Beerheide v. Zavaras, Civ. No. 95-B-2325.
| Decision Date | 16 March 1998 |
| Docket Number | Civ. No. 95-B-2325.,Civ. No. 95-B-2481.,Civ. No. 95-B-2326. |
| Citation | 997 F.Supp. 1405 |
| Parties | Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs, v. Aristedes W. ZAVARAS, Executive Director, Colorado Department of Corrections, Gerald M. Gasko, Acting Deputy Director, Colorado Department of Corrections, Dona Zavislan, Food Service Administration, Colorado Department of Corrections, William T. Potter, Volunteer Service Coordinator, Colorado Department of Corrections, and Does 1 Through 10, Defendants. |
| Court | U.S. District Court — District of Colorado |
Scot M. Peterson, Waldbaum, Corn, Koff, etc., Denver, CO, Scott D. Helker, Helker Law Office, Arvada, CO, Dwight L. Pringle, Collins & Pringle, Denver, CO, for plaintiffs.
Thomas S. Parchman, Paul Sanzo, Assistant Attorneys General, Denver, CO, for defendants.
In these consolidated cases, plaintiffs, Charles E. Beerheide (Beerheide), Sheldon Perlman (Perlman), and Allen Isaac Fistell (Fistell) (collectively, plaintiffs), inmates in the custody of the Colorado Department of Corrections (DOC), filed law suits pursuant to 42 U.S.C. § 1983 and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., seeking an injunction requiring the DOC to provide them with kosher meals in accordance with Orthodox Jewish law. Also pending is plaintiffs' motion to amend complaint. I will grant the motion for a preliminary injunction. I will also grant plaintiffs' motion to amend their complaint.
Defendant DOC filed motions for summary judgment which I referred to the magistrate judge for recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge held an evidentiary hearing at the Fremont Correctional Facility in Canon City, Colorado on plaintiffs' RFRA claim. Thereafter, the parties submitted written closing arguments. 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." MJ Recomm. p. 16. Defendant filed objections to the magistrate judge's recommendation. Thereafter, 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. ___, 117 S.Ct. 293, 136 L.Ed.2d 212 (1996). In City of Boerne v. Flores, 521 U.S. ___, 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 have conducted a de novo review of the facts, the law, and the legal analysis in the magistrate's recommendation, and defendants' objections to the magistrate's recommendation. Koetting v. Thompson, 995 F.2d 37 (5th Cir.1993). However, the magistrate judge's recommendation was based on application of the RFRA. In light of Boerne, therefore, I review this case under pre-RFRA standards including case law properly not considered by the magistrate judge in making his recommendation.
Evidence received at the hearing conducted by the magistrate judge establishes the following facts. There are approximately 10,000 inmates housed in 21 adult correctional facilities in the State of Colorado Department of Corrections. Plaintiff Beerheide, incarcerated at Limon Correctional Facility, converted to Judaism and is an Orthodox Jew. Plaintiff Sheldon Perlman (Perlman), an inmate at the San Carlos Facility, was born and raised in an Orthodox Jewish family. Plaintiff Fistell, housed at the FCF, was also born into an Orthodox Jewish family. All three men testified that they wished to observe the practices of Orthodox Judaism including eating only kosher food. The parties agree that plaintiffs are sincere in their religious beliefs.
Rabbi Gershon Winkler, certified by the Court as an expert witness on Jewish law, testified that "keeping kosher" is a central tenet of Orthodox Judaism. "Kosher" includes specific rules concerning which foods may be eaten and which are forbidden. Foods that may be eaten include all nonanimal 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.
Dona Zavislan, Food Services Administrator for DOC, testified that "DOC provides no special religious meals." Trans. p. 138. However, at the hearing on objections to the magistrate judge's recommendation, DOC administrative regulation number 1550-6 (AR 1550-6), effective April 15, 1997, was introduced into evidence. AR 1550-6 states, in pertinent part:
It is the policy of the Department of Corrections (DOC) to provide for special diets for offenders whose religious beliefs require the adherence to religious dietary laws ... within available resources through standard menu alternatives, Canteen selections and volunteer services.
DOC AR-1550-6(I). Also, Zavislan testified that about three years ago, DOC Food Services began offering a vegetarian alternate entree program consisting of a "variety of bean, peanut butter and cheeses." Id. at 138. Zavislan stated DOC purchases a large number of kosher food items including margarine, grits, salad dressings, tuna fish, flavorings, canned goods, gelatin, beverage bases, puddings, and pastas. Also, DOC does not use lard or fat derived from animal products. However, the kosher products are prepared in a non-kosher kitchen. Thus, the kosher products are no longer considered kosher. Id. at 141-42. Zavislan testified that to equip a DOC facility with a "kosher" food preparation area would cost approximately $8,200 exclusive of cold food storage costs. Id. at 136. She testified that the plaintiffs could be provided with a kosher diet by serving them commercially available kosher TV dinners and plastic and paper utensils.
Motion to amend complaint
In light of the impact of City of Boerne, plaintiffs filed a motion for leave to amend complaint to add two claims: 1) a § 1983 action for violation of the Free Exercise Clause of the First Amendment of the United States Constitution; and 2) a claim for "a liberty interest under the due process clause in the Sixth and Fourteenth Amendments of the United States Constitution," Proposed First Amended Complaint, ¶ 24. I will construe claim two as a § 1983 action for violation of the right to due process of law under the Fifth and Fourteenth Amendments. Defendants object only to the addition of the § 1983 action based on an alleged due process violation.
Leave to amend pleadings "shall be freely given when justice so requires," Fed. R.Civ.P. 15(a), and if there is no undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993). Plaintiffs moved to amend their complaint when their RFRA claim became void after the Supreme Court decision in City of Boerne. There being no demonstrated reason to deny the motion, I will grant plaintiffs' motion to amend their complaint. Because plaintiffs are entitled to preliminary injunctive relief based on their First Amendment Free Exercise claim, I need not address their Due Process claim.
A. Injunction Law
The purpose of a preliminary injunction under Fed.R.Civ.P. 65 is to preserve the status quo between the parties pending a final determination on the merits. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). Preliminary injunction is an extraordinary remedy—an exception rather than the rule. GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984). Thus, the right to relief must be clear and unequivocal. See Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir.1975). See generally 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948m at 428-29 nn. 19-21 (1973 & 1991 Supp.).
A preliminary injunction is an equitable remedy that invokes the sound discretion of the district court. Lundgrin, 619 F.2d at 63. The burden is on the movant to make a prima facie showing of a probable right to the ultimate relief and a probable danger of injury if the motion is denied. Id. A preliminary injunction may issue if the movant clearly shows: (1) a substantial likelihood of success on the merits; (2) irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm the preliminary injunction will cause the opposing party; and (4) the preliminary injunction is not adverse to the public interest. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991); Lundgrin, 619 F.2d at 63.
In the Tenth Circuit, the following types of preliminary injunctions are disfavored and require the movant to satisfy an even heavier burden of showing that the four factors listed above weigh heavily and compellingly in the movant's favor before such an injunction may be issued: "(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that...
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