600 F.3d 1301 (10th Cir. 2010), 08-6092, Abdulhaseeb v. Calbone

Docket Nº:08-6092.
Citation:600 F.3d 1301
Opinion Judge:HENRY, Chief Judge.
Party Name:Madyun ABDULHASEEB, a/k/a Jerry L. Thomas, Plaintiff-Appellant, v. Sam CALBONE, Warden; Ken Wood, Chaplain; Lt. Barger, Disciplinary Officer; Travis Smith, Deputy Warden; J. Haskins, Grievance Coordinator; Vanwey, Case Manager; Elizondo, Unit Manager; Branum, Investigator; Ron Ward, Director; Melinda Guilfoyle, Manager of Administrative Review & De
Attorney:Elizabeth L. Harris (Andrew Myers with her on the brief), Jacobs Chase Frick Kleinkopf & Kelley, LLC, Denver, CO, for Plaintiff-Appellant. Kim M. Rytter, Assistant Attorney General, Oklahoma Attorney General's Office, Litigation Section, Oklahoma City, OK, for Defendants-Appellees Ward, Guilfoyle...
Judge Panel:Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges. GORSUCH, Circuit Judge, concurring.
Case Date:April 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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600 F.3d 1301 (10th Cir. 2010)

Madyun ABDULHASEEB, a/k/a Jerry L. Thomas, Plaintiff-Appellant,

v.

Sam CALBONE, Warden; Ken Wood, Chaplain; Lt. Barger, Disciplinary Officer; Travis Smith, Deputy Warden; J. Haskins, Grievance Coordinator; Vanwey, Case Manager; Elizondo, Unit Manager; Branum, Investigator; Ron Ward, Director; Melinda Guilfoyle, Manager of Administrative Review & Designee; Debbie Morton, Manager of Administrative Review & Designee; Richard Kirby, General Counsel; Ron Anderson, Deputy General Counsel; Mike Mullin, Warden; G. Franzese, Chaplain; Kameron Harvanek, Deputy Warden; Mr. Mock, Food Service Supervisor; Ms. Cartwright, Food Service Supervisor; Major Devaughn, Chief of Security; Lt. Beasley; Z. Jacques, Deputy Warden at GPCF; Dishman, Grievance Coordinator, Defendants-Appellees,

and

Kenny Demby, Food Service Supervisor, Defendant.

No. 08-6092.

United States Court of Appeals, Tenth Circuit.

April 2, 2010

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Elizabeth L. Harris (Andrew Myers with her on the brief), Jacobs Chase Frick Kleinkopf & Kelley, LLC, Denver, CO, for Plaintiff-Appellant.

Kim M. Rytter, Assistant Attorney General, Oklahoma Attorney General's Office, Litigation Section, Oklahoma City, OK, for Defendants-Appellees Ward, Guilfoyle, Morton, Kirby, Anderson, Mullin, Franzese, and Harvanek.

Don G. Pope, Don G. Pope & Associates, P.C., Norman, OK, for Defendants-Appellees Calbone, Vanwey, Wood, Branam, Elizondo, Beasley, Jacques, Haskins, DeVaughn, Barger, Dishman, and Smith.

Peter M. Coppinger and Gregory D. Cote, McCarter & English, LLP, Boston, MA, for Defendants-Appellees Mock and Cartwright.

Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.

HENRY, Chief Judge.

Madyun Abdulhaseeb, an Oklahoma inmate who follows the Islamic faith, filed suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5,1 and 42 U.S.C. § 1983, setting forth seventeen claims concerning his conditions of incarceration. The district court dismissed

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without prejudice several of his claims for failure to exhaust administrative remedies and granted summary judgment to defendants on the remaining claims. Mr. Abdulhaseeb appeals. Initially he proceeded pro se, but we appointed counsel to represent him for supplemental briefing and oral argument.2

We have jurisdiction under 28 U.S.C. § 1291. We affirm the judgment in favor of defendants on the majority of Mr. Abdulhaseeb's claims, but we vacate and remand for further proceedings on two claims. Mr. Abdulhaseeb established that he was entitled to proceed with his RLUIPA claims, first, that his religious exercise was substantially burdened when officials at the Oklahoma State Penitentiary (OSP) denied his request for a halal diet and, second, when officials at the Great Plains Correctional Facility (GPCF) denied his request for halal meat for an Islamic feast. See, e.g., Williams v. Morton, 343 F.3d 212, 215 (3d Cir.2003) (" A Halal, or lawful, diet includes fruits, vegetables, seafood, and meat from herbivorous animals such as cows and chickens that are properly slaughtered." ). The record with regard to these two RLUIPA claims is insufficient for us to determine whether the burden on Mr. Abdulhaseeb's religious exercise is justified by a compelling governmental interest and is the least restrictive means of accomplishing that interest. Thus, these claims are remanded for further proceedings in the district court.

I. BACKGROUND

A. The events underlying the litigation.

Between June 4, 2001, and January 27, 2005, Mr. Abdulhaseeb was incarcerated at GPCF, a private prison that contracts with the state of Oklahoma to hold Oklahoma prisoners. Defendants Calbone, Vanwey, Wood, Branum, Elizondo, Beasley, Jacques, Haskins, DeVaughn, Barger, Dishman, and Smith (the GPCF Defendants) are or were employees at GPCF. Defendants Mock and Cartwright (the Canteen Defendants) are or were employed by a third-party company to work in the GPCF canteen.

While at GPCF, among other issues related to the prison's treatment of Muslims and issues unrelated to his religion, Mr. Abdulhaseeb sought to be provided halal foods. In October 2004, he filed a request to staff and a grievance concerning being forced to accept puddings and jello on his tray. In his request to staff, he stated that some of the GPCF Defendants and the Canteen Defendants " are representing this pudding & jello as halal and kosher, but it doesn't have an U, K, or H. So it is unlawful, containing forbidden monoglyceride, lecithin, and whey." R. Doc. 62, Exh. 2, p. 4 of 4. A GPCF staff member (apparently defendant DeVaughn), responded, " IM [Inmate] Thomas, you will be served in accordance with the approved menu." Id. 3 Mr. Abdulhaseeb followed up with a grievance to the warden (defendant Calbone), noting that " [t]he puddings/jello are not Halal. They don't carry Halal or kosher symbols (H, K, and U)." Id., p. 2 of 4. He requested that he be provided " with an alternative to pudding & jello," id., and that GPCF purchase halal-certified or kosher-certified desserts or allow him fruit as an alternative. Defendant Calbone denied relief, indicating that Mr. Abdulhaseeb had not been forced to place

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jello or pudding on his tray and that the jello and pudding were pork-free and did not contain pork by-products, " thus meeting your Islamic beliefs." R. Doc. 125, Exh. 3 at 2.

In November 2004, Mr. Abdulhaseeb filed another request to staff and a grievance requesting that GPCF provide halal chickens for the general population for the Islamic feast of Eid-ul-Adha in January 2005. Defendant Calbone denied the grievance, stating, " DOC policy allows you to purchase a Hallal meal through an approved vendor. The practice at GPCF, which includes this year, is to provide an Hallal meal at the conclusion of Ramadan. Relief denied." R. Doc. 62, Exh. 5, p. 3 of 4. Mr. Abdulhaseeb unsuccessfully appealed to the Oklahoma Department of Corrections (ODOC), arguing that under Tenth Circuit precedent he should not have to purchase religious food or have it donated.

On January 27, 2005, Mr. Abdulhaseeb was transferred to OSP, a facility run by ODOC. Defendants Mullin, Franzese, and Harvanek (the OSP Defendants) are or were employed at OSP. The remaining defendants (Ward, Guilfoyle, Morton, Kirby, and Anderson) are or were employees of ODOC (the ODOC Defendants).

Soon after his arrival at OSP, among other issues related to the prison's treatment of Muslims, Mr. Abdulhaseeb again requested halal foods. In a February 6, 2005, request to staff, he wrote:

I am a Muslim. I request a Halal diet that is consistent with my sincerely held religious beliefs and does not substantially burden my freedom of religious expression and is the least restrictive means of vindicating your penological interests. Your non-pork common fare diet and vegetarian diet are not diets that are consistent with Islamic dietary laws.

Id., Exh. 9, p. 4 of 4. He requested that OSP " [p]rovide [him] [an] Islamic diet in which animals are fed, raised, and slaughtered according to Islamic dietary laws and ingredients are clearly Halal and foods and ingredients which are questionable (unknown) are completely avoided, such as jello and puddings." Id. Defendant Franzese responded, " [a]s per policy OP-030112 VII.A., the Department of Corrections provides two types of diets for religious reasons: (1) non-pork, (2) vegetarian. For a modified health diet, you must contact the medical staff." Id. Mr. Abdulhaseeb then filed a grievance, in which he stated:

I am a Muslim. The Qur'an and Sunnah (traditions) of Prophet Muhammad order me to eat food that is good and lawful pursuant to Islamic dietary laws. In this 10th Circuit, inmates have a constitutional right to a diet consistent with their sincerely held religious beliefs. You feed me a common fare non-pork diet or a vegetarian diet[ ]. Those diets are sinful and repugnant to me and violate the requirements of Halal Islamic dietary laws. I require a Halal diet defined by the Qur'an and Sunnah, including meats and poultry raised, grain fed, no steroids, and slaughtered according to Islamic laws. My diet also requires that I avoid foods that are questionable with regard to its make up and ingredients. Doubtful or questionable ingredients are forbidden.

Id., p. 2 of 4. He requested that OSP provide him " with a Halal diet that is consistent with my sincerely held Islamic dietary law." Id. Defendant Mullin, then the warden at OSP, responded, " as you were informed in the response to your request to staff, dated February 7, 2005, OP-030112 provides (2) two diets for religious reasons. You may elect either the non-pork or the vegetarian diet.... Your request for a special Islamic diet is denied." Id., p. 1 of 4. Mr. Abdulhaseeb unsuccessfully appealed to ODOC, arguing

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1. The Reviewing Authority erred in denying my request for a diet that is consistent with my sincerely held religious belief under the color of state laws. Supporting Facts. The Holy Qur'an and Sunnah mandate that I eat meats lawfully slaughtered and all good foods. The two diets in OP-030112.VII.A do not me[et] the Islamic standard. Beerheide v. Suthers, 286 F.3d 1179, 1194 (10th Cir.2002).

2. Reviewing authority erred in that his resolution was not the least restrictive and substantial[ly] burdens my free expression of religion. Supporting Facts. The nonpork diet is most restrictive and forces me to eat meats prohibited (not slaughtered Islamically) to survive. The vegetarian diet usurps the power of God to prescribe what is lawful and prohibited and is a form of...

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