MARK E. WALKER, District Judge.
Plaintiff Akeem Muhammad
Muhammad originally brought suit in state court in January of 2014, see ECF No. 3, at 1, shortly after which DOC apparently made some changes to its certified food option ("CFO") diet to render that option compatible with Muhammad's beliefs, ECF No. 64, at 23-24. Muhammad then requested to be served the revised CFO diet but was refused; finally, in May of 2014, he was given the new CFO diet. Id. at 24. It appears that Muhammad is still being provided with this diet. ECF No. 207, at 8.
In his second amended complaint, Muhammad brings claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), the Florida Religious Freedom Restoration Act ("FRFRA"), the Free Exercise Clause, the Equal Protection Clause, and two provisions in the Florida Constitution. ECF No. 64, at 26. He also seeks various forms of relief: (1) a declaratory judgment that Defendants' past failure to provide him with a diet that fits his religious beliefs violated the above-mentioned laws; (2) a permanent injunction requiring Defendants to provide him with a diet that fits his religious beliefs, provided certain future conditions are met; (3) nominal and punitive damages against Defendants in their individual capacities under 42 U.S.C. §1983; and (4) costs. Id. at 26-27.
Since the time of the second amended complaint, much has happened in this case. The official-capacity claims against all defendants other than the Secretary of the DOC have been dismissed. ECF No. 144. The remaining defendants have filed a motion for summary judgment, ECF No. 165, and Muhammad himself has filed a motion for partial summary judgment, ECF No. 139. The Magistrate Judge issued a Report and Recommendation on these motions on March 10. ECF No. 204. The Magistrate recommends that Defendants' motion be granted and Muhammad's motion be denied. Id. at 41.
Muhammad makes a number of objections to the R&R, many of which overlap with one another and/or are without merit. The objections that need to be addressed can be summarized as follows:
This Court has considered the R&R and Muhammad's objections. The Magistrate Judge's reasoning with respect to the Equal Protection claims is sound, and this Court will adopt the portions of the R&R dealing with those claims as its opinion over Muhammad's objections. See ECF No. 204, at 36-39. However, having considered Muhammad's objections to the R&R's treatment of his RLUIPA, FRFRA, and Free Exercise claims, this Court believes these claims should be re-analyzed. It appears that the nature of Muhammad's claims was slightly misconstrued. Because re-analysis will involve the consideration of certain evidence that was not considered by the Magistrate in preparing the R&R, it is appropriate to remand this case to the Magistrate to conduct this analysis in the first instance. So, the R&R is rejected in part, as explained in more detail below.
The R&R does not address some jurisdictional and mootness issues that, while not raised by the parties, should be addressed first.
"The doctrine of standing . . . requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction. . . . He bears the burden of showing that he has standing for each type of relief sought." Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citations and quotations omitted). "[S]tanding is determined at the time the action is brought, . . . and we generally look to when the complaint was first filed, not to subsequent events." Mink v. Suthers, 482 F.3d 1244, 1253-54 (10th Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). When a plaintiff files an amended complaint, the allegations of that complaint can support standing, but the existence (or lack) of standing is still measured from the time of the initial complaint. See S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152-53 (10th Cir. 2013).
At the time Muhammad filed his initial complaint in early 2014, he possessed standing for his claims for declaratory and injunctive relief. Therefore, the fact that DOC had changed course by the time Muhammad filed his second amended complaint does not defeat standing for his claims for injunctive and declaratory relief. Muhammad clearly has standing to bring claims for damages.
The harder question is whether DOC's change of course—its provision of the CFO diet to Muhammad starting in May of 2014—mooted Muhammad's claims for injunctive and declaratory relief. "Generally, the party asserting mootness bears the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again. . . . [H]owever, . . . government actors enjoy a rebuttable presumption that the objectionable behavior will not recur." Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir. 2011) (internal citations, quotations, and alterations omitted). Here, there is (somewhat surprisingly) no "party asserting mootness," but this Court nonetheless can and, under the circumstances, must address the issue of mootness because mootness goes to justiciability. See id. at 1308-09.
This Court concludes that Muhammad would be able to overcome the presumption that DOC is going to continue serving him food that complies with his religious dietary requirements. Defendants themselves make the best argument in support of this conclusion. Defendants note that "[w]hile [DOC] is currently providing the CFO to inmates statewide, [DOC] believes it should not be compelled to do so under RLUIPA." ECF No. 165, at 37-38. Defendants then go on to detail the costs associated with the CFO program, and include the following paragraph in their argument:
Id. at 42.
In his second amended complaint and again in his opposition to summary judgment, Muhammad made clear the nature of his request for injunctive relief. He seeks "[a] permanent injunction requiring Defendants, their successors, and their agents to provide [him] a diet, any diet, that does not violate the Orthodox Islamic dietary laws" provided that certain conditions exist in the future. ECF No. 64, at 26-27; ECF No. 185, at 13. He also asks for a declaratory judgment that Defendants in the past violated RLUIPA and other laws by failing to provide him with a diet that didn't violate his beliefs. ECF No. 64, at 26.
In their summary judgment motion, Defendants recast this as a request for an "individualized diet." They did this as follows:
ECF No. 165, at 37. This characterization of Muhammad's request ignores the fact that Muhammad only seeks an injunction under certain future conditions—namely, "only if or to the extent that (i) [he] has a sincere religious belief that requires him to consume such a diet; (ii) [he] has not abused such a diet within the preceding two years; and (iii) the provision of such a diet to [him] does not cost more than Defendants' then existing medical diets, vegan diet, and/or regular diet." ECF No. 64, at 27.
The R&R analyzes Muhammad's claims for prospective relief under the framework urged by Defendants. See ECF No. 204, at 17. That is, the R&R answers the question of whether not providing Muhammad with an appropriate diet would constitute the least restrictive means of serving a compelling state interest by inquiring into the costs of an "individualized diet." See id. at 25-29. This is the wrong way of answering this question. Clearly the CFO diet itself might constitute a less restrictive means of meeting a compelling state interest. In other words, if DOC were not currently offering Muhammad an Orthodox Islam-compliant diet, the CFO program would be one thing to consider when determining whether there were less restrictive alternatives available to the state.
No doubt part of the misunderstanding is attributable to the fact that, because of Defendants' decision to provide Muhammad with the CFO diet, Muhammad is now seeking an odd sort of injunction—a conditional prohibition on future conduct, dependent for its operation on a host of unknowables. This is a different kind of injunction from, say, one requiring state officials to recognize same-sex marriages. As Justice Cardozo once explained, "[t]he distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative." United States v. Swift & Co., 286 U.S. 106, 114 (1932). Muhammad's requested injunction would seem to almost operate as a mini-RLUIPA, requiring future calculations of costs and the like. The propriety of such an injunction is hard to assess, and it's perhaps not surprising that Muhammad's request for relief was misconstrued by Defendants .
As for Muhammad's request for declaratory relief, this was not addressed in the R&R. Again, the question is not whether denying Muhammad an "individualized diet" is the least restrictive means of achieving a compelling state interest; rather, the question is whether, during the relevant time period, DOC's refusal to provide Muhammad with any diet that met his religious needs was the least restrictive means of achieving a compelling state interest. The existence of the CFO diet—and its current implementation—are of course relevant to that analysis.
In short, Muhammad's objections to the treatment of his RLUIPA claim in the R&R are well taken. These claims should not have been analyzed as cast by Defendants, but rather as articulated by Muhammed in his objections. Before addressing what steps should be taken next, however, it's necessary to discuss a few issues related to the remedies available to Muhammad.
As discussed above, Muhammad's claims under RLUIPA and FRFRA need to be re-analyzed. But there's a potential problem—even though Muhammad's claim for injunctive relief isn't moot, is it nonetheless barred by sovereign immunity and/or the Eleventh Amendment? And what about his claim for declaratory relief? In answering these questions, this Court will assume for the moment that DOC's refusal from 2010 to 2014 to provide Muhammad with a diet that did not force him to break the Orthodox Islamic dietary laws violated RLUIPA.
The Supreme Court held in Sossamon v. Texas, 563 U.S. 277 (2011), that RLUIPA does not allow for damages awards against states. 563 U.S. at 293. However, the Court was careful to hold that "States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA," id. (emphasis added), a holding that is perhaps best characterized as an "implicit acceptance of suits for injunctive and declaratory relief" against states for violations of RLUIPA, id. at 298 (Sotomayor, J., dissenting).
So there is a good argument that Florida has waived its immunity to suit for declaratory relief under RLUIPA even when that declaratory relief pertains to wholly past violations of the statute. Even if this is not true, though, the circumstances of this case are such that the award of declaratory relief for past violations of federal law would be appropriate. In general, the Eleventh Amendment (and sovereign immunity in general) notwithstanding, a request for a declaration that a state's past actions violated some federal statute or the Constitution can, under appropriate circumstances, be entertained by a federal court. See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 646 (2002) (noting that a declaratory judgment would "not impose upon the State `a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials,'" and that "[i]nsofar as the exposure of the State is concerned, the prayer for declaratory relief adds nothing to the prayer for injunction.") (quoting Edelman v. Jordan, 415 U.S. 651, 668 (1974)). One such appropriate circumstance is a case like Verizon Maryland in which "the prayer for declaratory relief adds nothing to the prayer for injunction." Such will often be the case where the violation of federal law is both in the past and ongoing.
Contrast this with a case in which the government has unambiguously changed course and stopped violating the law—that is, a case in which prospective injunctive relief is unavailable because there's no ongoing violation to enjoin. In such a case, a declaratory judgment to the effect that the state had in the past violated the law might have no utility save that it could "be offered in state-court proceedings as res judicata on the issue of liability, leaving to the state courts only a form of accounting proceeding whereby damages or restitution would be computed. But the issuance of a declaratory judgment in these circumstances would have much the same effect as a full-fledged award of damages or restitution by the federal court, the latter kinds of relief being of course prohibited by the Eleventh Amendment. . . . [A] declaratory judgment is not available when the result would be a partial `end run' around" the Eleventh Amendment and sovereign immunity principles. Green v. Mansour, 474 U.S. 64, 73 (1985).
In between these two extremes—declaratory judgment as mere tack-on to injunctive relief and declaratory judgment as damages in disguise—lies this case. This is not a case in which "the award of a declaratory judgment . . . would be useful . . . only if it might be offered in state-court proceedings as res judicata on the issue of liability," see Mansour, 474 U.S. at 73 (emphasis added), in large part because, unlike Mansour, there is a real threat of the defendants going back to violating federal law.
But unlike in Mansour, such declaratory relief would not "add something" that looks like damages. In fact, such relief wouldn't be an award of damages in disguise at all—at least not damages for a violation of RLUIPA—because RLUIPA does not allow for the recovery of money damages against a state even in state court without the state's consent. See Alden v. Maine, 527 U.S. 706, 712-13 (1999) (holding that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts"); Sossamon, 563 U.S. at 293 (holding that "States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA"). There is no indication that Florida has waived its sovereign immunity to suit in state court for damages for RLUIPA violations, so Muhammad could not use a declaratory judgment "as res judicata on the issue of liability, leaving to the state courts only a form of accounting proceeding whereby damages or restitution would be computed." Mansour, 474 U.S. at 73.
FRFRA also does not constitute a waiver of sovereign immunity for suits seeking damages in state (or any other) court. The language specifying what remedies are available under FRFRA—"appropriate relief," see §761.03(2), Fla. Stat. (2015)—mirrors the language of RLUIPA and, more importantly, the Religious Freedom Restoration Act ("RFRA"). In fact, FRFRA was passed by the Florida Legislature after the Supreme Court held that RFRA did not apply against the states, and it was intended to ensure that RFRA-like protections would be in place for actions taken by state governmental entities. See Warner v. City of Boca Raton, 887 So.2d 1023, 1031-33 (Fla. 2004). RFRA, in turn, has consistently been interpreted not to allow suits for damages against the sovereign. See Davila v. Gladden, 777 F.3d 1198, 1209-10 (11th Cir. 2015). True, many of these interpretations post-date the passage of FRFRA, but even in 1998 (the year FRFRA was passed) it was true that "Congress enacted RFRA to return to a pre-[Employment Division, Department of Human Resources v.] Smith[, 494 U.S. 872 (1990)] world, a world in which damages were unavailable against the government." Webman v. Bureau of Prisons, 441 F.3d 1022, 1028 (D.C. Cir. 2006) (Tatel, J., concurring). The Florida Legislature presumably knew this, and in light of that knowledge, its borrowing of the language of RFRA should not be read as a waiver of Florida's immunity from suits for damages in FRFRA cases.
In short, then, the concerns animating the Supreme Court's decision in Mansour are not present here. Muhammad cannot take a declaratory judgment that Defendants (really, DOC) violated RLUIPA in the past and use it in state court to extract damages from the state. Furthermore, unlike in Mansour, there is a real threat of the state returning to violating federal law, so a declaratory judgment would have an effect similar to an injunction. Even though such a declaratory judgment might technically "adjudicate the legality of past conduct"—something normally forbidden in an Ex parte Young-type action, see Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999)—it would not directly or indirectly "impose upon the State a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials," Verizon Maryland, 535 U.S. at 646 (quotation omitted). It is necessary to "look to the substance rather than to the form of the relief sought" in determining whether a claim falls under the Ex parte Young exception to sovereign immunity. Papasan v. Allain, 478 U.S. 265, 279 (1986). A declaratory judgment that DOC violated RLUIPA in the past is, under the circumstances of this case, in substance a form of prospective relief.
"[T]he `difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night.'" Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281 (1997) (quoting Edelman v. Jordan, 415 U.S. 651, 667 (1974)). That is certainly true here. After a careful examination, however, it appears that a declaratory judgment that DOC violated RLUIPA in the past would be an appropriate form of relief under the Ex parte Young exception to sovereign and Eleventh Amendment immunity. Therefore, even assuming that Florida did not waive its sovereign and Eleventh Amendment immunity to suit for declaratory relief for past violations of RLUIPA, such relief would be appropriate in this case.
It might be easier to simply conclude that as it currently stands, the provision of the CFO diet to Muhammad is a less restrictive alternative to not offering Muhammad any Orthodox Islam-compliant diet, and that therefore Secretary Jones in her official capacity should be enjoined from discountinung the CFO diet. There are two reasons why this would be inappropriate. First, as discussed above, it is not clear that the threatened cessation of the CFO diet is imminent enough to support such relief. Second, such an injunction would clearly tie the hands of DOC more than a declaratory judgment concerning its past behavior, and would thus potentially run afoul of the requirements of the Prison Litigation Reform Act ("PLRA"). See 18 U.S.C. §3626
Given these concerns, this Court will not in any event award prospective injunctive relief to Muhammad. If Muhammad's RLUIPA rights were infringed in the past, a declaratory judgment to that effect would, as discussed above, both comport with sovereign immunity and constitute a less intrusive means of protecting Muhammad's rights than a permanent injunction.
For the same reasons discussed above vis-à-vis Muhammad's RLUIPA and FRFRA claims, the portion of the R&R dealing with Muhammad's Free Exercise claims, see ECF No. 204, at 33-36, must be rejected in part. However, only Defendant Michael Crews had authority over the provision of religious diets, and so only he can be held liable under §1983 for any violation of the Free Exercise Clause. Accordingly, summary judgment will be granted to the remaining defendants in their individual capacities on the Free Exercise claims.
A number of Muhammad's objections relate to the Magistrate's rulings on the use of depositions taken of Defendants (and other DOC officials) in a different case involving similar (though not identical) issues. The Magistrate ruled that "[a]lthough [DOC] officials are Defendants in both cases, the plaintiff and subject matter are different in both actions and, therefore, depositions taken in [the other case] are inadmissible." ECF No. 204, at 31. The Magistrate also ruled that expert reports prepared for the other case are not admissible. Id. at 31-32. As an alternative basis for excluding such evidence at the summary judgment stage, the Magistrate ruled that "the depositions and expert reports are not relevant to the primary issue in this case" because the other case "concerned the provision of kosher diets to all Jewish inmates in [DOC] with a sincere religious belief, while this case concerns provision of an individualized religious diet to an Orthodox Muslim." Id. at 32.
As to the relevance rationale, the Magistrate's reasoning must be rejected because of the focus on an "individualized religious diet." As explained above, this is not the proper way of viewing Muhammad's claim. Muhammad's claim is not that the failure to provide him with an "individualized diet" violated or would violate RLUIPA; rather, it is that the failure to provide him with any diet that conformed with his religious beliefs violated RLUIPA. An individualized diet may have been one way for DOC to avoid imposing a substantial burden on Muhammad's practice of his religion, but apparently there were other ways, including an across-the-board tweak to the CFO diet. When Muhammad's claim is viewed in the proper light, it is clear that the depositions and expert reports from the other case are certainly relevant—the differences between the other case and this case go to the weight of the evidence, not its admissibility.
The Magistrate's other rationale must also be rejected as it pertains to the depositions. Rule 56 of the Federal Rules of Civil Procedure provides that a party can support factual positions at the summary judgment stage by "citing to particular parts of materials in the record, including depositions, documents, . . . or other materials," and that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c). There's an argument to be made that a proper deposition—that is, one that was taken in conformance with the applicable rules—from some other proceeding should simply be treated as any other deposition for purposes of summary judgment, and that the only proper objections to the consideration of its contents would be based on the Federal Rules of Evidence. But assuming that's not true, and that a deposition from a different case has to itself be admissible at trial to be considered for purposes of summary judgment—that is, the deposition, and not the testimony therein, must be admissible at trial—much of what Muhammad seeks to introduce would still be admissible.
Rule 32 governs the use of depositions "at a hearing or trial." It provides in relevant part that
Fed. R. Civ. P. 32(a)(1). Subsections (2) through (8) go on to lay out a number of conditions under which depositions can be used at trial. Relevant to this case is subsection (3), which provides that "[a]n adverse party may use for any purpose the deposition of a party." This means that Muhammad could use Defendants' depositions from other cases at trial in this case, provided those depositions also meet the requirements of Rule 32(a)(1)(A) & (B). Cf. Ueland v. United States, 291 F.3d 993, 995-96 (7th Cir. 2002) (holding that judge should have admitted at trial a "deposition[] taken by the United States in a separate lawsuit" because the deponent was incarcerated more than 100 miles from the place of trial and thus fit into the exception for use of depositions now found in Rule 32(a)(4)(B)). And because he could use them at trial, they should be considered at summary judgment to the extent they're relevant and conform with Rule 32(a)(A) & (B).
The expert reports should also be considered for purposes of summary judgment. The reports authored by Defendants or those acting at their behest are admissible under the "party-opponent" hearsay exclusion. See, e.g., Samaritan Health Ctr. v. Simplicity Health Care Plan, 459 F.Supp.2d 786, 799 (E.D. Wis. 2006).
The two remaining expert reports—those authored by Clark and Watkins in the other case—are clearly not admissible as statements by a party-opponent. This Court finds, however, that they are admissible under the "residual" or "catch-all" hearsay exception. This exception can be used to admit a statement that would otherwise be excludable if "(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice." Fed. R. Evid. 807(a).
All four of these conditions are met with respect to the Clark and Watkins reports. These are sworn expert reports prepared for the United States Department of Justice in a lawsuit with issues similar to this one, and so clearly meet the first prongs. Muhammad—a prisoner proceeding pro se—can hardly expect to procure similar expert reports about the economics and security issues surrounding the provision of alternative diets through "reasonable efforts" of his own. And allowing Defendants to offer their own de facto expert opinions
To be clear, this Court's ruling should not be construed as an endorsement of the regular use of the residual hearsay exception as a tool to bring expert reports from a similar case into one's own case. Under normal circumstances, the residual exception would not be appropriate because most parties can obtain their own expert reports—that is, they can, through "reasonable efforts," find evidence just as probative, and probably more probative, on the issues involved in their case than an expert report from another case. See, e.g., N5 Tech. LLC v. Capital One N.A., 56 F.Supp.3d 755, 765 (E.D. Va. 2014) (rejecting attempt by plaintiff to introduce expert report through Rule 807 because "plaintiff, through reasonable efforts, could have retained its own expert and presented testimony on the doctrine of equivalents, but chose not to do so" and "[p]laintiff must now live with the consequences of this choice"). Nor should this Court's ruling be construed as a green light to any prisoner to introduce any expert report in any case through the residual exception. Many, if not most, prisoner cases don't involve issues requiring expert testimony. In those cases that do require such testimony, it is unlikely that there is an existing expert report that would have much probative value on the issues involved in the case. A report dealing with prison conditions in a different state, for instance, will have limited value because prisons operate in markedly different ways from state to state.
But here we have a somewhat unique situation: there exist recent expert reports prepared for a case with similar issues to this one, brought against (more or less) the same defendants, and a pro se prisoner wishes to use those reports to rebut certain claims made by Defendants. Under these circumstances, the Magistrate should have considered the expert reports of Clark and Watkins under the residual hearsay exception.
Muhammad's claims under RLUIPA, FRFRA, and the Free Exercise Clause
There's no need for this Court to resolve this issue. For the reasons discussed in this Order, a declaratory judgment to the effect that DOC violated RLUIPA in the past would be consistent with sovereign immunity and Eleventh Amendment immunity.
The second reason is that the question of notice doesn't come into play at the summary judgment stage. Assuming for the moment that Defendants were not given proper notice of Muhammad's intention to introduce the Clark and Watkins reports in response to their motion for summary judgment, that failure does not preclude this Court from considering them at this stage. See Amcast Indus. Corp. v. Detrex Corp., 779 F.Supp. 1519, 1527 (N.D. Ind. 1991), aff'd in part, rev'd in part 2 F.3d 746 (7th Cir. 1993) ("the record contains no suggestion that Detrex was given notice that the plaintiffs intended reliance on [the residual exception], . . . but at the summary judgment stage, the court will consider the statements' admissibility under the remaining tests").
