523 F.3d 789 (7th Cir. 2008), 05-1904, Koger v. Bryan

Docket Nº:05-1904
Citation:523 F.3d 789
Party Name:Gregory KOGER, Plaintiff-Appellant, v. Walter L. BRYAN, Dennis Guth, Pearlene Pitchford, et al., Defendants-Appellees.
Case Date:April 24, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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523 F.3d 789 (7th Cir. 2008)

Gregory KOGER, Plaintiff-Appellant,


Walter L. BRYAN, Dennis Guth, Pearlene Pitchford, et al., Defendants-Appellees.

No. 05-1904

United States Court of Appeals, Seventh Circuit.

April 24, 2008

Argued Sept. 26, 2007.

Appeal from the United States District Court for the Central District of Illinois, No. 02 C 1177-Harold A. Baker, Judge.

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Jeffrey L. Oldham (argued), Mayer Brown, houston, TX, for Plaintiff-Appellant.

Janon E. Fabiano, Office of the Attorney General, Brian F. Barov (argued), Office of the Attorney General, Criminal Appeals Div., Chicago, IL, for Defendants-Appellees.

Before MANION, EVANS, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Gregory Koger ("Koger"), a former inmate at the Pontiac Correctional Center in Illinois, filed suit against six prison officials claiming they failed to accommodate his religious-based requests for a non-meat diet. Koger claimed that this failure to accommodate his dietary request was a violation of his rights as protected by the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and the First and Fourteenth Amendments of the Constitution. The defendants moved for summary judgment, arguing that Koger's diet was not changed because his request did not meet the requirements necessary for prisoners seeking such an accommodation and that those requirements were lawful. The district court granted the defendants' motion as to all of Koger's claims, and Koger now appeals. We reverse the district court's grant of summary judgment on Koger's RLUIPA claim, and remand for further proceedings consistent with this opinion.


The facts material to this appeal are undisputed. Koger was remanded to the custody of the Illinois Department of Corrections ("IDOC") in 1996, and originally housed at the Joliet Correctional Center. Upon entering prison, Koger designated his religious affiliation as Baptist. In 1999,while housed at the Centralia Correctional Center, Koger changed his religious affiliation to Buddhist. Koger was not required to provide IDOC officials with any documentation in support of his original affiliation as a Baptist, or upon re-affiliating as a Buddhist. In September 2000, Koger was transferred to the Pontiac Correctional Center. A few months after this transfer, he stopped eating meat or anything on his meal tray that had touched meat. Koger adopted this diet to accommodate his yoga practices, but claimed that it subjected him to extreme hunger pains.

In May 2001, Koger contacted the prison's chaplain, Fr. Walter Bryan ("Bryan"), requesting that his religious affiliation be changed to reflect that he was no longer a Buddhist, and that he be provided with a non-meat diet as part of his religious practices. During the period in question, Pontiac served three religious diets--kosher, vegan, and lacto-ovo vegetarian. The last two contain no meat, and would have satisfied Koger's request. Bryan responded

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with a letter stating that Koger's request would not be granted absent a letter from a "Rabbi-Imam, etc." of Koger's new religion. Koger replied to Bryan's letter saying that he was not a member of a formally established religion, and accordingly there was no clergy member available to contact Bryan on his behalf. Koger's letter further explained some of his religious beliefs, stating that his "yoga practices required a non-meat vegetarian diet." Bryan did not respond to this letter.

Koger began searching for a religion that fit his beliefs, and in November 2001, he joined Ordo Templi Orientis ("OTO"), a group associated with the religion of Thelema. Thelema was founded by Aleister Crowley in 1904, and has as its central tenet "Do what thou wilt," which its followers consider a divine mandate to discover their true purpose in life. In December 2001, Koger again wrote Bryan, requesting that his affiliation be changed from Buddhism to OTO, and that he be given a non-meat diet. Koger included with his request an informational letter from T. Allen Greenfield ("Greenfield"), OTO's Prison Ministry Coordinator, setting forth some of OTO's beliefs and practices.1 Notably, Greenfield's letter stated that "Thelema imposes no general dietary restrictions; though each individual Thelemite may, from time to time, include dietary restrictions as part of his or her personal regimen of spiritual discipline." In response to this second request, Bryan again sent a letter indicating that Koger's affiliation and diet would not be changed without a letter from a "Rabbi-Imam, etc."

On January 13, 2002, Koger filed an IDOC Grievance based upon Bryan's failure to change his affiliation and diet. Upon review of the Grievance, Grievance Counselor and Defendant Dennis Guth ("Guth") responded stating that he had consulted with Bryan, who indicated that he needed a "letter" from the religious organization sent directly to him, and that "information" would not be considered. Guth's response was reviewed by Grievance Officer and Defendant Pearlene Pitchford ("Pitchford"), and on March 13, 2002, she filed a report finding that Guth's response adequately addressed Koger's concerns. In making this determination, Pitchford expressly noted the language from Greenfield's letter stating that Thelema imposes no general dietary restrictions. Defendant James Schomig ("Schomig"), Chief Administrative Officer and Warden of Pontiac Correctional Center, concurred with Pitchford's assessment. Koger subsequently appealed under the grievance process. On March 25, 2002, Administrative Review Board Member Douglas A. Cravens ("Cravens") and IDOC Director Donald N. Snyder ("Snyder") issued their finding that the decisions of Pitchford and Schomig appropriately addressed Koger's grievance.2 Accordingly, they recommended that Koger's grievance be denied.

In April 2002, Koger received a copy of a letter Greenfield sent to Bryan indicating that Koger was an OTO parishioner, and discussing the organizational nature of OTO. Relying on this letter, as well as a letter from OTO's Treasurer stating that he was a dues-paying member of OTO, Koger filed a third request with Bryan asking that his affiliation be changed from Buddhism to OTO, and that he be provided a non-meat diet. On December 2, 2002,

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Assistant Warden Adella Jordan-Luster ("Jordan-Luster") sent Koger a response granting his request for affiliation change, but denying his request for a non-meat diet. Jordan-Luster indicated that this denial was based upon information she reviewed indicating that Thelema had no dietary requirements. There is no indication in the record that Koger made any further requests for an affiliation or diet change following this last exchange. Koger was released from the custody of IDOC on parole on December 11, 2006.

As this protracted correspondence proceeded, on May 1, 2002, Koger filed a pro-se complaint in the district court. In his initial complaint, Koger alleged violations of the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1. Snyder, Cravens, Guth, and Pitchford waived service of process. Bryan and Schomig were never served with process, nor did they waive it. After obtaining summonses from the district court, Koger filed motions on August 2, 2002, January 19, 2003, February 4, 2003, and June 23, 2004, pursuant to Federal Rule of Civil Procedure 43 requesting that service of process be made by a United States marshal. In each of those instances, the district court denied Koger's motions finding that because Koger was not proceeding in forma pauperis, it was his responsibility to serve the defendants.

Koger was eventually given leave to file an Amended Complaint. In his amended complaint, filed October 9, 2003, Koger alleged that the prison officials' clergy verification requirement, and their failure to place him on a non-meat diet because OTO did not require one, violated the Establishment and Free Exercise Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and RLUIPA, 42 U.S.C. § 2000cc-1(a). Koger sought declaratory and injunctive relief, as well as compensatory and punitive damages. On June 23, 2004, Koger filed a motion to compel better responses to interrogatories he propounded on the prison officials in an attempt to obtain discovery he believed would be helpful to his case. This motion was still pending on August 23, 2004, when Snyder, Cravens, Guth, and Pitchford filed a motion for summary judgment. Koger filed a response on September 1, 2004, arguing that the existence of genuine issues of material fact prohibited entry of summary judgment, or that the record established that he was entitled to summary judgment. Additionally, Koger cited Federal Rule of Civil Procedure 56(f)4 and stated that because he had outstanding discovery requests subject to a motion to compel, and involving information relevant to his claims, the motion for summary judgment should be denied or stayed until he had an opportunity to complete discovery. More than five months after Koger's response to the motion for summary judgment, the district court denied his motion to compel believing it to be moot because Koger had responded to the motion for summary judgment. The denial did not reference Koger's invocation of Rule 56(f).

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The district court subsequently granted the motion for summary judgment. The court's ruling was based on its finding that the policy requiring Koger to verify his membership in OTO did not violate the First Amendment because it was reasonably related to a legitimate penological interest, and did not violate RLUIPA because the policy was the least...

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