Makin v. Colorado Dept. of Corrections

• Decision Date: 12 July 1999
• Docket Number: No. 98-1272,98-1272
• Citation: 183 F.3d 1205
• Parties: (10th Cir. 1999) AKEEM ABDUL MAKIN, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF CORRECTIONS, COLORADO STATE PENITENTIARY, FRANK O. GUNTER, ARISTEDES ZAVARAS, DONICE NEAL, and JERRY GASKO, Defendants, and GEORGE E. SULLIVAN and H.B. JOHNSON, Defendants-Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1205

183 F.3d 1205 (10th Cir. 1999)

AKEEM ABDUL MAKIN, Plaintiff-Appellee, v. COLORADO DEPARTMENT OF CORRECTIONS, COLORADO STATE PENITENTIARY, FRANK O. GUNTER, ARISTEDES ZAVARAS, DONICE NEAL, and JERRY GASKO, Defendants, and GEORGE E. SULLIVAN and H.B. JOHNSON, Defendants-Appellants.

No. 98-1272

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 12, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 93-D-479)

[Copyrighted Material Omitted] Vincent C. Todd, Lakewood, Colorado, for Plaintiff-Appellee.

Ken Salazar, Attorney General, Grace A. Belsches, Special Assistant Attorney General, Denver, Colorado, for Defendants-Appellants.

Before PORFILIO, McKAY, and LUCERO, Circuit Judges.

PORFILIO, Circuit Judge.

Defendants George E. Sullivan and H.B. Johnson appeal from the district court's judgment following trial to the court in favor of plaintiff Akeem Abdul Makin on his 42 U.S.C. 1983 claim for violation of his First Amendment right to exercise his religion while incarcerated in the Colorado prison system. We agree with the district court that defendants violated Mr. Makin's rights, but conclude that the court improperly determined the amount of damages awarded to him. We therefore affirm the judgment on liability, but vacate the damages award and remand for further proceedings.¹

I

In 1993 and 1994, Mr. Makin was incarcerated under the jurisdiction of the Colorado Department of Corrections, confined in 1993 at the Colorado Territorial Correctional Facility and in 1994 at the Colorado State Penitentiary. He is a follower of Islam, and in both years wanted to observe the Muslim holy month of Ramadan. Critical to the observance of Ramadan is the requirement that Muslims fast between dawn and sunset each day. Mr. Makin contended that defendants improperly interfered with his ability to fast during Ramadan in 1993 and 1994, and brought this 1983 action alleging that by doing so, they violated his First Amendment right to the free exercise of his religion. Prior to trial, the district court dismissed all defendants except Messrs. Sullivan, Johnson and Gasko. In 1993, Mr. Sullivan was the deputy director of operations for the Department of Corrections, and Mr. Johnson was the superintendent of the Colorado Territorial Correctional Facility and Mr. Sullivan's subordinate. Mr. Gasko replaced Mr. Sullivan as deputy director in 1994. Following a trial to the court, the court held that Mr. Makin's rights had been violated in 1993 but not in 1994, and it found Messrs. Sullivan and Johnson liable for the 1993 violation. Because Mr. Makin does not cross-appeal the district court's conclusion there was no violation in 1994, we focus only on activities relating to Ramadan in 1993.

As part of the settlement agreement resolving a lawsuit alleging that the Department of Corrections was inattentive to the needs of its Muslim inmates, the Department hired Imam Mohammed Kharrubi to advise it on Islamic practices. In this position, Imam Kharrubi worked with food service and security personnel to arrange for provision of timely and nutritional meals to Muslim inmates participating in Ramadan--that is, meals provided between sunset and dawn that were nutritionally equivalent to the three meals provided each day at the regular times. Department policy with respect to Ramadan stated that "'[i]nmates participating in the fast of Ramadan shall be given the opportunity to receive at least two hot meals during the time period between sunset and dawn for each . . . day of the fast.'" Appellants' App. Vol. II at 247 (quoting exhibit 32).² A February 19, 1993 memo to the kitchen staff at the Territorial Correctional Facility explained meal procedures to be generally followed during Ramadan that year:

"The observance of the Islamic month of Ramadan is scheduled this year from February 23rd through March 24, 1993. Muslims must fast from . . . two hours prior to sunrise until after sunset during the entire month. Those inmates participating will be escorted by security to the north dining hall for breakfast at 4 a.m. Supper is scheduled for 6:30 p.m. also in the north dining hall."

Id. Vol. I at 33 (quoting exhibit A7). By memorandum dated February 1, 1993, Mr. Sullivan directed that the general meal procedures would not apply to inmates in segregation. The memo stated that "[d]uring the month of Ramadan inmates in segregation will be unable to participate in special feeding activities. Regular meals with alternative meatless entrees will be made available through the usual meal delivery system." Id. at 34. Mr. Johnson implemented the directive at the Territorial Correctional Facility. Prisoners in segregation ate their meals in their cells, and the "usual meal delivery system" made meals available to prisoners in segregation only during the period after dawn and prior to sunset.

During Ramadan in 1993, Mr. Makin was housed in punitive segregation for possession of dangerous contraband. To maintain his fast, he was unable to eat his meals when delivered. He was able to keep his meal trays in his cell until after sundown and eat what he could then. That included his supper and food such as dry cereal and crackers that he saved from lunch and breakfast;³ he also could keep cereal and crackers in his cell overnight to eat before dawn. Mr. Makin was able to maintain his fast for the entire month, although he contended that it was extremely difficult to do that and that, as a result, he was unable to enjoy the full spiritual experience of Ramadan.

Applying the standards relevant to the alleged denial of a prisoner's fundamental constitutional rights, see Turner v. Safley, 482 U.S. 78, 89-90 (1987), O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-50 (1987), the district court concluded that defendants Sullivan and Johnson had violated Mr. Makin's First Amendment right to the free exercise of his religion. It computed damages for denial of this right on a per diem basis of $300 or $9,000 for the entire month of Ramadan, assessed jointly and severally against defendants. On appeal, defendants challenge the district court's ruling on three grounds: (1) the court erred in rejecting their defense of qualified immunity; (2) the denial of special meal accommodations during Ramadan did not violate Mr. Makin's First Amendment rights; and (3) the court's determination of damages was incorrect.

II

Even though they are incarcerated, prisoners retain fundamental constitutional rights. See Turner, 482 U.S. at 84. These rights include the reasonable opportunity to pursue one's religion as guaranteed by the free exercise clause of the First Amendment. See Shabazz, 482 U.S. at 348; Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991). However, because of the inherent difficulties and concerns in running a prison, "what constitutes a reasonable opportunity must be evaluated with reference to legitimate penological objectives of the prison." Id. Thus, the standard for reviewing the validity of a prison regulation or policy affecting a prisoner's fundamental constitutional right, such as the free exercise of his or her religion, is this: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. This reasonableness inquiry considers several factors: (1) whether there exists a rational connection between the prison policy or regulation and a legitimate governmental interest advanced as its justification; (2) whether there are alternative means of exercising the right notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether there are ready, easy-to-implement alternatives that would accommodate the prisoner's rights. See id. at 89-91; Mosier, 937 F.2d at 1525. Like the district court, we assess the parties' contentions within this framework.

A. Qualified Immunity

As a preliminary matter, defendants contend that the district court erred in denying their claim that they were qualifiedly immune from liability for any improper infringement on Mr. Makin's right to freely exercise his religion. "The doctrine of qualified immunity provides that '[w]hen government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Mitchell v. Maynard, 80 F.3d 1433, 1447 (10th Cir. 1996) (quoting Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988) (further quotation omitted)). Defendants contend they are entitled to qualified immunity because at the time of the relevant events, there was no clearly established law, that is, Supreme Court or Tenth Circuit authority, "which sets forth the parameters of special feeding accommodation for the celebration of Ramadan in the prison setting especially for those inmates whose own voluntary behavior landed them in segregation." Appellants' Br. at 15.

Defendants first raised this issue in a motion for summary judgment that was referred to a magistrate judge. The magistrate judge issued a report recommending that the motion be denied:

The current record does not support the defendants' claim of qualified immunity. Mr. Makin's right to reasonable access to his religiously required diet was clearly established at the time of the violations alleged in his complaint. The defendants' motion for summary judgment does not address the question of whether the restrictions placed on Mr. Makin's religious diet were reasonable under the Turner standard. Therefore, summary judgment cannot be granted on that basis.

Appellants' App. Vol. I at 11. Defendants did not object to the recommendation, and the district court accepted it. See id. at 16. Defendan...