Abdulhaseeb v. Calbone
Decision Date | 02 April 2010 |
Docket Number | No. 08-6092.,08-6092. |
Citation | 600 F.3d 1301 |
Parties | 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. |
Court | U.S. Court of Appeals — Tenth Circuit |
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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.
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 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) (). 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.
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 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 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 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, 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 "provide 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, Id. Mr. Abdulhaseeb then filed a grievance, in which he stated:
On March 3, 2005, Mr. Abdulhaseeb returned to...
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