Tatum, Robert et al v. Meisner, Mike et al

Filing 75

ORDER denying plaintiff's 50 Motion for Partial Summary Judgment ; denying as moot 51 Motion for final order for plaintiffs to "stand on the complaint" and motion for this decision to be held in abeyance ; denying as moot 53 M otion to Strike plaintiff's motion for partial summary judgment ; granting in part and denying in part defendants' 57 Motion for Summary Judgment. Judgment is granted in favor of defendants on plaintiff's First Amendment Claim. Summ ary judgment is denied with respect to plaintiff's RLUIPA claim. The court reserves on plaintiff's 56 motion to appoint expert and plaintiff's 73 letter to the court concerning confiscation of legal materials. A telephone scheduling conference is set for February 10, 2016 at 10:00 to set the remaining deadlines and set the case for a bench trial. Signed by District Judge William M. Conley on 1/26/2016. (elc),(ps) Modified on 1/26/2016 (elc).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERT TATUM, and all similarly situated
DOC/CCI Inmates,

v.

Plaintiff,

MICHAEL MEISNER and CATHY JESS,

OPINION AND ORDER
13-cv-44-wmc

Defendants.
While incarcerated by the Wisconsin Department of Corrections (“DOC”),
plaintiff Robert Tatum requested a nutritionally adequate diet in line with the Nation of
Islam (“NOI”) diet espoused in Elijah Muhammad’s book, How to Eat to Live. When this
was denied him, Tatum filed this civil action under 42 U.S.C. § 1983, alleging that
defendants Michael Meisner and Cathy Jess, both DOC employees, violated his and
similar inmates’ rights under the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b).
Before the court now are the parties’ cross motions for summary judgment. (Dkt.
##50, 57.) For the reasons that follow, the court will deny plaintiff’s motion in its
entirety, while granting defendants’ motion for summary judgment as to plaintiffs’ First
Amendment claim only. While defendants are entitled to judgment on that claim at least
on grounds of qualified immunity, Tatum’s RLUIPA claim requires a trial to resolve
disputed material facts as to: (1) whether Tatum has made a prima facie case that the
denial of a NOI diet substantially burdened his religious exercise; and (2) whether that
denial was the least restrictive means of furthering a compelling government interest.

Since the only remedies available to Tatum under RLUIPA are equitable in nature, the
court will schedule a bench trial on this remaining claim following a status conference.

UNDISPUTED FACTS1
A. The Parties
Robert Tatum is an inmate who was confined at DOC’s Columbia Correctional
Institution (“CCI”) from August 9, 2011, to May 8, 2014.2 Defendant Michael Meisner
is currently employed by DOC as Warden at Redgranite Correctional Institution, but was
the Warden at CCI throughout the period of Tatum’s incarceration there. Defendant
Cathy Jess is the Administrator for DOC Division of Adult Institutions (“DAI”), just as
she was from 2011 through 2014.
B. DOC’s Accommodation of Religious Diets
DAI Policy #309.61.03 states that DAI “shall make religious diets available
through standard menu alternatives as resources permit for inmates whose religious
beliefs require the adherence to religious dietary laws.” (Defs.’ PFOFs (dkt. #59) ¶ 4
(quoting Willard-West Aff., Ex. 101 (dkt. #60-2) p.1).) The DAI religious diet menus

1

Unless otherwise noted, the court finds the following facts to be material and undisputed based
on the parties’ submissions.

2

Tatum is now housed at a different DOC institution, but as long as he continues to be
imprisoned by DOC, his claims are not moot given his challenge to a DOC-wide policy, not a
specific policy unique to CCI. See West v. Grams, No. 14-3623, 607 F. App’x 561, 566 (7th Cir.
Apr. 22, 2015) (unpublished) (“[T]hough a prison transfer might moot a claim for injunctive
relief if the transfer means that the inmate no longer is laboring under the allegedly
unconstitutional policy or practice, that is not the case here. West’s lawsuit challenges under
RLUIPA a system-wide Department of Corrections policy that applied at Columbia, still applies
at Green Bay, and—unless modified—will apply wherever West is next sent until his release.”).

2

are constructed to allow inmates to abstain from religiously-prohibited foods, but do not
necessarily provide preferred, traditional or culturally-significant foods.
In practice, this means that DOC inmates may request a special diet if their
personal religious beliefs require that they abstain from foods offered as part of an
institution’s general menu. For example, inmates who identify as Jewish may request a
kosher diet, and inmates who identify as Muslim may request a halal diet. If an inmate’s
religious beliefs require, he or she may also request a plant-based diet.

In addition,

inmates of any faith may choose fare from the general menu and simply self-select to
avoid certain foods for religious reasons, just as other inmates may do so for secular
reasons, such as personal taste or health, or no reason at all.
More particularly, the DOC religious diet menus are carefully structured by DAI
registered dieticians to ensure adequate nutrition within the strictest religious adherence
expectations. For example, a halal diet contains certified halal meats and scale fish, but
does not include non halal-certified meats, eggs and milk, even though some Muslim
adherents may find the non-halal certified options acceptable under their personal beliefs.
Also, for a kosher diet, the meals are prepared offsite according to strict kashrut rules,
even though some Jewish inmates may not follow that tenant of a kosher diet. Finally,
the plant-based diet is a vegan diet, even though an inmate whose religious beliefs require
a vegetarian diet would generally be open to eating dairy.

3

For religious meals, DAI policy allows for plant-based, halal and kosher options,
but does not allow for further “individualized” menus, like a Nation of Islam (“NOI”)
diet, as opposed to further individualization by self-selection.3
In addition to providing religious accommodations, DOC is required to provide
nutritious foods for all inmates. Menus are developed by central office food management
staff and committees, including DOC dieticians, to ensure that meals are nutritionally
sound, within budgetary restrictions. DOC dieticians post the menu at CCI. Institutions
are allowed to provide two signature meals per week (i.e., institution favorites) but
otherwise strive to make minimal tweaks to the scheduled menu (e.g., to accommodate
product availability).

At the time of Tatum’s diet requests, the standard DOC diet

provided approximately 2700 to 2900 calories per day, which was greater than the 2600
calorie daily value requirements (based on a reference male and USDA standards),
allowing inmates to obtain sufficient calories even while declining to consume some
items. From DOC’s perspective, its religious menus, therefore, provide adult inmates
with sustenance that is not religiously objectionable. In contrast, Tatum contends that
the provision of a religious diet necessarily encompass preferred, traditional or culturallysignificant foods. Tatum further contends that the DOC (and DAI, specifically) does not
accommodate his NOI diet. While defendants agree in their reply that an NOI diet is
not a menu option inmates can select, they also contend that Tatum can choose from a

3

Tatum does not directly dispute this fact, but points out there are other individualized diets,
including “no gluten,” “hi-protein,” and “six small feedings.” (Pl.’s Resp. to Defs.’ PFOFs (dkt.
#65) ¶ 8.) While defendants explain those diets are for medical, not religious, purposes, this is at
least an indication that additional menus can be and are offered by defendants.

4

general fare diet, halal diet or plant-based diet -- all of which contain a surplus of calories
-- and can then “self-select” his preferred foods.
Tatum, however, contends, albeit without further explanation or proof, that he
“could not get adequate calories and nutrition eating the standard DOC diet and
adhering to his rel[igious] diet restrictions.”

(Pl.’s Resp. to Defs.’ PFOFs (dkt. #65)

¶ 45.)4
C. Tatum’s Religious Diet Accommodation Request
On July 6, 2011, Tatum submitted a “Request for New Religious Practice” form,
DOC-2075, seeking accommodation of a religious diet with the following main
requirements:
1. Eat 1 complete meal a day, not 3 partial meals, between
4pm-6pm. 2. No pork, no un-kosher meat (I’m a
vegetarian so I don’t eat meat at all.) or un-kosher fish fish is not meat, tuna or salmon, etc. is edible as long as it
is from a fish under 50 lbs. Eggs or butter is edible. 3.
Navy beans, l[e]nt[i]ls, string/green beans and green peas
are the only edible beans and peas (with nav[y beans]
being highly regarded). 4. No bleached items like breads
(wheat is required). No canned items (fresh fruit, etc. is
required).
These are considered unclean for human
consumption. Little or no soy are advised to avoid soy
and eat nav[y beans] for protein etc. No un-natural items
or process, like 0% milk. (100% milk = edible)

4

Defendants also maintain that inmates can supplement their diets through canteen foods,
though as plaintiff correctly points out, the canteen is not free and DOC does not provide extra
funds to supplement an inmate’s diet for religious reasons. Nor do defendants offer proof that
items available in the canteen could adequately supplement Tatum’s dietary needs without
violating dietary restrictions under his NOI beliefs.

5

(Willard-West Decl., Ex. 3 (dkt. #60-3) 1.) Tatum explained that the diet was defined
in How to Eat to Live (Vol. 2) by Elijah Muhammad, as well as the Book of Leviticus in
the Bible and the Quran. (Id.)
Consistent with DOC policy, the Chaplain and the Supervisor reviewed Tatum’s
request. Both recommended that it be denied. Religious Practices Coordinator for DOC
Kelli Willard-West also reviewed the request and recommended denial, explaining that as
a Muslim, Tatum has the opportunity to participate in the halal or vegan religious diets,
or he could self-select from a general or one of the religious food trays. (Willard-West
Aff., Ex. 102 (dkt. #60-3) 2-3.) Based on these recommendations, defendant Meisner
also denied Tatum’s request for reasons set forth by Willard-West.5
D. Nation of Islam Diet
According to Tatum, the Nation of Islam “was founded on the premise that Allah
(God) taught Elijah Muhammad for 3 1/2 years, including a diet regimen, to teach Black
persons in North Am[erica] as part of a religious conversion.” (Pl.’s PFOFs (dkt. #65) ¶
11 (citing Tatum Aff. (dkt. #66) ¶¶ 1-2).) Plaintiff further contends that these diet
restrictions are stated in How to Eat to Live, Volumes I and II. (Tatum Aff. (dkt. #66) ¶
1.)

5

Tatum submitted the same request again on February 7, 2012. (Willard-West Aff., Ex. 103
(dkt. #60-4).) After the Chaplain, Supervisor, and Willard-West again recommended denial,
Meisner denied this request as well for the same reasons as the first denial. Tatum submitted yet
another request on May 15, 2014, which was also denied by the same people and for the same
reasons. (Willard-West Aff., Ex. 112 (dkt. #60-5).) In addition, Tatum filed various offender
complaints or grievances about the denial of his religious diet accommodation, but the court need
not recount these since defendants do not argue that Tatum failed to exhaust his administrative
remedies. (Defs.’ PFOFs (dkt. #59) ¶¶ 37-44, 56-58).)

6

Defendants’ challenge these proposed facts on the basis that Tatum’s affidavit
lacks sufficient foundation, while Tatum explains in his affidavit that he has been an
adherent of NOI religious beliefs for over 20 years, and has studied its principles,
literature and eating. (Id.) The court finds his affidavit is a sufficient basis for Tatum to
describe its basic tenets.
According to Tatum, Muhammad “instructs that eating according to the methods
he teaches in his books is a must with his followers, constituting a religious mandate from
a religious leader to follow the dictates of a religious diet. This is no different, Tatum
argues, than Musa (Moses) stating Allah (God) taught him the religious diet given to the
Children of Israel.” (Id.) Tatum further maintains that “maintaining religious purity of
mind and body via diet restrictions is an important and obvious religious tent,” and that
he “strictly adhere[s] to NOI diet restrictions as Allah provided to the best of [his]
ability, to achieve and maintain religious purity.” (Id. at ¶ 2.)
E. Unique Features of Correctional Food Service Operations
The parties dispute whether Tatum is seeking an individualized menu (or even
requested individualization) and, of course, the implication that an entirely new
individualized NOI menu might or might not have on the institution, especially to the
extent it might invite other inmate requests for preferred meals that would have to be
accommodated for religious reasons.
discussion below.

The court will address these disputes in its

The following undisputed overview of the DOC’s food services

operations is simply offered for context.

7

DOC kitchens are set up for bulk high efficiency meal service, with thousands of
meals produced daily in its institutional-style kitchens 365 days per year.

Unlike

correctional food service operations, restaurant cooking provides a wide variety of foods
to individual customers based on patron food preferences and personal spending, with
kitchens designed for this purpose, using small scale equipment and receiving multiple
food deliveries each day from multiple vendors.

Correctional cooking, in contrast,

provides a limited selection of foods to an extremely large population generally using
large scale equipment and food delivered less frequently and in larger proportions.
Moreover, DOC food services are required to use only approved ingredients, recipes and
menus. Perhaps most important, the food budgets are quite restricted. For fiscal year
2015 as an example, the DOC budgeted approximately $1.03 per meal.
Obviously, such large-scale and low cost food production requires careful planning
to avoid both food shortages, on the one hand, and waste, on the other. Food suppliers
require several weeks of lead time to supply new products. For this reason, DOC’s 28day menu uses only 150 ingredients, and CCI and other institutions purchase supplies in
bulk sizes, not in individualized portions or even individualized meals. Deliveries arrive
much less frequently than in a restaurant setting, from every one to four weeks, and
virtually all supplies come from a single vendor.
In particular, CCI’s kitchen is not equipped to prepare individualized meals. For
example, the kitchen lacks cook tops, fry pans or sauce pans to prepare individualized
portions.

All meals, instead, are prepared in large mixers, 100-gallon steam-jacketed

kettles, and combi-therm ovens.

The CCI kitchen also has no extra storage or
8

preparatory space.

Having been designed to accommodate food preparation for 450

inmates, it now serves food for 830 inmates. With increasingly rapid employee turnover
and security concerns, including supervising the inmate cooks, defendants further
contend that it is difficult, if not impossible, to take on anything new or complex.
Even more particular, inmate food workers prepare food according to approved
menus, with specific assignments. As a result, there is little or no time for these workers
to prepare individualized meals, nor for supervising non-inmate workers to do so, given
the other demands of their jobs. When an inmate has a special diet ordered by medical
staff, such as low sodium or high protein, approved tweaks are made to the food that is
being served that day, but defendants maintain that “individualized meals are not
prepared for those inmates.” (Defs.’ PFOFs (dkt. #59) ¶ 27.) Still, Tatum contends that
a high protein diet requires just as much individualization as the NOI diet he is
requesting.
Finally, with respect to accommodating Tatum’s request for only one meal per day
between 4:00 p.m. and 6:00 p.m., defendants contend that institution activities are
carefully synchronized with any deviation likely to disrupt the entire institution.
Accommodating Tatum’s request would specifically require kitchen staff to prepare
individualized portions, serve it, retrieve it and dispose of any leftovers. CCI does not
have the available time, staffing or resources to accommodate this type of request, and
any transfer of resources necessary to meet this requirement would necessarily harm
safety and security efforts for which those assets are currently being used.

9

Tatum

disputes this, however, by pointing out that dinner service typically occurs during the
time requested.
There are also broader security concerns within the institution’s accommodating
individual meal and diet requests.

Specifically, if Tatum received special food at a

different time than other inmates, this would likely be viewed by other inmates as special
treatment, and may be met with hostility, verbal threats and abuse and physical
confrontation, threatening his safety and security.

Tatum contends that this is an

exaggeration, especially in light of the fact that he is neither seeking special foods (e.g.,
foods that are not already in the possession of the DOC), nor at a special time, because
dinner is already passed between 4:00 p.m. and 6:00 p.m.
F. Scope of Religious Diet Requests
As further context, there are approximately 22,000 inmates incarcerated in
Wisconsin, with approximately 359 receiving religious diet accommodations. In support
of their claim that it would be impossible to accommodate individualized religious diets,
DOC’s Religious Practice Coordinator Willard-West also represents that Wisconsin
inmates have requested the following preferred foods to tailor their own individualized
religious diets: only organic foods; only raw whole foods; only all natural, non-processed
foods; foods containing no salt; foods without soy additives; wild game such as elk, deer
and buffalo; other unusual meat requests, such as horse, goat, eagle, and boar; roast beef
on Wednesdays; meat plus fish on Fridays; beef or pork at every meal; and hot breakfast
rather than cold cereals.

10

As a result, defendants contend that granting Tatum his request would “open the
door for other inmates to make similar requests.” (Defs.’ PFOFs (dkt. #59) ¶ 69.) In
addition to the difficulty (if not impossibility) of accommodating these various requests,
at least on a regular basis, defendants maintain that they are also concerned about
favoring certain religious, in violation of the establishment clause and equal protection
clause.
G. Nutritional Adequacy of Tatum’s Requested Nation of Islam Diet
In January 2012, DOC dietician Christine Berndt-Miles nevertheless performed a
nutritional analysis of the specific diet Tatum requested, along with a review of the cited
publication How to Eat to Live. Based on her analysis, Berndt-Miles determined that the
diet was nutritionally inadequate with regard to calories, thiamine, riboflavin, niacin,
vitamin B6, vitamin B12, pantothenic acid, vitamin D, calcium, iron, magnesium,
phosphorous, and potassium. Specifically, Berndt-Miles created a seven-day meal plan
based on permitted foods from the teachings of How to Eat to Live. Assuming Tatum ate
all of the food in the menu, he would still average only 1,019 calories per day. (BerndtMiles Aff., Ex. 113 (dkt. #61-5).)
Tatum disputes these finding, arguing that Berndt-Miles’ study failed to include
certain foods, like tuna. (Tatum Aff. (dkt. #66) ¶ 17.) He also cites to two PBS shows
discussing the health benefits of diets similar to that espoused in How to Eat to Live. (Id.)

11

H. Nutritional Adequacy of Ramadan Meals
As part of his claim, Tatum also challenges the nutritional adequacy of the
Ramadan meals already offered by DOC.

As best as the court can discern, Tatum’s

Ramadan-specific claim concerns defendants’ refusal to accommodate his NOI diet
during Ramadan, rather than somehow involving an independent challenge. Still, the
court will set forth facts specific to Tatum’s Ramadan diet.
For the years relevant to Tatum’s claims, DOC dieticians have developed menus in
advance for all three diets (general, plant-based, and halal) for use during the month of
Ramadan. These menus are designed to provide sufficient calories and nutrients in the
most economical manner by a combination of protein, carbohydrates, vegetables, fruit,
dessert and milk.

Tatum disputes that the vegan or plant-based menu provides the

minimum recommended daily allowance of essential fats and proteins. (Pl.’s Resp. to
Defs.’ PFOFs (dkt. #65) ¶ 72 (citing Berndt-Miles Aff., Ex. 106 (dkt. #61-3) 15-21).)
As defendants explain in reply, the 2011 Ramadan menu for the plant-based diet varied
from slightly above to slightly below the recommended fats and proteins for a 20-year old
male. (Defs.’ Reply to Defs.’ PFOFs (dkt. #68) ¶ 72 (citing Berndt-Miles Aff., Ex. 106
(dkt. #61-3) 15-21 (showing daily average of protein and fat for plant-based Ramadan
meals as percentage of recommended daily allowances for 20-year old male as ranging
from a low of 88% to a high of 119%)).)
Inmates participating in Ramadan receive roughly the same number of calories as
those inmates receiving the general institution meal, though the calories are allotted
across two meals before sunrise and after sunset, rather than over the typical three meals.
12

Ramadan meals are delivered in cold bag meals, with the lunch and dinner meals served
together in the evening hours. Tatum does not dispute this, but contends that for NOI
diet followers, the Ramadan meals contain insufficient calories, fat and protein, largely
due to the provision of peanut butter and skim milk, both of which appear to be not
prescribed under the NOI diet.

OPINION
I. Motion for Summary Judgment
A. RLUIPA Claim
The relevant portion of RLUIPA provides in pertinent part:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution, . . . even if the burden results from a rule of
general applicability, unless the government demonstrates
that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc–1(a).
In recent cases the United States Supreme Court has defined “substantial burden”
as something that “seriously violates [one’s] religious beliefs,” regardless of whether
alternative means of religious exercise are available. Holt v. Hobbs, 135 S. Ct. 853, 862
(2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014)). The
use of the term “seriously” provides little more guidance than “substantial burden,” but
the Seventh Circuit advises it means more than just a “modest” violation. Schlemm v.
13

Wall, 784 F.3d 362, 365 (7th Cir. 2015). The Supreme Court has further clarified that
the religious exercise includes “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)). Still, plaintiff must show at least (1) a loss of benefits or (2) that the
prison applied pressure to modify behavior. Koger v. Bryan, 523 F.3d 789, 799 (7th Cir.
2008) (holding that government conduct is substantially burdensome when it “put[s]
substantial pressure on an adherent to modify his behavior and violate his beliefs”)
(internal citations and quotation marks omitted).
If a prisoner satisfies the initial burden of demonstrating something more than “a
modest violation,” then the burden shifts to the government to demonstrate that the
policy is the least restrictive means of furthering a compelling government interest. Koger,
523 F.3d at 796. For that determination, “[c]ontext matters.” In the application of the
“compelling government interest” standard, courts must afford “due deference to the
experience and expertise of prison and jail administrators in establishing necessary
regulations and procedures . . . consistent with consideration of costs and limited
resources.”

Cutter v. Wilkinson, 544 U.S. 709, 723 (2005).

As Justice Sotomayor

cautioned in Holt, however, this deference “does not extend so far that prison officials
may declare a compelling interest by fiat.”

Holt, 135 S. Ct. at 867 (Sotomayor, J.,

concurring) (internal quotations omitted); see also Schlemm, 784 F.3d at 365 (7th Cir.
2015) (“Saving a few dollars is not a compelling interest, nor is a bureaucratic desire to
follow the prison system’s rules. The Act requires prisons to change their rules to

14

accommodate religious practices; rules’ existence is not a compelling obstacle to
change.”).
Hence, as is often true with claims of impingement on constitutional rights,
district courts are left to apply a balancing test under RLUIPA. Unfortunately, there has
yet to be a sufficient number of cases to assess with much confidence how to weigh either
side of the scale now that RLUIPA has apparently lowered the threshold on both sides.
i.

Substantial Burden
a. NOI diet

In order to determine whether Tatum has made a prima facie case that defendants’
refusal to accommodate his religious diet request constitutes a substantial burden on his
religious exercise, the court must first consider Tatum’s request. This initial task proves
more difficult than perhaps it would appear to be because Tatum seems to have walked
back (or perhaps compromised) on the more difficult aspects of his accommodation
request in his summary judgment submission, which presents a bit of a moving target for
both defendants and the court.6
In his original accommodation request, Tatum generally sought a diet consisting of
one meal per day, delivered between 4:00 p.m. and 6:00 p.m., with certain specific foods
6

As explained below, Tatum sought a much broader array of foods in his original request and it
was his claim based on that religious diet which he exhausted by pursuing an administrative
remedy. See Heard v. Caruso, No. 2:05-cv-231, 2012 WL 951698, at *4 (W.D. Mich. Mar. 20,
2012) (considering claim raised as part of administrative process, finding that plaintiff “failed to
exhaust his administrative remedies on this alternate means of accommodating his religion”).
Still, consistent with the Seventh Circuit’s direction in Schlemm, Tatum’s willingness to
compromise on his original dietary request does not necessarily undermine his claim. See Schlemm,
784 F.3d at 365 (“That Schlemm proposed a compromise (ground beef) does not scuttle his
claim, any more than Holt's proposed compromise (a short beard) did.”).

15

being either prohibited or required.

Starting with the prohibited foods, defendants

contend that the current religious diet options available are the most conservative, in
other words, cover the most extreme religious requests. The halal or vegan religious diets
would satisfy a number of Tatum’s requests as part of the NOI diet. For example, both
diets exclude pork. Indeed, the vegan diet would exclude all meat. But other prohibited,
or at least not recommended, foods appear to be common components of both the halal
and vegan diets, like peanuts and other nuts, certain beans, white bread, skim milk, and
canned fruit and vegetables.7
Defendants’ response to this is simple:

Tatum need not eat these prohibited

foods. Defendants label this option as “self-selection.” The principal problem with this
option is that Tatum avers that he cannot exclude those foods and still obtain sufficient
nutritional value to maintain his health, and defendants do not dispute his averment
except for alluding to possible other reasons for his weight loss (e.g., a planned hunger
strike). Defendants also contend that Tatum can supplement his diet with items from
the canteen or commissary, just as all inmates can. Neither response is very satisfying on
summary judgment.

The first is just speculation.

As for the second, while inmates,

perhaps even Tatum (though defendants provide no evidence of Tatum’s canteen
purchases), may well rely on the commissary or canteen to supplement their diets,
defendants have not established as a realistic option under RLUIPA unless (1) funding
for purchases is offered by the institution for those who cannot otherwise afford it; and
(2) the canteen contains appropriate food options.
7

The line between “prohibited” and “not recommended” foods is not entirely clear from Tatum’s
submissions.

16

In further support of his claim, Tatum points to Wisconsin Administrative Code
DOC § 309.23(5), which provides:
(5) An inmate may abstain from any foods that violate the
inmate’s religion. Consistent with available resources, staff
shall provide a substitute from other available foods from the
menu at that meal. The substitution shall be consistent with
sub. (1).8
Tatum contends that defendants’ suggestion that he simply abstain from certain
offending foods fails to provide for the substitution with other foods as contemplated in
this administrative provision. Although a violation of an administrative rule does not
necessarily constitute a violation of RLUIPA or the First Amendment, see Pasiewicz v. Lake
Cnty. Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001), the court agrees with Tatum
that unless the burden is too great, defendants would appear to have an obligation to
offer reasonable substitutes for inmates observing an NOI diet from either the halal,
plant-based or general diet.
As for required or desired foods, defendants contend that Tatum is essentially
seeking “specialized” foods, which is something religious diets “were never designed to
provide.” “Rather than offering all religiously or culturally significant or preferred foods,”
religious diets were designed to allow inmates to obtain full nutrition while abstaining
from prohibited foods. (Defs.’ PFOFs (dkt. #59) ¶¶ 61-62.)

Of course, what DOC

policy authorizes does not necessarily comport with RLUIPA. See Schlemm, 784 F.3d at

8

Subsection 1 provides: “The department shall provide nutritious and quality food for all
inmates. Menus shall satisfy generally accepted nutritional standards. The sanitation
requirements set by the warden at each institution shall be in writing and shall also be satisfied.”
Wis. Admin. Code DOC § 309.23(1).

17

365 (“The Act requires prisons to change their rules to accommodate religious practices;
rules’ existence is not a compelling obstacle to change.”)
Regardless, Tatum may certainly challenge defendants’ limited view of religious
foods under RLUIPA. While providing a religious diet that excludes prohibited foods is a
significant accommodation, and likely satisfies a broad array of religious dietary needs,
the Seventh Circuit has already found that RLUIPA may well require institutions to
accommodate religious diets by offering specific foods, most notably in the context of a
traditional religious feast. For example, in Schlemm, the Seventh Circuit recently reversed
an order by this court granting summary judgment to defendants holding, in part, that
plaintiff had raised a genuine issue of material fact as to whether defendants’ refusal to
provide him venison for a religious feast substantially burdened his religious exercise
under RLUIPA. 784 F.3d at 365. Obviously, Schlemm may be distinguishable because
the plaintiff in that case was seeking specialized food for an annual feast, whereas Tatum,
here, seeks a specialized diet on a daily basis, but that distinction appears only material to
the second prong of a RLUIPA claim -- whether the denial of an accommodation is the
least restrictive means of furthering a compelling government interest -- and not material
to whether the denial of specific religious foods seriously violates Tatum’s religious
exercise.
Arguably, dividing foods into prohibited and required categories is itself a bit of a
false construct.

A lengthy list of prohibited (or perhaps non-recommended) foods

effectively suggests a short list of acceptable foods, and those foods (or some subset of
them) appear necessary for one observing the NOI diet to obtain sufficient calories, fat
18

and protein. In his summary judgment materials, Tatum appears particularly fixated on
whole milk, navy beans and wheat bread. Perhaps, supplementing a plant-based religious
meal with these three food items would be sufficient to meet Tatum’s religious objectives.
Finally, Tatum requests one meal per day, served in the late afternoon or early
evening, contending that both a single meal and the time of that meal are requirements of
the NOI diet. While one could argue that he could simply eat the one evening meal and
abstain from breakfast and lunch, defendants do not argue that an evening meal would
contain enough calories or nutritional value to maintain his health, and there appears to
be no option for him to carry over or otherwise store breakfast and lunch food items until
the evening meal.
b. Religious Interest
An issue lurking in defendants’ submission is whether the NOI diet constitutes or
is part of his religious exercise. Defendants point out that other courts have “found that
How to Eat to Live and the writings of Elijah Muhammad provide guidance to Nation of
Islam adherents on healthy eating, but are not the issuance of a religious mandate to eat
in accordance with the book.” (Defs.’ Br. (dkt. #58) 8 n.1 (citing cases).) Unlike in
other cases, however, the only evidence in the record of this religious practice is Tatum’s
own sworn statement that he views the NOI diet as a “religious mandate from a religious
leader,” which he considers “[n]o different than Musa (Moses) stating Allah (God)
taught him the religious diet given to the Children of Isr[ae]l,” and that “[m]aintaining
religious purity of mind [and] body via diet restrictions is an important [and] obvious
religious tenet.” (Tatum Aff. (dkt. #66) ¶¶ 1-2.) Even so, absent some countervailing
19

opinion -- perhaps from the DOC Chaplain or leader of Islamic services -- the court has
no basis for finding at summary judgment that Tatum’s NOI diet does not constitute
religious exercise or is not a part of his religious exercise. See also Nelson v. Miller, 570
F.3d 868, 878-79 (7th Cir. 2009) (holding that religious exercise inquiry focuses on
sincerity of individual’s belief, not on clergy verification). Indeed, unlike other decisions
in which courts have granted summary judgment to defendants on similar NOI diet
requests, defendants put forth no evidence challenging the significance of this diet to the
Nation of Islam or Tatum’s sincerity in seeking to follow the diet. See, e.g., Ford v. Fed.
Bureau of Prisons, No. 08-cv-00882, 2011 WL 3415890, at *10 (D. Colo. May 24, 2011)
(granting summary judgment to defendants on similar NOI diet accommodation claim
because “defendants have demonstrated with unrefuted evidence . . . that the plaintiff
does not comply with all of the dietary practices which he claims are essential to his
faith”); Shabazz v. Johnson, No. 3:12CV282, 2015 WL 4068590, at * (E.D. Va. July 2,
2015) (granting summary judgment to defendant on NOI diet claim in part because “the
evident establishes that, Shabazz, through his own voluntary food selection, fails to make
much effort to follow religious diet” and therefore denial of accommodation does not
substantially burden his religious exercise).
On the record at summary judgment at least, the court, therefore, concludes that
Tatum has put forth sufficient evidence from which a reasonable trier of fact could find
that defendants’ refusal to accommodate his NOI diet substantially burdens his religious
exercise. On the other hand, the evidence is not so overwhelming or one-sided to find in
favor or Tatum on this first prong as a matter of law.
20

ii.

Further Compelling Interest

Tatum having established for purposes of summary judgment only, a prima facie
case that the denial of an NOI diet constitutes a substantial burden on his religious
exercise, defendants must demonstrate DOC’s religious diet policy is the least restrictive
means of furthering a compelling government interest, including the denial of Tatum’s
proposed NOI diet accommodation. Koger, 523 F.3d at 796. In support of their motion
for summary judgment, defendants point to three compelling interests to justify their
denial of Tatum’s NOI diet request: (1) costs / administrative ease; (2) security; and (3)
Tatum’s health.

The court need only briefly touch on the latter two issues, finding

defendants’ offer at summary judgment to be insufficient to meet the heightened
standard of RLUIPA.
As for security concerns, it is undisputed that defendants already provide some
customization for inmates in the form of three, currently available religious trays, and
even further individualization for medical reasons.

Perhaps Tatum’s request is so

unusual as to open the floodgates to similar, unique requests that would overwhelm
DOC’s ability to accommodate them, but defendants’ concern seems too general and
unsubstantiated, especially given the disputed fact issues described below leave unsettled
what exactly would be required to accommodate Tatum’s requests (assuming Tatum’s
requests were clear).
As for defendants’ concern for Tatum’s health, the court finds defendants’
nutritional analysis somewhat flawed at this point. As best as the court can discern,
DOC dietician Berndt-Miles constructed NOI diets based on available food, without
21

consideration of whether certain food could be substituted in order to meet nutritional
guidelines. While it may be harder to obtain the minimal nutritional requirements for
calories, fat and protein under the NOI diet, Berndt-Miles’ constructed diets do not
appear to foreclose this possibility, or at least defendants have failed to put forth
sufficient evidence with respect to this particular justification to prevail on summary
judgment. If anything, her analysis bolsters Tatum’s claim that he cannot follow the
NOI diet by self-selecting food from the vegan, halal or general diet trays and still obtain
necessary nutritional value.
Like most RLUIPA challenges brought by inmates, Tatum’s claim appears to turn
on whether defendants’ concerns about costs and administrative burdens justifies their
denial of his request for a NOI diet. Not surprisingly, the parties have vastly different
views of Tatum’s request, as well as the burden on the institution in attempting to
accommodate it. In asserting their position, both parties draw arguably unreasonable
inferences. On the one hand, Tatum contends that his requested diet does not require
individualization or specialization because DOC already has the items he wants. His
assumption, however, is flawed in at least two major respects. First, it is disputed, or at
least Tatum has failed to put forth definitive evidence, whether DOC has the foods
requested, or even if at times, could be made available to him on a daily basis. Second,
Tatum fails to acknowledge the need for, much less practicality of, coordinating the
preparation and serving of a meal that differs from the general or religious diet trays.
On the other hand, defendants’ position has its own flaws.

In describing

significant, various problems posed by Tatum’s request, defendants fail to distinguish
22

adequately Tatum’s claimed dietary needs from certain dietary needs already being
accommodated for health reasons. If CCI and other institutions within DOC are able to
customize meals for medical reasons, why would Tatum’s religious dietary needs pose the
extreme burden suggested by defendants’ proposed facts?

Even more problematic,

defendants’ claim that the denial of Tatum’s NOI diet request furthers compelling
administrative and costs interests is largely premised on a scenario in which most, or at
least a material minority, of DOC’s 22,000 other inmates will make similar dietary
requests to Tatum’s, while only 1.6% of those inmate have currently requested a religious
meal tray option.
While the court has no reason to doubt Williard-West’s lengthy list of religious
food requests, the list alone does not undermine Tatum’s request for an accommodation,
assuming that the denial of the diet is a substantial burden on his religious exercise. In
other words, the DOC cannot rely on the fact that there are a number of religions, each
with its own set of unique traditions, to relieve its obligations under RLUIPA. Assuming
that an inmate can demonstrate a substantial burden on his or her religious exercise -- an
important check that remains to be proven by plaintiff at trial -- defendants must
demonstrate that the denial furthers a compelling government interest with the least
restrictive means with more than generalized concerns about a “snowball effect” or
“slippery slope.”

See Schlemm, 784 F.3d at 366 (“On this record the cost of

accommodating Navajo inmates appears to be slight, and the costs of accommodating
other inmates’ requests (should any be made) can be left to future litigation.”). While a
reasonable fact finder may well conclude that defendants have met their burden, the
23

court does not find the record at summary judgment so one-sided to foreclose a finding
in Tatum’s favor.
B. First Amendment Free Exercise Claim
Tatum was also granted leave to proceed on a First Amendment free exercise
clause. Like his claim under RLUIPA, to establish a First Amendment violation, plaintiff
must demonstrate that defendants’ denial of an NOI diet “placed a substantial burden on
his religious practices.” Thompson v. Holm, No. 15-1928, 2016 WL 29047, at *3 (7th Cir.
Jan. 4, 2016). As defendants point out in their brief in support of summary judgment,
the “substantial burden test remains an element that must be proven by inmate plaintiffs
to substantiate both a First Amendment free exercise claim and a claim under RLUIPA.”
(Defs.’ Br. (dkt. #58) 18.) For reasons already explained above (see discussion, supra,
Opinion § I.A.i), plaintiff has put forth sufficient evidence from which a reasonable fact
finder could conclude that the denial of an NOI diet substantially burdened his religious
exercise.
While the substantial burden prong of a First Amendment claim generally tracks
that of a RLUIPA claim, although perhaps with somewhat less rigor, the claims diverge
on the second element. As described above, after a plaintiff has made out a prima facie
case that the challenged act substantially burdens his religious exercise under RLUIPA,
the burden then shifts to the defendant to demonstrate that the denial is the least
restrictive means of furthering a compelling government interest. Koger, 523 F.3d at 796.
Under the First Amendment claim, however, the burden not only remains with Tatum,
but he must demonstrate that the burden on his rights is “not reasonably related to a
24

legitimate penological interest.” Thompson, 2016 WL 29047 at *3 (citing Turner v. Safley,
482 U.S. 78, 89-91 (1987)).
For purposes of analyzing plaintiff’s First Amendment claim, this difference is
material.

As set forth in the findings of facts, plaintiff has failed to offer sufficient

evidence to create a genuine issue of material fact that the denial of his NOI diet as
described in Tatum’s religious diet accommodation requests was not reasonably related to
a legitimate interest of administrative ease, including controlling costs, offering
straightforward diets that can be consistently prepared by less than skilled staff, and
satisfying nutritional needs, food preferences and religious beliefs of a large, diverse
prison population.
Even if Tatum had put forth sufficient evidence to raise a genuine issue of material
fact as to the second prong of his First Amendment claim, defendants would be entitled
to qualified immunity because it is not clearly established that the defendants’ denial of
an NOI diet violate his First Amendment rights, especially in light of the fact that DOC
already offered three religious, among other, diet options from which he could self-select
food consistent with his NOI beliefs. See Pearson v. Callahan, 555 U.S. 223, 233-42
(2009); see also Easterling v. Pollard, No. 12-1532, 528 F. App’x 653, 658 (7th Cir. July
22, 2013) (unpublished) (finding defendants entitled to qualified immunity in First
Amendment religious diet case after recognizing that “This issue of religious
discrimination in prison poses one of the knottiest problems in First Amendment
jurisprudence, since prison officials face significant challenges in maintaining security and
safety, as well as substantial constraints on budget and staffing, and balancing these
25

concerns with a wide range of religious practices can be daunting.”). Because of the
absence of a clear legal right under the First Amendment to accommodation of Tatum’s
specific requests for preferred foods on a daily basis, rather than simply providing a variety
of religious and other diet options, which excludes or allows him to self-select away from
prohibited foods, such as pork, the court will grant defendants’ motion for summary
judgment on that claim.
II. Remaining Issues
Under RLUIPA, plaintiff is limited to declaratory and injunctive relief. See Nelson
v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009) (monetary damages are not available as a
remedy under RLUIPA). With plaintiff’s First Amendment claim now out, this means
the only available relief to Tatum is equitable in nature. As such, he has no right to a
jury trial. See Kramer v. Banc of Am. Securities, LLC, 355 F.3d 961, 966 (7th Cir.2004)
(“There is no right to a jury where the only remedies sought (or available) are
equitable.”).
The court, therefore, will hold a bench trial on Tatum’s remaining RLUIPA claim.
See Fed. R. Civ. P. 39(a)(2) (The trial on all issues so demanded must be by jury unless . .
. the court, on motion or on its own, finds that on some of all of those issues there is no
federal right to a jury trial.”). The court will hold a telephonic scheduling conference on
February 10, 2016, at 10:00 a.m. to establish remaining pre-trial deadlines and set a trial
date.
There are two other motions before the court, both by Tatum. First, Tatum seeks
appointment of an expert to provide testimony on the nutritional adequacy of the DOC’s
26

Ramadan meals.

(Dkt. #56.)

The court will address this motion at the telephonic

scheduling conference. Second, in a recent letter to the court, Tatum advises the court
that DOC staff have confiscated legal mailings in other cases. (Dkt. #73.) The court will
also explore any issues with Tatum’s legal materials as it impacts this case in the
scheduled telephonic conference.9

IT IS ORDERED that:

ORDER

1) plaintiff Robert Tatum’s motion for partial summary judgment (dkt. #50) is
DENIED;
2) plaintiff’s motion “for final order for plaintiffs to ‘stand on the complaint’ and
motion for this decision to be held in abeyance” is DENIED as moot;
3) defendants Michael Meisner and Cathy Jess’s motion to strike plaintiff’s
motion for partial summary judgment (dkt. #53) is DENIED as moot;
4) defendants’ motion for summary judgment (dkt. #57) is GRANTED IN PART
AND DENIED IN PART. Judgment is granted in favor of defendants on
plaintiff’s First Amendment claim. Summary judgment is denied with respect
to plaintiff’s RLUIPA claim;
5) the court RESERVES on plaintiff’s motion to appoint expert (dkt. #56) and
plaintiff’s letter to the court concerning confiscation of legal materials (dkt.
#72); and

9

Tatum remains free to renew his motions for class certification and for assistance in recruiting
counsel, though the court views both motions as unlikely to succeed. The record at summary
judgment suggest that Tatum’s so-called NOI dietary accommodation request is unique to him,
notwithstanding underlying roots to the Nation of Islam, and therefore not suitable for class
treatment. Moreover, Tatum’s demonstrated ability to prosecute his claims to date, coupled with
the fact that this matter will proceed to a trial to the bench, it is unlikely that Tatum will need the
assistance of counsel.

27

6) on February 10, 2016, at 10:00 a.m., the court will hold a telephonic
scheduling conference to establish remaining pre-trial deadlines and set this
case for a bench trial. Defendants to establish call to chambers at 608-2645087.
Entered this 26th day of January, 2016.
BY THE COURT:

/s/
________________________________________
WILLIAM M. CONLEY
District Judge 

28