Beerheide v. Suthers, 00-1086.

• Decision Date: 11 April 2002
• Docket Number: No. 00-1086.,00-1086.
• Citation: 286 F.3d 1179
• Parties: Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs-Appellees, v. John W. SUTHERS, Executive Director, Colorado Department of Corrections; Gerald M. Gasko, Acting Deputy Director, Colorado Department of Corrections; Dona Zavislan, Food Service Administration, Colorado Department of Corrections; Lee Hendrix, Volunteer Service Administrator, Colorado Department of Corrections; and Does 1 Through 10, Defendants-Appellants. American Civil Liberties Union, Aleph Institute, and Jewish Prisoner Services International, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

286 F.3d 1179

Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs-Appellees, v. John W. SUTHERS, Executive Director, Colorado Department of Corrections; Gerald M. Gasko, Acting Deputy Director, Colorado Department of Corrections; Dona Zavislan, Food Service Administration, Colorado Department of Corrections; Lee Hendrix, Volunteer Service Administrator, Colorado Department of Corrections; and Does 1 Through 10, Defendants-Appellants.

American Civil Liberties Union, Aleph Institute, and Jewish Prisoner Services International, Amici Curiae.

No. 00-1086.

United States Court of Appeals, Tenth Circuit.

April 11, 2002.

COPYRIGHT MATERIAL OMITTED

Jennifer M. Dechtman, Assistant Attorney General, State of Colorado, Denver, CO (Ken Salazar, Attorney General, State of Colorado, Denver, CO, with her on the briefs), for Defendants-Appellants.

Scot M. Peterson of Koff, Corn & Berger, P.C., Denver, CO, for Plaintiffs-Appellees.

Stephen E. Abrams of Perkins Coie LLP, Denver, CO, filed an amicus curiae brief for American Civil Liberties Union.

Isaac M. Jaroslawicz, Director of Legal Affairs, the Aleph Institute, Surfside, FL, filed an amici curiae brief for The Aleph Institute and Jewish Prisoner Services International.

Before SEYMOUR, and PORFILIO, Circuit Judges, and OWEN,^* District Judge.

SEYMOUR, Circuit Judge.

Charles Beerheide, Sheldon Perlman, and Allen Fistell brought suit under 42 U.S.C. § 1983, claiming their First Amendment right to free exercise of their religion was violated when they were not provided kosher meals while incarcerated in the Colorado prison system. Defendants John Suthers, Gerald Gasko, Dona Zavislan, and Lee Hendrix, officials of the Colorado Department of Corrections (DOC), appeal from the district court's decision in favor of plaintiffs following trial to the court. We affirm.¹

I.

In December 1996, plaintiffs filed a motion for a preliminary injunction on their claims that the DOC's failure to provide a kosher diet violated their rights under the Free Exercise Clause of the First Amendment to the Constitution and the Religious Freedom Restoration Act. After evidentiary hearings and a recommendation from a magistrate judge, the district court conducted a de novo review of the facts and legal analysis in the recommendation and defendants' objections thereto. On March 16, 1998, the court entered a preliminary injunction directing the DOC to provide kosher food to plaintiffs free of charge and in accordance with Orthodox Jewish law. Beerheide v. Zavaras, 997 F.Supp. 1405, 1413 (D.Colo.1998) (Beerheide I).

While the case was pending, the Religious Freedom Restoration Act was declared unconstitutional in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The district court thereafter reviewed the case under pre-RFRA standards. See Beerheide v. Suthers, 82 F.Supp.2d 1190, 1192 (D.Colo.2000) (Beerheide II). The district court held a bench trial at which the parties stipulated that "the findings of fact and conclusions contained in Beerheide I, are adopted for purposes of the trial of the following remaining issues in this case: 1) Plaintiff Beerheide's sincerity of belief in Judaism; 2) Plaintiff Fistell's sincerity of belief in Judaism; and 3) the constitutionality of [defendants'] proposed kosher diet cost-sharing program." Id. at 1192.

After considering the evidence, the district court found the following facts:

Plaintiffs are inmates at Fremont Correctional Facility, one of twenty-one adult correctional facilities in the State of Colorado Department of Corrections housing approximately 10,000 to 12,000 inmates. Mr. Beerheide, whose father is Jewish, was not raised Jewish and did not practice Judaism before he was incarcerated. After Mr. Beerheide was sent to prison, he became interested in Judaism, studied Judaism, and has followed the tenets of Orthodox Judaism since 1994. Mr. Fistell, born and raised in the Jewish faith, has not always been an observant Jew. At some time after his commitment to the DOC, Mr. Fistell resumed practicing Orthodox Judaism. Mr. Perlman, born in 1933, was raised in an Orthodox Jewish family. Until approximately 10 years before he was incarcerated in 1989, Mr. Perlman kept a kosher home. After his incarceration, Mr. Perlman resumed his practice of Orthodox Judaism. Plaintiffs testified that they wish to observe the practices of Orthodox Judaism including eating only kosher food.

Rabbi Yisroel Engle, qualified by the Court as an expert witness on Jewish law and Jewish dietary law, testified that "keeping kosher" is a central tenet of Orthodox Judaism. Rabbi Steven Foster, an expert witness on Jewish law and Jewish conversion, agreed. As outlined in Beerheide I, "keeping kosher" includes adherence to specific rules concerning which foods may be eaten and which are forbidden. Foods that may be eaten include all non-animal products such as fruits and vegetables, meat from animals without cloven hooves including cows and sheep, and fish which have fins and scales. "Kosher" also dictates specific methods by which allowable foods are prepared for consumption. For example, kosher food is no longer "kosher" if it is prepared in containers which have held non-kosher food. To keep kosher foods untainted, containers, pots and pans, utensils, and all other implements used in their preparation must not come into contact with any item that is or has had contact with nonkosher food. Also, to keep kosher food "kosher," it must be served on plates and bowls and eaten with utensils which have not had nonkosher contact. See Beerheide I, 997 F.Supp. at 1408-09.

It is undisputed that after the issuance of the preliminary injunction in this case, the DOC Food Services department began serving Plaintiffs a kosher diet. To assist in the implementation of the program, DOC set up a modified kosher kitchen within the regular prison kitchen. Mr. Beerheide began working in the kitchen in a special locked and caged area set aside for the preparation of the kosher food trays for himself, and his co-Plaintiffs. In addition, DOC has provided a microwave oven, preparation table, two cutting boards, two non-disposable knives, one pot, one pan, plastic tubs, plastic storage drawers, plastic wear and trays, butcher paper, and aluminum foil for exclusive use in the preparation of the kosher meals. Beerheide Testimony, October 12, 1999. The parties agree that the cost of providing a kosher diet to Plaintiffs is higher than the cost of the general fare.

Beerheide II, 82 F.Supp.2d at 1192-93. Applying the standards relevant to the alleged denial of a prisoner's constitutional rights, see Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the district court concluded that the DOC had violated plaintiffs' First Amendment right to the free exercise of their religion by failing to provide them with a kosher diet. The court entered a permanent injunction requiring DOC to provide plaintiffs with a "diet that complies with the kosher dietary requirements of Orthodox Judaism at no cost to Plaintiffs." Beerheide II, 82 F.Supp.2d at 1200.

On appeal, the DOC asserts the district court wrongly applied Turner v. Safley in holding not only that the DOC must make a kosher diet available, it must also provide the diet with no contribution from the inmates. Specifically, the DOC also maintains the court erred in rejecting its proposal that it be allowed to charge prisoners a co-payment of 25% of the extra cost of kosher meals.

II.

In a long line of cases, the Supreme Court has recognized that prisoners retain constitutional rights when incarcerated. The Court has reiterated that "`convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.'" O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (quoting Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)); see also Turner, 482 U.S. at 84, 107 S.Ct. 2254 ("Prison walls do not form a barrier separating prison inmates from the protections of the Constitution."). In some instances, however, constitutional rights must be curtailed due to the very fact of incarceration or for valid penological reasons. O'Lone, 482 U.S. at 348, 107 S.Ct. 2400. "[W]hen 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, 107 S.Ct. 2254.

The Turner decision marked a confirmation of the Supreme Court's deferential approach in matters of prison administration and the constitutional rights of prisoners. In a series of cases throughout the 1970s, the Court held that regulations promulgated by prison officials should be upheld by courts unless the regulations are shown to be unreasonable or an exaggerated response to administrative and security concerns. See Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (regulation upheld unless substantial evidence that it constitutes exaggerated response to security and administrative concerns); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (If security concerns unreasonable, corrections officials required to show further justification for regulations); Bell v. Wolfish, 441 U.S. 520, 550, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (inmates' rights not violated if rule rational response to an obvious problem).

One case, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), required that prison officials meet a "least restrictive" means test if their regulations infringed on the constitutionally-protected rights of non-prisoners. Because some circuits adopted the Martinez test as the standard for all prisoner rights cases, the Supreme Court in Turner clarified its standard. Turner reiterated the view that "[C]ourts are ill equipped to...