Kuperman v . NH Dept. of Corrections CV-06-420-JD 04/18/07 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Albert Kuperman

v. Civil N o . 06-cv-420-JD Opinion N o . 2007 NH 059

New Hampshire Department of Corrections, et a l .

REPORT AND RECOMMENDATION

Plaintiff Albert Kuperman is an inmate at the New Hampshire

State Prison (“NHSP”). Kuperman seeks an injunction from this

Court preventing the NHSP authorities from denying Kuperman a

kosher diet in line with his religion as a penalty for occasions

where they allege that he has failed to eat only the kosher foods

provided by the prison. A hearing on Kuperman’s motion was held

before me on April 1 8 , 2007. Upon consideration of the evidence

adduced at the hearing, and the arguments before the Court, I

recommend that the motion for a preliminary injunction be granted

and Kuperman’s religious kosher diet be immediately restored.

Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of the matter. Such a situation arises when some harm from the

challenged conduct could not be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v . Baccarat, Inc.,

2 , 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v . New Castle County,

(3rd Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief).

Absent irreparable harm, there is no need for a preliminary

injunction.

The need to prevent irreparable harm, however, exists only

to enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v . Ocean Coast

Props., Inc.,

1 8 , 620-21 (1st Cir. 1995) (explaining the

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the court more effectively to remedy

discerned wrongs”); see also Becton v . Thomas,

(W.D. Tenn. 1999) (“‘The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.’” (quoting Stenberg v . Cheker Oil Co.,

2 1 ,

2 925 (6th Cir. 1978)). The court’s focus, therefore, must always

be on the underlying merits of the case, and what needs to be

done to ensure that the dispute can be meaningfully resolved.

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Standard Oil C o . v . Monroig-Zavas,

3 ,

17-18 (1st Cir. 2006) (discussing the requisite showing to obtain

a preliminary injunction); see also Ross-Simons,

-

19 (explaining the burden of proof for a preliminary injunction).

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Standard Oil, 445 F.3d at 1 8 . If the plaintiff

is not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,” id.,

insufficient to carry the weight of this extraordinary relief on

their own. See id. (the “sine qua non of the four-part inquiry

is likelihood of success on the merits”).

3 Background

Albert Kuperman is an observant orthodox jew. He has been

incarcerated by the New Hampshire Department of Corrections, in

the Northern New Hampshire Correctional Facility and the NHSP

since April of 2004. Upon Kuperman’s arrival in prison, he

requested and was granted a kosher diet, based on his sincere

belief in and practice of Judaism and the dietary requirements of

that faith. Pursuant to the kosher meal program at the prison,

Kuperman receives three pre-packaged meals per day. Kuperman is

permitted to supplement his food intake with kosher items from

the prison canteen.

At the hearing, Kuperman testified that he has been a

lifelong practitioner of orthodox Judaism, and has attempted at

all times to practice that faith while in prison. As part of

that practice, Kuperman follows a kosher diet to the extent

possible. Although Kuperman alleges that the pre-packaged kosher

meals are not strictly compliant with Jewish dietary law, he

acknowledges that they are better than the ordinary prison diet

for maintaining his religious practice.

Prior to being granted a kosher diet, Kuperman was required

to sign a form acknowledging his awareness that the penalty for

4 voluntarily eating food not included in the kosher diet was to be

removed from the diet for six months. Kuperman also acknowledged

at the hearing that he was aware that prison policies required

the same result for an infraction based on eating non-kosher

food. On three occasions since his incarceration began, Kuperman

has had his kosher diet privileges revoked for six months for

either purchasing or eating food not provided to him by the

prison and therefore known to be in compliance with the kosher

restrictions.

On the first occasion that his kosher diet was suspended,

Kuperman had purchased products containing meat from the canteen.

Kuperman testified at the hearing that while he did purchase

those products, he did so for another inmate who was “strong-

arming” him to obtain items from the canteen, and that the items

were not for his own consumption. On the other two occasions,

Kuperman is alleged to have been caught eating chicken that came

from the prison kitchen and not from a pre-packaged kosher meal.

Testimony at the hearing from both plaintiff and Rabbi

Krinsky, plaintiff’s rabbi and spiritual consultant, demonstrated

that a chicken is a kosher animal, and produces kosher food as

long as it is slaughtered and prepared according to Jewish law.

5 While the defendant argued that the prison kitchen and

preparation methods are not likely to comply with Jewish dietary

law, no proof was offered as to how the chicken was prepared and

whether it was, in fact, prepared and slaughtered pursuant to

kosher law. In any event, Kuperman was twice suspended from his

kosher diet for six months for eating chicken in the prison chow

hall.

While Kuperman’s kosher diet was suspended, however, the

prison chaplain made an effort to accommodate Kuperman’s

religious beliefs by arranging for Kuperman to receive a

vegetarian diet so that he wouldn’t have to eat the non-kosher

meat at the prison, and for arranging for certain kosher packaged

foods to be brought in to the prison both to supplement

Kuperman’s vegetarian diet and to allow Kuperman to observe

Jewish holidays.

Discussion

I. The Four Preliminary Injunction Factors

A. Likelihood of Success on the Merits

The action filed by Kuperman relevant to this injunction is

a claim that the prison has violated both his First Amendment

right to freely exercise his religion, and his right to practice

6 his religion as guaranteed by the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.

(“RLUIPA”). Kuperman alleges that the regulation that has

mandated a six month suspension of his kosher diet violates his

First Amendment and federal statutory rights by improperly

impinging on his religious practice.

Convicted prisoners do not forfeit all of the protections of

the Constitution upon incarceration. See Bell v . Wolfish,

2 0 , 545 (1979). “In the First Amendment context . . . a

prison inmate retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system,” Pell v .

Procunier,

1 7 , 822 (1974), including the right to free

exercise of religion, see O’Lone v . Estate of Shabazz,

(1987) (citing Cruz v . Beto,

(1972)).

Prisons must provide all inmates reasonable opportunities to

exercise their religious freedom. See Cruz,

n.2.

A prisoner’s sincerely held religious beliefs must yield if

contrary to prison regulations that are “reasonably related to

legitimate penological interests.” Turner v . Safley,

8 , 89 (1987). This Court must accord prison administrators

7 significant deference in defining legitimate goals for the

corrections system, and for determining the best means of

accomplishing those goals. See Overton v . Bazzetta,

(2003); Pell,

.

A court, in evaluating whether or not a particular prison

regulation is constitutional, considers four factors: (1) whether

the regulation has a “valid, rational connection” to a legitimate

penological objective, (2) “whether any alternative means are

open to inmates to exercise the asserted right,” (3) “what impact

an accommodation of the right would have on guards and inmates

and prison resources,” and (4) “whether there are ready

alternatives to the regulation.” Overton,

(citing Turner,

). Applying the evidence

introduced at the hearing on this matter to the four Turner

factors set out above, I find as follows.

First, the regulation in question, as set forth in the

prison’s Policy and Procedure Directive (“PPD”) 7.17, which

governs religious programming and diets, imposes a penalty, to be

imposed by an inmate’s Unit Manager, of suspension of a religious

diet for a period of six months “[w]hen there is a belief that an

inmate receiving a religious diet has consumed or been in

8 possession of food items that violate their approved religious

diet” and the Unit Manager determines that the “inmate knowingly

violated the religious diet” and “believes the act was

intentional.” PPD 7.17 G.2.d. The defendant asserts a valid

penological objective in this regulation in that it supports

providing religious meals only to inmates with sincerely held

religious beliefs, rather than to inmates who are feigning

religious belief in order to get a better food plan than the

standard prison fare. This is a valid penological objective, as

the provision of special meals does require a financial

expenditure, albeit a small one, on the part of the prison, as

well as causing the prison to go to the trouble of obtaining the

meals, making sure they reach the inmates, and heating them. Of

course, the purchase of prepackaged meals also saves the prison

from having to prepare meals for those individuals who receive

Kosher meals, but, the Court recognizes that the prison has a

valid interest in maintaining the integrity of its intention to

provide religious meals to sincere practitioners.

I find that, under the first prong of the Turner analysis,

that this regulation does not have a valid and rational

connection to the legitimate penological objective asserted by

9 the defendants. The prison has asserted a policy of maximizing

an inmate’s access to his spiritual practice. See PPD 7.17.IV.E.

(“The institution shall extend to all inmates the greatest amount

of freedom and opportunity for pursuing any recognized religious

belief or practice. This shall be accomplished within the

boundaries of security, safety, discipline and the orderly

operation of the institution.”). It does not rationally follow

that removing an inmate, who holds a sincere religious belief,

from the practice of his faith because on one occasion he failed

to follow his religious diet, will achieve the goals of security

and order of the institution. While a sixth month suspension

would be rationally connected to punish an inmate who has not

demonstrated a sincere religious belief, and is not, therefore,

entitled to the practice of a particular religion, that is not

the situation presented here.

The testimony at the hearing was undisputed that Kuperman is

a practicing orthodox jew who holds a very sincere belief in

Judaism. It appears that even the prison’s non-testifying

Chaplain ascribes to that belief, as he has taken significant

steps to support Kuperman’s ability to practice his religion.

Further, the evidence at the hearing clearly established that

10 following a kosher diet is an essential part of the practice of

an observant orthodox jew. Removing an orthodox jew from a

kosher diet serves, religiously speaking, to distance an inmate

from his own spirituality and religious practice. It is not, in

other words, a neutral act. Such a move has a direct negative

impact on the inmate’s ability to better himself or maintain

himself spiritually, as actual harm is done to both the physical

being and the spirituality of the inmate.

If a diabetic inmate were placed on a medically appropriate

diet, and was then caught purchasing a candy bar from the

canteen, the prison would not be justified in removing the inmate

from his medical diet and forcing him to eat a high sugar diet

for six months for the violation. Similarly, an inmate eating an

extra helping or unauthorized item isn’t restricted to bread and

water for six months. These inmates may be legitimately punished

for violating prison rules, but they are not removed from the

diet that the inmate must try to maintain. Similarly, a

regulation that imposed punishment, such as a lack of canteen

privileges, or the necessity of eating in one’s cell, or even a

period of time in segregation, for violating a kosher diet, would

serve to deter the insincere from getting a kosher diet, but

11 would also allow those with a sincerely held religious belief to

be punished for their mistakes without disallowing their

religious practice.

The second Turner factor is “whether any alternative means

are open to inmates to exercise the asserted right.” I find,

based on the uncontroverted testimony of both Kuperman and Rabbi

Krinsky, that there is no alternative means of achieving what the

laws of kosher are designed to achieve. The Rabbi testified that

the practice of keeping kosher is essential to the Jewish way of

life. Kuperman also testified that the practice of keeping

kosher is necessary to maintaining the physical state necessary

to pursue his spiritual and religious practice. Kuperman

acknowledged that a violation of kosher diet will hinder that

practice, but that if the violation is isolated, it can be atoned

for and remedied religiously, but that if the kosher diet is

withheld altogether, such atonement is very difficult or

impossible. The defendant did not offer any alternative means by

which Kuperman could exercise this part of his religious

practice, except to rely on other aspects of Jewish practice in

the absence of a kosher diet. Accordingly, I find that there has

12 been no demonstration of any sufficient alternative means open to

Kuperman to exercise his right to practice orthodox Judaism.

Third, I consider the impact an accommodation of Kuperman’s

right to a kosher diet would have on the prison. I find that the

only evidence at the hearing was that accommodating Kuperman’s

kosher diet needs would cost the prison a small amount of money,

as a kosher diet costs more than a nonkosher diet, although it

appears the total cost to the prison of keeping Kuperman on a

kosher diet is minimal. Because systems are already in place to

provide inmates who have sincerely held religious beliefs with

kosher meals, I find that there will be no disruption in prison

security or order in providing Kuperman with kosher meals. To

the extent the defendant is concerned that other inmates may be

tempted to claim that they are Jewish in order to obtain a kosher

meal, my ruling applies only to Kuperman as someone who has a

demonstrated sincere belief that has been accepted by the prison

Chaplain and by Kuperman’s own rabbi.

Fourth, I examine whether there are ready alternatives to

the regulation. As stated above, there are any number of ways

that prisons punish inmates who do not stick to their prescribed

meal plans that do not involve taking them off of an essential

13 diet. These punishments would serve to keep inmates without

sincere religious beliefs off of religious diets and would also

enforce the prison’s interest in maintaining a religious diet

program in an orderly and cost-effective fashion. Therefore, I

find there are ready alternatives to the current regulation.

Under the Turner factors, I find that this particular prison

regulation, PPD 7.17.V.G.2.d., is not constitutional when applied

in such a way as to suspend an inmate with sincerely held

religious beliefs from his religious diet for limited incidents

of violations of the diet. Because I find that this regulation

has been applied to Kuperman in such a way that his First

Amendment right to free exercise has been abridged, I find that

Kuperman is likely to succeed on the merits of his First

Amendment and RLUIPA claims.

B. The Potential for Irreparable Harm To Kuperman if the Injunction is Denied

As discussed above, Kuperman and Rabbi Krinsky both

testified that keeping a kosher diet is essential to the practice

of orthodox Judaism. In particular, Kuperman testified that some

Talmudic scholars teach that failure to maintain kosher laws can

permanently damage a spiritual practice. I find that because the

evidence at the hearing demonstrated that a kosher diet is

14 essential to an orthodox Jewish practice, that a significant

suspension from access to that diet, such as the six months

suspensions imposed here, does hold the potential for irreparable

harm.

C. The Balance of Relevant Impositions

Again, I have discussed in my Turner analysis that there is

a minimal financial cost to the prison in providing Kuperman with

six months of Kosher meals. Beyond that, however, there is no

indication that the prison would have to reallocate any personnel

or retool the operations of the institution to accommodate

Kuperman’s dietary needs. The imposition on Kuperman and his

religious practice, however, is significant. I find that the

balance of relevant impositions weighs in favor of granting the

injunction.

D. The Effect of the Court’s Ruling on the Public Interest

While the public certainly has an interest in governmental

operations, expenses, and the treatment of prisoners, as well as

the ability of the citizenry to freely exercise their religious

practices, I find that in this case, the effect of my ruling will

be minimal. As stated above, no disruption to the prison’s

operation need occur, and it is hard to fathom that any member of

15 the public aside from Kuperman himself is personally affected by

the granting or denial of this injunction. Accordingly, I find

that this factor does not weigh on my recommendation in either

direction.

Conclusion

For the reasons stated herein, I recommend that the

injunction requested issue, and that Kuperman be restored to a

kosher diet immediately. Further, I recommend the prison be

enjoined from suspending Kuperman’s kosher diet altogether based

on isolated dietary infractions, and instead find alternative

means of punishment that do not lack a valid connection to the

policy of supporting Kuperman’s religious practice pursuant to

his sincerely held religious beliefs.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

16 Law Comm. v . Gordon,

1 , 13-14 (1st Cir. 1992);

United States v . Valencia-Copete,

, 6 (1st Cir. 1986).

_________________ <James R. Muirhead Jnited States Magistrate Judge

Date: April 1 8 , 2007

cc: Nancy Sue Tierney, Esq. Andrew Livernois, Esq.

17