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Nelson v. Miller

July 1, 2009


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

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

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 Amendment, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and the Illinois Religious Freedom Restoration Act ("IRFRA"). Nelson requested declaratory and injunctive relief as well as monetary damages.

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 representative 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 reasoned that the only ways he could engage in penance 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 and other religious orders who*fn1 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 "vegetarian/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 introduction of contraband, and to prevent an inmate's cell 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 confirmation 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 required 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," and cited other biblical passages*fn2 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 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 Muslims!!!" Nelson's grievance was denied at the institutional level, and ultimately by the Illinois Department of Corrections 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 "everyone, 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.

According to the testimony of both Nelson and Miller, some requests for a religious diet at Tamms are automatically 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 approving 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. 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 documentation 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 "Catholic," 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 Administrative 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 religion." In a memo dated April 1, 2003, from Chaplain Miller to Administrative Assistant Randy George regarding 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 reasoned 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 depressed 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.

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 defendant. 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 complaining 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 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. Defendants 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 Nelson'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 grievance 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 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., 480 F.3d 478, 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 Patton, 480 F.3d at 485 (citing ...

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