In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2044

B RIAN N ELSON,
                                              Plaintiff-Appellant,
                                v.

C ARL M ILLER,
                                              Defendant-Appellee.


           Appeal from the United States District Court
              for the Southern District of Illinois.
         No. 03-C-254—Clifford J. Proud, Magistrate Judge.



      A RGUED F EBRUARY 25, 2009—D ECIDED JULY 1, 2009




  Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
  F LAUM, Circuit Judge. Illinois prisoner Brian Nelson
sued Chaplain Carl Miller in his official and individual
capacities for alleged violations of his rights under the
free exercise and establishment clauses of the First Amend-
ment, the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), and the Illinois Religious Free-
dom Restoration Act (“IRFRA”). Nelson requested declara-
tory and injunctive relief as well as monetary damages.
2                                               No. 08-2044

Magistrate Judge Clifford Proud entered partial summary
judgment in favor of defendant, and, after a bench trial
on the remaining issues, found against Nelson on all
counts. Nelson appeals. For the reasons explained below,
we affirm in part, reverse in part, and remand for
further proceedings.


                       I. Background
A. Factual History
    The relevant facts are undisputed by the parties.
  Brian Nelson is a prisoner at Tamms Correctional Center,
a “super max” prison located in Tamms, Illinois. Tamms
Institutional Directive 04-25-101, § II(I)(1) provides that
“[c]ommitted persons shall be permitted to abstain from
any foods the consumption of which violates their
required religious tenets.” Requests for a religious diet
must be in writing, give specific details as to the
applicable religious tenets involved, and be confirmed
by a faith representative. The Directive states that
“[s]hould further review [of the dietary request] be
needed, the facility chaplain and the religious faith repre-
sentative may interview the committed person.”
  When Nelson was incarcerated in 1983, he formally
designated himself a Catholic. In the late 1990s, plaintiff
took a greater interest in his faith. In accordance with
Nelson’s understanding of Catholicism, there are three
methods of penance: giving alms, works of charity, and
acts of abstinence. Given his incarceration, plaintiff rea-
soned that the only ways he could engage in penance
No. 08-2044                                                     3

were prayer and abstaining from eating meat. Thus, upon
arriving at Tamms in 1998, plaintiff requested a meatless
diet on Fridays throughout the year as an act of penance.
  Nelson subsequently began studying the teachings of
Cistercian monks 1 and other religious orders who
followed the teachings and example of St. Benedict. (St.
Benedict was the patron saint of plaintiff’s childhood
parish and school.) Plaintiff’s study of St. Benedict caused
him to write to Tamms Chaplain Carl Miller on April 23,
2001, requesting that, in accordance with his Roman
Catholic upbringing and beliefs, he be given a diet free
of “flesh meat on Fridays” as an act of penance. Plaintiff’s
letter indicated that Father Fortenberry, the Catholic
chaplain at Tamms, supported and encouraged such acts
of penance. In apparent recognition of prison dietary
policies, plaintiff stated that he would accept a “vegetar-
ian/religious no meat diet for all meals.”
  Tamms offers only the “regular” diet (which may or
may not contain meat at any given meal), a vegan diet
(containing no animal or animal by-products), and some
medical diets. Due to security concerns at Tamms,
special diets are kept to a minimum to prevent the intro-
duction of contraband, and to prevent an inmate’s cell



1
   Cistercian Monks, or the Religious of the Order of Cîteaux, are
a Benedictine reform religious order. The order was established
in 1098 for the purpose of restoring as far as possible the
literal observance of the Rule of St. Benedict. See The
Catholic Encyclopedia, Cistercians, available at http://
www.newadvent.org/cathen/03780c.htm.
4                                               No. 08-2044

location from being identified by tracing the delivery of a
special food tray. Bonnie Sullivan, the registered dietician
responsible for dietary services at Tamms, explained
that in 2002, the regular diet included chicken, turkey,
fish and a limited amount of beef, as well as animal
by-products such as eggs and cheese. Pork and pork
by-products have not been included in the regular diet
at Tamms since January 1999, per the warden, “in an
effort to eliminate confusion related to the use of pork.”
Starting in 2004, beef was eliminated from the regular
diet, except for beef-soy patties and beef-soy meatballs.
The vegan diet contains no animal or animal by-products,
and there is the option to receive either dairy or soy milk.
  Defendant Miller is an ordained Lutheran minister
and has been head chaplain at Tamms since January 2000.
In an effort to conform with the Tamms Institutional
Directives, Chaplain Miller reviewed requests for
religious diets, cross-checking the inmate’s declared
religious affiliation to determine if a religious diet was
required. Miller looked for confirmation of the religious
dietary tenet “on paper”—that is, he looked for confirma-
tion of the requirement in some “church document”—as
opposed to inquiring regarding the spiritual goals of
the inmate.
  In a memo dated May 2, 2002, Miller denied plaintiff’s
request for a meatless diet all the time or on all Fridays.
Miller explained, “there are many ways to do penance,”
and plaintiff was free to “choose to not eat meat . . . on
Fridays.” Miller further explained that “a religious diet
without meat all the time or every Friday . . . is not re-
No. 08-2044                                                     5

quired by the Roman Catholic faith nor does Jesus of God’s
Word command abstention from meat on Fridays for
penance.” Miller went on to suggest that plaintiff read
“I Timothy 4:1-5,” 2 and cited other biblical passages
purportedly illustrating “examples of true penance.”
According to Miller, abstaining from meat on Fridays
did not appear in Christian scripture as an act of penance.
  Miller testified that if a Christian inmate of no specific
denomination (as opposed to a Catholic) requested a
special diet and cited scriptural passages that supported
the dietary requirement, such a diet would likely be
approved, because that person would not be bound by
the tenets of a particular denomination. But if a prisoner’s
beliefs conflicted with the traditional tenets of his
declared religion, Chaplain Miller would look for
written substantiation of the variation within that faith
group.
  Plaintiff filed an administrative grievance on May 8,
2002. Nelson complained that, as a Roman Catholic, he



2
    1 Timothy 4:1-5 states:
      Now the Spirit explicitly says that in the last times some
      will turn away from the faith by paying attention to deceit-
      ful spirits and demonic instructions through the hypocrisy
      of liars with branded consciences. They forbid marriage and
      require abstinence from foods that God created to be
      received with thanksgiving by those who believe and
      know the truth. For everything created by God is good,
      and nothing is to be rejected when received with
      thanksgiving, for it is made holy by the invocation of God
      in prayer.
6                                               No. 08-2044

was forbidden to eat “flesh meat” on Fridays and during
Lent, and that non-Catholic chaplains were imposing their
beliefs upon him. Plaintiff wanted a non-meat diet on
Fridays and during Lent, but he again indicated his
willingness to accept a vegan diet on a daily basis for the
sake of Tamms’s convenience. In support of his request
for a religious diet, plaintiff cited a religious reference
document and Father Fortenberry, the Catholic priest
serving Tamms. Nelson also noted that Muslims and
Buddhists at Tamms were permitted vegan diets and did
not have to “eat around meat” as Nelson felt he was
required to do. Plaintiff offered an alternate remedy: “ ’OR’
stop making special allowances for certain religions
that affect all prisoners such as no pork because of Mus-
lims!!!” Nelson’s grievance was denied at the institutional
level, and ultimately by the Illinois Department of Cor-
rections Administrative Review Board.
  Nelson continued his religious studies and learned that
there are two different penitential dietary requirements
under the Rule of St. Benedict: (1) abstention from eating
the flesh of four-legged animals, which most Benedictines
follow; and (2) abstention from all meat, which the
Cistercian monks follow. On July 20, 2002, Nelson again
wrote to Chaplain Miller, directing Miller’s attention to
the Rule of St. Benedict No. 39, which states that “every-
one, except the sick who are very weak, [should] abstain
entirely from eating the meat of four-footed animals.”
Plaintiff accused Miller of forcing Miller’s beliefs on him,
and asked that his request be presented to the Religious
Advisory Board, an administrative body that advises
the Illinois Department of Corrections on religious matters.
No. 08-2044                                               7

  According to the testimony of both Nelson and Miller,
some requests for a religious diet at Tamms are auto-
matically granted, without providing any substantiation.
For example, upon request, declared Muslims and Black
Hebrew Israelites are automatically given the vegan diet.
According to Miller, the practice of automatically ap-
proving such requests existed before he became Senior
Chaplain. He testified that he continued the practice as
a courtesy, and because of his understanding of the
impracticality of preparing food in accordance with the
procedures mandated by those religions. However, Miller
acknowledged that not all Muslims adhere to the Muslim
dietary requirement of “halal,” and he stated that he
considers that their choice. Miller also acknowledged
that in the past he has approved vegan diets for some
Buddhist inmates without a precise statement that the
vegan diet was a religious requirement. Miller stated
that he seeks verification when he does not know the
tenets of a particular religion.
  Plaintiff’s July 2002 request to Chaplain Miller was
unsuccessful. Plaintiff continued to appeal to Chaplain
Miller, writing in August 2002 that it is his belief that
eating meat on Fridays is a mortal sin. In support of his
August letter, plaintiff offered Chaplain Miller a letter
from Father Fortenberry indicating Fortenberry’s belief
that it is “permissible & highly recommended that [any
Catholic] follow the diet [prescribed by the Rule of St.
Benedict].” Father Dominic J. Roscioli, a personal friend of
plaintiff and his family, wrote to Chaplain Miller in
support of permitting plaintiff to eat a vegetarian diet
based on plaintiff’s Catholic faith and the Rule of St.
8                                                 No. 08-2044

Benedict. Father Roscioli explained that the original
Benedictines and modern Cistercians and Trappists are
vegetarians, and equated plaintiff’s life in prison to the life
of a monk “outside the walls” of a monastery. Father
Roscioli stated: “If a person truly believes that a certain
diet (which is really a discipline) will lead to becoming
a disciple of our Lord Jesus Christ, I pray that neither
you or I would stand in the way of God’s Spirit at work
in that person’s life.” Chaplain Miller did not give the
letters from Father Fortenberry and Father Roscioli any
weight, choosing instead to rely on the religious docu-
mentation plaintiff submitted, which required a special
diet only when living in a monastery.
   Plaintiff lodged a second grievance on September 15,
2002. Plaintiff essentially complained that Chaplain Miller
had denied his request for a religious diet out of ignorance,
having failed to consult Father Fortenberry or the Rule
of St. Benedict. Plaintiff explained that his religious
beliefs—as a Catholic following the Rule of St. Benedict—
forbade eating “the flesh meat of four[-]legged animals.” In
denying the grievance at the institutional level, prison
officials noted that plaintiff had declared himself a “Catho-
lic,” and, per Chaplain Miller, until plaintiff could
establish that he was a monk, he would not receive the
requested vegan diet. The grievance was subsequently
denied by the Illinois Department of Corrections Ad-
ministrative Review Board.
  In October 2002, Chaplain Miller, citing Institutional
Directive 04-25-101, emphasized to plaintiff that requested
dietary accommodations must be “requirement[s] of the
No. 08-2044                                             9

religion.” In a memo dated April 1, 2003, from Chaplain
Miller to Administrative Assistant Randy George regard-
ing plaintiff’s request for a “religious vegan diet” on
Fridays and during Lent, Miller continued to assert that
the Roman Catholic faith does not require abstaining
from meat on Fridays, except on Fridays during Lent
(which Miller approved). Chaplain Miller further rea-
soned that because plaintiff was not a monk, he was not
required to adhere to the Rule of St. Benedict.
  However, on April 12, 2006, at the explicit direction of
the warden, Miller approved a vegan diet for Nelson. But
Miller testified at the bench trial that he still does not
believe that plaintiff should receive a vegan diet and,
therefore, except for the warden’s directive, he would
continue to deny a vegan diet.
  Nelson testified that he weighed 161 pounds when he
entered Tamms. But during the time period he was
denied a vegan diet, Nelson abstained from eating all
meat and his weight dropped to as low as 119 pounds.
According to plaintiff, he was hospitalized three times
due to his weight loss; the first time during Lent in the
Spring of 2002, when he abstained from all meat, and a
second time about a month and a half later. However,
Nelson offered no documentation or medical evidence
of causation at summary judgment. In any event, Nelson
testified that he felt hungry during this time period, his
bones began to protrude, he was cold, and he was de-
pressed and anxious. After Nelson began receiving
the religious diet in April 2006, he was able to eat full
meals again and quickly regained the weight he had lost.
10                                             No. 08-2044

  Plaintiff acknowledged that he could eat chicken, turkey,
fish, eggs and dairy foods and remain in compliance
with the admonition in the Rule of St. Benedict against
eating the meat of four-legged animals. However, plaintiff
noted that often skipping the meat on his meal tray also
required skipping a substantial portion of the meal, for
example when spaghetti with meat sauce was served.
  Dietician Bonnie Sullivan testified that if a prisoner
abstained from all meat of four-legged animals, the
regular diet would be nutritionally adequate. But Sullivan
opined that there probably was insufficient nutrition in
the regular diet plan if all meat were skipped. A menu
for the spring cycle in 2004 was submitted by the defen-
dant. Although the menu is “subject to change” and
substitutions of “like items” occur, on nine days during
the 91-day cycle two of the three daily meals appear to
contain the meat of four-legged animals; on three of those
days all three meals contain the meat of four-legged
animals. There was no testimony regarding the nutritional
impact of having to skip items such as spaghetti with
meat sauce.
  In November 2005, Nelson filed a grievance com-
plaining that Muslims were allowed to receive the
special Christmas day food but Christians were not
allowed to receive special food that marked Muslim
holidays. The warden and Administrative Review Board
denied this grievance. According to dietician Bonnie
Sullivan, the Muslim feasts amount to little more than
receiving extra fruit or an extra dessert in celebration of
the end of their month-long abstention from eating
lunch. With respect to the Christmas meal, Sullivan
No. 08-2044                                            11

indicated it was her decision that everyone could have
whatever meal was served for Christmas.


B. Procedural History
  On February 20, 2003, Nelson filed a pro se complaint
in the Circuit Court of Alexander County, Illinois. Defen-
dants removed to federal court and the parties consented
to final disposition by a magistrate judge.
  Defendant moved for partial summary judgment on
several grounds. Miller alleged that with regard to Nel-
son’s Section 1983 and RLUIPA claims, Nelson had failed
to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”). Although
defendant conceded that Nelson had filed at least two
grievances regarding his diet that had been properly
appealed to the Director, he contended that plaintiff had
not properly “connected the dots” by filing a final griev-
ance which detailed his belief that he wished to abstain
from all meat. (Miller did not request summary judgment
for failure to exhaust as to Nelson’s IRFRA claim, which
was not subject to PLRA exhaustion requirements.)
Regarding remedies, Miller argued that injunctive
relief was moot, that damages against him in his official
capacity were barred under Section 1983, RLUIPA, and
IRFRA, and finally, that he was protected by qualified
immunity.
  In its summary judgment ruling, the district court
agreed that Nelson had not exhausted portions of his
Section 1983 and RLUIPA claims. The district court held
that Nelson’s grievances only described his religious
12                                              No. 08-2044

beliefs as requiring that he abstain from meat on Fridays
and during Lent and from the flesh of four-legged animals
at all times, and concluded that it would consider his free
exercise claim only to that extent. As to remedies, the
district court found that the Eleventh Amendment
barred an award of damages against Miller in his official
capacity under Section 1983 and RLUIPA but held that
IRFRA allowed for damages against a state official. The
district court found that it was too early to conclude
whether Miller was entitled to qualified immunity.
  The case was tried before the Magistrate Judge. On
March 31, 2008, the Magistrate Judge issued an order
finding against Nelson on all claims.


                      II. Discussion
  We review the district court’s grant of partial summary
judgment to Nelson de novo. See Patton v. MFS/Sun Life
Fin. Distribs., 

, 485 (7th Cir. 2007). Summary
judgment is appropriate only if the evidence presents no
issue of material fact, so that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
moving party is entitled to summary judgment if no
reasonable fact-finder could return a verdict for the
nonmoving party. See 

(citing Ander-
son v. Liberty Lobby, Inc., 

, 254 (1986) and
Gleason v. Mesirow Fin., Inc., 

, 1139 (7th
Cir. 1997)).
  In an appeal from the district court’s judgment
following a bench trial, “we review the district court’s
conclusions of law de novo, and we review its findings
No. 08-2044                                                   13

of fact, as well as applications of law to those findings of
fact, for clear error.” Trustees of the Chi. Painters & Decora-
tors Pension v. Royal Int’l Drywall & Decorating, 

, 785 (7th Cir. 2007) (internal brackets, quotation
marks, and citation omitted).


A. Exhaustion
  In its summary judgment opinion, the district court
found that Nelson had exhausted his grievances
regarding (1) his belief that he must abstain from all meat
on Fridays and during Lent (the May 2002 grievance),
(2) his belief that he must abstain from the meat of four-
legged animals at all times (the September 2002 grievance),
and (3) his complaint that he suffered discrimination
because non-Christians were allowed to receive the
special Christmas day food but Christians were not
allowed to receive special food that marked Muslim
holidays (the November 2005 grievance). The district court
found that Nelson had not exhausted his request for a
vegan diet based on his later-evolved belief that he
must not eat any meat.3
  Nelson does not contest the district court’s ruling on
exhaustion with respect to Section 1983 and RLUIPA
(which are subject to the PLRA exhaustion requirements),



3
  Nelson’s beliefs evolved to this point apparently at some time
after he filed his initial complaint in this case and he did not
state this new belief until he filed objections to the magistrate
judge’s report recommending denial of his motion for a pre-
liminary injunction.
14                                                   No. 08-2044

but argues that his IRFRA claim is not subject to those
same requirements and that his IRFRA claim should
thus be understood as based on his broader belief that he
should abstain from all meat. Defendant defends the
district court’s ruling on exhaustion, even with regard
to the IRFRA claim, arguing that Nelson did not
describe his current belief (barring any consumption of
meat) in any prison grievance.
  Ultimately, this rather narrow dispute is immaterial to
our analysis. The only difference it could make to this
appeal is if we found that the denial of a request for a
vegan diet based on Nelson’s desire to abstain from all
meat was a substantial burden under IRFRA while the
denial of a request for a vegan diet based on Nelson’s
desire to abstain from the meat of four-legged animals
and to avoid all meat on Fridays and during Lent was not
a substantial burden under IRFRA. Because we find, as
explained below, that Nelson’s free exercise (including
IRFRA) rights were substantially burdened by the denial
of his request even on the narrower, clearly exhausted
basis, we need not explore whether he exhausted the
broader basis of his request at this time.4


4
   Although, as explained, it is not necessary to our analysis on
the merits, if we did analyze the IRFRA exhaustion issue, it
appears that Nelson sufficiently apprised defendant of his
desire to receive a meatless diet to satisfy exhaustion under
IRFRA. The parties agree that the governing case here is Strong
v. David, 

(7th Cir. 2002). In that case, we observed
that at the time during which Nelson filed his grievances, Illinois
had not “established any rule or regulation prescribing the
                                                     (continued...)
No. 08-2044                                                      15




4
  (...continued)
contents of a grievance or the necessary degree of factual
particularity.” 

(Defendants do not assert that Tamms
had implemented such a standard at the time either.) Strong held
that in Illinois, “[w]hen the administrative rulebook is silent, a
grievance suffices if it alerts the prison to the nature of the
wrong for which redress is sought.” 

that a grievant
need not “lay out the facts, articulate legal theories, or demand
particular relief. All the grievance need do is object intelligibly
to some asserted shortcoming.” 

grievances
explained his religious beliefs and outlined his desire to abstain
from meat on Fridays and later to abstain from the meat of “four
footed animals.” But Nelson also repeatedly stated that he
would accept a vegetarian diet every day “to ease any burden on
Tamms/IDOC” and to “ease security concerns.” These state-
ments would certainly appear to put defendant on notice that
Nelson was requesting a meatless diet under Strong’s generous
notice pleading standard. See, e.g., Riccardo v. Rausch, 

, 524 (7th Cir. 2004) (en banc) (finding that prisoner’s
grievance—which stated that “[t]he administration don’t [sic] do
there [sic] job. [A sexual assault] should’ve never [sic] happen
again.”—although “at the border of intelligibility,” sufficed to
put defendants on notice of prisoner’s claim that defendants
failed to protect plaintiff from sexual assault) (citing 

). Moreover, Miller stated in response to Nelson’s first
dietary request that “a religious diet without meat all the time or
every Friday . . . is not required by the Roman Catholic
faith . . . .” (emphasis added), which shows that Miller under-
stood Nelson to be requesting a meatless diet. Thus, it appears
that Nelson’s grievances were sufficient to put Miller on notice
of Nelson’s claim, under IRFRA, that he was wrongly denied a
meatless diet based on his religious beliefs.
16                                               No. 08-2044

B. Substantial Burden: First Amendment, RLUIPA and
   IRFRA Claims
  Section 1983 First Amendment, RLUIPA and IRFRA
claims all use the substantial burden test to determine
whether a violation of a plaintiff’s religious free exercise
rights has occurred. Although RLUIPA and IRFRA do not
define “substantial burden,” both statutes have been
interpreted with reference to Supreme Court free exercise
jurisprudence. See, e.g., 146 Cong. Rec. S7776 (daily ed.
July 27, 2000) (joint statement of Senators Hatch and
Kennedy indicating that Supreme Court free exercise
jurisprudence was a proper interpretational guide for
RLUIPA); Diggs v. Snyder, 

, 44-45 (Ill. App. Ct.
2002) (using United States Supreme Court free exercise
jurisprudence to determine the meaning of “substantial
burden” under IRFRA).
  In its order following the bench trial, the district court
held that Nelson was not substantially burdened by the
denial of his request for a meatless diet. Specifically,
the district court found that Nelson would receive a
nutritionally adequate diet if he avoided all meat of four-
legged animals served in the regular diet at Tamms.
  Section 3 of RLUIPA provides that:
     No government shall impose a substantial burden on
     the religious exercise of a person residing in or con-
     fined to an institution, . . . even if the burden results
     from a rule of general applicability, unless the govern-
     ment demonstrates that imposition of the burden on
     that person (1) is in furtherance of a compelling gov-
     ernmental interest; and (2) is the least restrictive
No. 08-2044                                              17

    means of furthering that compelling governmental
    interest.
42 U.S.C. § 2000cc-1(a). The essentially identical IRFRA
states that:
    Government may not substantially burden a person’s
    exercise of religion, even if the burden results from a
    rule of general applicability, unless it demonstrates
    that application of the burden to the person (i) is in
    furtherance of a compelling governmental interest
    and (ii) is the least restrictive means of furthering
    that compelling governmental interest.
775 Ill. Comp. Stat. 35 § 15.
  Nelson argues that his exercise of religion was sub-
stantially burdened in two ways. First, he argues that he
was substantially burdened by the requirement that he
provide documentation of a religious requirement in
order to receive a dietary accommodation. The district
court did not analyze this argument, though Nelson
appears to have raised it below. Second, Nelson argues
that he was substantially burdened by the denial of his
requested meatless diet. Defendant argues that Nelson
was not substantially burdened on either basis because
his religious exercise was not rendered “effectively imprac-
ticable” by defendant’s policies and conduct.


    1.   Substantial Burden: Dietary Request Procedural
         Requirements
  Nelson contends that he was substantially burdened by
the procedures for obtaining a religious accommodation;
18                                                   No. 08-2044

specifically, defendant’s requirement that he produce
documentation of a religious requirement.
  In Civil Liberties for Urban Believers v. City of Chicago, 

, 760-61 (7th Cir. 2003), we stated that “in the
context of RLUIPA’s broad definition of religious exercise,
a . . . regulation that imposes a substantial burden on
religious exercise is one that necessarily bears direct,
primary, and fundamental responsibility for rendering
religious exercise . . . effectively impracticable.” In Koger v.
Bryan, 

(7th Cir. 2008), we quoted language
from the Supreme Court’s decision in Thomas v. Review Bd.,

(1981) to explain the substantial burden test,
noting that Thomas teaches that government conduct is
substantially burdensome “when it ‘put[s] substantial
pressure on an adherent to modify his behavior and
violate his beliefs.’ ” 

(quoting 

)).5
  Koger is similar to the instant case. In Koger, we held
that it was a violation of the First Amendment and
RLUIPA for prison officials to deny an inmate’s request
for a non-meat diet on the ground that his religion
does not require such a dietary restriction.6 

In that case, the plaintiff prisoner, Koger, belonged to a


5
  Other courts of appeals have likewise applied the Thomas
standard in the context of RLUIPA. See e.g., Shakur v. Schriro, 

, 888 (9th Cir. 2008); Washington v. Klem, 

,
277-281 (3d Cir. 2007) (combining Sherbert and Thomas tests);
Lovelace v. Lee, 

, 187 (4th Cir. 2006) (same).
6
  The plaintiff in Koger apparently did not bring a state claim
under IRFRA. See 

.
No. 08-2044                                                        19

religion known as Ordo Templi Orientis (“OTO”), which
had as its central tenet only “Do what though wilt.” 

But Koger nonetheless believed that his practice
of OTO required him to observe a vegetarian diet. 

In support of his request for the non-meat prison
diet, Koger submitted paperwork from OTO stating that
OTO “had no general dietary restrictions” but that “each
individual [follower] may from time to time, include
dietary restrictions as part of his or her personal regimen
of spiritual discipline.” 

nonetheless
denied Koger’s request. 

  We held, first, that requiring a prisoner to show that his
preferred diet is compelled by his religion was unlawful, as
such a requirement was contrary to RLUIPA, which
specifically stated that “[t]he term ‘religious exercise’
includes any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 7 Koger held,
second, that requiring a religious belief be verified by
clergy was a substantial burden because Koger’s religion
lacked traditional clergy members. 

Importantly,
we opined that even if Koger had belonged to a religion
with more traditional clergy, “a clergy verification require-
ment forms an attenuated facet of any religious accom-
modation regime because clergy opinion has generally


7
  As a side note, “[a]lthough RLUIPA bars inquiry into whether
a particular belief or practice is central to a prisoner’s
religion, . . . [it] does not preclude inquiry into the sincerity of a
prisoner’s professed religiosity.” 

(citing
Cutter v. Wilkinson, 

, 725 n.13 (2005)). Here, however,
Miller does not challenge the sincerity of Nelson’s beliefs.
20                                                   No. 08-2044

been deemed insufficient to override a prisoner’s
sincerely held religious beliefs.” 

(citing
Ford v. McGinnis, 

, 593-94 (2d Cir. 2003)
(holding that the role the Eid ul Fitr feast played in a
prisoner’s practice of Islam was determinative of
whether there had been a substantial burden, and not the
testimony of Muslim clerics as to the proper celebration
of the feast); Jackson v. Mann, 

, 320-21 (2d Cir.
1999) (holding that it was the sincerity of a prisoner’s
beliefs, and not the decision of Jewish religious
authorities, that determined whether the prisoner was an
adherent of Judaism entitled to a kosher meal); see also
Frazee v. Ill. Dep’t of Employment Sec., 

, 834
(1989) (holding that in the context of a denial of unemploy-
ment benefits, the plaintiff’s refusal, based on his Chris-
tianity, to work on Sundays was entitled to protection
even though “there are assorted Christian denomina-
tions that do not profess to be compelled by their
religion to refuse Sunday work”)).
  Koger is essentially dispositive in this case.8 Like the
prison officials in Koger, Miller required Nelson to show
that his religion compelled the practice in question and
to verify that compelled practice with documentation. As
in Koger, the first of these requirements was unlawful
under RLUIPA and the second imposed a substantial



8
  We note that district court did not have the benefit of the Koger
decision when it disposed of Nelson’s claims. Koger was
decided a few weeks after the district court entered its final
judgment order.
No. 08-2044                                             21

burden on Nelson’s desired religious practice because it
was impossible for him to show that his religion, Catholi-
cism, required him to abstain from meat on all Fridays
or avoid the meat of four-legged animals. The Catholic
clergy who opined on the matter, Father Fortenberry
and Father Roscioli, both opined that although not re-
quired, dietary discipline was a permissible and
laudatory way for Nelson to engage in penance. Miller’s
demands that Nelson show a religious requirement and
submit documentation to that effect thus made Nelson’s
desired religious exercise “effectively impracticable.” See

; see also Hunafa v. Murphy, 

, 47 (7th Cir. 1990) (recognizing that a prisoner
can bring a free exercise claim where he is “put to an
improper choice between adequate nutrition and obser-
vance of the tenets of his faith”).
  Because we find that Nelson’s practice of his religion
was substantially burdened by Tamms’s procedural
requirements for obtaining a religious diet, we reverse
the district court in this regard.


2. Substantial Burden: Denial of Non-Meat Diet
  Nelson also argues that he was substantially burdened
by the prison’s actual denial of the meatless diet. We
have held that a prisoner’s religious dietary practice is
substantially burdened when the prison forces him to
choose between his religious practice and adequate
nutrition. For example, in Hunafa v. Murphy, we held that
IDOC’s failure to ensure that the preparation of meals
kept pork separate from other food substantially
22                                              No. 08-2044

burdened a Muslim prisoner’s religious practice because
it forced him to “an improper choice between adequate
nutrition and the tenets of his 

. Other
circuit courts have likewise found such a choice to be
substantially burdensome. See Love v. Reed, 

, 689-690 (8th Cir. 2000) (finding prison’s failure to
accommodate prisoner’s religious diet substantially
burdensome and rejecting prison’s suggestion that the
prisoner could fast as an alternative to the prison’s accom-
modation of the desired diet); McElyea v. Babbitt, 

, 198 (9th Cir. 1987) (“Inmates . . . have the right to
be provided with food sufficient to sustain them in good
health that satisfies the dietary laws of their religion.”).
  Here, the district court ruled that the “only relevant
religious tenet at issue [in Nelson’s free exercise claim]
is abstention [from] eating the flesh of four-legged
animals on Friday and during Lent (because of plaintiff’s
failure to exhaust administrative remedies regarding
abstention from all meat).” However, as discussed in the
exhaustion analysis above, and indeed, as the district
court itself found in both its summary judgment and
final judgment order, Nelson exhausted his grievances
with regard to his request to avoid the meat of four-
legged animals at all times and his request to avoid all
meat on Fridays and during Lent.
  The district court thoroughly analyzed whether
Nelson’s avoidance of the meat of four-legged animals
imposed a substantial burden, and we do not find that
analysis to be clearly erroneous. See Trustees of the Chi.
Painters & Decorators 

(in an
No. 08-2044                                                23

appeal from the district court’s judgment following a
bench trial, appellate courts review the district court’s
applications of law to its findings of fact for clear error).
Bonnie Sullivan, the Tamms dietician, testified that the
regular diet would still be nutritionally adequate if all
meat of four-legged animals were skipped, so Nelson was
not put to a choice between his religious beliefs and
adequate nutrition. See 

.
  But looking to the other exhausted grievance, we find
that Miller’s denial of a non-meat diet on Fridays and
during Lent substantially burdened Nelson’s practice
of religion. With regard to skipping all meat, Sullivan
testified that “there probably was insufficient nutrition
in the regular diet if all meat were skipped.” Moreover,
Nelson provided undisputed testimony that during Lent
in 2002, when he abstained from all meat, he lost so
much weight that he had to be hospitalized. Nelson also
testified that during Lent he “felt hungry,” his bones
began to protrude, he was cold, and he was depressed
and anxious. Because the undisputed evidence shows, at
the very least, that Nelson would be required to forego
adequate nutrition on Fridays and for the forty days
of Lent in order to comply with his sincerely held
religious beliefs, we hold that Miller’s refusal to grant
Nelson a non-meat diet for those periods imposed a
substantial burden on his religious exercise. See, e.g., 

(refusing to accommodate prisoner’s
desired religious diet and consequently forcing prisoner
to fast one day each week was a substantial burden on
prisoner’s free exercise of religion).
24                                               No. 08-2044

     3.   Least Restrictive Means and Compelling Govern-
          ment Interest
  Because the district court found no substantial burden
on Nelson’s religious exercise, it did not analyze whether
defendant’s procedures and conduct were “in furtherance
of a compelling government interest” and “the least
restrictive means of furthering that compelling govern-
ment interest” under Section 1983, RLUIPA and IRFRA.
See 

; 42 U.S.C. 2000cc-1(a)(1) & (2);
see also 

(first considering
whether prisoner had established a substantial burden
and then analyzing whether prison officials had shown
that their requirements were the least restrictive means
of furthering a compelling governmental interest); 775
ILCS 35/15. Neither party has briefed this matter on
appeal. Thus, we remand this issue to the district court
for further consideration in light of this opinion.


C. Establishment of Religion
  Nelson argues that Miller impermissibly favored Muslim
and African Hebrew Israelite prisoners by approving
vegan diets for those prisoners without obtaining written
verification that such diets were required by their religions.
In support of his argument of favoritism, Nelson also
notes that Muslims received special food on Islamic feast
days but Catholic holidays (aside from Christmas) went
unobserved. The district court found that Nelson had not
proven a violation of the establishment clause because
there were valid neutral reasons for Miller’s actions in
this regard.
No. 08-2044                                                 25

  The First Amendment states that “Congress shall make
no law respecting an establishment of religion . . . .” Lemon
v. Kurtzman, 

, 612-13 (1971) teaches that a
government policy or practice violates the Establish-
ment Clause if (1) it has no secular purpose, (2) its primary
effect advances or inhibits religion, or (3) it fosters an
excessive entanglement with religion. The Establishment
Clause also prohibits the government from favoring
one religion over another without a legitimate secular
reason. See Linnemeir v. Bd. of Trustees of Purdue Univ., 

, 759 (7th Cir. 2001); Metzl v. Leininger, 

,
621 (7th Cir. 1995) (“The First Amendment does not
allow a state to make it easier for adherents of one faith
to practice their religion than for adherents of another
faith to practice their religion, unless there is a secular
justification for the difference in treatment.”).
  Here, the district court found that Miller had a neutral
reason for requiring Nelson to explain and document
why he wanted a religious/vegan diet while not
requiring this of others. Tamms regulations provided
that prisoners could abstain from “any foods the con-
sumption of which violates their required religious
tenets” and the district court concluded that Miller had
required documentation because he was unfamiliar with
any Catholic “required religious tenet” which necessitated
a non-meat diet. Under the district court’s reasoning,
Miller did not ask Muslim and African Hebrew Israelite
prisoners to submit verification because he understood
from his experience that a limited diet was part of many
of these prisoners’ religious practice.
26                                               No. 08-2044

  We find the district court’s reasoning persuasive. While,
as discussed above, Miller’s demand that Nelson submit
documentation of a religious requirement was an inap-
propriate imposition on Nelson’s free exercise, Miller’s
intent to ensure that any putative dietary accommodation
adhered to Tamms’s regulations regarding religious
diets was a secular purpose. There was no evidence
connecting Miller’s supposed favoritism to Muslims
and Black Israelites with a desire to advance those
religions or inhibit Catholicism, nor was there evidence
that Miller’s alleged favoritism actually had that effect.
   However, we do note that Miller’s May 2, 2002 letter, in
which Miller cited several Bible passages purportedly
contradicting Nelson’s beliefs regarding penance, improp-
erly entangled him in matters of religious interpretation.
It simply is not appropriate for a prison official to
argue with a prisoner regarding the objective truth of a
prisoner’s religious belief. But while Miller’s correspon-
dence was inappropriate, the Supreme Court has recog-
nized that “[e]ntanglement is a question of kind and
degree.” Lynch v. Donnelly, 

, 684 (1984); Agostini
v. Felton, 

, 233 (1997) (noting that “[n]ot all
entanglements . . . have the effect of advancing or inhibit-
ing religion” and stating that the Court “[has] always
tolerated some level of involvement between” the state and
religion). Rather, “[e]ntanglement must be ‘excessive’
before it runs afoul of the Establishment Clause.” 

correspondence appears to have had
little effect on Nelson, and did not advance or inhibit
Catholicism generally. It cannot be said to have fostered
“excessive entanglement.” We therefore affirm the judg-
No. 08-2044                                                  27

ment of the district court with regard to Nelson’s estab-
lishment claim.


D. Remedies
  Since Nelson has shown that Miller substantially bur-
dened his free exercise of religion, we move to the
question of remedies. Nelson seeks declaratory and
injunctive relief as well as damages against Miller in his
official and individual capacities under Section 1983,
RLUIPA, and IRFRA. As the analysis below explains,
the only remedies available to him are declaratory relief
and damages against Miller in his individual capacity
under Section 1983 and, possibly, IRFRA.


    1. Injunctive Relief
  The district court found that Nelson’s request for injunc-
tive relief was moot because he was receiving a non-meat
diet, but that Nelson’s request for declaratory judgment
would survive as a predicate for an award of damages.
Plaintiff contends that his request for injunctive relief
is not moot because his religious diet could be revoked
at any time.
  It is well established that a defendant’s voluntary
cessation of a challenged practice does not necessarily
moot a case. See Friends of the Earth, Inc. v. Laidlaw Environ-
mental Services, Inc., 

, 189 (2000); Vincent v. City
Colleges of Chicago, 

, 925 (7th Cir. 2007) (“Vol-
untary cessation of unlawful activity does not moot
28                                               No. 08-2044

every request for prospective relief . . . .”) (citing United
States v. W.T. Grant Co., 

(1953) and United
States v. Raymond, 

, 813-15 (7th Cir. 2000)).
Rather, “the court must decide whether the complained-of
conduct may be resumed.” 

at 925.
   Here, Miller approved a non-meat diet “[b]ased on the
seriousness of [plaintiff’s] religion” but testified that he
did so only because the Tamms warden had directed
him to do so. Miller stated that if he were allowed to
make the decision, he would still deny Nelson’s request
because he does not believe a special diet to be a “require-
ment” of Nelson’s religion. Nonetheless, it is undisputed
that Nelson currently receives a non-meat diet and there
is no evidence in the record that the diet will be revoked.
   A court’s power to grant injunctive relief only survives
if such relief is actually needed. “The necessary determina-
tion is that there exists some cognizable danger of recur-
rent violation, something more than the mere possibility.”
W.T. Grant 

; Milwaukee Police Ass’n v.
Jones, 

, 748 (7th Cir. 1999). As stated, Nelson
currently receives a non-meat diet and there is no
evidence that Tamms intends to revoke Nelson’s
religious diet. Indeed, the cost of further litigation of this
matter to the state would seem to be a significant deter-
rent to such action. Moreover, as this opinion makes
clear, Miller’s belief that a religious diet must be based
on a religious “requirement” is erroneous. Going forward,
Miller is on notice that he cannot lawfully base a denial
on the lack of such a requirement, so revocation of the
diet, again, appears particularly unlikely.
No. 08-2044                                               29

  While it is of course theoretically possible that the
warden will reverse his decision and Miller will revoke
Nelson’s non-meat diet on some other basis, that possibil-
ity is supported only by speculation and not evidence.
See In re Associated Press, 

, 511 (7th Cir. 1998)
(requiring a “reasonable expectation that the same com-
plaining party would be subjected to the same action
again”) (quoting Weinstein v. Bradford, 

, 149
(1975)); Sossamon Lone Star State of Texas, 

,
325 (5th Cir. 2009) (stating, in an inquiry regarding
mootness of injunctive relief in an RLUIPA case, that the
court “will not require some physical or logical impos-
sibility that the challenged policy will be reenacted
absent some evidence that the voluntary cessation is a
sham for continuing possibly unlawful conduct”). We
therefore affirm the district court’s finding that Nelson’s
claim for injunctive relief is moot.
  Declaratory relief survives as a predicate for damages,
and we therefore proceed to the other remedies issues.
See Crue v. Aiken, 

, 677 (7th Cir. 2004) (“When
a claim for injunctive relief is barred but a claim for
damages remains, a declaratory judgment as a predicate
to a damages award can survive”).


    2.   Official Capacity Claims: Sovereign Immunity
         Under Section 1983, RLUIPA, and IRFRA
  Defendant argues that Nelson’s claim for damages
against him in his official capacity are barred under Section
1983 (a point conceded by Nelson), RLUIPA and IRFRA.
In its summary judgment order, the district court held
30                                                    No. 08-2044

that the Eleventh Amendment barred claims for damages
against Miller in his official capacity under RLUIPA
but held that IRFRA allows damages against the State.
Plaintiff argues that he should be able to obtain
official capacity damages against Nelson under both
RLUIPA and IRFRA.


         a. RLUIPA
   For purposes of sovereign immunity, “a suit against a
state official in his or her official capacity is . . . no different
than a suit against the State itself.” Will v. Mich. Dep’t of
State Police, 

, 71 (1989). A suit against a state
may be brought in federal court only when (1) a state
official is sued for prospective equitable relief under
Ex Parte Young, 

, 159-60 (1908); (2) Congress
abrogates the State’s immunity pursuant to its powers
under section 5 of the Fourteenth Amendment; or (3) the
State consents and waives its immunity. See, e.g., Gary A v.
New Trier High School, 

(7th Cir. 1986). The
first two avenues are inapplicable here, because Ex parte
Young does not apply to claims for damages, see Pennhurst
State Sch. & Hosp. v. Halderman, 

, 101-03 (1984),
and because Congress enacted RLUIPA under its Article I
powers, not the Fourteenth Amendment, see Bd. of Trustees
of the Univ. of Alabama v. Garrett, 

, 364 (2001);
Cherry v. Univ. of Wis. Sys. Bd. of Regents, 

, 554
(7th Cir. 2001) (“Congress cannot override the States’
immunity using an Article I power . . . .”). However,
Plaintiff claims that the third avenue applies because
the State has waived its immunity and consented to suit.
No. 08-2044                                                31

  Section 3 of RLUIPA states that no government may
impose a substantial burden on prisoners’ religious
exercise “in a program or activity that receives Federal
financial assistance,” 42 U.S.C. § 2000cc-1(b)(1), or in a way
that affects interstate commerce, 

Regarding remedies, the statute provides that prisoners
“may assert a violation of [RLUIPA] . . . and obtain appro-
priate relief against a government.” 

(empha-
sis added). The question here is whether the term “appro-
priate relief” is sufficiently specific to waive a state’s
sovereign immunity to a suit for damages.
  In analyzing whether a sovereign has waived its im-
munity, we strictly construe the scope of any alleged
waiver in favor of the sovereign. Lane v. Pena, 

,
192 (1996). We may “not enlarge the waiver beyond what
the language [of the statute] requires.” Library of Congress
v. Shaw, 

, 318 (1986) (internal citations and
quotation marks omitted). Consent to suit cannot be
implied, see 

are construed in favor
of immunity, see United States v. Nordic Village, 

, 34 (1992).
  There is a division of authority regarding whether
states have waived their sovereign immunity to a suit for
damages under RLUIPA. In Benning v. Georgia, the Elev-
enth Circuit held that RLUIPA’s reference to “appropriate
relief” was specific enough to constitute a waiver. 

, 1305-06 (11th Cir. 2004). Benning held that
RLUIPA’s reference to “appropriate relief against gov-
ernment” “unambiguously required states to waive their
sovereign immunity from suits filed by prisoners” under
32                                                No. 08-2044

the statute. 

A few years later, in Smith v. Allen,

(11th Cir. 2007), the Eleventh Circuit re-
treated a bit from Benning’s analysis, this time reasoning
that because Congress had not clearly stated what reme-
dies were included in “appropriate relief,” the court
should presume that such relief included money dam-
ages. 

  The Fourth and Fifth Circuits have taken a contrary
view. In Madison v. Virginia, 

, 130-33 (4th Cir.
2006), the Fourth Circuit reasoned that the phrase “appro-
priate relief” is subject to multiple interpretations, and
while it was willing to infer that states understood this
phrase to include injunctive relief, the phrase fell short of
“the unequivocal textual expression necessary to waive
State immunity from suits for damages.” 

The
court noted that the statute makes no reference to mone-
tary relief or sovereign immunity, and that if Congress
had wished to obtain a waiver for damages from states
as a consequence of accepting funds, it easily could
have expressed that intention. 

Civil Rights
Act of 1991, 42 U.S.C. § 1981a(a)(2) (2000)). By using the
“open-ended” term “appropriate relief,” RLUIPA
“foreclose[d] any argument that the statute waive[d]
immunity for monetary relief.” 

see also Webman v. Federal Bureau of Prisons, 

,
1026 (D.C. Cir. 2006) (holding that the federal Religious
Freedom Restoration Act’s identical “appropriate relief”
provision insufficient to waive federal sovereign
immunity for damages suits). In Sossamon v. The Lone
Star State of Texas, the Fifth Circuit likewise found sover-
eign immunity to bar a suit against state officials in
No. 08-2044                                              33

their official capacities under 

. The
court noted that the ordinary rule when interpreting
a statute—that a court presumes a statute affords all
ordinary remedies not expressly disclaimed—does not
apply when inquiring whether a state waived its immu-
nity. 

must be “expressly provided” in
the statute in order for a court to find that a state has
waived immunity to such suits. Id.; see also Scott v. Beard,
252 Fed. Appx. 491, 492-93 (3d Cir. 2007) (holding
without discussion that the Eleventh Amendment
barred official capacity damages under RLUIPA).
  We find the Fourth and Fifth Circuits’ analysis convinc-
ing. The term “appropriate relief” is open to several
interpretations and does not provide the “unequivocal
textual expression” necessary to effect a sovereign’s waiver
to suits for damages. Nelson tries to distinguish Madison by
noting that it relied on the Supreme Court’s decision in
Lane, which dealt with federal, not state, immunity from
suit. But plaintiff does not explain why this distinction
matters to the underlying analysis. Indeed, the Supreme
Court has explicitly stated that “[i]n considering whether
the Eleventh Amendment applies . . . cases involving the
sovereign immunity of the Federal Government . . . pro-
vide guidance.” California v. Deep Sea Research, Inc., 

, 506 (1998).
  Because a statutory reference to “appropriate relief” does
not provide the “unequivocal textual expression” neces-
sary to effect a waiver of sovereign immunity to suits for
damages, we affirm the district court’s judgment that
Miller is shielded from a monetary judgment in his
official capacity under RLUIPA.
34                                                   No. 08-2044

         b. IRFRA
  Miller concedes that IRFRA allows for monetary dam-
ages against him in his official capacity, but contends that
the federal courts do not have jurisdiction over such a
suit because the Illinois Court of Claims possesses exclu-
sive jurisdiction of all claims against the state itself
that are founded on state law. The district court did not
address this argument at length, finding only that “IRFRA
leaves open the possibility of monetary damages.”
  Our case law acknowledges that the Illinois Court of
Claims “possesses exclusive jurisdiction of all claims
against the state itself.” Nelson v. Murphy, 

, 505
(7th Cir. 1995) (citing 705 ILCS 505/8). We have also
recognized that Illinois courts treat suits against a public
employee in his official capacity as suits against the state.

employees in their personal capacity, by
contrast, are not considered suits against the state. Id.)
Thus, it appears that the Illinois Court of Claims has
exclusive jurisdiction over the suit against Miller for
damages in his official capacity.
  Plaintiff’s only response to this conclusion is his argu-
ment that the Court of Claims cannot provide the “judicial
relief”contemplated by IRFRA 9 because it is not part of


9
  IRFRA states the following with regard to judicial remedies
under the statute:
     Judicial relief. If a person’s exercise of religion has been
     burdened in violation of this Act, that person may assert
                                                     (continued...)
No. 08-2044                                                      35

the Illinois judiciary but rather is an agency created by
the legislature. To support his argument, Nelson quotes
the Illinois Court of Claims Act, which states that “any
person who files a claim in the court shall, before
seeking final determination of his or her claim exhaust
all other remedies and sources of recovery whether ad-
ministrative or judicial; . . .” 705 ILCS 505/25. Plaintiff
claims that this portion of the Act distinguishes the
Court of Claims from the “judiciary” because it requires
a claimant to exhaust all “judicial” remedies before filing
in the Court of Claims. But this argument is a non-starter:
requiring exhaustion of other judicial remedies does not
mean Court of Claims proceedings are “non-judicial” any
more than requiring exhaustion of other administrative
remedies means that such proceedings are “non-adminis-
trative.” Because it appears that the Court of Claims
possesses exclusive jurisdiction over a suit against
Miller in his official capacity, and because Nelson has
offered no compelling counter-arguments, we remand
this portion of Nelson’s suit to the district court for dis-
missal.




9
    (...continued)
       that violation as a claim or defense in a judicial proceeding
       and may obtain appropriate relief against a government.
775 ILCS 35/20.
36                                               No. 08-2044

     3. Individual Capacity Claims: RLUIPA 1 0
  Miller argues that Nelson may not pursue his RLUIPA
claim against Miller in his individual capacity because
RLUIPA was passed pursuant to Congress’s Spending
Clause power and cannot subject a state official to liability
in his personal capacity. Nelson argues that the terms of
RLUIPA clearly evidence Congress’s intent to create a
cause of action against individuals and that the Spending
Clause allows for such suits.
  As an initial matter, we find analysis of RLUIPA under
the Spending Clause to be appropriate in this case. All
circuits to consider whether RLUIPA is a valid Spending
Clause enactment have concluded that it is constitu-
tional under at least that power. See 

n.9 (analyzing RLUIPA under the Spending Clause and
finding analysis under the Commerce Clause inappropriate
in that case); 

n.34 (same); Madi-

(approving of enactment under the
Spending Clause, but not passing on a Commerce Clause
authority); Cutter v. Wilkinson, 

, 584-90 (6th
Cir. 2005) (same); 

(same); Charles
v. Verhagen, 

, 606-11 (7th Cir. 2003) (same);
Mayweathers v. Newland, 

, 1066-70 (9th Cir.


10
  Defendant does not contest that Plaintiff may be entitled to
damages against him in his personal capacity under Section
1983. The parties have not addressed whether Nelson may
pursue a claim against Nelson in his individual capacity under
IRFRA in federal court. This will be an appropriate issue for
the district court to resolve upon remand.
No. 08-2044                                                 37

2002) (same)). Like the Eleventh and Fifth Circuits, we
find analysis of RLUIPA under the Spending Clause to be
appropriate in this case. Although RLUIPA ostensibly
includes Commerce Clause underpinnings as well, see 42
U.S.C. § 2000cc-1(b), there is no evidence in this case
that Miller’s denial of a religious diet “affect[ed] . . .
commerce with foreign nations, among the several States,
or with Indian tribes.” 

strikes us as appropriate,
at least in this case, to interpret RLUIPA as an exercise of
Congress’s power under the Spending Clause. See 

n.9 (reasoning that RLUIPA should be
analyzed as an exercise of Congress’s Spending Clause
authority when there is no evidence of an effect on inter-
state or international commerce); 

n.34 (same).
  We now turn to the more specific issue: whether
RLUIPA could properly subject state officials to suit in
their individual capacities. RLUIPA authorizes relief
against “governments.” RLUIPA defines “government” as:
    (i) a State, country, municipality, [etc.] . . .
    (ii) any branch, department, agency, instrumentality, or
    official of an entity listed in clause (i); and
    (iii) any other person acting under color of State law.
42 U.S.C. § 2000cc-5(4)(a). As Miller concedes, this lan-
guage appears to authorize suit against him in his in-
dividual capacity because the third prong allows for
suits against “person[s] acting under color of State law”
even apart from those persons as “official[s]” as described
in the second prong. Indeed, this court found in Mack v.
38                                               No. 08-2044

O’Leary that identical language in the federal RFRA
entitled a prisoner to sue prison officials in their
individual capacities. 

, 1177 (7th Cir. 1996),
vacated on other grounds by O’Leary v. Mack, 

(1997). But even if the language of the statute contem-
plates individual capacity liability, we still must address
the question of whether a statute enacted pursuant to
the Spending Clause should be interpreted as imposing
individual liability on persons who do not, themselves,
receive federal funds.
  The Spending Clause of the Constitution provides, in
pertinent part, that “Congress shall have the Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and
general Welfare of the United States.” U.S. CONST. art I.,
§ 8, cl. 1. Pursuant to this authority, the Supreme Court
has held that “Congress may attach conditions on the
receipt of federal funds” and may “further its broad policy
objectives by conditioning receipt of federal moneys
upon compliance by the recipient with federal statutory
and administrative directives.” South Dakota v. Dole, 

, 206 (1987) (citation and quotations omitted).
Congress’s Spending legislation typically grants federal
funds to state institutions in exchange for the state’s
compliance with certain conditions. Such legislation
has been described as creating a “contract” between the
federal government and the state that receives the federal
funds. See, e.g., 

; Floyd v. Waiters,

, 789 (11th Cir. 1998) (citation omitted), vacated
on other grounds, 

, reinstated at 

No. 08-2044                                                      39

(11th Cir. 1999). As a result, “[t]he legitimacy of Congress’
power to legislate under the spending power [] rests on
whether the State voluntarily and knowingly accept[ed]
the terms of the ‘contract.’” 

.
   The two circuit court decisions that have addressed this
constitutional issue with regard to RLUIPA, Smith and
Sossamon, both found that state officials could not be held
liable in their individual capacities under the statute.1 1 In
Smith, the Eleventh Circuit began by analogizing cases
in which plaintiffs sought damages under Title IX, which
was also enacted pursuant to Congress’s Spending Clause
power. The Eleventh Circuit had previously held that
Title IX did not allow a private cause of action against a
defendant in his individual capacity because individual
defendants were not the “recipients” of the federal funds
and thus were not parties to the “contract” created by state
acceptance of the funds. 

(citing 

(“Because the contracting party is the grant-
receiving local school district, a Title IX claim can only



11
  The Ninth Circuit appears to have assumed that RLUIPA
allows for individual capacity suits because it affirmed a
district court’s grant of qualified immunity to a defendant
official under the statute. Campbell v. Alameida, 295 F. App’x 130,
131 (9th Cir. 2008). The great number of district courts that
have considered this question have been split, but few have
considered the constitutional issue, instead focusing merely on
the language of the statute. See, e.g., Agrawal v. Briley, No. 02-C-
6807, 

(N.D. Ill. Dec. 6, 2006) (summarizing
split of authority but not discussing constitutional issue).
40                                                    No. 08-2044

be brought against the grant-recipient . . . and not an
individual”)). Based on this analogy, the Eleventh Circuit
concluded that “a construction of RLUIPA providing for
individual liability raises substantial constitutional con-
cerns” and consequently held that “a provision that
derives from Congress’ Spending Power cannot be con-
strued as creating a private action against individual
defendants for monetary damages.” 

(citing

).1 2
  The Sossamon court agreed with Smith. It first noted that
the Fifth Circuit had already adopted the rule that Spend-
ing Clause legislation can only generate liability for
funding grant recipients. 

, 328
n.35 (citing Pederson v. LSU, 

, 876 (5th Cir.
2000) and Rosa H. v. San Elizario Indep. Sch. Dist., 

, 654 (5th Cir. 1997)). It also believed that an inter-
pretation of RLUIPA that disallowed individual capacity
suits avoided the federalism and accountability


12
   Our own circuit has also held in the Title IX context that “only
a grant recipient” can violate the statute. See Smith v. Metropoli-
tan Sch. Dist. Perry Township, 

(7th Cir. 1997). But
we came to this conclusion not based on limitations of Con-
gress’s Spending Clause power but rather because the terms of
Title IX prohibited discrimination “only by a ‘program or
activity’ receiving federal funding.” 

see also Jennings
v. Univ. of North Carolina, 

, 268 n.9 (4th Cir. 2006)
(“Title IX was enacted pursuant to Congress’ spending power
and prohibits discriminatory acts by funding recipients. Because
school officials are not funding recipients under Title IX,
school officials may not be sued in their individual capacities
under Title IX.”) (emphasis added).
No. 08-2044                                               41

concerns implicated by an alternative interpretation. 

As the court explained:
    [I]f a congressional enactment could provide the basis
    for an individual’s liability based only on the agree-
    ment of (but not corresponding enactment of legisla-
    tion by) a state, then important representation
    interests protected by federalism would be under-
    mined. After passively acquiescing in the regulation
    of its citizens under a federal standard to receive
    needed funding from Congress, a state legislature
    could point its finger at the federal government for
    tying needed funds to an undesired liability—the
    regulation or law responsible for such liability not
    having been enacted by the state. Congress could
    reciprocate by pointing its finger at the state
    legislature for accepting the funds and visiting
    liability on its citizens by the state’s own choice, even
    though the state itself did not enact the law or regula-
    tion in question. Such an approach blurs the lines
    of decisional responsibility; that, in turn, undermines
    the popular check on both state and federal legisla-
    tures.

(footnotes omitted). The Fifth Circuit thus
held that “Congressional enactments pursuant to the
Spending Clause do not themselves impose direct
liability on a non-party to the contract between the
state and the federal government.” 

origi-
nal); see also, e.g., Moxley v. Town of Walkersville, 601 F.
Supp. 2d 648, 660 (D. Md. 2009) (agreeing with the ratio-
nale in Smith, and holding that a personal capacity suit
42                                              No. 08-2044

may is not available against an individual defendant under
RLUIPA); Pugh v. Goord, 

, 507 (S.D.N.Y
2008) (finding the reasoning in Smith to be convincing, and
concluding that RLUIPA does not provide for money
damages against defendants in their individual capacities);
Boles v. Neet, 

, 1240 (D. Colo. 2005)
(“The Court understands [RLUIPA] to permit cases against
a governmental entity, but not against an individual
officer, except perhaps in his or her official capacity.”).
  Despite this weight of authority, Nelson argues that
we should nonetheless allow Miller to be held
individually liable because, as an employee of the state,
Miller was a “third party beneficiary” of the “contract”
created between the federal government and Illinois
when Illinois accepted RLUIPA funds. Plaintiff contends
that “[j]ust as third party beneficiaries to a contract have
a right to sue for damages caused by a breach of a
contract to which they are not a party, so do citizens
have a right to damages when state officials violate the
‘contract’ implied in spending clause legislation.” But we
have rejected this argument before. In Smith v. Metropolitan
Sch. Dist. Perry Twp., we stated that the fact that a
statute “ ‘was enacted pursuant to Congress’s spending
power is evidence that it prohibits discriminatory acts only
by grant recipients.’ ” 

, 1019 (7th Cir. 1997)
(holding that Title IX did not allow for damages against
school officials in their individual capacities) (quoting
Rowinsky v. Bryan Indep. Sch. Dist., 

, 1012 (5th
Cir. 1996)). Significantly, in Metropolitan Sch. Dist., we
quoted approvingly the Fifth Circuit’s Rowinsky decision,
No. 08-2044                                                   43

which stated that “ ‘[w]hile it is plausible that the [federal
government’s Title IX funding conditions] could encom-
pass ending discriminatory behavior by third parties, the
more probable inference is that the condition prohibits
certain behavior by the grant recipients themselves.’ ” 

(quoting 

).
Moreover, we remain concerned that interpreting
RLUIPA to allow for suits against officials in their personal
capacities could implicate significant federalism and
accountability concerns, as voiced by our colleagues in
Smith and Sossamon. See 

n.10 (citing
Daker v. Ferrero, 

, 1341-42 (N.D. Ga.
2007) (“By imposing liability on non-recipients of federal
funding-individuals who are in essence involuntary and
unknowing third parties to the funding contract-RLUIPA
would become an example of an unprecedented and
untested exercise of Congress’ [S]pending power.”));

-29.
  Construing RLUIPA to provide for damages actions
against officials in their individual capacities would
raise serious questions regarding whether Congress
had exceeded its authority under the Spending Clause.
Thus, as a matter of statutory interpretation, and to
avoid the constitutional concerns that an alternative
reading would entail,1 3 we decline to read RLUIPA as



13
  The “canon of constitutional avoidance is an interpretive tool,
counseling that ambiguous statutory language be construed
to avoid serious constitutional doubts.” FCC v. Fox TV Stations,
                                                   (continued...)
44                                                  No. 08-2044

allowing damages against defendants in their individual
capacities.


                       III. Conclusion
  We R EVERSE the district court’s judgment that Nelson’s
free exercise of religion was not substantially burdened
by Tamms procedures and its denial of a non-meat diet
on Fridays and during Lent. But as our remedies analysis
makes clear, Nelson’s free exercise claim is still viable
against Miller only in his individual capacity under
Section 1983 and, possibly, IRFRA. However, before the
district court can enter a declaratory judgment or assess
damages for Nelson on either of these claims, the
district court must determine (1) whether defendant’s
procedures and conduct were “in furtherance of a com-
pelling government interest” and “the least restrictive
means of furthering that compelling government inter-
est”; and (2) whether Miller is entitled to qualified immu-
nity. These issues were not briefed on appeal, so we
R EMAND them to the district court for further consider-
ation. We A FFIRM the judgment of the district court with
regard to Nelson’s claim under the Establishment Clause.
  With regard to remedies, we A FFIRM the district court’s
judgment that Nelson’s claim for injunctive relief is moot.


13
  (...continued)
Inc., ___ U.S. ___, 

, 1812 (2009) (citing Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 

, 575 (1988)).
No. 08-2044                                             45

As to the official capacity claims, we A FFIRM the district
court’s judgment that sovereign immunity bars any suit
against Miller in his official capacity under Section 1983
and RLUIPA. However, we R EVERSE the district court’s
determination that IRFRA allows Illinois prison officials
to be sued in their official capacities in federal court.
Finally, as to the individual capacity claims, we hold that
RLUIPA does not allow for such suits and, as stated,
we remand Nelson’s individual capacity claims under
Section 1983 and IRFRA for further proceedings.




                           7-1-09