Rich v. Sec'y, Fla. Dep't of Corr.

• Citation: 716 F.3d 525
• Decision Date: 14 May 2013
• Docket Number: No. 12–11735.,12–11735.
• Parties: Bruce RICH, Plaintiff–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Former Warden Union CI, Former Assistant Warden of Programs, Food Service Director, Kathleen Fuhrman, Registered Dietician, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

716 F.3d 525

Bruce RICH, Plaintiff–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Former Warden Union CI, Former Assistant Warden of Programs, Food Service Director, Kathleen Fuhrman, Registered Dietician, et al., Defendants–Appellees.

No. 12–11735.

United States Court of Appeals, Eleventh Circuit.

May 14, 2013.

Luke William Goodrich, Eric C. Rassbach, The Becket Fund for Religious Liberty, Washington, DC, for Plaintiff–Appellant.

Joy Adele Stubbs, Jason Vail, Susan Adams Maher, Atty Gen's. Office, Tallahassee, FL, Pam Bondi, Atty. Gen's. Office, West Palm Beach, FL, for Defendants–Appellees.

Nathan Lewin, Lewin & Lewin, LLP, Washington, DC, for Amicus Curiae, COLPA.

Roger Brooks, Cravath, Swaine & Moore, LLP, New York City, for Amici Curiae, Prison Fellowship Ministries and others.

Daniel Mach, Washington, DC; Randall C. Marshall, American Civil Liberties Union of Florida, Inc., Miami, FL, for Amici Curiae, ACLU and ACLU of Florida.

Michael Lazaroff, Cadwalader, Wickersham & Taft, LLP, Marc David Stern, Am. Jewish Congress, New York City, for Amicus Curiae Am. Jewish Com.

Jeffrey David, Joel C. Haims, Michael J. Rosenberg, Morrison & Foerster, LLP, San Diego, CA, for Amicus Curiae, Aleph Institute.

Nathaniel S. Pollock, U.S. Dept. of Justice, Washington, DC, for Amicus Curiae, U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before MARTIN, HILL and BARKSDALE,^* Circuit Judges.

MARTIN, Circuit Judge:

Bruce Rich is an Orthodox Jew serving time as a prisoner of the State of Florida. He filed a pro se complaint against the Secretary of the Florida Department of Corrections and other defendants¹ alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc (2006)et seq.² He claims the Defendants violate his right to practice his religion because they will not give him a strictly kosher diet. He seeks injunctive relief and money damages. The District Court granted summary judgment in favor of the Defendants. Mr. Rich, now counseled, asks us to vacate this judgment.

I. BACKGROUND AND PROCEDURAL HISTORY

At the time Mr. Rich filed suit, Florida had no program to provide kosher meals to inmates who asked for them for religious reasons. From the time Mr. Rich filed suit, until now, the Florida Department of Corrections offered three main diets: (1) the “[m]aster menu”; (2) the “[a]lternate entree,” which offers a non-meat substitute; and (3) the “[v]egan meal pattern.” Fla. Admin. Code r. 33–204.002 (2012). None of these diets are kosher. Florida also provides “[t]herapeutic diet[s]” that are prescribed to inmates with medical needs. Id. All pork and pork products have been eliminated from meals in Florida prisons.

The record evidences that Florida has been able to provide kosher meals in the past. From April 2004 to August 2007, Florida prisons offered the Jewish Dietary Accommodation Program (JDAP) that providedkosher meals to inmates who met certain requirements. As part of that program, the prison system established seven separate kitchens at prisons around the state. In 2007, a Study Group on Religious Dietary Accommodation was formed to study offering kosher meals to prisoners. Despite this group's recommendation that Florida “[r]etain a kosher dietary program,” kosher meals were discontinued as of August 16, 2007. Later, in 2010, an experimental kosher meal program was put in place at the Florida prison known as the South Florida Reception Center.

Mr. Rich, a prisoner at Union Correctional Institution in Florida, sued the Defendants in August 2010. In response to Mr. Rich's suit, the Defendants filed a motion for summary judgment, attaching three exhibits: (1) an affidavit by Kathleen Fuhrman, Public Health Nutrition Program Manager (Fuhrman Affidavit), addressing the cost of providing kosher meals; (2) an affidavit by James Upchurch, Chief of the Bureau of Security Operations (Upchurch Affidavit), addressing potential security concerns associated with providing kosher meals; and (3) a copy of Florida's Food Service Standards for its prisons. In response, Mr. Rich filed an “Answer to Defendants' Motion for Summary Judgment,” which highlighted the fact that the Federal Bureau of Prisons provides kosher diets and that Florida had run a “pilot” kosher meal program in the South Florida Reception Center without incident.³ Mr. Rich attached three exhibits to this filing: (1) an unsworn affidavit in which he discussed his faith and the burden on his faith caused by not being provided with kosher meals; (2) a letter from the Aleph Institute stating that kosher meals had been served at the South Florida Reception Center South Unit for fifteen months without any security concerns; and (3) a Statement of Interest of the United States filed in a case in Indiana in which the United States asserted that the Indiana Department of Corrections violated RLUIPA by not providing kosher meals.

The Magistrate Judge ruled on the Defendants' motion in the first instance. First, the Magistrate Judge found no dispute about the fact that “the kosher diet [Mr. Rich] seeks is a sincerely held tenet of his religion.” The Magistrate Judge also found no dispute in the record about the fact that “failure to provide a kosher diet to him substantially burdens his religious practice.” These findings made, the burden then shifted to the Defendants “to demonstrate a compelling state interest and that the decision not to provide [Mr. Rich] a kosher diet is the least restrictive means of serving that compelling interest.” The Magistrate Judge ultimately determined that Mr. Rich had “failed to come forward with evidence to prove his RLUIPA kosher diet claim” and recommended that summary judgment be granted in favor of Florida. The District Court adopted the Magistrate Judge's recommendation. It is this ruling we consider in this appeal.

A number of things have happened since Mr. Rich filed his appeal in this Court. First, in August 2012, the U.S. Department of Justice filed suit against the Florida Department of Corrections targeting its failure to provide kosher meals to inmates who request them for religious purposes. Complaint, United States v. Sec., Fla. Dep't of Corr., No. 1:12–cv–22958 (S.D.Fla. Aug. 14, 2012). Second, Florida announced that it would develop plans for a kosher meal program. It told Mr. Rich about this in February 2013. Third, Mr. Rich filed a Motion for Summary Reversal based on Florida's change in policy. The Defendants argued against summary reversal, stating instead that Mr. Rich's case should be dismissed as moot. Fourth, in March 2013, Florida issued a Religious Diet Program to begin at Union Correctional Institution (where Mr. Rich is an inmate) on April 5, 2013 and statewide on September 1, 2013. Under this program, Florida will provide certified prepackaged processed foods to those whose religious dietary needs cannot be satisfied by the alternate entrée or vegan meal options once they pass a rigorous sincerity test, which includes “eat[ing] from the alternate entrée or vegan meal pattern” for up to ninety days.

II. STANDARD OF REVIEW

We review a District Court's grant of summary judgment de novo, applying the same legal standard used by the District Court. Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.1999). When ruling on summary judgment, we draw all inferences in the light most favorable to the non-moving party and summary judgment is only appropriate where “there is no genuine issue as to any material fact.” Id. (quotation marks omitted).

“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Cntys. in State of Ala., 941 F.2d 1428, 1438 (11th Cir.1991) (en banc) (quotation marks and alterations omitted).

In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact.

Id. (citation, quotation marks, and alterations omitted).

The same de novo standard applies here, where Mr. Rich did not object to the Magistrate Judge's report on summary judgment and that report was adopted by the District Court. “The failure to object ... simply limits the scope of appellate review of factual findings to a plain error review; no limitation of the review of legal conclusions results.” Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir. Unit B 1982).⁴ By definition, a summary judgment ruling involves no findings of fact. See In re Optical Tech., Inc., 246 F.3d 1332, 1335 (11th Cir.2001).

III. MOOTNESS

We turn first to the Defendants' argument that this case is moot because Florida now has a plan to provide kosher meals to qualified inmates. While the plan was implemented at the facility where Mr. Rich is incarcerated on April 5, 2013, as of the time of oral argument Mr. Rich was not yet receiving kosher meals. Under the new plan, Mr. Rich will not receive a kosher meal until he completes an interview with a Chaplain, eats alternate entrée or vegan meals for ninety days, and is then re-interviewed by the Chaplain. ⁵

“[A] federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quotation marks omitted). “[I]f, pending an appeal, events transpire...