IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

BRUCE RICH,

Plaintiff,

v. CASE NO. 1:10-cv-00157-MP-GRJ

EDWIN G. BUSS, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Pending before the Court is Defendants’ Motion For Summary Judgment (Doc.

38). Defendant Hicks, who was served after the first motion for summary judgment was

filed, has also filed a Motion for Summary Judgment (Doc. 42) expressly adopting and

incorporating the initial motion. Plaintiff has filed a response in opposition. (Doc. 49.) 

Accordingly, this matter is ripe for review. For the reasons discussed below, the

motions for summary judgment (Docs. 38, 42) are due to be GRANTED. 

I. ALLEGATIONS OF THE COMPLAINT

Plaintiff, a state prisoner, proceeding pro se brought this suit pursuant to the

Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et

seq., and 42 U.S.C. § 1983. (Doc. 1.) Plaintiff is an Orthodox Jew housed at Union

Correctional Institution in Union County, Florida. As an Orthodox Jew, he sincerely

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believes that he must keep a kosher diet as mandated by the Torah. (Id. at 8, 10.)1

This requires that Plaintiff eat food that is derived from a religiously acceptable source,

prepared and served in a religiously acceptable way, and meat dairy products may not

be mixed. Kosher food must not come into contact with non-kosher food. (Id. at 9-10.) 

Plaintiff contends that corrections officials are violating his First Amendment and federal

statutory rights to practice his religion by not providing him with strictly kosher food. (Id.

at 13.) Plaintiff also contends that “the failure to provide a Kosher diet of well-balanced

meals containing sufficient nutritional value to preserve health violates the Eighth

Amendment.” (Id. at 12.) Plaintiff states that he is prevented “from eating normally”

and is forced to purchase limited-choice kosher items from the inmate canteen. (Id. at

6.) Plaintiff admits that it would cost the Florida Department Corrections (“DOC”) more

to provide him with a kosher diet than the standard cost for feeding an inmate, but

Plaintiff rejects cost as justification for denying him a kosher diet. (Id. at 12, 15.) 

Plaintiff suggests that the DOC utilize kitchen areas used for the department’s

discontinued Jewish Dietary Accommodation Program (JDAP) to prepare kosher food

and then transport it to inmates, or that the department permit him to purchase

packaged, shelf-stable kosher meals at his own expense. (Id. at 8-9.)

Plaintiff names as defendants in his suit the secretary of the DOC as well as

seven other prison officials. For relief, Plaintiff seeks an injunction requiring Defendants

Page numbers for Doc. 1 refer to the CM/ECF imprinted page numbers (1-44), as

1

Plaintiff’s handwritten page numbers at the bottom of his complaint are not in sequence.

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to “provide him with a nutritionally balanced and adequate Kosher diet” as well as

monetary damages from each of the Defendants. (Id. at 15-16.)

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56(c), the entry of summary

judgment is appropriate only when the Court is satisfied that “there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” In applying this standard, the Court must examine the pleadings, depositions,

answers to interrogatories, and admissions on file, together with any affidavits and other

evidence in the record “in the light most favorable to the nonmoving party.” Samples on

Behalf of Samples v. Atlanta, 846 F. 2d 1328, 1330 (11 Cir. 1988). As the Supreme

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Court held in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the moving party bears the

initial burden of establishing the nonexistence of a triable issue of fact. If the movant is

successful on this score, the burden of production shifts to the non-moving party who

must then come forward with “sufficient evidence of every element that he or she must

prove.” Rollins v. Techsouth, 833 F.2d 1525, 1528 (11th Cir. 1987). The non-moving

party may not simply rest on the pleadings, but must use affidavits, depositions,

answers to interrogatories, or other admissible evidence to demonstrate that a material

fact issue remains to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); Castleberry v. Goldome Credit Corp., 408 F.3d 773, 785-86 (11 Cir. 2005). th

III. DEFENDANTS’ EVIDENCE

Defendants’ submit in their statement of material undisputed facts that: (1)

Plaintiff can choose from an alternative entree program which includes dairy and eggs

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but not meat or a vegan program where all animal products are avoided; (2) it would be

cost-prohibitive for the DOC to provide kosher meals to inmates; (3) the implementation

of a kosher meal program would present “serious security issues” including the

perception of preferential treatment, retaliation, increased gang activity, and increased

staffing requirements for separate kosher food preparation areas; (4) the DOC’s

existing food service policies are rationally related to legitimate penological interests;

and (5) the existing food service policies serve compelling governmental interests and

are the least restrictive means to serve those interests. (Doc. 38, pp. 18-19.)

Defendants have filed the affidavit of Kathleen Fuhrman, Public Health Nutrition

Manager for the DOC. Ms. Fuhrman states that it would be “cost prohibitive” to supply

Plaintiff and any other inmates kosher meals. Shelf stable kosher entrees cost between

$2.52 to $2.95; frozen kosher entrees cost “much more.” Additional food items would

be needed to ensure nutritional adequacy, bringing the raw food cost for kosher entrees

to $4.49 to $5.71 per day. An additional $.81 per day would be incurred due to the

need for disposable containers and utensils. Ms. Fuhrman estimates that the yearly

cost to provide an inmate kosher meals would be $1,934.50 to $2,379.80, compared to

$584.00 per year for an inmate receiving regular meals. (Doc. 38, Exh. A.) If frozen

kosher entrees were used, the cost would be higher. (Id. at 3.) 

As of July 18, 2011, 402 prisoners indicated they are Seventh Day Adventists,

3,745 are Muslim, and 2,136 indicated they are of the Jewish faith. If these 6,283

additional inmates–who identify with religious groups that have previously maintained

that kosher diets are necessary–were to be provided kosher meals, the additional cost

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to the DOC would be $12,154,463.35 to $14,952,283.40 per year. Ms. Fuhrman states

the Plaintiff has two food service options available to him if he wishes to avoid nonkosher meat or animal products: the alternate entree meal program, which is meat-free

but allows dairy and eggs; or the vegan meal program, which would enable him to avoid

all non-kosher animal products. (Id. at 4.) 

Defendants also filed an affidavit of James Upchurch, Chief of the Bureau of

Security Operations. (Doc. 38, Exh. B.) Mr. Upchurch states that the DOC provides

vegan and alternate entree options for inmates whose religious beliefs would be

accommodated by such diets, and that pork and pork products have been entirely

eliminated from DOC food service programs. He states that “serious security issues”

would arise if a kosher diet were offered such as the one sought by Plaintiff, and that

some of these issues manifested themselves during the DOC’s Jewish Dietary

Accommodation Program (JDAP) in 2007. The primary security issue, said Mr.

Upchurch, is that providing such a special diet would be seen by other inmates as

preferential treatment which would negatively impact inmate morale and the orderly

operation of the institutional environment. Additionally, inmates would likely claim belief

in other religious groups to obtain the kosher diet, especially if it is believed to be of

better quality and/or provides more food. (Id. at 2.) These types of efforts by inmates

were “reported extensively” during the operation of JDAP. Mr. Upchurch states that if

the DOC attempted to determine religious entitlement to a special menu or enforce any

criteria related to such a determination, “discord and unrest” would arise in the inmate

population, and an increase in confrontational incidents involving staff and inmates is of

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significant concern. Security staff attention would be diverted from primary security

functions to addressing issues arising from such a dietary program. 

Another security concern experienced during JDAP – and which would likely

continue if a few specialized kitchens were used – is that inmates, including gang

members, would attempt to manipulate the system to gain assignment to special

institutions for gang and other associational purposes. Furthermore, the logistical

issues related to Plaintiff’s suggestion that food be prepared in special kitchens and

transported to other institutions would require vehicles, food carriers, and staff, straining

the DOC’s scarce resources. (Id. at 3.) Mr. Upchurch states that if members of the

general inmate population believed that the cost of the kosher diet was negatively

impacting the quality of their food, it would likely lead to retaliation against the kosher

inmates or otherwise disrupt the institution. Finally, maintaining and securing a kosher

area of the general kitchen would divert the already limited kitchen security staff from

their responsibilities in operating a large kitchen with a large number of inmate workers. 

(Id. at 4.) 

Defendants also submitted DOC procedure number 604.301, which describes its

food service standards. The document describes the alternate and vegan meal options

available to inmates; describes authorized religious holiday menus; and indicates that

all vegetables will be prepared without meat, meat fat, meat-based broth, or butter. 

(Doc. 38, Exh. C.)

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IV. PLAINTIFF’S EVIDENCE

Plaintiff has presented three items of evidence in response to Defendants’

motions for summary judgement. First, Plaintiff has attached his own unsworn affidavit

wherein he describes his religious upbringing and education; and his adherence to the

laws and traditions of his faith. Plaintiff asserts that he only eats kosher and as such

eats what he can purchase from the limited kosher offerings available at the inmate

canteen, to the detriment of his nutritional needs. Plaintiff states that he was placed in

confinement twice in the previous 22 months and during that time went without food for

over a month and that despite multiple requests, corrections officials would not send

him uncooked, raw vegetables and fruits. Plaintiff states that his soul would be

negatively affected if he ingested anything non-kosher. Plaintiff asserts that he has

offered to pay for his kosher meals but this was denied; the Aleph Institute offered to

send pre-packaged kosher meals for him but this was also denied. Plaintiff states that

the vegan and alternate meals offered by the DOC are not kosher due to the way they

are prepared. Plaintiff asserts that eating only kosher foods is a non-negotiable tenet of

Judaism. (Doc. 49, Exh. A.)

Plaintiff also submitted a November 11, 2011 letter from Menachem Katz,

Director of Outreach Programs for the Aleph Institute, to Plaintiff. Mr. Katz states that

he recently met with the new secretary in Tallahassee (presumably the secretary of the

DOC) and that they are on track to open a kosher kitchen “down south.” Mr. Katz

stated that kosher meals have been served at SFRC South Unit for 15 months “with

none of the issues the government is claiming in your case.” Mr. Katz stated that there

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have been no security concerns and rather than a “run on the program,” many inmates

had actually left the program. Mr. Katz requested that when a kosher kitchen was

opened and inmates were able to transfer to that facility, Plaintiff would drop his lawsuit. 

(Doc. 49, Exh. B.)

Finally, Plaintiff offers a “Statement of Interest of the United States” filed in Willis

v. Commissioner, Indiana Dep’t of Corrections, Case No. 1:09-cv-815-JMS-DML (S.D.

Ind. January 14, 2011). The Government urged the court in that case to refrain from

issuing a stay of an injunction preventing the Indiana Department of Corrections from

adhering to its policies regarding kosher meals pending an appeal. (Id.)

V. DISCUSSION

Plaintiff contends that Defendants, by not providing him with a kosher diet, have

violated RLUIPA, the First Amendment, and the Eighth Amendment.

A. RLUIPA dietary claim

To establish a prima facie case under RLUIPA, “a plaintiff must demonstrate 1)

that he engaged in a religious exercise; and 2) that the religious exercise was

substantially burdened.” Smith v. Allen, 502 F.3d 1255, 1276 (11 Cir. 2007); 42 U.S.C. th

§ 2000cc-1(a). If a plaintiff establishes a prima facie case, the burden shifts to the

government to “demonstrate that the challenged government action ‘is in furtherance of

a compelling governmental interest’ and ‘is the least restrictive means of furthering that

compelling governmental interest.’” Smith, 502 F.3d at 1276 (quoting 42 U.S.C. § §

2000cc-1(a), 2000cc-2(b)). But “[c]ontext matters in the application of that standard,”

and it should be applied with “due deference to the experience and expertise of prison

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and jail administrators in establishing necessary regulations and procedures to maintain

good order, security and discipline, consistent with consideration of costs and limited

resources.” Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (internal citations omitted).

 Defendants have not disputed that the kosher diet Plaintiff seeks is a sincerely

held tenet of his religion. Nor have they disputed that their failure to provide a kosher

diet to him substantially burdens his religious practice. Accordingly, the burden shifts to

Defendants to demonstrate a compelling state interest and that the decision not to

provide Plaintiff a kosher diet is the least restrictive means of serving that compelling

interest.

In Baranowski v. Hart, 486 F.3d 112 (5 Cir. 2007), cert. denied, 128 S. Ct. 707

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(2007), and Linehan v. Crosby, 2008 WL 3889604 (N.D. Fla. 2008), aff’d, 346 Fed.

Appx. 471 (11 Cir. 2009), the Fifth Circuit and this Court addressed scenarios similar th

to the instant case. In Baranowski, the court held that while a Jewish kosher diet was a

valid exercise of the prisoner’s religious beliefs and a failure to provide it substantially

burdened his free exercise of that belief, RLUIPA was not violated because the “dietary

policy of not providing kosher meals is the least restrictive means of furthering a

compelling government interest.” Baranowski, 486 F.2d at 124-25. The court looked to

affidavits provided by prison officials, who stated that providing kosher meals would be

too costly, would jeopardize the nutritional meals of inmates receiving standard meals,

would breed resentment among other inmates, and that other religious groups would

demand similar diets. The Baranowski court affirmed the trial court’s grant of summary

judgment to Defendants on his RLUIPA claim.

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Similarly, this Court in Linehan granted summary judgment in favor of defendants

on a RLUIPA claim where the plaintiff, a Seventh-Day Adventist, sought a kosher diet. 

“[T]he excessive cost, as well as administrative and logistic difficulties, of implementing

a kosher meal plan in the Florida prison system are compelling state interests, and the

current vegan and vegetarian diets are the least restrictive means of addressing this

compelling interest.” Linehan, 2008 WL 3889604 at *2. The Court noted that,

according to the affidavits submitted by DOC officials (including Ms. Furhman and Mr.

Upchurch, whose affidavits were submitted by Defendants in the instant case), the

special treatment would cause unrest among other prisoners, resulting in significant

security risks, and that the cost would be far too great. Id. at *1-*2. 

The evidence before the Court is virtually identical. The cost and security

concerns expressed by DOC officials in Linehan still exist. It would, according to Ms.

Furhman, cost the DOC an additional $12,154,463.35 to $14,952,283.40 per year to

provide kosher diets for Muslim, Jewish, and Seventh Day Adventist prisoners, who

would have to be treated equally. (Doc. 38, Exh. A.) Furthermore, “serious security

issues” would also be implicated if Plaintiff were provided a kosher diet, including:

decreased inmate morale and orderly operation of facilities if certain inmates are seen

as receiving special treatment; inmates might profess belief to a religious group to

obtain a special diet; efforts by the DOC to determine religious entitlement would cause

“discord and unrest” and increased confrontational incidents; security staff would be

diverted from their primary functions to addressing issues related to the kosher diet;

and the program could be manipulated for gang activity. Logistical issues would also

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be implicated if food were to be prepared in special kitchens and transported to other

institutions. (Doc. 38, Exh. B.)

Plaintiff suggests that he should be permitted to pay for his own meals, which

would then be brought into the prison system. However, while this might alleviate some

of the cost concerns for his individual meals, allowing him to receive special meals

would still implicate the cost, security, and logistical concerns expressed by DOC

officials in the affidavits before the Court.

Accordingly, Plaintiff has failed to come forward with evidence to prove his

RLUIPA kosher diet claim. Summary judgment should be entered in favor of

Defendants.

B. First Amendment claim

In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Supreme Court held

that prisoners retain First Amendment rights, but “[l]awful incarceration brings about the

necessary withdrawal or limitation of many privileges and rights, a retraction justified by

the considerations underlying our penal system.” Id. at 348 (quoting Price v. Johnston,

334 U.S. 266, 285 (1948)). To ensure that prison officials are afforded appropriate

deference by the courts, the Court has established a “reasonableness” test that is less

restrictive than the test normally applied to alleged infringements of fundamental

constitutional rights. The Court further explained:

“‘W]hen a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.” 

This approach ensures the ability of corrections officials “to anticipate security

problems and to adopt innovative solutions to the intractable problems of prison

administration,’ and avoids unnecessary intrusion of the judiciary into problems

particularly ill suited to “resolution by decree.” 

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Id. at 349-50 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) and Procunier v.

Martinez, 416 U.S. 396, 405 (1974)) (citations and footnotes omitted).

The RLUIPA “affords confined persons greater protection of religious exercise

than what the Constitution itself affords.” Smith, 502 F.3d at 12566 (citations and

quotation marks omitted). The compelling state interest test is less favorable to

defendants than the reasonableness test. Accordingly, because Defendants have

prevailed on the RLUIPA claim, it follows that they are entitled to summary judgment on

Plaintiff’s First Amendment claim. Defendants have demonstrated that their failure to

provide Plaintiff a kosher diet is reasonably related to legitimate penological interests

and that providing the current vegan and vegetarian diets are the least restrictive

means of addressing this compelling state interest. Summary judgment, therefore, 

should be granted to Defendants on Plaintiff’s First Amendment claim.

C. Eighth Amendment claim

Plaintiff claims that prison officials have violated his Eighth Amendment rights

because they will not serve him a kosher diet, and as a result, he must choose from a

limited selection of kosher food at the inmate canteen. Plaintiff alleges that his diet of

inmate canteen food is nutritionally inadequate. He does not allege any specific side

effects of his diet. 

The Eighth Amendment governs “the treatment a prisoner receives in prison and

the conditions under which he is confined.” Helling v. McKinney, 509 U.S. 25, 31

(1993). After incarceration, “only the ‘unnecessary and wanton infliction of pain’ . .

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constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”

Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle v. Gamble, 429 U.S. 97,

104 (1976) (citations omitted)). Where, as here, the claim is based upon the

deprivation of food, such a claim can only constitute cruel and unusual punishment if

the prisoner is denied the “minimal civilized measure of life’s necessities.” Wilson v.

Seiter, 501 U.S. 294, 303 (1991). It is well-established that inmates must be provided

nutritionally adequate food, “prepared and served under conditions which do not

present an immediate danger to the health and well being of the inmates who consume

it.” Shrader v. White, 761 F.2d 975 (4 Cir. 1985) (quoting Ramos v. Lamm, 639 F.2d

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559, 571 (10 Cir.1980), cert. denied, 450 U.S. 1041 (1981)). th

A viable Eight Amendment claim has both an objective and subjective

component. Under the objective component the prisoner must not only show that a

condition “pose[s] an unreasonable risk of serious damage to his future health or

safety” but also that the “risk of which he complains is not one that today’s society

chooses to tolerate.” Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11 Cir. 2004). In th

other words, the challenged condition must be “extreme” and “deprive ... [the prisoner]

of the minimal civilized measures of life’s necessities.” Id. The subjective component

requires “a subjective intent by the public officials involved to use the sufficiently serious

deprivation in order to punish.” Taylor v. Adams, 221 F.3d 154, 1258 (11 Cir. 2000). th

As discussed in detail above, the DOC is not required by the RLUIPA or the First

Amendment to provide Plaintiff with a kosher diet. Plaintiff does not dispute that the

alternative entree or vegan meal options are available to him or that the food served in

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those programs is nutritionally adequate. Rather, Plaintiff has chosen not to eat the

meals made available to him and instead eats from the inmate canteen where, though

limited, kosher options are available. The DOC’s failure to provide kosher meals for

budgetary, security, and logistical reasons does not constitute denial of the “minimal

civilized measure of life’s necessities.” Wilson, 501 U.S. at 303; Chandler, 379 F.3d at

1289-90. Because there is no dispute that the DOC provides alternative meals – and

Plaintiff has not offered any evidence that those alternative meals are nutritionally

inadequate – summary judgment is due be granted in favor of Defendants on Plaintiff’s

Eighth Amendment claim. 

VI. RECOMMENDATION

Having carefully reviewed the record, this Court concludes that Defendants are

entitled to summary judgment in their favor. It is respectfully RECOMMENDED that the

Defendants’ motions for summary judgment (Docs. 38 and 42) should be GRANTED

and the Clerk should be directed to enter final judgment in favor of Defendants.

IN CHAMBERS this 12 day of January 2012. th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations within

14 days after being served with a copy of this report and recommendation. A party may respond

to another party’s objections within 14 days after being served with a copy thereof. Failure to file

specific objections limits the scope of review of proposed factual findings and recommendations.

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