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Seventh Circuit Says No Religious Diet Violated RLUIPA

By Mark Wilson

The Seventh Circuit Court of Appeals held that Illinois prison officials violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when they denied a prisoner a non-meat diet.

Illinois prisoner Gregory Koger changed his religious affiliation from Baptist to Buddhist in 1999. He stopped eating meat in 2000 and in 2001 he began requesting a religious non-meat diet. Prison officials denied his request because he did not provide a letter from a Rabbi-Imam or other clergy member. Koger responded that he was not a member of any formally established religion so no clergy were available to provide a letter.

In November 2001, Koger “joined Ordo Templi Orientis (‘OTO’), a group associated with the religion of Thelema,” which was founded in 1904 by Aleister Crowley. He then sought to change his religious affiliation from Buddhist to OTO and again requested a non-meat diet. Prison officials refused because Thelema imposes no general dietary restrictions and he did not provide a clergy verification letter.

Koger grieved the refusal to change his religious affiliation and diet. Prison officials denied the grievance, repeating that a letter from a religious organization was required. In April 2002, Koger provided proof that he was a dues-paying OTO member. Prison officials changed his religious affiliation but still denied the non-meat diet because Thelema has no dietary requirements.

Koger brought suit in federal court, alleging violations of RLUIPA and his constitutional rights. He sought declaratory and injunctive relief and damages. The district court granted defendants summary judgment on all claims.

The Seventh Circuit reversed as to the RLUIPA claims. The court first determined that Koger satisfied his burden of establishing that he sought a non-meat diet for religious reasons and that his beliefs were sincere.

The court then held that by requiring Koger to prove that a non-meat diet was required by his religion, prison officials required him “to establish exactly what RLUIPA does not require – that his requested diet was ‘compelled by’ or ‘central to’ his faith. 42 U.S.C. § 2000cc – 5(7)(A).” Prison officials also failed to show that it employed this religiously required test “in furtherance of a compelling governmental interest,” or that it was “the least restrictive means of furthering that interest.” Accordingly, the court held that denying Koger “a non-meat diet simply because OTO has no general dietary restrictions” violated RLUIPA.

The court also held hat the “clergy verification requirement violated RLUIPA because it imposed a substantial burden on Koger’s religious exercise. The “requirement was responsible for rendering Koger’s religious exercise effectively impracticable.” Prison officials failed to meet their burden of showing that this requirement furthered a compelling governmental interest or was the least restrictive means of furthering those interests. Therefore, the court found that the clergy verification requirement also violated RLUIPA.

“Because the prison officials are liable under RLUIPA for the conduct complained of in the constitutional claims,” the court declined to reach those claims. It then denied Defendant’s qualified immunity because “Koger’s right not to be subjected to a religiously required test or a clergy verification requirement were clearly established when prison officials employed both.”

The court agreed that the district court erred in denying Koger’s “motion for service by the United States Marshal simply because he paid the filing fee instead of proceeding in forma pauperis.” The court determined that the lower court “misapplied Rule 4 because it failed to exercise the discretion given it when the plaintiff pays the filing fee.” Therefore, it directed the district court to exercise its discretion on remand to determine if two defendants should be served under Rule 4(c)(3).

Finally, the court noted that Koger’s release mooted his request for injunctive relief, the Prison Litigation Reform Act (PLRA) applies, and 42 USC § 1997e(e) of the PLRA bars damages in the absence of physical injury. Hence, the court effectively ruled that Koger has no remedy for the RLUIPA violation. One judge agreed, in a concurring opinion, that “what has happened here is pretty close to a waste of time for all concerned.”

He criticized Defendants for digging their heels in and making a federal case out of whether Koger should receive a non-meat diet, suggesting Defendants were “quite unreasonable.” He criticized Thelema, noting its ties to the occult and UFOs. He questioned the sincerity of Koger’s beliefs, suggesting “one would no be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison.” He also criticized RLUIPA, suggesting that without it “this case would have been dead in the water when it was filed.” In his view, “RLUIPA…fosters the potential for mischief and game-playing. Koger’s case is, potentially at least, a pretty good example of that.” He concluded: “So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying ‘yes.’” See: Koger v. Bryan, 523 F3d 789 (7th Cir. 2008).

An amended judgment in favor of Koger was entered on Oct. 27, 2008, awarding him $1.00 in nominal damages. Costs in the amount of $620.10 were taxed against the defendants.

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Related legal case

Koger v. Bryan