circuit have applied the reasoning put forth in Seeger to assess the sincerity of religious
beliefs in the inmate context, as required by Malik. See, e.g., Dean v. Corr. Corp. ofAm., 108 F. Supp.3d 702, 711
(D. Ariz. 2014); White v. Linderman, No. CV 11-8152-PCT-RCB (SPL), 2013 WL 4496364, at *4 (D. Ariz. Aug.
Page 17 - OPINION & ORDER
A regulation or policy that burdens the First Amendment right to free exercise may be
upheld only if it is reasonably related to a legitimate penological interest. Shakur, 514 F.3d at
884; Turner v. Safley, 482 U.S. 78, 89 (1987). This dete1mination requires analysis of four
factors: (1) there must be a valid, rational connection between the regulation and the legitimate
government interest; (2) whether there are alternative means of exercising the right that remain
open to inmates; (3) the impact that accommodation of the right will have on guards, other
inmates, and the allocation of prison resources; and (4) the absence of ready alternatives. Turner
482 U.S. at 89-91.
In the context of religious diets, "[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."
,YfcElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987). However, "[i]t is appropriate for prison
authorities to deny a special diet if an inmate is not sincere in his religious beliefs." Id.
"Scrutiny of a prisoner's sincerity is often essential in 'differentiating between those beliefs that
are held as a matter of conscience and those that are animated by motives of deception and
fraud."' Shilling v. Cra11ford, No. 205CV-00889-PMP-GWF, 2007 WL 2790623, at *16 (D.
Nev. Sept. 21, 2007) (quotingPatrickv. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)).
In this case, Defendants assert that Monson' s request for a kosher diet was not based on a
sincerely held religious belief and that his request was not rooted in religious belief. For the
purposes of the Court's inquiry, it is irrelevant whether a kosher diet is a tenet of Rastafarianism
or a common practice among Rastafarians. Rather, the inquiry focuses on whether Monson
sincerely believes that such a diet is required by his religion. Although a prison is permitted to
inquire into an inmate's sincerity when considering a religious accommodation, the weight of
recent case law suggests that it is inappropriate for a court to grant summary judgment based on
Page 18 - OPINION & ORDER
a plaintiffs alleged lack of sincerity. See, e.g., Dean v. Corr. Corp. of Am., 108 F. Supp.3d 702,
711 (D. Ariz. 2014) (finding that the defendants have raised material questions of fact regarding
the plaintiffs sincerely held beliefs.); Colvin v. Caruso, 605 F.3d 282, 298 (6th Cir. 2010)
(sincerity of an inmate's beliefs does not turn on an inmate's objective knowledge of his
religion); Johnson v. Nev. Bd. of Prison Comm'rs, No. 3:1!-cv-00487-HDM-VPC, 2013 WL
5428423, at *2-3 (D. Nev. Sept. 26, 2013) (although the defendants produced evidence that the
plaintiffs beliefs were not sincerely held, the question "must ultimately be resolved by the trier
of fact."); White 2013 WL 4496364, at *5 ('"backsliding' or non-observance of a religious
practice is not sufficient to establish as a matter of law that [the plaintiff] is insincere in his
religious beliefs."); 1'vfonts v. Arpaio, No. CV 10-0532-PHX-FJM (ECV), 2012 WL 160.246, at
*3 (D. Ariz. Jan. 19, 2012) (although the plaintiff presented a "weak" case for the sincerity of his
religious belief, it still presented a question of fact); Reiss v. Stansel, No. CV 09-1760-PHX-RCB
(ECV), 2011 WL 2111999, at *5-6 (D. Ariz. May 26, 2011) ("[ c]redibility issues such as the
sincerity of [a plaintiffs] religious belief are quintessential fact questions.
As such they
ordinarily should be reserved for the factfinder at trial, not for the court at summary judgment,")
(internal quotation marks and citation omitted); Shilling, 2007 WL 2790623, at *16 ("Whether a
belief is sincerely held is a question of fact, generally not appropriately decided in a motion for
Although the Court agrees that the record gives some cause for doubt on Monson' s
religious sincerity, as well as his reasons for requesting a kosher diet, the Court cannot conclude
as a matter of law that Monson's religious beliefs are not sincerely held. Nor is the Cou1i
prepared to conclude as a matter oflaw that Manson's request was not rooted in religious belief,
Page 19 - OPINION & ORDER
although the record does suggest that Monson may have initially requested the kosher diet for
reasons that were not necessarily connected to his religious convictions.
The Court therefore turns to the application of the Turner factors. With regard to the first
factor, prisons have a legitimate interest in the orderly and cost-effective administration of
religious diets and there is a rational connection between that interest and ODOC's policy
limiting the kosher diet to inmates with sincerely held religious convictions requiring kosher
food. See Shakur, 514 F.3d at 885-86; iVlcLenithan, 2016 WL 1312314, at *6. The Comi
concludes that this factor weighs in favor of Defendants.
The second Turner factor examines "whether there are alternative means of exercising
the right that remain open to prison inmates." Turner, 482 U.S. at 90. The focus of this factor is
not upon the specific religious practice in dispute, but rather whether the inmate has been
"denied all means of religious expression." Shakur, 514 F.3d at 886. In this case, Plaintiff does
not appear to allege that the practice of his Rastafarian faith has been burdened beyond ODOC's
decision to deny him a kosher diet. It appears from the record that he is free to attend religious
services, speak with spiritual advisors, and study Rastafarian religious literature. Young Deel.
Ex. 8, at 1 (referencing Monson's attendance at religious services); Ex. 12, at 2 (Monson
references a meeting with an elder of the Lion of Judah Society); Pl. Resp. Ex. F (identified as
"Excerpts of Plaintiffs Religion/Beliefs from Rastafarianism book provided to him from
Defendants (Hodney)."); Ex. G (identified as "(LOJ) Lion of Judah Doctrine and bylaws."), ECF
No. 112-1. Although the focus of this factor is on other means of religious expression, the nonmeat alternative diet complies with Biblical laws and satisfies the Rastafarian prohibitions
regarding consumption of meat.
Page 20 - OPINION & ORDER
On this record, the Court concludes that the second factor
The third Turner factor examines the impact that accommodation of the right will have
on guards, other inmates, and on the allocation of prison resources generally. Turner, 482 U.S.
at 90. "When accommodation of the right will have a significant 'ripple effect' on fellow
inmates or on prison staff, comis should be particularly deferential to the informed discretion of
conections officers." Id. In this case, Defendants have submitted evidence that a significant
number of inmates would request access to kosher meals, if they were made more generally
available. Vincent Deel. Ex. 2. Defendants have also submitted evidence demonstrating that
providing kosher diets is significantly more expensive than the mainline or meat-alternative diets
and that kosher meals represent a significant portion of ODOC's kitchen budget, even with the
limited number of inmates currently receiving kosher meals. Fanger Deel. The per-inmate cost
of the kosher diet would not be reduced by purchasing larger quantities of the meals. Fanger
ODOC's security budget is already strnined and would be fu1iher burdened by a
substantial number of additional inmates seeking kosher diets. Morton Deel. In lvfcLenithan, the
court confronted an essentially identical situation and concluded that the likely consequence of
granting a non-Jewish inmate's request for a kosher diet would be a large number of other nonJewish inmates requesting the same accommodation, with the attendant burden on the prison
budget. 1\IcLenithan, 2016 WL 1312314, at *7. The 1\!fcLenithan comi concluded that the third
Turner factor favored the prison. Id. The Court finds that reasoning persuasive and likewise
concludes that the third factor favors Defendants.
The fomih Turner factor examines whether there is an "absence of ready alternatives" to
the challenged policy that would accommodate the imnate at de minimis cost to the prison.
Turner, 482 U.S. at 90-91; Shakur, 514 F.3d at 887. In this case, ODOC has examined a number
of possible solutions to the challenge of providing kosher meals to inmates, including the
Page 21 - OPINION & ORDER
establishment of a dedicated kosher kitchen or purchasing kosher meals from the State of
Washington. Fanger Deel. ODOC has determined that the cu11'ent system is the most costeffective, despite the burden that it places on the prison budget. Fanger Deel. By ensuring that
the non-meat alternative diet complies with Biblical laws, ODOC has attempted to satisfy the
needs of inmates whose religion requires them to follow a Biblically-based diet without incurring
additional costs. Young Deel. The Court concludes that the fourth factor favors Defendants.
Having considered all four Turner factors, the Court concludes that Defendants are
entitled to summary judgment on Monson's First Amendment claim.
D. Equal Protection
Monson contends that the decision to deny him a kosher diet violated his right to equal
protection under the law. The Equal Protection Clause requires states to treat all similarly
situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
"This does not mean, however, that all prisoners must receive identical treatment and resources."
Hartmann v. Cal Dept. of Corr. and Rehab, 707 F.3d 1114, 1123 (9th Cir. 2013). To prevail on
an equal protection claim, a plaintiff must show "that the defendants acted with an intent or
purpose to discriminate against [them] based upon membership in a protected class."
(internal quotation marks omitted). In assessing an equal protection claim based on a prisoner's
religion, courts analyze the claim under the Turner factors. Shakur, 514 F.3d at 891. "The fact
that Jewish inmates are provided a kosher diet is not alone sufficient to show an equal protection
violation." lvicLenithan, 2016 WL 1312314, at *8.
In this case, the same Turner analysis that applied to Monson's free exercise claim will
apply to his equal protection claim. Once again, all four factors favor Defendants. Furthermore,
there is no evidence that Defendants acted with an intent or purpose to discriminate against
Page 22 - OPINION & ORDER
Monson based on his religion. Rather, Defendants investigated the dietary laws requirements of
Rastafarianism and the sincerity of Monson's religious beliefs and, based on the results of their
inquiry, determined that Monson did not require ODOC's kosher diet. Defendants are entitled to
summary judgment on Monson's claim for violation of his equal protection rights.
E. Qualified Immunity
Defendants asse1t that they are entitled to qualified immunity. An official is entitled to
qualified immunity if his or her conduct "does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The qualified immunity analysis requires a court to address two
questions: (1) whether the facts alleged or shown by the plaintiff establish a constitutional
violation and (2) whether the right at issue was clearly established at the time. Saucier v. Katz,
533 U.S. 194, 201 (2001). The right must have been clearly established at the time of the
defendant's alleged misconduct, so that a reasonable official would have understood that what he
or she was doing under the circumstances violated that right. Wilson v. Layne, 526 U.S. 603, 615
Courts have discretion in deciding which prong to address first, depending on the
circumstances of the case. Pearson v. Callahan, 555 U.S. 223, 242-43 (2009).
Even if a right is clearly established, qualified immunity protects an official from
reasonable mistakes about the legality of his actions. Wilkins v. City of Oakland, 350 F.3d 949,
954-55 (9th Cir. 2003). The official is still entitled to qualified immunity if the official "could
have believed, 'reasonably but mistakenly ... that his or her conduct did not violate a clearly
established constitutional right."' Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir.
2006) (quoting Jackwn v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001)).
protection of qualified immunity applies regardless of whether the government official's enor is
Page 23 - OPINION & ORDER
a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact."
Pearson, 555 U.S. at 231 (internal quotation marks and citation omitted). Qualified immunity is
meant to protect "all but the plainly incompetent or those who knowingly violate the law."
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks and citation omitted).
Although the Court has already determined that Defendants are entitled to summary
judgment on Monson's constitutional claims, Defendants are also entitled to qualified immunity.
In the context ofMonson's First Amendment claim, Defendants had an obligation to investigate
the sincerity of Monson's request and they were presented with evidence suggesting a lack of
religious sincerity. Monson gave inconsistent reasoning for his request, first objecting that the
non-meat alternative tray caused him to lose weight and experience high blood pressure; then
that the non-meat tray was contaminated with pork because the kitchen used the same utensils to
cook the mainline meals. Young Deel. Ex. 5, at 4; Ex. 7, at 3. Monson also gave varying
descriptions of his pmiicular religion, initially identifying himself as a Rastafarian and requesting
a diet most closely consistent with the requirements of Ital and then later identifying himself as a
Rastafarian-Judeo-Christian and citing to the Quran in support of his request. Young Deel. Ex.
5, at 4; Ex. 7, at 1-2. Monson consistently identified the Bible as the source of his sincerely held
religious beliefs regarding food preparation, but failed to provide Defendants with a reasonable
explanation of why the non-meat alternative tray did not satisfy those requirements. A review of
Monson's canteen receipts revealed regular purchases of non-kosher items, which cast grave
doubts on his sincerity. Young Deel. Ex. 9.
In light of Monson's inconsistent statements regarding his religious beliefs, his
unsupported claim that he required a kosher diet for health reasons, and his regular purchase of
non-kosher items from the canteen, Defendants concluded that Monson's request was not based
Page 24 - OPINION & ORDER
on a sincerely held religious belief. If that conclusion was in en-or, as Monson contends, then
Defendants' mistake was reasonable in light of the information available to them at the time.
Defendants are entitled to qualified immunity as to Monson's First Amendment claim.
As to Monson's equal protection claim, it was not clearly established that a prison must
provide kosher meals to non-Jewish imnates when there are legitimate penological reasons to
deny the accommodation.
See ivfcLenithan, 2016 WL 1312314, at *8 (granting summary
judgment in favor the prison on an equal protection claim brought by a Seventh Day Adventist
imnate for denial of kosher meals). Furthermore, Defendants' research into the dietary laws of
Rastafarians led them to conclude that kosher meals were not required by Monson's religion.
There is no evidence to suppo1i Monson's claim that Defendants' conclusion was based on a
discriminatory motive and, if Defendants' conclusion was incorrect, the mistake was reasonable
based on the infonnation available to Defendants at the time of their decision. Defendants are
entitled to qualified immunity as to Monson' s equal protection claim.
Finally, it is not clearly established that denial of a kosher diet could be considered
"uooecessary and wanton infliction of pain" in violation of the Eighth Amendment.
ivfcLenithan, 2016 WL 1312314, at *8-9 (rejecting an imnate's Eighth Amendment claim based
on denial of a kosher diet). Defendants are entitled to qualified irmnunity as to Monson's Eighth
Page 25 - OPINION & ORDER
The Court accepts Plaintiffs concession and Plaintiffs claims against Defendants Peters,
Franke, Brockamp, Gower, and Howton are DISMISSED.
Plaintiffs Motion for Summary
Judgment, ECF No. 78, is DENIED. Defendants' Motion for Summary Judgment, ECF No. 100,
and Supplemental Motion for Summary Judgment, ECF No. 129, are GRANTED. This action is
DISMISSED and a final judgment shall be entered.
It is so ORDERED and(DA~ED this 6th day of July, 2017
, a1 (? '\1_j 1
\ , ' . / l , _ j "····"
Hon. Paul Papak
United States Magistrate Judge
Page 26 -OPINION & ORDER
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