Borkholder v. Lemmon

• Decision Date: 24 October 2013
• Docket Number: Cause No. 2:12–CV–309 PS.
• Parties: Joshus BORKHOLDER, Plaintiff, v. Bruce LEMMON, Mark Sevier, Stephen Hall and Clair Barnes, Defendants.
• Court: U.S. District Court — Northern District of Indiana

983 F.Supp.2d 1013

Joshus BORKHOLDER, Plaintiff,

v.Bruce LEMMON, Mark Sevier, Stephen Hall and Clair Barnes, Defendants.

Cause No. 2:12–CV–309 PS.

United States District Court,

N.D. Indiana,

Hammond Division.

Oct. 24, 2013.

Joshus Borkholder, Bunker Hill, IN, pro se.

Grant E. Helms, Indianapolis, IN, for Defendants.

OPINION AND ORDER

PHILIP P. SIMON, Chief Judge.

It is not every day that someone makes a federal case out of ramen noodles. But unfortunately that's what Joshus Borkholder had to do. Pro se prisoner Borkholder challenges the decision of Indiana Department of Correction officials to revoke his vegan diet, which he adheres to for religious reasons, solely because he ordered chicken-flavored ramen noodles from the prison commissary. Before me are the parties' cross-motions for summary judgment. (DE 20, 24.)

FACTUAL BACKGROUND

The facts are undisputed. Borkholder is an inmate housed at Miami Correctional Facility (“MCF”). (DE 20, Borkholder Decl. ¶ 1.) Borkholder chose to become a vegan after his incarceration based on “continual study” of his religious beliefs. ( Id. ¶ 2.) Specifically, he believes that it is “wrong to slaughter harmless animals for food when there [are] other natural foods being grown for human consumption.” ( Id.) Accordingly, he requested and was granted a “personal preference” vegan diet at MCF. (DE 25, Defs.' Facts ¶ 4.) Under IDOC policy, “personal preference diets are those foods voluntarily refused by an offender because of religious or moral reasons.” (DE 24–3, IDOC Manual of Policies and Procedures, Development & Delivery of Food Services (“IDOC Policy”) § XXVI.) Personal preference diets are recorded and monitored by IDOC staff to keep track of the food services required for each inmate, and to ensure the orderly administration of prison food services. (DE 25, Defs.' Facts ¶ 5.) IDOC policy provides that “personal preference diet cards may be confiscated if an offender abuses or misuses the privilege by voluntarily consuming the self-prohibited foods.” (DE 24–3, IDOC Policy § XXVI.)

On June 19, 2012, Borkholder was informed by Clair Barnes, an administrative assistant at MCF, that his personal preference diet was being revoked because he “purchased meat products from commissary.” (DE 24–1 at 6.) He was instructed that after 90 days, he could submit a written request “stating the reasons why your diet should be reinstated.” ( Id.) Borkholder sent Barnes a response, stating that he was “sure there is some mistake,” because he had not ordered any meat products from the commissary. ( Id. at 8.) He asked her to “please be more specific so I know exactly what caused this.” ( Id.) Barnes responded, “I am in receipt of your request for reconsideration. I stand by my response. I reviewed your commissary orders. You ordered meat products, including an order in May of 18 packages of chicken ramen noodles.” ¹ ( Id. at 9.) In essence, Borkholder's diet was revoked because the seasoning packet accompanying the ramen noodles was chicken-flavored, which IDOC considered to be a meat product. (DE 25, Defs.' Facts ¶ 2.)

Borkholder admits that he purchased chicken-flavored ramen noodles from the commissary, but he does not eat the broth packet containing the seasoning. (DE 20, Borkholder Decl. ¶ 6.) Instead, he throws the packet away and eats the noodles plain or with peanut butter. ( Id.) The defendants have offered no evidence disputing this fact. The prison commissary does not offer a vegetarian noodle option. ( Id.) Borkholder filed a grievance over the revocation of his diet and explained that he does not eat the broth packet, but his grievances were denied. (DE 24–1 at 10–11.) Thereafter, he filed this lawsuit against Barnes, IDOC Commissioner Bruce Lemmon, MCF Superintendent Mark Sevier, and MCF Religious Director Stephen Hall. I granted him leave to proceed against these defendants in their official capacities.

This isn't one of those cases where Borkholder seeks million of dollars for the defendants' failure to provide him his vegan diet. In fact, he seeks no damages at all. All he wants is his ramen noodles and his vegan diet restored. Therefore, Borkholder only seeks declaratory and injunctive relief pertaining to his right to a vegan diet (DE 7). The case is now before me on cross motions for summary judgment.

DISCUSSION

Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Under the First Amendment, prisoners enjoy a right to the free exercise of their religion. Vinning–El v. Evans, 657 F.3d 591, 592–93 (7th Cir.2011). A prison may impose restrictions on the exercise of religion that are reasonably related to legitimate penological objectives, which includes safety, security, and economicconcerns. Turner v. Safley, 482 U.S. 78, 89–91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir.2009). In determining whether an asserted justification is rationally related to a legitimate penological objective, courts consider whether there are alternative means of exercising the right that remain open to the inmate, the impact an accommodation of the asserted right would have on guards and other inmates, and whether there are “obvious alternatives” to the restriction, thus demonstrating that the restriction is an exaggerated response to penological concerns. Ortiz, 561 F.3d at 669.

Inmates are entitled to broader religious protection under Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which provides:

No government shall impose ... a substantial burden on the religious exercise of a person residing in or confined to an institution ... unless the government demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc–1(a). Unlike the First Amendment, under RLUIPA a violation occurs even when the burden on the inmate's religion results from a rule of “general applicability.” Koger v. Bryan, 523 F.3d 789, 796 (7th Cir.2008). If a plaintiff demonstrates that his religious exercise has been substantially burdened, the burden shifts to the defendants to show that the challenged conduct is the least restrictive means of pursuing a compelling governmental interest. Nelson v. Miller, 570 F.3d 868, 877 (7th Cir.2009). In making this determination, courts must afford “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). However, a court “can only give deference to the positions of prison officials as required by Cutter ... when the officials have set forth those positions and entered them into the record.” Koger, 523 F.3d at 800.

As an initial matter, the defendants argue that because Borkholder's vegan diet was restored at some point after he filed this lawsuit, his claims have become moot.² (DE 25 at 9–10.) I disagree. It is well established that a defendant's voluntary cessation of a challenged practice does not necessarily moot a case. Vincent v. City Colleges of Chicago, 485 F.3d 919, 925 (7th Cir.2007). Instead, the question is “whether the complained-of conduct may be resumed.” Id. Here, the defendants do not concede that Borkholder's diet was improperly suspended; instead, they defend the decision to revoke his diet based solely on his purchase of chicken-flavored ramen noodles. (DE 25 at 10–11.) Borkholder asserts that there is still no vegetarian noodle option available in the commissary, and the defendants do not demonstrate otherwise. ( See DE 28 at 10, 15.) By the defendants' reasoning, anytime Borkholder orders meat-flavored ramen noodles in the future, regardless of whether he consumes the seasoning packet, his vegan diet is subject to revocation. Under these circumstances, the case has not become moot.

The defendants also argue that Borkholder's filings do not comport with the formal requirements of the federal and local rules, and should be stricken or denied for this reason alone. (DE 22, 30.) However, as a pro se litigant, Borkholder's filings are entitled to liberal construction. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). While his filings may be less artful than those prepared by an attorney, they are all neatly presented, comprehensible, and contain cogent arguments in support of his claims. The defendants are incorrect when they state that Borkholder failed to submit any evidence in support of his claims ( see DE 22 at 3), since he submitted his own declaration as well as correspondence he received from prison staff. (DE 20, 28.) The declaration properly attests to matters within his personal knowledge, and the defendants have raised no objection to the authenticity of the letters. SeeFed. R. Civ. P. 56(c)(2) (materials submitted in connection with a motion for summary judgment are objectionable only if they “cannot be presented in a form that would be admissible in evidence”). Indeed, the defendants agree to the factual basis of Borkholder's claim, which is that his diet was revoked solely because of his ramen noodle purchases. (DE 25, Defs.' Facts ¶ 2.) The only issue for me to decide is whether IDOC's actions accord with federal law. Under these circumstances, I decline to strike or deny any of Borkholder's filings on procedural grounds.

The defendants raise two other arguments that are...