703 F.3d 781 (5th Cir. 2012), 09-40400, Moussazadeh v. Texas Dept. of Criminal Justice

Docket Nº:09-40400. United States Court of Appeals, Fifth Circuit.
Citation:703 F.3d 781
Opinion Judge:JERRY E. SMITH, Circuit Judge.
Party Name:Max MOUSSAZADEH, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Brad Livingston, Solely in His Official Capacity as Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; David Sweeten, Solely in His Official Capacity as Warden of the Eastham Unit of the Texas Department of Criminal Justice, C
Attorney:Luke William Goodrich, Eric C. Rassbach, Becket Fund for Religious Liberty, Matthew Todd Murchison, Anne Wylde Robinson (argued), Michael J. Songer, Latham & Watkins, L.L.P., Washington, DC, for Plaintiff-Appellant. Arthur Cleveland D'Andrea (argued), Office of the Sol. Gen., Celamaine Cunniff, A...
Judge Panel:Before KING, SMITH and BARKSDALE, Circuit Judges. RHESA H. BARKSDALE, Circuit Judge, dissenting in part:
Case Date:December 21, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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703 F.3d 781 (5th Cir. 2012)

Max MOUSSAZADEH, Plaintiff-Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; Brad Livingston, Solely in His Official Capacity as Executive Director of Texas Department of Criminal Justice, Correctional Institutions Division; David Sweeten, Solely in His Official Capacity as Warden of the Eastham Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, Defendants-Appellees.

No. 09-40400.

United States Court of Appeals, Fifth Circuit.

December 21, 2012

As Corrected Feb. 20, 2013.

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Luke William Goodrich, Eric C. Rassbach, Becket Fund for Religious Liberty, Matthew Todd Murchison, Anne Wylde Robinson (argued), Michael J. Songer, Latham & Watkins, L.L.P., Washington, DC, for Plaintiff-Appellant.

Arthur Cleveland D'Andrea (argued), Office of the Sol. Gen., Celamaine Cunniff,

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Asst. Atty. Gen., Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.

Joshua D. Hawley, Hogan Lovells US, L.L.P., Daniel Mach, Program on Freedom of Religion & Belief, ACLU, Washington, DC, Martin Jonathan Siegel, Law Office of Martin J. Siegel, P.C., Rebecca L. Robertson, Houston, TX, Kelly Anne Laudenslager, Wheeler, Trigg & O'Donnell, L.L.P., Michael Alex Sink, Perkins Coie, L.L.P., Denver, CO, Marc D. Stern, American Jewish Committee, New York City, for Amici Curiae.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

Through more than seven years of litigation, Max Moussazadeh has sought kosher meals while confined at the Texas Department of Criminal Justice (" TDCJ" ). The district court, on motion for summary judgment, dismissed Moussazadeh's claim on two independent grounds: failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (" PLRA" ) and lack of sincerity of religious belief as required under the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ). Moussazadeh appeals, and we reverse and remand.

I. Background.

A. Procedural History.

While at the Eastham Unit (" Eastham" ) serving a seventy-five-year sentence for murder, Moussazadeh on July 15, 2005, properly filed a Step 1 administrative grievance complaining that he was " forced to eat non kosher foods" and requesting that he " be allowed to receive kosher meals because it is part of [his] religious duty." He asserted that he is Jewish, that he was " born and raised jewish [ sic ]," and that his family " kept a kosher house hold [ sic ]" all his life. He claims that his faith requires him to " eat kosher foods," and not being able to do so forces him to " go[ ] against [his] religious beliefs," for which he believes God will punish him. He noted in his grievance that he had contacted the prison chaplain and captain of the mess facility at Eastham to request kosher meals but that his requests had been denied.

On July 21, TDCJ denied Moussazadeh's grievance and refused to provide him with kosher food. It provided no reason for doing so and stated only that as a matter of current policy, it did not provide kosher meals. Appealing the outcome of his Step 1 grievance, on July 29 Moussazadeh filed a Step 2 grievance, which was denied on September 19. The Grievance Response stated that TDCJ could " take no further action in this matter."

Having exhausted the grievance process, Moussazadeh sued TDCJ and prison officials (collectively referred to as " TDCJ" ) in October 2005, alleging substantially the same facts as in his grievances. He argued that he was a " sincere adherent of the Jewish faith" and that a fundamental tenet requires that believers " eat food prepared and served in a kosher manner." He noted his grievances and TDCJ's denial of his requests for kosher food, and he asserted that TDCJ's refusal to provide kosher food was a violation of RLUIPA and the Texas Religious Freedom Restoration Act. He requested injunctive and declaratory relief compelling TDCJ to provide him with nutritionally sufficient kosher meals.

About six months after the suit was filed, the district court stayed discovery at the request of the parties to facilitate settlement negotiations. After nearly a year

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of negotiations, TDCJ began offering kosher food in the dining hall at the Stringfellow Unit (" Stringfellow" ), to which, in April 2007, Moussazadeh was transferred; he then began receiving kosher meals from the kitchen free of charge. The parties did not settle, however, because TDCJ refused to meet Moussazadeh's demand for a guarantee that it would not ever deny him kosher food. Two years later, the district court dismissed the case as moot. Moussazadeh v. TDCJ, 2009 WL 819497 (S.D.Tex. Mar. 26, 2009).

Moussazadeh appealed the dismissal, and while his appeal was pending, he committed an infraction and was transferred to the Stiles Unit (" Stiles" ), which did not provide kosher meals in the dining hall but did offer kosher food for purchase at the commissary. This court remanded, concluding that those changed circumstances rendered Moussazadeh's claim no longer moot. See Moussazadeh v. TDCJ, 364 Fed.Appx. 110 (5th Cir.2010) (per curiam).

On remand, the parties conducted further discovery and filed cross-motions for summary judgment. The district court granted summary judgment for TDCJ on two grounds. First, it held that Moussazadeh's claim was barred by the PLRA, which requires inmates to exhaust their administrative remedies before seeking judicially granted relief. In the alternative, the court dismissed under RLUIPA based on its conclusion that Moussazadeh was not sincere in his religious beliefs, so there was no substantial burden on his religious exercise. Moussazadeh timely appealed.

B. Factual Background.

Neither party disputes the fact that Jewish dietary laws, " kashrut," are fundamental to the practice of Judaism as embodied in the Torah and Rabbinic laws. Food that satisfies the biblical and rabbinic requirements is deemed " kosher." Those laws demand that food be stored, prepared, and served in a certain manner, and they exclude certain types of food. For example, pork is per se nonkosher. Food that would otherwise be kosher becomes nonkosher if mixed with nonkosher food or brought into contact with utensils that have been used in the preparation of nonkosher food. For that reason, certain types of food must not be served, and a separate set of cookware, utensils, and flatware must generally be used.

Before this suit, TDCJ had no program for providing kosher food to inmates. In fact, during the pendency of this case, TDCJ successfully litigated against another prisoner who had requested kosher food. See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir.2007). During settlement negotiations with Moussazadeh, however, TDCJ undertook a study of the logistics and cost of providing kosher food to observant Jewish inmates. It examined kosher programs in other prison systems, such as those in Pennsylvania, Colorado, and the Federal Bureau of Prisons, that offered entirely prepackaged " cold" kosher meals, kosher meals prepared on site, and the " common fare" program of the Bureau of Prisons.

TDCJ considered the benefits and drawbacks of each system and decided to implement a two-tier program. The first, the Basic Designated Jewish Unit, provided kosher meals that could be purchased in the prison commissary, a marketplace where inmates can purchase food and hygienic items. Basic Units were located at the Darrington, Terrell, Stiles, and Wynne facilities. The second tier, the Enhanced Designated Jewish Unit, provided kosher meals free of charge to Jewish offenders in the prison dining hall. The only Enhanced Unit was located at Stringfellow. To provide kosher food there, TDCJ cordoned off a section of the already extant kitchen and purchased items such as utensils, a refrigerator,

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a microwave, and a burner for the exclusive preparation of kosher food. The cost of establishing the kosher kitchen was $8,066.26.

TDCJ decided to implement the two-tier program based on factors including cost, convenience, and the dynamics of the Jewish prison population. There are about 900 self-identified Jewish prisoners out of more than 140,000 prisoners in TDCJ custody. Of these, only 70-75 are " recognized" as Jewish, and another 90 are in the conversion process. Because of the cost associated with establishing a kosher kitchen and the low number of Jewish prisoners, TDCJ decided to build its single Enhanced Unit at Stringfellow and move all observant Jewish prisoners there. Stringfellow was chosen because it is classified to house prisoners with a wide range of security levels, everyone except the most violent offenders. Stringfellow also is close to a large Jewish population that TDCJ determined would facilitate kosher certification and would volunteer services and provide religious materials.

Aside from the start-up costs of the kosher kitchen, TDCJ's Enhanced Designated Unit program cost more than regular prison meals. In 2009, TDCJ's expenditures on food service were just over $183.5 million, with a cost per day, per inmate, of $3.87; the cost of food from the Stringfellow kosher kitchen was $6.82. The total extra cost based on TDCJ's 2009 data is roughly $1,095 per year, per inmate. The Basic Jewish Designated Units, on the other hand, do not impose those same costs on TDCJ. Inmates must purchase kosher food at the commissary with their own money, lest they receive the same nonkosher food as does the general population.

After establishing the Enhanced Unit at Stringfellow, TDCJ...

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