Ackerman v. Washington

• Decision Date: 12 October 2021
• Docket Number: No. 20-1363,20-1363
• Citation: 16 F.4th 170
• Parties: Gerald ACKERMAN; Mark R. Shaykin, Plaintiffs-Appellees, v. Heidi E. WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

16 F.4th 170

Gerald ACKERMAN; Mark R. Shaykin, Plaintiffs-Appellees,

v.Heidi E. WASHINGTON, Defendant-Appellant.

No. 20-1363

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2021

Decided and Filed: October 12, 2021

ARGUED: Scott A. Mertens, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Thomas J. Rheaume, BODMAN PLC, Detroit, Michigan, for Appellees. ON BRIEF: Scott A. Mertens, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Thomas J. Rheaume, BODMAN PLC, Detroit, Michigan, Daniel E. Manville, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Appellees.

Before: WHITE, NALBANDIAN, and READLER, Circuit Judges.

NALBANDIAN, Circuit Judge.

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court's judgment in the prisoners’ favor.

I.

Before 2013, the Michigan Department of Corrections provided kosher meals with meat and dairy to Jewish prisoners. And the MDOC allowed charitable Jewish organizations to bring in traditional religious foods for Jewish holidays. But starting in 2013, the MDOC implemented a universal vegan meal for all prisoners who qualify for a religious diet. The MDOC also stopped the practice of allowing Jewish organizations to send food for holiday celebrations.

Ackerman and Shaykin claim that their religious convictions require them to eat a meal with kosher meat and one with dairy on the Jewish Sabbath and four Jewish holidays: Rosh Hashanah, Yom Kippur, Sukkot, and Shavuot. They brought a class action on behalf of all Jewish MDOC prisoners who share these beliefs against Heidi Washington, the MDOC's director.¹ They alleged, among other things, that the new vegan menu violated the Constitution and RLUIPA.

The MDOC moved for summary judgment, arguing that the prisoners did not sincerely believe that they needed to eat kosher meat. The district court at first granted summary judgment on that issue. But the prisoners moved to have the claim reinstated.² In support of their reinstatement argument, the prisoners relied on a rabbi's affidavit. The rabbi explained that "[a]ccording to accepted Jewish ritual and custom, each Sabbath meal consists of fish, chicken or meat as well" as "wine (or grape juice) and bread." (R. 125-2, Neustadt Aff, PageID 1441.) He cited (but did not quote) a provision of the Code of Jewish Law that says that a person "should be lavish with meat, wine, and sweets, according [to that person's] means" on Jewish holidays. Code of Jewish Law ch. 103 § 3. And he explained that "[i]t is customary to eat dairy food on the first day of Shavuot." (R. 125-2, Neustadt Aff., PageID 1441.)

In an order granting the prisoners’ request to reinstate the meat-and-dairy claim, the district court found that "the record ... shows that Plaintiffs’ sincerely held religious beliefs require them to consume kosher meat on the Sabbath and other Jewish holidays and dairy products on Shavuot." (R. 159, 54(b) Order, PageID 1862.)

The meat-and-dairy argument made it to trial. At trial before presentation of evidence, the district court reiterated and slightly broadened its previous sincerity finding: "[F]or the reasons that I stated in my order previously, this Court does, in fact, make th[e] finding that the plaintiffs in this case have demonstrated that they do in fact hold a sincerely held religious belief ... [requiring] kosher meat and dairy products on their Sabbath and on the four specific Jewish holidays ... set forth." (R. 233, Trial Tr., PageID 2311.) But "for the sake of the record," the district court "allow[ed] for testimony from either side on" sincerity. (Id. at 2313.)

At the bench trial, Ackerman and Shaykin both testified about their religious conviction that they should consume meat and dairy on various holidays. Both testified they had grown up eating a traditional kosher diet. And both testified that their religious texts mandate meat and dairy at meals on certain days. Shaykin referred to a provision of the Code of Jewish Law that says that "[e]very person should prepare fine meat, fish, choice wine, and other delicacies for the Sabbath meals to the fullest extent of his means"—meaning the individual prisoner's means. (R. 233, Trial Tr., PageID 2392, 2399.) Ackerman explained the religious significance of the Sabbath and the four holidays as well as some of the traditional meals associated with these holidays (beef stew on the Sabbath, fish on Yom Kippur, and cheesecake on Shavuot). About Rosh Hashanah, Ackerman said that "any refraction from [the holiday], any taking away from that reduces the heartfelt meaning of it to us" and "diminishes from the fullness of the holiday." (Id. at PageID 2322.) Shaykin explained that when he can't eat meat and dairy as required he is "empty of everything." (Id. at PageID 2351.)

The clean category of meat and dairy became somewhat messier when Shaykin testified that he was "supposed to eat" not just generic dairy but cheesecake on Shavuot. (Id. at PageID 2353.) His testimony on the point was somewhat confusing though. He also explained that "it"—presumably Jewish law—"just says dairy." (Id. at PageID 2357.) And he agreed that "any dairy product would satisfy that requirement ... in lieu of cheesecake." (Id. at PageID 2369.) But he also said he wasn't a rabbi and thus couldn't speak definitively on the subject. And strictly required or not, he testified that "it would fulfill [his] religious beliefs in a better way" to have cheesecake. (Id. at PageID 2370.)

The court sought clarification on the practice of eating cheesecake on Shavuot from Ackerman, who was more familiar with Jewish law, by bringing him back to the stand.

Ackerman had not mentioned cheesecake in his initial round of testifying. (Id. ) But given the chance to testify again, he explained that "Shavuot is genuinely associated with cheesecake in the Jewish community." (Id. at PageID 2380.) He called eating cheesecake a "ritual practice[ ]." (Id. ) But he also testified that "arguably ... a glass of milk" would be "fine." (Id. at PageID 2381-82.) And he admitted that the Code of Jewish Law doesn't explicitly say cheesecake is mandatory. But when asked about a passage in the code that references "a custom to just eat some dairy mezonot, cake, and beverage" on Shavuot, however, he said he read the passage to require cheesecake. (Id. at PageID 2383-84.)

While Jewish prisoners on the new vegan diet like Ackerman and Shaykin do not receive any meat or dairy in the chow hall, prisoners can purchase certain snack-size, kosher-certified meat (e.g., beef sticks, chicken sausage) and dairy products (e.g., dry milk, mac and cheese) with prices ranging from $0.95 to $4.42 at the prison commissary twice a month. Prisoners can make money working prison jobs or have friends and family put money into their prison accounts. If a prisoner's account has under $11 for a month, then the prison will loan money for commissary purchases. Prison wages range from about $0.84 to $2.62 per day. Commissary items may not, however, be brought into the chow hall to eat at mealtime.

Although Ackerman and Shaykin can buy meat and dairy products from the commissary, they have chosen instead to spend their money on things like hygiene products, popcorn, and coffee (used for bartering in violation of prison policy). And their purchases have not been insignificant in relation to their low wages and the cost of meat and dairy products. Ackerman regularly spends over $40 each month. And Shaykin has made multiple purchases over $100.

At trial, the prisoners did not dispute their purchase histories, but they testified that commissary snack purchases could not satisfy their religious needs because the Code of Jewish Law required "meals" rather than snacks. (Id. at PageID 2391-92, 2394.) So supplementation outside mealtime would not do: "We're required to eat this meat during the meal, the Sabbath meal." (Id. at PageID 2397.) The prisoners also claimed that commissary purchases would be insufficient because they couldn't afford portions large enough to satisfy their "meal" based religious requirements. (Id. at PageID 2322-24, 2363, 2392, 2397.)

The MDOC director of food service management and support testified that providing all Jewish inmates on the vegan diet with a piece of meat (turkey) for one meal on the days at issue would cost the MDOC about $10,000 each year. Providing milk would not increase costs because the MDOC already buys enough milk for these Jewish prisoners.³ It just doesn't allow them to have any because they are on the vegan menu plan. The total annual MDOC food budget is about $39 million. And the MDOC currently recognizes twenty-eight religions.

After the bench trial, the district court asked for supplemental briefing on the precise scope of the relief sought because any possible pro-plaintiff ruling would need "to inform MDOC of the type of foods required for which Sabbath and holiday meals." (R. 235, Order for Supp. Br., PageID 2453-54.)⁴ The court allowed the parties to...