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Oklahoma Orthodox Jewish Prisoners Win Kosher Diet

by John E. Dannenberg

Three Orthodox Jewish state prisoners won both preliminary and permanent injunctive relief requiring the Oklahoma Department of Corrections (ODOC) to provide them a Kosher diet at no personal cost.

Prisoners Dennis Fulbright, Jon Cottriel and Jerry Harmon brought individual 42 U.S.C. § 1983 actions in 2003 against then Director of Corrections Ron Ward, claiming that ODOC?s policy of not providing a Kosher diet violated their sincere religious beliefs. The court consolidated the three actions and entertained joint motions for a preliminary injunction.

After Ward retired, ODOC moved to dismiss on mootness grounds when the new director, Justin Jones, verbally conceded the prisoners? First Amendment rights were being violated. The court rejected a mootness defense because there was not an ?absolute assurance? that future directors would adopt the same policy, noting that ?a defendant?s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice unless it is absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur,? citing Buckhannon v. W. Virginia DIMS, 532 U.S. 598, 609 (2001).

Next, the court rejected Jones? evasive maneuver claiming that he, as a substitute named defendant, enjoyed Eleventh Amendment immunity. The court relied on the Advisory Note to Fed.Rules.Civ.Proc. 25(d)(1) to hold that liability attaches to the office (i.e., Director) and not to the individual holder of the office from time to time. The current director was therefore not entitled to Eleventh Amendment immunity to avoid injunctive relief for constitutional violations that might, under a future director, recur.

On the merits, the district court noted that in the Tenth Circuit, ?prisoners have a constitutional right to a diet conforming to their sincerely held religious beliefs, unless a state?s decision to deny inmates access to such a diet ?is reasonably related to a legitimate penological interest,?? citing Beerheide v. Suthers, 286 F.3d 1179, 1184 (10th Cir. 2002). The court then conducted a four-part test per Turner v. Safley, 482 U.S. 78, 89 (1987), and concluded that the balance of the factors weighed in favor of the prisoners. At the worst, the state?s budgetary concerns paled in comparison to the irreparable harm of the loss of a First Amendment freedom for the plaintiffs. The court rejected ODOC?s counter-argument that the First Amendment?s Establishment Clause trumped the Free Exercise Clause by putting ODOC in the business of impermissibly advancing religion or evincing sponsorship of a religious activity by the government.

Accordingly, the court denied Jones? motion for summary judgment and granted the prisoners? motions for summary judgment, giving plaintiffs seven days to submit a proposed judgment and permanent injunction. That permanent injunction, issued February 8, 2006, ordered Director Jones ?to immediately provide to the plaintiffs Kosher diets at no cost, [while complying with nutritional requirements currently applicable to all other ODOC prisoners].? The court held that ?the injunction is necessary to remedy a violation of these plaintiffs? rights to freely exercise their Orthodox Jewish religion as guaranteed by the First Amendment to the United States Constitution.? See: Fulbright v. Jones, U.S.D.C. W.D. Okla, 2006 WL 222807 (unreported).

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Related legal case

Fulbright v. Jones