The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On September 23, 2002, Plaintiff Shree M. Agrawal, a prisoner in the custody of the Illinois Department of Corrections ("IDOC") at Menard Correctional Center, filed suit against several IDOC officials, alleging that he was denied his First Amendment right to practice his religion (Vaishnava Hindu) while confined at Stateville Correctional Center ("Stateville"). Specifically, Agrawal asserted that IDOC officials had refused to provide him with a diet free of meat and eggs, even though a vegetarian diet conforming to Plaintiff's religious restrictions was available to Stateville inmates of the "Hebrew Israelite" faith.*fn1 After the court dismissed his complaint in part, see Agrawal v. Briley, No. 02 C 6807, 2003 WL 164225, at *4 (N.D. Ill. Jan. 22, 2003), Plaintiff amended his complaint to add a claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., based on the same facts; Plaintiff sought injunctive relief, a declaratory judgment, and both actual and punitive damages. The court denied a motion filed by Defendants Kenneth Briley, the Stateville warden, and Stateville's prison chaplain, Charles Peterson, to dismiss the amended complaint, Agrawal v. Briley, No. 02 C 6807, 2003 WL 22839813 (N.D. Ill. Nov. 25, 2003), and then on August 25, 2004 granted Plaintiff's motion for summary judgment as to Defendants' liability on the RLUIPA claim.*fn2 Agrawal v. Briley, No. 02 C 6807, 2004 WL 1977581, at *15 (N.D. Ill. Aug. 25, 2004).
The parties have now briefed the question of the relief to which Plaintiff Agrawal is entitled under RLUIPA. For the reasons discussed below, the court concludes that RLUIPA authorizes claims for monetary damages, but that compensatory damages are unavailable to the extent those damages are based, as here, on claims of mental or emotional injury. Accordingly, absent a showing of physical injury, only nominal and punitive damages are available to Agrawal under RLUIPA.
RLUIPA, enacted in 2000, is the latest of several "congressional efforts to accord religious exercise heightened protection from government-imposed burdens." Cutter v. Wilkinson, 544 U.S. 709, 714 (2005). Ten years before RLUIPA's enactment, the Supreme Court held, in Employment Division v. Smith, 494 U.S. 872, 878-82 (1990), that the Free Exercise Clause of the First Amendment does not prohibit the applications of neutral, generally applicable laws that incidentally burden religious conduct. See Cutter, 544 U.S. at 714. In so doing, the Smith Court declined to hold such generally applicable regulations to the so-called Sherbert test, under which a court must determine whether a statutory or regulatory prohibition "substantially burdened a religious practice," and, if so, whether that burden was "justified by a compelling government interest." City of Boerne v. Flores, 521 U.S. 507, 513 (1997). In response to Smith, Congress, relying on its remedial powers under § 5 of the Fourteenth Amendment, enacted the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb, for the express purpose of restoring the Sherbert compelling-interest test. Id. at 515, 517-18; see 42 U.S.C. § 2000bb(b)(1). Under RFRA, "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government can demonstrate that the application of the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a), (b); City of Boerne, 521 U.S. at 515-16. In City of Boerne, however, the Court "invalidated RFRA as applied to States and their subdivisions," holding that Congress had exceeded its Fourteenth Amendment remedial powers and thus lacked the constitutional authority to enforce RFRA against state and local governments. Cutter, 544 U.S. at 715 (citing City of Boerne, 521 U.S. at 532-36); see O'Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003). RFRA remains enforceable against the federal government, officers, and agencies. O'Bryan, 349 F.3d at 401.
Congress responded by enacting RLUIPA. Although the language of its substantive and remedial provisions is virtually identical to that in RFRA, see Hankins v. Lyght, 441 F.3d 96, 111 n.3 (2d Cir. 2006), RLUIPA was enacted pursuant to Congress's powers under the Spending and Commerce Clauses rather than § 5 of the Fourteenth Amendment, and affords heightened protection to religious exercise in only two contexts: institutionalized persons and land use regulation. Cutter, 544 U.S. at 715; see 42 U.S.C. §§ 2000cc, 2000cc-1. As to institutionalized persons, RLUIPA prohibits any "government" from "'impos[ing] a substantial burden on the religious exercise of a person residing in or confined to an institution,' unless the government shows that the burden furthers 'a compelling governmental interest' and does so by 'the least restrictive means.'" Cutter, 544 U.S. at 715 (quoting 42 U.S.C. § 2000cc-1(a)). "Government" is defined quite broadly as including "(I) a State, county, municipality, or other governmental entity created under the authority of a State; (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). And, as RFRA did, RLUIPA provides a private right of action: "A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."*fn3 42 U.S.C. § 2000cc-2(a).
RLUIPA's provisions relating to institutionalized persons apply only to "program[s] or activit[ies]" receiving federal financial assistance or affecting interstate commerce. 42 U.S.C. § 2000cc-1(b)(1)-(2); Cutter, 544 U.S. at 715-16. In Cutter, the Supreme Courtheld that RLUIPA's institutionalized-persons provisions withstood an Establishment Clause challenge, 544 U.S. at 720, but declined to address whether Congress had exceeded its powers under the Spending and Commerce Clauses because that issue had not been raised in the Court of Appeals below. Id. at 718 n.7. The Seventh Circuit, however, has found RLUIPA to be a valid exercise of Congressional authority under the Spending Clause. See Charles v. Verhagen, 348 F.3d 601, 611 (7th Cir. 2003).
II. Availability of Monetary Damages Under RLUIPA
At issue in this case is whether RLUIPA authorizes monetary damages. As noted, RLUIPA enables a prevailing plaintiff to "obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). No Circuit Court of Appeals has addressed whether "appropriate relief" includes damages, and district courts are divided on the issue. At least one court has held that this statutory language does not authorize suits for damages against state officials in their individual capacities.*fn4
In Boles v. Neet, 402 F. Supp. 2d 1237, 1240 (D. Colo. 2005), the court stated that RLUIPA "permit[s] cases against a governmental entity, but not against an individual officer, except perhaps in his or her official capacity." The court further noted, without explanation, that RLUIPA "does not appear [to] permit a claim for damages." Id. at 1241. The court thus concluded that RLUIPA allowed claims only for injunctive and/or declaratory relief against state governmental entities or officials sued in their official capacities, and held that the plaintiff inmate's claims were barred to the extent he sought damages. Id.; cf. Guru Nanak Sikh Society of Yuba City v. Sutter, 326 F. Supp. 2d 1128, 1136 (E.D. Cal. 2003) (allowing RLUIPA land use claims for injunctive relief to go forward against individual defendants in their official capacities).
Several other courts have, without explicitly so holding, expressed grave doubt as to whether RLUIPA permits claims for damages against individual defendants. In Morris-El v. Menei, No. Civ.A. 00-200J, 2006 WL 1455592, at *3 (W.D. Pa. May 22, 2006), the court had previously denied the plaintiff inmate's attempt to amend his complaint to add a RLUIPA claim to his First Amendment claim because the complained-of events pre-dated RLUIPA's enactment. In granting summary judgment in favor of defendant prison officials' First Amendment claims, the court observed that RLUIPA did not authorize damages against individual defendants in any event, but only "'appropriate relief against a government'"; accordingly, only injunctive relief would have been "appropriate" under RLUIPA, and that was mooted by the inmate's transfer. Id. (quoting 42 U.S.C. § 2000cc-2a). In Gooden v. Crain, 405 F. Supp. 2d 714, 723 (E.D. Tex. 2005) (quoting 42 U.S.C. § 2000cc-2a), the court, addressing whether defendant prison officials were entitled to qualified immunity on an inmate's RLUIPA claim, observed that "RLUIPA does not contemplate recovering damages from individuals . . . .Instead, RLUIPA provides for 'appropriate relief against a government.'" The court concluded that qualified immunity was thus "irrelevant to the extent damages may be unavailable" under RLUIPA, but that to the extent damages were "potentially available," defendants were entitled to qualified immunity in any event because plaintiff had not established a substantive RLUIPA violation. Id. at 724. Similarly, in Smith v. Haley, 401 F. Supp. 2d 1240, 1246 (M.D. Ala. 2005), the court noted that a threshold issue in determining whether defendant prison officials were entitled to qualified immunity on an inmate's RLUIPA claim was whether RLUIPA even authorized claims for damages against state officials in their individual capacities. The court observed that "[b]ecause there is simply nothing in the statute that clearly suggests that government employees can be liable for damages in their individual capacities, the court doubts that RLUIPA provides for such." Id. As the parties had not briefed the issue, however, the court assumed that such damages were available and proceeded to find the defendants entitled to qualified immunity. Id. at 1246, 1250; see also Farrow v. Stanley, No. Civ.02-567-PB, 2005 WL 2671541, at *11 n.13 (D.N.H. Oct. 20, 2005) (noting "substantial uncertainty . . . as to whether [RLUIPA] even provides a right to money damages" but explicitly declining to address the issue because the parties had not briefed it).
Although the Haley court suggested that RLUIPA might authorize damages claims against state officials in their official, rather than individual capacities, see id. at 1246, other courts have found such claims barred by Eleventh Amendment sovereign immunity. See, e.g., James v. Price, No. 2:03-CV-0209, 2005 WL 483443, *2 (N.D. Tex. Mar. 2, 2005) ("To the extent plaintiff is suing the defendants for monetary relief, the suit against the defendants in their official capacities is barred by the Eleventh Amendment."); Limbaugh v. Thompson, Nos. 2:93cv1404-WHA, 2:96cv554-WHA, 2006 WL 2642388, at *6 (M.D. Ala. Sept. 14, 2006) ("to the extent the plaintiffs seek monetary relief against . . . the individual defendants in their official capacities, the plaintiffs' claims are barred by the Eleventh Amendment and are subject to dismissal."); cf. Williams v. Bitner, 285 F. Supp. 2d 593, 602 (M.D. Pa. 2003) (holding that RLUIPA "does not unconstitutionally abrogate the immunity granted by the Eleventh Amendment" because sovereign immunity does not bar actions for injunctive relief against state officials and RLUIPA "does not mandate the award of damages").
Courts coming down on the other side of the issue have held that RLUIPA does authorize individual-capacity suits and that "appropriate relief" indeed includes money damages. See, e.g., Marsh v. Granholm, NO. 2:05-cv-134, 2006 WL 2439760, at *10-11, 14 (W.D. Mich. Aug. 22, 2006) (rejecting defendants' argument that they could not be held liable for damages under RLUIPA in their individual capacities, but ultimately concluding that qualified immunity shielded defendants from liability); Daker v. Ferrero, No. 03-CV-02481-RWS, 2006 WL 346440, at *9 (N.D. Ga. Feb. 13, 2006) (holding that RLUIPA permits individual-capacity suits because its definition of "government" includes individuals who would be subject to liability under § 1983, and that RLUIPA's "appropriate relief" provision did not explicitly preclude money damages); Orafan v. Goord, No. 00CV2022(LEK/RFT), 2003 WL 21972735, at *9 (N.D.N.Y. Aug. 11, 2003) (holding that because the "plain language of the statute" includes individuals in its definition of "government," RLUIPA "[c]learly . . . contemplates individual liability"). Several of these courts and others, however, have observed that recovery of compensatory damages may be limited by § 1997e(e) of the Prison Litigation Reform Act ("PLRA"), which bars claims brought by prisoners for "mental or emotional injury." See 42 U.S.C. § 1997e(e); see, e.g., Andreola v. State of Wisconsin, No. 04-C-0282, 2006 WL 2038364, at *3 (E.D. Wis. July 19, 2006) (concluding that even if RLUIPA authorizes damages, compensatory damages are barred by the PLRA); Daker, 2006 WL 346440, at *10 (claims for compensatory and punitive damages barred by § 1997e(e) to the extent those claims were predicated on mental or emotional injury); Meyer v. Teslik, 411 F. Supp. 2d 983, 991 (W.D. Wis. 2006) (compensatory damages barred by § 1997e(e), but nominal and punitive damages available for plaintiff's RLUIPA claim).
Still other courts have cited the lack of case law and the uncertainty of the issue as reasons for holding that damages are unavailable. See, e.g., Smith v. Beauclair, No. CV-03-222-C-EJL, 2006 WL 2348073, at *10 (D. Idaho Aug. 11, 2006) (denying plaintiffs' request for compensatory damages "[b]ased on the lack of case law on this point"); Hammons v. Jones, No. 00-CV-0143-CVE-SAJ, 2006 WL 353448, at *1 (N.D. Okla. Feb. 14, 2006) (limiting plaintiff to injunctive relief on his RLUIPA claim upon remand from the Tenth Circuit in part because other courts had "determined that claims for damages are precluded or uncertain"). Others have assumed, without deciding, that damages are available under RLUIPA. See Figel v. Overton, No. 2:03-CV-216, 2006 WL 625862, at *2 (W.D. Mich. Mar. 9, 2006) (granting summary judgment in favor of defendant prison officials on plaintiff's claims for injunctive and declaratory relief because changes in the challenged prison policy rendered those claims moot, but declining to grant summary judgment on plaintiff's damages claims under RLUIPA and § 1983, without discussing whether RLUIPA authorized such relief); Shidler v. Moore, 409 F. Supp. 2d 1060, 1067 (N.D. Ind. 2006) (noting that it was "unclear" to what extent § 1997e(e) of the PLRA precluded monetary damages under RLUIPA, but "giving [plaintiff] the benefit of the doubt at the pleading stage" and holding that plaintiff had stated a claim for money damages under RLUIPA).
In this case, Plaintiff argues that nominal, compensatory, and punitive damages are all available under RLUIPA because § 2000cc-2(a), authorizing "appropriate relief," contains "no express limitation" on the type of relief a court can award. (Plaintiff's Brief Concerning the Availability of Damages under RLUIPA, at 2-3.) Plaintiff also claims to be "aware of no legal authority rejecting the proposition that nominal, compensatory, and punitive damages are all 'appropriate relief.'"*fn5 (Plaintiff's Supplemental Authority on the Availability of Damages Under RLUIPA, at 1.) Defendants contend that § 2000cc-2(a) "in no way expressly authorizes an award of monetary damages." (Defendants' Brief in Response to Plaintiff's Brief Concerning the Availability of Damages under RLUIPA (hereinafter, "Def.'s Resp."), at 3-4.) Defendants maintain that monetary damages are barred by sovereign immunity, (Defendants' Sur-Reply, at 1-2), and that even if the court were to conclude that RLUIPA authorizes claims for damages, compensatory damages would be precluded by the PLRA and punitive damages would be inappropriate in this case. (Defendants' Supplemental Brief Concerning the Availability of Damages Under RLUIPA (hereinafter, "Def.'s Supp."), at 2-3.) Defendants further urge the court to reconsider its earlier conclusion that Defendants are not entitled to qualified immunity. (Id. at 11-12.) Both parties cite to several of the above-noted district court decisions in support of their arguments.
The court addresses the issues raised by the parties in the following order: first, the application of sovereign immunity in the RLUIPA context; second, whether RLUIPA authorizes individual-capacity suits for damages; third, if damages are indeed available, whether the PLRA imposes any limitations on recovery; and fourth, whether the court should revisit its qualified immunity determination.
Defendants contend that Plaintiff is not entitled to money damages under RLUIPA because Illinois has not waived its sovereign immunity. (Defendants' Sur-Reply, at 2.) Plaintiff responds that because Defendants have been sued and held liable only in their individual capacities, "there is no conceivable 11th Amendment issue." (Plaintiff's Sur-Response, at 2.) Plaintiff is correct that sovereign immunity is no bar where a state official is sued in his or her individual capacity. See Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002). Plaintiff is assuming that RLUIPA allows individual-capacity suits, but, as discussed below, that issue is disputed. See Boles, 402 F. Supp. 2d at 1240 (holding that RLUIPA does not authorize suits against individual defendants). Moreover, in this court's earlier decision granting summary judgment in favor of Plaintiff on his RLUIPA claim, the court did not indicate whether Defendants were liable in their official or individual capacities. See Agrawal, 2004 WL 1977581, at *13-14. Indeed, although the court had previously dismissed Plaintiff's official-capacity § 1983 claims, see Agrawal, 2003 WL 164225, at *4, the court, in addressing Plaintiff's RLUIPA claim, ...