complaint or exhibits suggests that [Warden] DeRobertis' position in the prison hierarchy imposed
upon him a duty to intervene." /d. Whether or not a warden's "position in the prison hierarchy,"i.e.,
his or her supervisory authority, imposes a duty to act upon becoming aware of a constitutional
violation, it is clear here that IDOC's regulations direct that the warden will both be aware and have
the opportunity to act.

In two unreported decisions, Judge Manning of this court balanced the necessity for
delegation against the basic principle that an official may not ignore a constitutional violation by
deliberately shielding himself from knowledge. In Powell v. Godinez, No. 93 C 3469, 1997 WL
603927 (N.D. Ill. Sept. 24, 1997), the court granted summary judgment for Stateville’s warden, who
had referred plaintiff's complaint that he had been denied warm clothing to the assistant warden,
another named defendant, observing:

The warden of a large institution should be permitted to delegate authority to deal

with prisoner complaints. By putting the warden's name on aletter or grievance, an

inmate should not expect to hold the warden liable as a matter of course if the

grievance is not resolved. On the other hand, if the warden's subordinates fail to

resolve a problem and the prisoner again complains, the warden cannot insulate
himself from responsibility by continuing to pass the problem to a subordinate he

has reason to know is ignoring it. That would amount to "turning a blind eye." And

if the warden simply has a policy of not reading complaints from prisoners, it could

be considered intentional ignorance, which can carry the same consequence as

actual knowledge. "Going out of your way to avoid acquiring unwelcome knowledge

is a species of intent. Being an ostrich involves a level of knowledge sufficient

conviction of crimes requiring specific intent. Because it is sufficient for criminal

liability itis sufficient for liability under the eighth amendment's subjective standard."

McGill v. Duckworth, 944 F.2d 344, 351 (7th Cir. 1991) (citations omitted).

Id, at “5 (emphasis added). In Felton v. Godinez, No. 93 C 4584, 1997 WL 610050 (N.D. III. Sept.
26, 1997), the court granted summary judgment where plaintiff showed no legally cognizable injury
had resulted from defendants’ alleged indifference to his needs. There, as here, Stateville’s
warden sought summary judgment on grounds that he routinely delegated authority for reviewing
certain reports to his subordinates, but the court was unimpressed with that “defense”:

If such a bare declaration of policy defeats [plaintiff]’s claim, it would mean that a
warden can virtually insulate himself from personal liability by arranging it so that

19



economic resources, the possibility that Plaintiffs preferred diet cost a small amount more per year
could not be considered compelling.

Warden Briley explains the purpose of Rule 425.70 as follows:

The reason for [Rule 425.70] is to assist in the management of the Dietary

Department, as there is the potential for a special diet request from any of the

inmates practicing the various religions and the only way to manage the cost of

providing the foods necessary, as well as managing the amounts of food necessary

for those with special religious needs necessitates having a system in place to

monitor dietary needs and supplies.

There is a valid penological interest in having a rule requiring inmates to submit a

request for a religious diet to protect economic resources and to prevent inmate

manipulation of the system. There is also a valid security interest in controlling

inmate access to a vegetarian diet as if the prison were required to keep large

quantities of fruits, vegetables and grains on hand, along with problems of cost and

difficulty in storage, there is a potential for problems with security from the

prisoners, including Plaintiff fermenting the fruit into alcohol.
Briley Aff., Def. Ex. D, 9] 22-23. Quentin Tanner, Stateville's dietary manager, explains that
prisoners receiving vegan meals go through a separate food line, and may supplement their meals
by requesting extra servings of fruits, vegetables and starches, which the court infers are not
offered to prisoners receiving the standard diet. Tanner Aff., Def. Ex. G, 9. Vegan meals are
more costly and more perishable than regular meals. /d. | 7. According to Tanner, unless the
dietary department knows how many prisoners are receiving a vegan diet, the proper number of
vegan meals will not be prepared and food will be wasted. /d. | 11. Tanner also states that fruits
and vegetables "can [be] and are" used to make alcohol. /d. Tanner explains that Stateville offers
a vegan diet for all prisoners who cannot eat meat for religious reasons; it would add extra expense
to create additional alternatives for prisoners who may eat dairy products and for prisoners who
may eat dairy products and eggs. /d. | 12.

The court is uncertain that any of the interests Defendants identify—the additional cost of

vegan diets for inmates requesting them without a bona fide religious justification, the cost of

wasted food when inmates may select vegan or standard meals at will, unspecified storage

13



medical treatment. Here, however, Peterson's implementation of Rule 425.70 required no
particularly professional expertise. Briley would have been equally able to evaluate whether
requiring written verification from a clergy member substantially burdened Plaintiff's religious
practice. And as warden, Briley was in a better position than Peterson to evaluate whether
requiring written verification was the least restrictive means of addressing any administrative issues
that might be raised.
CONCLUSION

The court accordingly grants Plaintiff's motion for summary judgment (Doc. No. 40-1) as
to the liability of both Peterson and Briley under RLUIPA. Several issues remain including (a) the
question of whether RLUIPA authorizes an award of damages against individual Defendants in this
case, or whether the “appropriate relief’ available here is limited to an injunction; (b) if an award
of damages is available, whether Plaintiff is entitled to such an award in this case; and (c) the
appropriate disposition of Plaintiff's personal property claims. The court will convene a telephone
status conference to discuss these issues at 8:30 a.m. on Tuesday, September 7, 2004, and
directs Defendants’ counsel to make arrangements for Plaintiff to participate in such a call.

ENTER:

Dated: August 24, 2004

REBECCA R. PAL
United States District

23



genuine dispute that Defendants imposed a “substantial burden” on the exercise of his religion.
Once he has done so, Defendants can defeat summary judgment by presenting evidence, that, if
believed, would justify a determination that the imposition furthered a compelling governmental
interest, and that it was the least restrictive means of doing so.

I. Analysis of Plaintiff's Claim Under RLUIPA

A. Plaintiff's Diet

Plaintiff is a Vaishnava Hindu, whose sincerely-held religious beliefs require a “lacto-
vegetarian’ diet, i.e., abstention from foods derived from animal sources other than dairy products.
Defendants assert that these matters are disputed, but the evidence they cite does not, in this
court's view, create a genuine dispute of fact. First, Defendants note that Plaintiff asserts that his
religion requires him to be “pure vegetarian,” which Defendants equate with “vegan,” i.e., consisting
only of vegetable products, yet Plaintiff admits eating dairy products. DSF [lf] A-3, A-4. This
purported inconsistency is not relevant to the issue here. Plaintiff has clearly and consistently
stated what his religion permits and forbids; whether that corresponds to what Defendants call a
“vegan” diet is not material.

Next, Defendants point to Plaintiff's statement in the amended complaint that on occasion,
he ate eggs or food containing eggs. This, Defendants assert, shows either that (a) contrary to
Plaintiff's assertion, Vaishnava Hinduism permits Plaintiff to eat eggs, DSF {| A-6, or (b) that
Plaintiff does not sincerely follow the dietary rules of Vaishnava Hinduism, DSF {| A-7. The
statement to which Defendants refer, however, is Plaintiff's assertion that he “did not eat food which
was in violation of the dietary rules of his religious faith except in rare occasions when he was
unable to tolerate hunger then only few times he ate some food which may have egg.” Amd.

Cmoplt. 1 E-6. This statement does not establish any genuine dispute as to the requirements of



inmate complaints are always routed to someone else. It is also disturbing that
[plaintiff] and the court are not told who was responsible.

Id. at *2.

If a warden ordered that all inmate grievances be ignored and discarded, there is little doubt
such deliberate indifference would suffice for liability under § 1983. Cf. Wilson v. City of Chicago,
6 F.3d 1233, 1240 (7th Cir. 1993) (‘If [Chicago police superintendent} Brzeczek had thrown the
complaints into his wastepaper basket or had told the office of investigations to pay no attention
to them, an inference would arise that he wanted the practice of physically abusing cop killers to
continue"). Here, in contrast, Briley directed that grievances and complaints be forwarded to
subordinates, not the trash bin, and Plaintiff has offered no evidence that Briley knew or suspected
that his subordinates were not responding appropriately--or, as in Plaintiffs case, not responding
at all-to inmates’ grievances. Briley’s practice of not only delegating his grievance review
responsibilities, but of effectively masking this process by directing his subordinates to sign his own
name, has little to commend it. Nevertheless, because there is no evidence that Briley knew or
should have known that the process permitted a violating of Plaintiff's rights, the court would not
conclude on this record that there are no disputes of fact concerning his liability. For this reason,
the court concludes that Plaintiff has not established that he is entitled to judgment in his favor
under the “reckless indifference” standard necessary to establish supervisory liability under 42
U.S.C. § 1983.

B. Liability under RLUIPA

As noted, Defendants’ motion for summary judgment assumes that Briley’s liability under
RLUIPA parallels his liability under § 1983 for a corresponding First Amendment violation. For the
reasons stated here, the court disagrees.

Section 1983, originally § 1 of the Civil Rights Act of 1871, creates a cause of action against

"[ejvery person who . . . subjects or causes to be subjected” another person "to the deprivation of

20



Congress legislated in the context of First Amendment claims brought under § 1983. Nevertheless,
Congress provided that RLUIPA "shall be construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by the terms of this chapter and the Constitution."
42 U.S.C. § 2000cc-3(g). In enacting RLUIPA, Congress imposed a substantive obligation upon
prison officials extending well beyond that imposed by the First Amendment; a “least restrictive
alternative” test was decisively rejected by the Supreme Court in O'Lone v. Estate of Shabazz, 482
U.S. 342 (1987), but in RLUIPA, Congress has adopted precisely such a standard. In light of
Congress's stated preference for a broad construction, this court is unwilling to assume that
Congress intended to incorporate into RLUIPA the judge-made limits of potential liability under
§ 1983 if other principles of tort law casting a broader net might result in “appropriate relief.”

In this case, the court concludes that Briley’s deliberate avoidance of any involvement in
review of Plaintiff's grievance establishes sufficient “fault,” an adequate causal nexus to Plaintiff's
injury, to support a finding of liability against him. Before the Supreme Court held in Daniels v.
Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986), partially overruling
Parratt v. Taylor, 451 U.S. 527 (1981), that merely negligent acts could not “deprive” a person of
life, liberty or property within the meaning of the Due Process Clause, negligent supervision could
render a supervisor liable for a subordinate's constitutional torts. See, e.g., McKinnon v. City of
Berwyn, 750 F.2d 1383, 1391 (7th Cir. 1984). Proof of a supervisor's intentional avoidance of
knowledge of a subordinate's actions may not prove that the supervisor was reckless in the criminal
sense required under § 1983 unless the supervisor had some inkling of the subordinate's
wrongdoing. Briley’s conduct hére, however, where he permitted a subordinate to make a decision
in Briley's own name, while ensuring that he would never review that decision, constitutes negligent
supervision.

It is true, of course, that a warden cannot be expected to review subordinates’ decisions
based on professional expertise the warden does not share, for example, decisions concerning

22



comments. Although Defendants here are correct that IDOC regulations do not require the warden
to investigate most grievances personally, he or she is expected to monitor the process and take
corrective action when appropriate.

As Briley explains in his affidavit, however, he delegated review of all non-emergency
grievances as well as any grievance “regarding religious services and religious diets” to a
subordinate, the Assistant Warden of Programs. Briley directed the Assistant Warden of Programs
to review such grievances, prepare a response, and to sign Briley’s own name to the response.
Briley Aff., Def. Ex. D, {J 13-14.) Briley insists that his delegating all review of inmate grievances
to subordinates is contemplated and permitted by IDOC regulations, but the court is less certain,
for two reasons. First, the relevant regulation does not appear to contemplate that the warden will
delegate the function of reviewing grievances as a routine matter:

504.805 Responsibilities
(a) Unless otherwise specified, the Director or Chief Administrative Officer may
delegate responsibilities stated in this Subpart to another person or persons or
designate another person or persons to perform the duties specified.

(b) No other individual may routinely perform duties whenever a Section in this

Subpart specifically states the Director or Chief Administrative Officer shall

personally perform the duties. However, the Director or Chief Administrative Officer

may designate another person or persons to perform the duties during periods of

his or her temporary absence or in an emergency.

20 III. Admin. Code § 504.805. Briley's delegation as a matter of standard procedure is inconsistent
with subsection (b), because the duty to review grievances is expressly committed to the Chief
Administrative Officer by § 504.830(d).

Second, Briley's procedures go well beyond what is normally understood by delegation. In
any large organization, executives delegate authority to subordinates, including authority to make
discretionary decisions. The subordinate is nevertheless accountable to the supervisor, and both
the subordinate and those dealing with him or her are aware of this. Here, in contrast, Briley
directed his subordinates to sign Briley's own name to the disposition of Plaintiff's grievance,

17



Orthodox Jew, sought a kosher meal but failed to complete and submit the standard prison form
application for such a diet. This court agrees with the Ninth Circuit that no substantial burden is
imposed by a requirement that a prisoner provide a writing in which he declares his religious
beliefs, describes the dietary accommodation he requests, and explains why his beliefs require that
accommodation. Here, however, Defendants require more than this: Plaintiff was required to
obtain proof from a clergy person that Plaintiff was, in fact, a Vaishnava Hindu, and that Vaishnava
Hinduism requires the diet Plaintiff requested.

IDOC regulations give the institutional chaplain, here Defendant Peterson, responsibility for
determining whether a prisoner may receive a special diet for religious reasons:

A committed person may submit a written request to the facility chaplain to receive

an alternative diet for specific religious reasons. The request must contain written

verification that the committed person is a member of a faith group that requires

adherence to a particular diet and the specific requirements of the diet. Eligibility to

receive an alternative diet for specific religious reasons shall be determined by the

facility chaplain who shall ordinarily confer with a religious leader or faith

representative of the faith group at issue. The facility chaplain and the religious

leader or faith representative may interview the committed person.
20 Ill. Admin. Code § 425.70. As the court noted in its initial review of the complaint, the regulation
does not on its face appear to require that a clergy person provide the required “written
verification.” The court presumes that a committed person could himself furnish written verification
of his religious affiliation and his need for a particular diet. Nevertheless, it is undisputed here that
itwas (and is) Defendant Peterson’s understanding that verification by a clergy member is required:

According to Rule 425.70, in order to receive a religious diet, inmates must obtain

a letter from a faith representative which states that they are a member or

practitioner of the faith, and that the religion requires adherence to a particular diet

and the specific requirements of the diet. It is the inmate’s responsibility to obtain

this letter, according to the rule.
Peterson Aff., Def. Ex. F, at ] 3.

In this court’s view, this procedure is inconsistent with the First Amendment as interpreted

by the Supreme Court in Frazee. It impermissibly makes a prisoner's receiving a diet consistent



petitioner's refusal “must be based upon some tenets or dogma . . . of some church, sect, or
denomination, and such a refusal based solely on an individual’s personal belief is personal and
noncompelling and does not render the work unsuitable.” Frazee, 489 U.S. at 830. The Supreme
Court unanimously rejected that view of the First Amendment:

Frazee asserted that he was a Christian, but did not claim to be a member of a

particular Christian sect. It is also true that there are assorted Christian

denominations that do not profess to be compelled by their religion to refuse

Sunday work, but this does not diminish Frazee’s protection flowing from the Free

Exercise Clause. Thomas [v. Review Bd. of Indiana Employment Security Div., 450

U.S. 707 (1981)] settled that much. Undoubtedly, membership in an organized

religious denomination, especially one with a specific tenet forbidding members to

work on Sunday, would simplify the problem of identifying sincerely held religious

beliefs, but we reject the notion that to claim the protection of the Free Exercise

Clause, one must be responding to the commands of a particular religious

organization. Here, Frazee’s refusal was based on a sincerely held religious belief.

Under our cases, he was entitled to invoke First Amendment protection.

Id. at 834 (footnote omitted).

There is no reason to suppose that Congress intended the scope of protection granted to
inmates’ religious practices under RLUIPA to be narrower than it had been under pre-Smith First
Amendment law. The court concludes that Plaintiffs rights under RLUIPA flow from his sincerely-
held religious beliefs, not the label of Vaishnava Hinduism. The religious practices of other Hindus,
and whether RLUIPA would be violated by IDOC’s or Stateville’s policies if applied to them, are
simply irrelevant here.

B. Burden

Plaintiff asserts that Defendants’ denying him a vegetarian or lacto-vegetarian diet and only
offering Plaintiff the standard prison diet imposed a substantial burden. Defendants challenge this
assertion, arguing that “Plaintiff has produced no documentary evidence that he was ever
categorically denied a religious diet,” and has instead submitted only “self-serving allegations.” Def.

Mem. 7. The court notes first, however, that Plaintiff need not establish that Defendants

“categorically” denied him a vegetarian diet. Instead, Plaintiff asserts, and Defendants have not



Vaishnava Hinduism or Plaintiff's sincerity.

In response to Plaintiff's assertion that he does not eat vegetarian food contaminated by
non-vegetarian food, Defendants assert that “as there are many different Hindu sects, ail with their
own dietary suggestions and requirements, Defendants do not concede that the vegetarian diet of
the type claimed by plaintiff to be required by his religion is required or necessary under RLUIPA.”
DSF ]A-8. Defendants cite no evidence in the record concerning the dietary requirements of other
Hindu sects to support this assertion. In any event, Plaintiff claims that Defendants impermissibly
burdened his religious practice; he is not suing on behalf of Hindu prisoners generally.

Indeed, Defendants’ arguments appear to assume that the First Amendment and RLUIPA
protect the rights of religious groups. On the contrary, both protect the individual's religious
practice from government interference, regardless of the individual’s membership in any particular
religious group. RLUIPA addresses the imposition of “a substantial burden on the religious
exercise of a person,” not a member of a religious group, and Congress enacted RLUIPA in the
context of Supreme Court decisions holding that the First Amendment's Free Exercise Clause
protects an individual's right to follow his or her sincerely held religious belief. The protection is in
force even if the plaintiff's belief is not held by all adherents of a religious group, Thomas v. Review
Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981), and even if it is purely personal.
Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989).

In Frazee, petitioner was denied unemployment benefits because he refused to accept
employment requiring him to work on Sundays, which he asserted would violate his personal

Christian faith. Respondent took the position that to be entitled to First Amendment protection,

8 Similarly, Defendants’ assertion that “Plaintiff was recently removed from the

religious diet at Menard Correctional Center as he purchased food products containing animal by-
products (cheese) which some Hindi [sic] claim to be counter to their religious diet needs,” DSF
|A-7, creates no genuine dispute as to the sincerity of Plaintiff's religious beliefs, because he has
never asserted that cheese is forbidden to him.

5



apparently with no further review or oversight by Briley himself, nor any notice to Plaintiff of the
identify of the actual decisionmaker. Briley Aff. 20.

The Constitution does not guarantee that state officials will faithfully perform their duties
under state law; Briley's failure to do his job does not by itself give Plaintiff a claim under § 1983.
Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th Cir. 2003). Nevertheless, Briley's official
responsibilities under IDOC regulations are not irrelevant to his potential liability. But for Briley's
procedures, IDOC's regulations would have channeled inmates' grievances across his desk.
Because of the warden's duty to review the disposition of grievances, a prison grievance is more
than an ad hoc communication to a high official with the power to act, compare Crowder v. Lash,
687 F.2d 996, 1006 (7th Cir. 1982). Nor is a warden’s role in the grievance procedure merely
perfunctory or formal, comparable to that of the former head of Illinois‘ Department of Children and
Family Services discussed in Volk v. Coler, 638 F.Supp. 1540, 1549 (C.D. Ill. 1986) (Will, J.), aff,
845 F.2d 1422 (7th Cir. 1988).°

Briley cites Johnson v. Lane, 596 F.Supp. 408, 409 (N.D. Ill. 1984) (Bua, J.), where the
court held that the warden of Stateville was not liable for his subordinates’ decision to prohibit an
inmate's wife from visiting him merely because the warden "was apprised of the matter but failed
to intervene." In that case, however, the court’s language suggested (as may at that time have

been the case) that the warden played no role in the grievance procedure: “Nothing in the

° In Volk, the district court concluded that the Director of DCFS, who had general
knowledge of plaintiff's employment complaints but delegated investigation of those complaints to
a labor relations staff, was not liable for sex discrimination against plaintiff: “Director Coler's only
participation in the entire grievance process was to assure the establishment of a structural review
process and to approve the final decisions of the grievance committee. In almost every
organization, these kinds of decisions eventually require final approval by the head of the
organization; such events, however, cannot alone form the basis for § 1983 liability.” 638 F. Supp.
at 1549. The Seventh Circuit affirmed, but found the former Director's actions "very close to the
line at which liability attaches," and cautioned, “We do not suggest that any employee in a
supervisory capacity equal to [Coler's] . . . is, by virtue of that capacity, necessarily removed from
liability for acts similar to those which occurred here." Volk v. Coler, 845 F.2d 1422, 1432 (7th Cir.
1988).

18



of Quentin Tanner, Dietary Manager at Stateville, Def. Ex. G. Nothing in Tanner's affidavit
suggests, however, that Stateville prisoners’ regular fare would have provided adequate nutrition
if meat and eggs were omitted.* Defendants do not dispute that Stateville provided a nutritious
vegan diet to inmates professing the “Hebrew Israelite” faith. DSF {| D-7. Nevertheless, although
this diet was available and would have complied with Plaintiff's religious restrictions, and Plaintiff
asked for it, he was not permitted to receive it.

Defendants argue that Plaintiff himself “burdened” his religious practice by failing to comply
with established procedures for obtaining a religiously acceptable diet. Plaintiff asserts that
prisoners professing to be “Hebrew Israelites” were given a vegan diet without providing the written
verification he was required to submit. For purposes of this motion, that statement is controverted
by Defendant Peterson’s affidavit, stating that the rule was applied equally to prisoners of all faiths.
Peterson Aff., Def. Ex. F-1 at 14. In Defendants’ view, the requirement that prisoners furnish a
written verification from clergy concerning their religious practice may be a burden, but it is not a
substantial one. According to Defendants, the Seventh Circuit has held that a substantial burden
is one that “necessarily bears direct, primary and fundamental responsibility for rendering religious
exercise . . . effectively impracticable.” Def. Mem. at 6. The case they cite, however, Rogers v.
Hellenbrand, No. 03-C-230-C, 2004 WL 433976 (W.D. Wis. Mar. 4, 2004), is a district court
opinion. The Seventh Circuit case that it relies upon utilizes this definition for a “land use regulation
that imposes a substantial burden on religious exercise,” not a prison regulation. See Civil Liberties
for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).

Defendants also cite Resnick v. Adams, 348 F.3d 753 (9th Cir. 2003), where plaintiff, an

4 The court notes that Tanner’s affidavit does not technically comply with the

requirements of Rule 56(e), as it was not signed by a notary and, although he asserts he was “duly
sworn upon oath,” he does not state that his declaration is made under penalties of perjury. See
28 U.S.C. § 1746. More significantly, Tanner states that he has worked at Stateville since August
2002; there is no indication he has persona! knowledge of the food offered to Plaintiff before his
transfer from Stateville on January 22, 2002. DSF {[ A-1.

8


Minute Order PaFhs (0697)

United States District Court, Northern District of [linois

Name of Assigned Jud; 2 vel Sitting Judge if Other
ve Magistrate Judge Rebegya. Pallmeyer than Assigned Judge
CASE NUMBER ) 02 C 6807 DATE 8/24/2004
CASE Shree M. Agrawal vs. Kenneth R. Briley, et al
TITLE

[li the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintif?, and (b) state briefly the nature

of the motion being presented. ]

a)

MOTION:

DOCKET ENTRY:

a oO Filed motion of { use listing in “Motion” box above.]

(2) oO Brief in support of motion due __

Q) oO Answer brief to motion due___. Reply to answer brief due

(4) oO Ruling/Hearing on____set for at.

(5) a Status hearing set for 9/7/2004 at 8:30 A.M..

(6) ia) Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—at_—

(7) im Trial[set for/re-set for]on at.

(8) Oo (Bench/Jury trial] [Hearing] held/continuedto_ at.

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) Local Rule 41.1 CFRCP41(a)(1) 1 FRCP41(a)(2).

(10) Ml [Other docketentry}_ Enter Memorandum Opinion And Order. The court grants Plaintiffs motion

for summary judgment (Doc. No. 40-1) as to the liability of both Peterson and Briley under RLUIPA. The
court will convene a telephone status conference on Tuesday, September 7, 2004, and directs Defendants’

counsel to make arrangements for Plaintiff to participate in such a call.

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court
s

No notices required.
umber of notices

Document

Number

, . = ~
Notices mailed by judge’s staff. aime OG, i
aye! q0ua

Notified counsel by telephone. gackered

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.
sirarz00s

date malted notice

courtroom ey
ETV deputy’s BTV
initials

Date/time received in
central Clerk's Office railing deputy initials



affidavit bypasses the question of whether, and how, “an acceptable volunteer” would “verify” that
Plaintiff was a Vaishnava Hindu.

The IDOC regulation requires verification that the prisoner is a member of a faith group, but
Chaplain Peterson asserts that he would only require that Plaintiff prove that he is a member or
practitioner of the faith.© Because Plaintiff has the burden of proof on the issue of whether
verification imposed a "substantial burden,” we assume that only verification of Plaintiff's religious
practices by a member of the clergy of his faith was required. Nevertheless, since Peterson
implicitly acknowledges that Plaintiff did not know a clergy person personally who could vouch for
his religious identity, Peterson expected Plaintiff to locate a clergy member willing to drive to
Stateville, interview a stranger regarding his religious beliefs and practices, and write a letter to
Chaplain Peterson on his behalf, without compensation and with no legal obligation to do so. Only
“mere speculation or conjecture,” McCoy, 341 F.3d at 604, would permit the court to find this to be
less than a substantial burden.

Cc. Defendants’ Justification

Under the First Amendment, a prison regulation that limits an inmate's First Amendment
rights must only be "reasonably related" to legitimate penal interests. O'Lone v. Estate of Shabazz,
482 U.S. 342, 349-52 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987). Under RLUIPA, however,
Defendants face a far heavier burden of persuasion, as they must show that the rule is the “least
restrictive means" of furthering a “compelling governmental interest." These terms have their
historical roots in pre-Smith Supreme Court opinions addressing state laws burdening or penalizing

religiously-motivated conduct. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that

6 This is an important distinction. For some religions, identifying with the religion and

choosing to practice its rituals suffices to make one a “member,” but for others there are objective
ritual prerequisites; for example, some forms of Christianity require baptism. Consequently,
verifying that a person practices a faith can be much easier than verifying his or her membership
in a religious group.

11



with the prisoner's religious beliefs contingent upon his beliefs being consistent with those
professed by some recognized religious group. See Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003)
(Muslim prisoner could assert religious right to participate in postponed Eid-ul-Fitr feast, even
though Muslim religious authorities held that postponement deprived feast of religious significance).
It also impermissibly requires that the prisoner be recognized as a member by that group's clergy.
See Jackson v. Mann, 196 F.3d 316, 320-21 (2d Cir. 1999) (under First Amendment, prisoner's
sincere belief that he is a Jew entitled him to kosher diet, even though a rabbi determined he was
not Jewish under Jewish law).

Even apart from any First Amendment concerns, the court concludes that as interpreted by
Defendants, the regulation imposed a substantial burden on Plaintiff. Defendants’ argument that
Plaintiff could readily comply with the requirement that he obtain documentation from a faith leader
assumes (a) that Vaishnava Hinduism is a religion or denomination in the Western sense, such that
there are accepted criteria for determining who is and is not a member; (b) that Vaishnava has
clergy in the Western sense, i.e., religious leaders whose authority in religious matters is
recognized and accepted within the religious group; and (c) that a Vaishnava clergy person was
available, willing and able to confirm to Defendants, if asked, that Plaintiff was a Vaishnava Hindu
and was required to abstain from foods containing meat or eggs or contaminated by them.

Although these assumptions may be true, no evidence in the record supports them.
Peterson states that, had Plaintiff asked, he would have assisted Plaintiff by looking through the
phone book or online for a Hindu temple “so that [Plaintiff] could seek an acceptable volunteer to
verify his dietary needs.” Ex. F 17. Peterson does not state that he offered this assistance, and
apparently does not know to this day whether “an acceptable volunteer” was available.° But

verifying Vaishnava Hinduism’s dietary requirements was only half of the matter; Peterson’s

5 There is no evidence concerning Chapiain Peterson’s knowledge of Hinduism, or

what criteria he would apply to determine whether a “volunteer” was “acceptable.”

10



disputed, that his receipt of a vegetarian diet was contingent on his compliance with the condition
that he obtain documentation from a “faith leader” of his need for such a diet. Defendants’
objection to the evidence Plaintiff offers as “self-serving” is overruled. Indeed, the very case they
cite, Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) rejects the argument that a plaintiff's deposition
testimony should be disregarded because it is self-serving:

We hope this discussion lays to rest the misconception that evidence presented in

a "self-serving" affidavit is never sufficient to thwart a summary judgment motion.

Provided that the evidence meets the usual requirements for evidence presented

on summary judgment--including the requirements that it be based on personal

knowledge and that it set forth specific facts showing that there is a genuine issue

for trial--a self-serving affidavit is an acceptable method for a non-moving party to

present evidence of disputed material facts.

Id. at773. Not only may “self-serving” affidavits be offered to defeat a summary judgment motion;
admissible evidence contained in the moving party's “self-serving” affidavit, if unrebutted, can
support a grant of summary judgment. See, e.g., Dominguez v. Alliance Mortgage Co. of Chicago,
226 F.Supp.2d 907, 914 (N.D. Ill. 2002) (Moran, J.).

Plaintiff asked Defendants for a vegetarian diet on religious grounds, a vegetarian diet was
available, it was in Defendants’ power to give it to him, and he did not receive it. These facts were
within Plaintiff's personal knowledge and Defendants do not dispute them. With respect to the
issue of burden, Defendants admit that the diet at Stateville did not meet Plaintiffs asserted
religious requirements. They dispute his assertion that Stateville prisoners received food providing
2,000 calories daily, but whether prisoners were served foods providing 2,000 or 3,000 calories
daily, Defendants do not dispute that more than half the calories were provided by food Plaintiff was
religiously forbidden to eat. DSF 4] E-1, E-2.

Prisoners are entitled to receive nutritionally adequate food, French v. Owens, 777 F.2d
1250, 1255 (7th Cir. 1985), and adequate nutrition requires more than calories. Defendants argue
that “[Plaintiff] could have picked the foods from the line or on his delivered food tray which were
consistent with the vegetarian diet he is claiming he requires,” Def. Mem. at 5, citing to the affidavit

7


any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The
Supreme Court held in Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978), that
although a municipality is a “person” subject to suit under § 1983 (overruling Monroe v. Pape, 365
U.S. 167 (1961)), a municipality cannot be liable “solely because it employs a tortfeasor--or, in
other words, . . . on a respondeat superior theory.” /d. at 691. The Court based this conclusion
on the statutory language “subjects or causes to be subjected”: “[T]he fact that Congress did
specifically provide that A's tort became B's liability if B ‘caused’ A to subject another to a tort
suggests that Congress did not intend § 1983 liability to attach where such causation was absent.”
Id, at 692. This requirement of a causal relationship between the plaintiff's injury and some act or
omission by the defendant not only bars vicarious liability based on employment, i.e., respondeat
superior, but also vicarious liability based on a supervisory relationship.

In contrast to § 1983, which provides a cause of action against “any person,” RLUIPA is
violated when a “government” “impose[s] a substantial burden on the religious exercise of a
person.” Only a “government” may be sued under RLUIPA, but RLUIPA defines “government”
broadly, as including not only state and local governments, but also their agencies, their officials,
and others acting under color of state law. 42 U.S.C. § 2000cc-5(4). The definition applies both
to those capable of “impos|ing] a substantial burden,” § 2000cc-1, and those who may be sued for
“appropriate relief’ under § 2000cc-2. In speaking of liable parties as “governments” rather than
“persons,” RLUIPA appears implicitly to authorize respondeat superior liability against
municipalities, and, if a state's acceptance of federal funds for its correctional system effects a
waiver of Eleventh Amendment immunity, against states as well.

The court here considers whether Briley may be liable either because he was Peterson's
supervisor, or because of the role IDOC's regulations gave him in the institutional grievance
procedure. By its terms, RLUIPA does not preclude an award of relief against a supervisory official

based upon a subordinate's actions, unless such relief is not “appropriate.” Briley is correct that

21



“mere speculation or conjecture’ will not defeat a summary judgment motion. McCoy v. Harrison,
341 F.3d 600, 604 (7th Cir. 2003). Further, only a dispute concerning a material fact, one that
might affect the outcome of the suit under the applicable law, precludes the entry of summary
judgment. Anderson, 477 U.S. at 248; Outlaw, 259 F.3d at 837, 840-41.

The RLUIPA was enacted by Congress in response to the Supreme Court's decision in City
of Boerne v. Flores, 521 U.S. 507 (1997), striking down the Religious Freedom Restoration Act of
1993 ("RFRA"), 42 U.S.C. § 2000bb-bb4, insofar as it applied to state and local governments.
RFRA, in turn, had represented Congress’s attempt to undo the Supreme Court’s holding in
Employment Division v. Smith, 494 U.S. 872 (1990), that laws of general applicability can be
enforced against religiously-motivated conduct without infringing the free exercise clause of the
First Amendment. The portion of RLUIPA relevant here provides that:

No government shall impose a substantial burden on the religious exercise of a

person residing in or confined to an institution, as defined in [42 U.S.C. § 1997],

even if the burden results from a rule of general applicability, 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). RLUIPA defines “government” as broadly as possible, including not only
state, county and municipal governments and agencies, but officials of such entities and “any other
person acting under color of State law.” 42 U.S.C. § 2000cc-5(4). RLUIPA’s provisions relating
to institutionalized persons apply only to “program[s] or activit[ies]" receiving federal financial
assistance, 42 U.S.C. § 2000cc-1(b). The Seventh Circuit has held that § 2000cc is a valid
exercise of Congress’s power under the Constitution's Spending Clause. Charles v. Verhagen, 348
F.3d 601, 610 (7th Cir. 2003).?

For purposes of Defendants’ motion, RLUIPA requires Plaintiff to show that there is no

2 Defendants do not deny that IDOC receives federal funds and is subject to RLUIPA.

3



problems, and the possibility that giving more inmates access to extra fruits and vegetables will
increase the amount of illicit alcohol produced at Stateville—are "compelling" interests for purposes
of RLUIPA. Even assuming that they are compelling interests, Defendants make no showing
whatever that Rule 425.70 is the least restrictive means of dealing with these concerns.’
Defendants take the position that "it seems difficult to imagine any regulation less restrictive.
The only alternative less restrictive would be to allow inmates to self report their religious
preferences and dietary needs, which would be the equivalent of no regulation at all." Def. Mem.
at 9. On the contrary, a regulation that (perhaps like the one in Resnick, supra) does not require
written verification by a clergy member would be less restrictive and would hardly be "the equivalent
of no regulation at all." Religious beliefs are necessarily subjective and "self-reported." Because
the state is required to accommodate only sincerely-held religious beliefs, prison regulations may
require a prisoner requesting a special diet for religious reasons to provide a verified statement,
i.e., made under penalty of perjury, concerning the religious beliefs upon which he bases his
request, and an acknowledgment that conduct inconsistent with these beliefs may result in the
denial or revocation of the dietary accommodation. Such a regulation would impose no significant
burden on prisoners’ free exercise of religion, yet would satisfy most, if not all, of Defendants’
concerns. Prisoners’ statements on file would tell administrators how many prisoners are to receive
a particular diet, so that the appropriate quantities of supplies may be ordered and the appropriate
number of servings prepared. Administrators would know who was receiving a vegan diet, and

their cells could be checked for hoarded fruit. If there are separate food lines for inmates approved

7 The court recognizes that Defendant Peterson has asserted that "Rule 425's

requirement of written verification of the inmates’ religious affiliation and special dietary
requirements is the least restrictive means to achieve the government interest in managing the
dietary, economic and security needs of the institution." Peterson Aff., Def. Ex. F-1, 9. That
statement is insufficient to defeat summary judgment, in the court’s view, because it states a legal
conclusion and does not appear to be based on Chaplain Peterson's personal knowledge; there
is no evidence that the dietary, economic, or security needs of the institution are Chaplain
Peterson's responsibility.

14



Chicago, 349 F.3d 989, 1001 (7th Cir. 2003) (quoting Jones v. City of Chicago, 856 F.2d 985,
992-93 (7th Cir. 1988) (citations omitted).

The court notes, preliminarily, that this argument assumes that supervisory liability under
RLUIPA is governed by the same standards as apply to claims brought under 42 U.S.C. § 1983.
A claim brought under that section to enforce Plaintiffs First Amendment rights would indeed be
governed by the “reckless indifference” standard. Here, however, Plaintiff seeks summary
judgment only on his RLUIPA claim, not his First Amendment claim.

A. Liability under 42 U.S.C. § 1983

Before addressing the standards for establishing Briley’s liability for violations of Plaintiff's
rights under RLUIPA, the court notes that it is not certain that Briley could escape liability even
under § 1983. In considering this issue, the court begins with IDOC’s administrative grievance
procedure, which requires the warden to be the final decisionmaker with respect to a grievance
such as the ones filed by Plaintiff on this issue: Under the relevant regulations, a prisoner is initially
required to attempt to resolve his problem informally through his assigned correctional counselor.
If the problem is not resolved, the prisoner is expected to submit a written grievance on a
prescribed form. 20 Ill. Admin. Code § 504.810(a). if the prisoner claims his grievance is an
emergency, the grievance is routed directly to the Chief Administrative Officer, i.e., the warden of
the institution, who is required to determine whether the grievance is to be handled on an
emergency basis or returned for refiling as a routine grievance. /d., § 504.840. Otherwise, the
grievance is reviewed by one of the institution's designated grievance officers, who then submits
written findings and recommendations to the warden. /d., § 504.830(b). After reviewing the
grievance officer's findings, the warden notifies the prisoner of the disposition of the grievance. /d.,
§ 504.830(d). As the IDOC grievance form reflects, the warden does so by checking one of three

boxes, labeled "I concur," "I do not concur," or "Remand," a box which is followed by a space for

16


sufficiency of Plaintiffs allegations and holding that Defendants were not entitled to qualified
immunity.

When the court denied Defendants’ motion to dismiss, it appeared that there was little if any
disagreement concerning the core facts underlying Plaintiff's RLUIPA claim. Plaintiff filed a motion
for summary judgment, albeit without any supporting affidavits or Local Rule 56.1(a) Statement.
Nevertheless, because Plaintiff's amended complaint was signed under penalty of perjury, it can
function as an affidavit under FED. R. Civ. P. 56(e), to the extent Plaintiff's statements are based
on his personal knowledge. Ford v. Wilson, 90 F.3d 245, 247 (7th Cir. 1996). The court directed
Defendants to treat Plaintiff's citations to the amended complaint on the second page of his motion
as his statement of undisputed material facts. Defendants responded on March 12, 2004,
presenting their version of the facts in two statements, in accordance with Local Rule 56.1(b)(3)."
Plaintiff's motion for judgment in his favor under RLUIPA is now before the court.

DISCUSSION
I. Summary Judgment Standard

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R.
Civ. P. 56(c). In determining whether there is a genuine issue of fact, the court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Outlaw v. Newkirk, 259 F.3d 833, 836

(7th Cir. 2001). The court is not required to draw every conceivable inference from the record;

' The first statement, captioned “Local Rule 56.1(b)(3)(A) Filing,” responding to

statements in the amended complaint, we will refer to as “Defendants’ Statement of Facts,” or
“DSF.” The second, captioned “Local Rule 56. 1(b)(3)(B),” we refer to as ‘Defendants’ Statement
of Additional Facts,” or “DSAF.” The third portion of the response, defendants’ memorandum of
law, is cited as “Def. Mem.”



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
SHREE M. AGRAWAL,

Plaintiff,
No. 02 C 6807

. 2
ot

Judge Rebecca R. Pallmeyer
@

KENNETH R. BRILEY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Shree M. Agrawal, a prisoner in the custody of the Illinois Department of
Corrections (IDOC) at Menard Correctional Center, brought this pro se civil rights action under 42
U.S.C. § 1983 against IDOC officials, alleging that Defendants deprived him of rights guaranteed
by the Constitution while he was confined at Stateville Correctional Center. Plaintiff claims that
Defendants denied him his First Amendment right to practice his religion (Vaishnava Hindu) by
refusing to provide him with a nutritious diet free of meat and eggs, even though a vegetarian diet
conforming to Plaintiff's religious requirements was available to Stateville inmates who were
members of the “Hebrew Israelite” faith. As a condition for obtaining a religiously acceptable diet,
prison officials required Plaintiff to obtain a letter from his “church, mosque or clergy from a Hindu
Temple” stating that he is a practicing Hindu and that a vegetarian diet is obligatory. Plaintiff
alleged that no such verification was required of those claiming to be of the “Hebrew Israelite” faith.

In its initial review of the complaint pursuant to 28 U.S.C. § 1915A, the court found that
Plaintiff had stated a claim under the First Amendment. See Agrawal v. Briley, No. 02 C 6807,
2003 WL 164225 (N.D. Ill. Jan. 22, 2003). Plaintiff's amended complaint filed April 7, 2003, added
a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc, based on the same facts. On November 25, 2003, the court denied Defendants’ motion

to dismiss this claim, Agrawal, 2003 WL 22839813, rejecting Defendants’ challenges to the



South Carolina could not deny unemployment benefits to a Seventh-Day Adventist who refused to
work on Saturday:
We must next consider whether some compelling state interest... justifies the
substantial infringement of appellant's First Amendment right. It is basic that no
showing merely of a rational relationship to some colorable state interest would
suffice; in this highly sensitive constitutional area, ‘(o)nly the gravest abuses,
endangering paramount interest, give occasion for permissible limitation,’ Thomas
v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L.Ed. 430. No such abuse or
danger has been advanced in the present case. The appellees suggest no more
than a possibility that the filing of fraudulent claims by unscrupulous claimants
feigning religious objections to Saturday work might not only dilute the
unemployment compensation fund but also hinder the scheduling by employers of
necessary Saturday work .. . . [E]ven if the possibility of spurious claims did
threaten to dilute the fund and disrupt the scheduling of work, it would plainly be
incumbent upon the appellees to demonstrate that no alternative forms of regulation
would combat such abuses without infringing First Amendment rights.
Id. at 406-407, In 1972, the Court held that Wisconsin could not compel Amish parents to send
their children to school beyond the eighth grade, stating, "The essence of all that has been said
and written on the subject is that only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406
U.S. 205, 215 (1972). In Thomas v. Review Bd., supra, 450 U.S. at 708, the Court articulated the
test in substantially the form adopted by RLUIPA: "The state may justify an inroad on religious
liberty by showing that it is the least restrictive means of achieving some compelling state interest."
The court concludes that Defendants’ asserted justifications fall short of meeting this
burden. Itis undeniable that, in the abstract, safety, security, internal order and discipline, and the
management and conservation of resources are "compelling interests." It does not follow,
however, that anything that furthers one or more of these interests, however marginally, is equally
“compelling.” Wisconsin undeniably had a compelling interest in educating its citizens, but the
Supreme Courtin Yoder held that once Amish children had acquired the basic knowledge and skills
conveyed by an eighth-grade education, the state's interest must yield to their parents’ right to raise

them in their faith. Likewise, while Illinois undeniably has a compelling interest in conserving its

12



for special diets, as at Stateville, or separate servings are prepared for them, access to specially-
prepared food can easily be limited to those prisoners authorized to receive it.

Eliminating the clergy-verification requirement would presumably make it easier for
prisoners to obtain the more costly vegan diet.° Defendants have offered no evidence, however,
of the number of additional prisoners who would be expected to ask for a vegan diet but who are
not entitled to it on the basis of sincere religious belief. Indeed, there is no evidence to support the
notion that such a diet would be so desirable that prison authorities could expect prisoners to
falsely claim a religious need for it. Unsupported by such evidence, Defendants’ bare assertion that
accommodating prisoners’ religious practice would impose unquantified costs and administrative
burdens cannot defeat Plaintiff's claim under RLUIPA. The court accordingly finds that Defendants
have not met their burden of coming forward with evidence showing that Rule 425.70 is the least
restrictive means of furthering a compelling governmental interest.

Ml. Defendant Briley’s Personal Liability

Briley asserts that he cannot be liable for any violation of Plaintiff's rights because he was
not personally involved in the decision to deny Plaintiff a vegetarian diet. Having delegated the task
of reviewing inmate grievances to subordinates, Briley was unaware of this dispute prior to
Plaintiff's filing of this lawsuit. Briley Aff. 117. In seeking dismissal of the claim against him on this
basis, Briley relies on the well-established rule that supervisors are not automatically liable under
§ 1983 for subordinates’ constitutional torts: "supervisors must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must

in other words act either knowingly or with deliberate, reckless indifference." Morfin v. City of East

8 Defendants assert that it would impose additional costs to provide a lacto-vegetarian

diet in addition to a vegan diet. In the court's view, this concern is not relevant: Plaintiff has never
demanded a lacto-vegetarian diet; although Plaintiff's religion permits dairy products, a vegan diet
meets his religious requirements. Because Plaintiff's religion does not require him to consume
dairy products, requiring him to abstain from them as a condition of receiving a vegan diet does not
burden the exercise of his religion.

15