Beerheide v. Suthers

• Decision Date: 31 January 2000
• Docket Number: Civil Action No. 95-B-2481.,Civil Action No. 95-B-2325.,Civil Action No. 95-B-2326.
• Citation: 82 F.Supp.2d 1190
• Parties: Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs, v. John W. SUTHERS, Executive Director, Colorado Department of Corrections; Gerald M. Gasko, Deputy Director, Colorado Department of Corrections; Dona Zavislan, Food Service Administrator, Colorado Department of Corrections; Lee Hendrix, Volunteer Service Coordinator, Colorado Department of Corrections, Defendants.
• Court: U.S. District Court — District of Colorado

82 F.Supp.2d 1190

Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs, v. John W. SUTHERS, Executive Director, Colorado Department of Corrections; Gerald M. Gasko, Deputy Director, Colorado Department of Corrections; Dona Zavislan, Food Service Administrator, Colorado Department of Corrections; Lee Hendrix, Volunteer Service Coordinator, Colorado Department of Corrections, Defendants.

Civil Action No. 95-B-2325.

Civil Action No. 95-B-2326.

Civil Action No. 95-B-2481.

United States District Court, D. Colorado.

January 31, 2000.

COPYRIGHT MATERIAL OMITTED

Scot Melvin Peterson, Collins & Pringle, Denver, CO, Scott Dennis Helker, Helker Law Office, Golden, CO, for Charles E. Beerheide, plaintiff.

Paul S. Sanzo, Attorney General's Office Tort Litigation Section, Denver, CO, Thomas S. Parchman, Attorney General's Office Human Resources Section, Denver, CO, for Colorado Dept. of Corrections, defendant.

Scot Melvin Peterson, Dwight L. Pringle, Collins & Pringle, Denver, CO, for James J. Higgins, amicus.

MODIFIED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

BABCOCK, District Judge.

In these consolidated cases brought pursuant to 42 U.S.C. § 1983, Plaintiffs, Charles E. Beerheide, Sheldon Perlman, and Allen Isaac Fistell (collectively, Plaintiffs), inmates in the custody of the Colorado Department of Corrections (DOC), claim that the Defendants, all employees of the Colorado Department of Corrections (DOC), are violating their constitutional rights to: 1) free exercise of their religion as guaranteed by the First Amendment to the United States Constitution by failing to provide kosher meals to them; and 2) due process of law under the Fifth and Fourteenth Amendments by failing to comply with DOC's administrative regulations and state statutes. Plaintiffs seek only declaratory and injunctive relief. After trial to the Court, I now enter the following findings of fact, conclusions of law, and order of judgment.

I. Procedural Background

On December 16, 1996, Plaintiffs filed a motion for preliminary injunction on their claims for provision of a kosher diet based on Defendants' alleged violations of the: 1) Free Exercise Clause of the First Amendment to the United States Constitution; and 2) Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. I referred the motion to the magistrate judge for recommendation pursuant to § 28 U.S.C. 636(b)(1)(B). After an evidentiary hearing, the magistrate judge issued a recommendation to grant a preliminary injunction "in favor of Plaintiffs and against Defendant on the issue of a Kosher diet; and ... deny[ing][it] in all other respects." Magistrate Judge Recommendation, p. 16.

Pursuant to Defendants' written objections to the recommendation. I held a hearing on the objections and took the matter under advisement pending the United States Supreme Court's decision on the constitutionality of the RFRA. See Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. granted, 519 U.S. 926, 117 S.Ct. 293, 136 L.Ed.2d 212 (1996). In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court declared the RFRA unconstitutional.

Pursuant to § 28 U.S.C. 636(b)(1), I conducted a de novo review of the facts, the law, and the legal analysis in the recommendation, and Defendants' objections to it. See Koetting v. Thompson, 995 F.2d 37 (5th Cir.1993). However, because the recommendation was based on application of the RFRA, in light of Boerne, I reviewed this case under pre-RFRA standards including case law properly not considered by the magistrate judge in making his recommendation. I concluded that Plaintiffs were entitled to preliminary injunctive relief based on their First Amendment Free Exercise claim. Therefore, I did not address their Due Process claim. On March 16, 1999, I entered a preliminary injunction, directing the DOC to provide kosher food to the Plaintiffs in accordance with orthodox Jewish law. Beerheide v. Zavaras, 997 F.Supp. 1405, 1413 (D.Colo. 1998) (Beerheide I).

Pursuant to the parties' stipulation placed on the record during a September 24, 1999 hearing, the findings of fact and conclusions of law contained in Beerheide I, are adopted for purposes of the trial of the following remaining issues in this case: 1) Plaintiff Beerheide's sincerity of belief in Judaism; 2) Plaintiff Fistell's sincerity of belief in Judaism; and 3) the constitutionality of Plaintiffs' proposed kosher diet cost-sharing program.

II. Findings of Fact

At trial, the evidence established the following facts. Plaintiffs are inmates at Fremont Correctional Facility, one of twenty-one adult correctional facilities in the State of Colorado Department of Corrections housing approximately 10,000 to 12,000 inmates. Mr. Beerheide, whose father is Jewish, was not raised Jewish and did not practice Judaism before he was incarcerated. After Mr. Beerheide was sent to prison, he became interested in Judaism, studied Judaism, and has followed the tenets of orthodox Judaism since 1994. Mr. Fistell, born and raised in the Jewish faith, has not always been an observant Jew. At some time after his commitment to the DOC, Mr. Fistell resumed practicing orthodox Judaism. Mr. Perlman, born in 1933, was raised in an orthodox Jewish family. Until approximately 10 years before he was incarcerated in 1989, Mr. Perlman kept a kosher home. After his incarceration, Mr. Perlman resumed his practice of orthodox Judaism. Plaintiffs testified that they wish to observe the practices of orthodox Judaism including eating only kosher food.

Rabbi Yisroel Engle, qualified by the Court as an expert witness on Jewish law and Jewish dietary law, testified that "keeping kosher" is a central tenet of orthodox Judaism. Rabbi Steven Foster, an expert witness on Jewish law and Jewish conversion, agreed. As outlined in Beerheide I, "keeping kosher" includes adherence to specific rules concerning which foods may be eaten and which are forbidden. Foods that may be eaten include all non-animal products such as fruits and vegetables, meat from animals without cloven hooves including cows and sheep, and fish which have fins and scales. "Kosher" also dictates specific methods by which allowable foods are prepared for consumption. For example, kosher food is no longer "kosher" if it is prepared in containers which have held non-kosher food. To keep kosher foods untainted, containers, pots and pans, utensils, and all other implements used in their preparation must not come into contact with any item that is or has had contact with nonkosher food. Also, to keep kosher food "kosher," it must be served on plates and bowls and eaten with utensils which have not had nonkosher contact. See Beerheide I, 997 F.Supp. at 1408-09.

It is undisputed that after the issuance of the preliminary injunction in this case, the DOC Food Services department began serving Plaintiffs a kosher diet. To assist in the implementation of the program, DOC set up at a modified kosher kitchen within the regular prison kitchen. Mr. Beerheide began working in the kitchen in a special locked and caged area set aside for the preparation of the kosher food trays for himself, and his co-Plaintiffs. In addition, DOC has provided a microwave oven, preparation table, two cutting boards, two non-disposable knives, one pot, one pan, plastic tubs, plastic storage drawers, plastic wear and trays, butcher paper, and aluminum foil for exclusive use in the preparation of the kosher meals. Beerheide Testimony, October 12, 1999. The parties agree that the cost of providing a kosher diet to Plaintiffs is higher than the cost of the general fare.

The DOC agrees to provide nutritionally adequate kosher meals to Plaintiffs if they: 1) are sincere in their religious beliefs to maintain a kosher diet; and 2) are willing to pay a co-pay of 25% of the cost of the diet up to a maximum of $90 per month.

III.

A. Claim one for violation of the Free Exercise Clause of the First Amendment

1. Plaintiffs' entitlement to a kosher diet

The First Amendment to the United States Constitution provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." United States Constitution, Article I. The initial inquiry in a free exercise claim is whether a plaintiff's beliefs are religious in nature, and whether those religious beliefs are sincerely held. United States v. Seeger, 380 U.S. 163, 183-84, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Snyder v. Murray City Corp., 124 F.3d 1349, 1352 (10th Cir.1997), vacated in part on other grounds, 159 F.3d 1227 (10th Cir. 1998). Only beliefs which are religious in nature are protected by the Free Exercise clause. Snyder, id. Whether religious beliefs are sincerely held is a question of fact. Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir.1991).

Defense witnesses Rabbi Heisler and Rabbi Foster and Plaintiffs' witness Rabbi Engle all testified that following kosher dietary laws is a tenet of Judaism. Thus, there is no dispute that the keeping kosher is a religious belief. The salient issue is whether the Plaintiffs' religious beliefs are sincere. Defendants do not dispute that Mr. Perlman's religious beliefs are sincere. They contend, however, that Mr. Beerheide and Mr. Fistell are not sincere in their religious beliefs. I disagree.

a. Charles Beerheide

It is undisputed that Mr. Beerheide, born of a Jewish father and a non-Jewish mother, was not raised in the Jewish faith. After entering prison, however, he began studying Judaism. It is also undisputed that over the last five to six years, Mr. Beerheide has studied Judaism with Rabbi Winkler and Rabbi Engle. Mr. Beerheide testified that during his incarceration, he: 1) continues to learn Hebrew; 2) studies the Talmudic or written law of Judaism; 3) prays on a regular basis; 4) observes the Jewish holy days; and 5) desires to follow a kosher diet. Since March 16, 1998, Mr. Beerheide...