United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1839

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Keith Walker a/k/a Hereval *

Ben Kushi, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Iowa Department of Corrections; *

W. L. Kautzky, Director; Larry * [UNPUBLISHED]

Brimeyer, Deputy Director; John *

Mathes, Warden; William *

Sperfslage, Deputy Warden; John *

Emmett, Security Director; Ronald *

Welder, Executive Assistant; Karen *

Woodley, Acting Grievance Officer; *

Dave Degrange, Investigator II; Paul *

A. Muller, Deputy Director; Bernard *

Eaves, Treatment Director; Debbie *

Nichols, Unit Manager Cell House 314; *

Delwin Vande Krol, Multi-Faith *

Chaplain, *

*

Appellees. *

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Submitted: July 31, 2008

Filed: August 27, 2008

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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

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PER CURIAM.

Iowa inmate Herevel Ben-Kushi, also known as Keith Walker (Walker), appeals

the district court’s post-hearing denial of some of his claims regarding his ability to

practice his Hebrew Israelite beliefs. We affirm in part, and remand in part.

Walker filed this action in January 2003, claiming Iowa State Penitentiary (ISP)

officials were violating his rights under the First Amendment and the Religious Land

Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-1 to 2000cc-5,

by denying him a separate time and room in the prison chapel for Hebrew Israelite

services and study, possession and use of personal religious items and celebratory

items for group worship, institutional use of his religious name, and a kosher diet. He

sought injunctive relief, and compensatory and punitive damages. Following a pretrial

evidentiary hearing that included testimony from Walker, two non-inmate Hebrew

Israelite adherents, the ISP Security Director, and the ISP Protestant chaplain, the

magistrate judge found that the beliefs held by those who follow Hebrew Israelite

teachings are religious in nature and that Walker was sincere in his professed Hebrew

Israelite beliefs. Adopting the magistrate judge’s recommendation, the district court

entered an order that enjoined defendants from denying Walker the opportunity to

attend chapel services and study time to the same extent afforded Jewish inmates in

his classification status; allowed him to obtain, possess, and use a kippot, tzit-tzit,

Torah, and other personal religious items subject to reasonable regulations for his

classification status; entitled him to be provided kosher food on Hebrew Israelite holy

days; entered judgment for defendants on Walker’s claims for damages; and dismissed

without prejudice other unexhausted claims. On appeal, Walker argues that the

district court erred in denying him a daily kosher diet, and in denying nominal and

punitive damages.

We review the district court’s factual findings for clear error and its conclusions

of law de novo. See Choate v. Lockhart, 7 F.3d 1370, 1373 & n.1 (8th Cir. 1993).

We agree with the district court that defendants were entitled to qualified immunity
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from liability for damages, given that Walker’s religion is not yet officially recognized

and the sincerity of Walker’s beliefs had been questioned in a prior lawsuit. See

Walden v. Carmack, 156 F.3d 861, 868-69 (8th Cir. 1998) (in qualified-immunity

analysis, objective reasonableness of defendants’ actions must be assessed in light of

clearly established law when action occurred).

As to Walker’s request for daily kosher meals, the magistrate judge noted that

Walker had more consistently pursued his claim for kosher meals on holy days, and

thus determined that he had not shown the lack of daily kosher meals substantially

burdened the exercise of his beliefs. We conclude, however, that Walker sufficiently

pursued a claim for daily kosher meals through his grievances, complaint, and hearing

testimony, and we see no basis in the record for distinguishing between his need for

daily kosher meals and his need for kosher meals on holy days. See Patel v. U.S.

Bureau of Prisons, 515 F.3d 807, 813 & n.7 (8th Cir. 2008) (under RLUIPA,

regulation substantially burdens inmate’s ability to practice his religion if it

significantly inhibits or constrains exercise of religious beliefs); Love v. Reed, 216

F.3d 682, 689 (8th Cir. 2000) (inmates are entitled to reasonable accommodation of

religious dietary needs). Because the district court did not address whether ISP’s

denial of any daily kosher meal option is the least restrictive means to further a

compelling governmental interest, see 42 U.S.C. § 2000cc-1(a), we remand to the

district court to consider this issue in the first instance.

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