KENNETH J. GONZALES, District Judge.
THIS MATTER comes before the Court on review of the Magistrate Judge's Proposed Findings and Recommended Disposition ("PFRD") (Doc. 102), filed February 27, 2015, and Defendants' Objection[s] to Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 103), filed March 16, 2015. Having considered Defendants' objections, the record evidence, and the applicable law, the Court finds that the objections are not well taken and will overrule them and adopt the Magistrate Judge's PFRD.
This case arises out of Plaintiff's incarceration at the Western New Mexico Correctional Facility ("WNMCF") from March to November 2011. (Docs. 1, 7, 10, 11.) While the majority of Plaintiff's claims have been dismissed, two sets of claims remain: (1) Plaintiff's First Amendment claims against Defendants Hoisington, Robinson, and Roark regarding Defendants' alleged refusal to provide Plaintiff with a halal diet while he was incarcerated at WNMCF; and, (2) Plaintiff's claims for declaratory and injunctive relief against Defendant Roark under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). (Docs. 57, 59, 73, 74, 76.) Since November 15, 2011, Plaintiff has been incarcerated at the Penitentiary of New Mexico ("PNM"). (Doc. 57 at 2.)
Plaintiff filed a motion for summary judgment on all of his remaining claims on July 25, 2014. (Doc. 71.) Likewise, in their Martinez report filed on October 20, 2014, Defendants incorporated a motion for summary judgment on all of Plaintiff's remaining claims. (Doc. 87.) On February 27, 2015, the Magistrate Judge assigned to this case entered a PFRD recommending denial of the parties' cross-motions for summary judgment. (Doc. 102.) Defendants filed objections to the Magistrate Judge's PFRD on March 16, 2015, in which they objected to the PFRD'S recommendation that their summary judgment motion be denied. (Doc. 103.) Plaintiff did not timely file objections to the Magistrate Judge's PFRD. The parties' cross-motions for summary judgment and Defendants' objections are now before the Court.
When a party files timely written objections to a magistrate judge's recommendation, the district court must conduct a de novo review, and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence in the record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 580, 583-84 (10
Defendants first object to the Magistrate Judge's denial of their motion for summary judgment on Plaintiff's First Amendment claims, asserting that Plaintiff "has not met his burden of showing" that Defendants denied him a diet conforming to his sincerely held religious beliefs, specifically, a halal diet including non-processed meats. (Doc. 103 at 1.) "It is well-settled that inmates retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." Kay v. Bemis, 500 F.3d 1214, 1218 (10
In the present matter, Defendants concede that they provided Plaintiff with a kosher diet rather than a halal diet, and do not challenge the Magistrate Judge's finding that genuine issues of material fact exist regarding whether this diet included processed meats. (See generally id.) Defendants nevertheless deny that this diet substantially burdened Plaintiff's religious beliefs. (Doc. 103 at 1-2); Kay, 500 F.3d at 1218. Defendants make three arguments in support of this assertion, specifically: (1) that Plaintiff asked for a halal diet rather than a kosher diet, and did not mention non-processed meats, in the grievance he submitted at WNMCF; (2) that Plaintiff actually requested a kosher diet at PNM; and, (3) that when Plaintiff wrote to Defendant Hoisington, he asked for bread and jelly, and did not ask for non-processed meats. (Id. at 1-2.)
The Court notes that, on Defendants' summary judgment motion, Defendants, rather than Plaintiff, bear the initial burden of showing the absence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10
In the present matter, the Court finds that genuine issues of material fact exist regarding whether Defendants' provision of a kosher diet that included processed meats to Plaintiff substantially burdened his sincerely held religious beliefs, notwithstanding Defendants' arguments to the contrary. As noted above, Defendants first argue that Plaintiff asked for a halal diet rather than a kosher diet, but did not mention non-processed meats, in his April 24, 2011 grievance.
Defendants' argument that a kosher diet could not have substantially burdened Plaintiff's sincerely held religious beliefs at WNMCF, because Plaintiff subsequently requested a kosher diet at PNM, is also without merit. In the PFRD, the Magistrate Judge noted "Plaintiff's various and potentially inconsistent dietary requests," including his requests for a kosher diet. (Doc. 102 at 7 & n.2.) The Magistrate Judge nevertheless found that, viewing the evidence in the light most favorable to Plaintiff and drawing all inferences in his favor, a reasonable fact finder could conclude that Plaintiff sincerely believes that a halal diet includes only non-processed meats, and that the kosher diet Defendants provided contained processed meats. (Id. at 10.)
The Court agrees with this finding, and specifically determines that Plaintiff's requests for a kosher diet do not necessarily indicate that Plaintiff believed a kosher diet to be an acceptable substitute for halal. Defendants are certainly free to make that argument at trial, but there is evidence that would allow a rational fact finder to conclude otherwise. For example, when Plaintiff wrote to Defendant Robinson that Islam forbids processed meats, he added that he would "continue to [receive] the [partial] kosher [until] this is [addressed] and corrected." (Doc. 87-9 at 1.) Similarly, in his September 10, 2014 inmate informal complaint, Plaintiff complained that he was receiving a "vegetarian . . . Budd[h]ist" diet, and asked PNM to "fix [his diet] to halal at the less kosher." (Doc. 90 at 20.) From this evidence, a reasonable fact finder could conclude that Plaintiff requested a kosher diet temporarily, as a diet less objectionable than the main menu or a vegetarian diet, but not as a halal diet conforming to his religious beliefs. Thus, Plaintiff's requests for a kosher diet do not demonstrate the absence of genuine issues of material fact regarding whether a kosher diet substantially burdened Plaintiff's sincerely held religious beliefs.
Finally, Defendants argue that their provision of a kosher diet to Plaintiff did not substantially burden his sincerely held religious beliefs because he requested bread and jelly, and did not mentioned non-processed meats, in his April 11, 2011 letter to Defendant Hoisington. (Doc. 103 at 2; Doc. 87-8 at 21.) This argument fails to acknowledge the record evidence that Defendant Hoisington received and responded to Plaintiff's informal complaint asking for a halal diet and not a kosher diet. (Doc. 87-8 at 8-18, 23.) It also fails to acknowledge Plaintiff's uncontested testimony that he wrote to Defendant Hoisington "every step of the way about everything," which raises a genuine issue of material fact regarding whether Plaintiff copied her on, or otherwise informed her of, his written requests to Defendant Robinson. (Doc. 1 at 10.) This would include his April 24, 2011 letter to Defendant Robinson, in which he expressed his belief that processed meats are not halal. (Doc. 87-9 at 1-6.) Plaintiff's letter to Defendant Hoisington requesting bread and jelly does not, as a matter of law, refute the previously discussed evidence that Defendants' refusal to provide Plaintiff with a halal diet including non-processed meats substantially burdened his sincerely held religious beliefs. The Court will therefore overrule Defendants' objections regarding this issue, and adopt the Magistrate Judge's finding that genuine issues of material fact exist regarding whether Defendants denied Plaintiff a halal diet conforming to his sincerely held religious beliefs.
Defendants next object to the Magistrate Judge's finding that they are not entitled to summary judgment because genuine issues of material fact exist regarding whether their refusal to provide Plaintiff with a halal diet was reasonably related to legitimate penological interests. (Doc. 103 at 3-6.)
Beerheide, 286 F.3d at 1185; Searles, 393 F.3d at 1131; Makin, 183 F.3d at 1209. The Court must balance all of these factors to determine whether an alleged burden on an inmate's constitutional rights is reasonably related to legitimate penological interests, Makin, 183 F.3d at 1209; and, on summary judgment the Court must do so viewing the evidence and drawing all reasonable inferences in Plaintiff's favor.
The Tenth Circuit has consistently found that an inmate who has been denied a diet conforming to his religious beliefs has no alternative means of exercising his First Amendment right to such a diet. "It is one thing to curtail various ways of expressing belief, for which alternative ways of expressing belief may be found. It is another thing to require a believer to defile himself, according to the believer's conscience, by doing something that is completely forbidden by the believer's religion." Beerheide, 286 F.3d at 1192 (quoting Ward v. Walsh, 1 F.3d 873, 878 (9
Defendants also object to the Magistrate Judge's finding that they failed to provide evidence that accommodating Plaintiff's sincerely held religious dietary beliefs would have had a negative impact on prison personnel, prisoners, safety, and security at WNMCF. (Doc. 103 at 4.) In support of this objection, Defendants point to two portions of the record, which they claim contain such evidence. First, Defendants rely on Defendant Roark's August 29, 2011 denial of Plaintiff's grievance appeal, in which Defendant Roark stated that
(Doc. 103 at 4 (citing Doc. 38-1 at 19).) Defendants claim that this constitutes evidentiary support for their argument that "[i]t is simply unreasonable to accommodate the specific requests of one inmate because it would be impossible to ensure that each of his meals meets mandatory dietary requirements." (Doc. 103 at 4.)
However, Defendant Roark's explanation for denying Plaintiff's grievance appeal does not tend to prove Defendants' argument. At most, it explains why the New Mexico Department of Correction's ("NMDOC") food service menu is likely to be nutritionally adequate and to meet unspecified "standards" and "Muslim requirements." (Doc. 38-1 at 19.) It does not even consider, much less attempt to describe, what would happen if Defendants deviated from the food service menu to accommodate Plaintiff's request for a halal diet including non-processed meats. Even if the Court were to view the evidence in the light most favorable to Defendants, and draw all reasonable inferences in Defendants' favor, this would not constitute evidence of the impact accommodating Plaintiff's religious beliefs would have on WNMCF. Viewed in the light most favorable to Plaintiff, Hunt, 526 U.S. at 550-55, Defendant Roark's denial of Plaintiff's grievance appeal does not even remotely constitute such evidence.
Defendants also rely on Defendant Roark's affidavit, submitted to the Court for the first time as Exhibit G
Again, however, Defendant Roark's explanation of the process by which a standard religious diet menu is developed does not tend to prove defense counsel's argument that, if Defendants had accommodated Plaintiff's religious dietary requests, "[i]t would [have been] impossible to ensure that each of [Plaintiff's] meals [met] mandatory dietary requirements." (Doc. 103 at 4.) Like his denial of Plaintiff's grievance appeal, Defendant Roark's affidavit neither considers nor describes what would have happened if Defendants had deviated from the standard halal diet menu to accommodate Plaintiff's request for non-processed meats. In particular, Defendants have presented no testimony indicating that it would have been impossible or impracticable for them to make such an accommodation, or to ensure that Plaintiff's meals met mandatory dietary requirements if they did so.
In fact, there is record evidence suggesting the contrary. NMDOC Policy CD-101401, entitled "Religious Diets; Procedures," states that inmates' religious diet requests are forwarded to "the Chaplain," who in turn forwards "approved requests" to Food Service to "provide an appropriate religious diet." (Doc. 87-4 at 5.) However,
(Id.) If it were in fact impossible or impracticable to make extraordinary accommodations to provide an inmate with a religious diet conforming to his sincerely held religious beliefs, then NMDOC's policy setting forth a procedure for making such accommodations would be pointless.
It is also informative that PNM did, for three days, provide Plaintiff with a diet that he claims conformed to his religious beliefs. (Doc. 92-1 ¶ 8.) Defendants urge the Court to ignore this evidence, at least as to Defendants Robinson and Hoisington, because PNM rather than WNMCF provided this diet, and only for a short period of time. (Doc. 103 at 5.) The Court agrees that Defendant Roark's ability to accommodate Plaintiff's religious dietary requests at PNM for three days is not conclusive evidence that the WNMCF Defendants could also have accommodated those requests for months. Nevertheless, a reasonable fact finder could infer that if one NMDOC facility was able to accommodate Plaintiff's religious dietary beliefs for three days, then another NMDOC facility could do so for a longer period of time. Moreover, Defendants have not yet presented any evidence explaining why it was only possible to accommodate Plaintiff's dietary beliefs at PNM for three days, but nowhere else and for no longer.
(Doc. 103 at 5.) The Court agrees that this argument is "not unreasonable," (id.); however, it is a legal truism that counsel's arguments, however reasonable, are not evidence. United States v. Vann, 776 F.3d 746, 760 (10
(Doc. 102 at 13 n.7 (citing Beerheide, 286 F.3d at 1191).) The Court will therefore overrule Defendants' objection to the Magistrate Judge's finding that Defendants have not yet presented any cognizable evidence regarding "what effect accommodating the exercise of the [Plaintiff's] right would have on guards, other prisoners, and prison resources generally." Beerheide, 286 F.3d at 1189.
Defendants' next objection to the Magistrate Judge's PFRD concerns whether ready, easy-to-implement alternatives exist to accommodate Plaintiff's religious dietary beliefs. (Doc. 103 at 5-6.) Defendants offer three arguments in connection with this objection. Defendants first argue that they did in fact implement an acceptable alternative, specifically, a kosher diet.
Second, Defendants assert that the Magistrate Judge "held that a diet of non-processed meats is an easy[—]to[—]implement accommodation of Plaintiff's religious rights" because Plaintiff received such a diet for three days at PNM. (Doc. 103 at 6.) Initially, this argument misstates the Magistrate Judge's finding. In fact, the Magistrate Judge found that, "viewed in the light most favorable to Plaintiff, there are genuine issues of material fact regarding . . . whether there was a ready, easy-to-implement alternative available to accommodate [Plaintiff's religious] beliefs." (Doc. 102 at 14.) For the reasons discussed in Section II.B.2., supra, the Court agrees with this finding. A reasonable fact finder could infer the existence of a ready, easy-to-implement alternative to accommodate Plaintiff's religious dietary beliefs from the evidence that PNM accommodated those beliefs for three days. Again, this evidence is not conclusive, due to the different location, food provider, and duration; however, it is sufficient to create a genuine issue of material fact at this stage of the proceedings.
(Doc. 103 at 6.) Defendants rely on Defendant Roark's affidavit to support this proposition. (Id.) Defendant Roark's affidavit does provide evidentiary support for the proposition that making a change to the standard diet for all Muslim inmates in NMDOC's custody who have requested a halal diet involves a decision-making process with multiple factors, including vendors, cost, budget, information gathering, and nutritional adequacy. (Doc. 103-1 ¶ 5.) It does not, however, address whether and to what extent this process applies to making "extraordinary accommodations" for a particular inmate pursuant to Policy CD-101401, and how difficult this might be. It thus fails to eliminate genuine issues of material fact on this point. (See generally id.) The Court will therefore overrule Defendants' objection and adopt the Magistrate Judge's finding of genuine issues of material fact regarding whether ready, easy-to-implement alternatives exist to accommodate Plaintiff's religious dietary beliefs.
Defendants next object to the Magistrate Judge's finding that genuine issues of material fact exist regarding whether each Defendant personally participated in the alleged violation of Plaintiff's First Amendment rights, i.e., the denial of a halal diet conforming to his sincerely held religious beliefs. (Doc. 103 at 7.) Defendants concede that "there is evidence that Defendant Roark . . . made policy decisions regarding what religious diets, if any, inmates at NMDOC facilities . . . received."
Defendants' argument appears to be based on a defense associated with qualified immunity. "Usually, if the law is clearly established at the time of defendant's conduct, a qualified immunity defense will fail. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained." Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 971 (10
The Court finds that Defendants Robinson and Hoisington have not, in this instance, met their burden of showing the absence of any genuine issues of material fact regarding whether they followed NMDOC's official policies in refusing to accommodate Plaintiff's religious dietary requests. As noted above, Policy CD-101401 required Defendant Robinson to forward approved requests for religious diets to the food service provider, who was to provide "an appropriate religious diet." (Doc. 87-4 at 5.) However, if Defendant Hoisington or Defendant Robinson determined that "extraordinary accommodations may be necessary," then Plaintiff's request was to be forwarded to Defendant Robinson and the food service provider to research and design "an appropriate plan of action." (Id.)
The Court will accept as true, for purposes of this argument, that Defendant Roark established an official policy that the standard kosher diet was "an appropriate religious diet" for Muslim inmates requesting a halal diet. (Id.; Doc. 103 at 7.) However, Plaintiff has presented evidence demonstrating a genuine issue of material fact regarding whether Defendants Robinson and Hoisington knew that his religious diet request may have necessitated extraordinary accommodations. (Doc. 87-9 at 1-6.) If so, Policy CD-101401 required Defendant Hoisington to forward his request to Defendant Robinson and the food service provider to design an appropriate plan of action. (Doc. 87-4 at 5.) In short, NMDOC's religious dietary policy gave Defendants Hoisington and Robinson the authority and responsibility to deviate as needed from Defendant Roark's general policy regarding the "appropriate religious diet" for Muslim inmates. Thus, there is no evidence that Defendant Roark's general policy either permitted or required Defendants Hoisington and Robinson to participate in the alleged violation of Plaintiff's constitutional rights by denying him a halal diet conforming to his religious beliefs. Indeed, there is evidence in the record suggesting that Defendants Hoisington and Robinson failed to follow Policy CD-101401 and that this failure directly contributed to the alleged violation of Plaintiff's First Amendment rights.
Defendant Hoisington contends that she did not violate Policy CD-101401, because Plaintiff only asked her for bread, jelly, and a halal diet rather than a kosher diet. (Doc. 103 at 7-8.) Defendants argue that "`halal' implicates that an animal has been slaughtered and prayed upon in a certain manner," relying on a letter written by Abdul Rauf Campos-Marquetti, Prison Program Coordinator for the Islamic Center of New Mexico. (Id. (citing Doc. 87-8 at 22).) This argument combines two previous arguments that the Court has already rejected. First, again, how an outside religious authority defines "halal" is not determinative; rather, Plaintiff's sincerely held religious beliefs define what is "halal." Holt, 135 S. Ct. at 862-63; Abdulhaseeb, 600 F.3d at 1314; Kay, 500 F.3d at 1220; LaFevers, 936 F.2d at 1119. As discussed in Section II.A., supra, as well as in the Magistrate Judge's PFRD, there is record evidence that, to Plaintiff, "halal" included non-processed meats. (Doc. 102 at 9-11.) Then, as also discussed above in Section II.A., a reasonable fact finder could conclude that Defendant Hoisington received Plaintiff's requests for a halal diet including non-processed meats. (See Doc. 87-8 at 8-18, 23; Doc. 1 at 10.) Thus, there are genuine issues of material fact regarding whether Defendant Hoisington should have determined that extraordinary accommodations may have been necessary to provide Plaintiff with a "halal" diet, and should have forwarded Plaintiff's request to Defendant Robinson and the food service provider to design an appropriate plan of action in accordance with Policy CD-101401. The Court will therefore overrule Defendants' objection that Defendants Hoisington and Robinson did not personally participate in the alleged violation of Plaintiff's constitutional rights, and will adopt the Magistrate Judge's finding of genuine issues of material fact on this issue.
In this section of Defendants' objections, Defendants again reiterate arguments that the Court has previously rejected, specifically: (1) that Plaintiff's First Amendment claims should fail because his April 24, 2011 grievance requested a halal diet rather than a kosher diet, and did not mention non-processed meats; and, (2) that Plaintiff requested a kosher diet at PNM. (Doc. 103 at 8.) The Court rejects these arguments for the reasons set forth in Section II.A., supra. For all of the above reasons, the Court will overrule Defendants' objections to the Magistrate Judge's denial of their motion for summary judgment on Plaintiff's First Amendment claims, and will adopt the Magistrate Judge's PFRD as to these claims.
Finally, Defendants object to the Magistrate Judge's finding that Plaintiff's RLUIPA claims for declaratory and injunctive relief are not moot. (Doc. 103 at 8-9.) Defendants tacitly acknowledge that "[o]ne exception to a claim of mootness is a defendant's voluntary cessation of an alleged illegal practice which the defendant is free to resume at any time." Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 (10
The legal error in Defendants' argument is clear: the issue is not whether Defendant Roark will remove Plaintiff's halal meal, but whether he can. Chihuahuan Grasslands Alliance, 545 F.3d at 892. Factually, in turn, Defendant Roark's affidavit actually confirms that he has the ability to take away Plaintiff's halal meals at any time by changing NMDOC's halal meal policy. (Doc. 103-1 ¶¶ 5-6.) Indeed, the affidavit even suggests some reasons why he might do so, for example, if NMDOC's approved vendors change, if budgetary or cost considerations change, or if the nature and needs of the Muslim inmate population change. (Id.) The Court notes that Plaintiff has apparently been subject to three distinct policies regarding halal diets
The Court will overrule Defendants' objections to the Magistrate Judge's denial of Defendants' motion for summary judgment on Plaintiff's First Amendment claims, and will adopt the Magistrate Judge's PFRD as to these claims, because there are genuine issues of material fact regarding whether Defendants denied Plaintiff a halal diet conforming to his sincerely held religious beliefs in violation of the First Amendment. The Court will also overrule Defendants' objections to the Magistrate Judge's denial of Defendants' motion for summary judgment on Plaintiff's RLUIPA claims, and will adopt the Magistrate Judge's PFRD as to these claims, because there are genuine issues of material fact regarding whether Defendant Roark's recent provision of a halal diet to Plaintiff constitutes the voluntary cessation of an alleged illegal practice which Defendant Roark is free to resume at any time.
IT IS THEREFORE ORDERED that:
1. Defendants' Objection[s] to Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 103) are OVERRULED;
2. The Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 102) is ADOPTED;
3. Plaintiff's Motion for Summary Judgment (Doc. 71) is DENIED; and,
4. Defendants' Motion for Summary Judgment (Doc. 87) is DENIED.
IT IS SO ORDERED.
