Kuperman v . Warden, NHSP CV-06-420-JL 11/20/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Albert Kuperman

v. Civil N o . 06-cv-420-JL Opinion N o .

Warden, New Hampshire State Prison, and Acting Warden, Northern New Hampshire Correctional Facility

OPINION AND ORDER

In this case, an inmate challenges a prison policy that

allowed his religious diet to be suspended for six months because

of a single dietary violation. Plaintiff Albert Kuperman,

currently an inmate at the New Hampshire State Prison, has sued

the wardens of that facility and the Northern New Hampshire

Correctional Facility in their official capacities, alleging that

the policy violated his rights to free exercise of religion under

the First Amendment and the Religious Land Use and

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

(“RLUIPA”). This court has jurisdiction under

(federal question) and 1343 (civil rights).

The defendants have moved for summary judgment under Rule 56

of the Federal Rules of Civil Procedure, arguing that recent

changes to the prison policy on religious diets have mooted

Kuperman’s challenge, which seeks only prospective injunctive relief.1 After hearing oral argument, this court grants the

motion. The prison’s policy changes, while not necessarily

sufficient to satisfy the First Amendment and RLUIPA, have

removed any real and immediate prospect of harm to Kuperman and

thus have mooted his claims. Moreover, Kuperman is collaterally

estopped from bringing those claims by his prior, unsuccessful

attempt to litigate the same issue in state court.

I. Applicable legal standard

Summary judgment is appropriate where the pleadings, along

with any affidavits on file, show that there is “no genuine issue

as to any material fact and that the movant is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue

is “genuine” if it may reasonably be resolved in either party’s

favor at trial, and “material” if it has the capacity to sway the

outcome under applicable law. Vineberg v . Bissonnette,

0 , 56 (1st Cir. 2008) (quotations omitted). In making this

1 Kuperman initially sought both injunctive and monetary relief. Because he brought his claims against state actors in their official capacities, however, this court determined that money damages were barred by the Eleventh Amendment, leaving only his request for prospective injunctive relief. See document nos. 6 and 8 . Kuperman later sought clarification of that ruling, and this court confirmed that “plaintiff may not recover money damages in this case.” See document n o . 53 and associated margin order dated March 1 7 , 2009.

2 determination, the court must "scrutinize the record in the light

most flattering to the party opposing the motion, indulging all

reasonable inferences in that party’s favor." Mulvihill v . Top-

Flite Golf Co.,

5 , 19 (1st Cir. 2003). The following

statement of facts conforms to those requirements.

II. Background

Kuperman has been incarcerated in the New Hampshire prison

system since April 2004, initially at the Northern New Hampshire

Correctional Facility and then at the New Hampshire State Prison

(collectively, the “prison”). Upon arrival, Kuperman requested

and was granted a kosher diet, based on his professed belief in

and practice of orthodox Judaism. At the time, the prison’s

Policy and Procedure Directive (“PPD”) 7.172 required an

automatic six-month suspension of an inmate’s religious diet if

the inmate either consumed or possessed food in violation of the

diet.

Kuperman purchased non-kosher food from the prison canteen

in September 2004, and the prison automatically suspended his

kosher meal privileges under PPD 7.17. Kuperman, claiming he

made the purchase on behalf of another inmate, brought suit

2 PPD 7.17 was issued pursuant to N.H. Rev. Stat. §§ 622:22- 23 and

.07.

3 against the prison in state court. The court dismissed his case

on the merits, concluding that PPD 7.17 “provides an opportunity

for the petitioner to exercise his constitutionally guaranteed

rights of religious belief.” Kuperman v . Lurry, N o . 04-E-119, at

4 (N.H. Super. C t . Dec. 2 0 , 2004) (Vaughan, P . J . ) .

The prison suspended Kuperman’s kosher meal privileges again

in May 2005 after prison staff observed him eating non-kosher

chicken in the chow hall. Kuperman again brought suit against

the prison, this time in federal court, alleging both First

Amendment and RLUIPA violations. The court denied preliminary

injunctive relief, concluding that Kuperman was unlikely to

succeed on the merits. It then dismissed his case without

prejudice for failure to exhaust his administrative remedies.

Kuperman v . Comm’r, N.H. Dep’t of Corr., N o . 05-cv-00185-PB,

(D.N.H. June 2 4 , 2005) (Barbadoro, J . ) , aff’d, N o . 05-

2348 (1st Cir. Nov. 6, 2006).

In July 2006, the prison modified PPD 7.17 so that an

inmate’s violation of his religious diet would result in a six-

month suspension only if the inmate acted knowingly and

intentionally. The sanction was no longer automatic. Shortly

after this revision, in October 2006, prison staff again observed

Kuperman eating non-kosher chicken in the chow hall. For a third

time, the prison suspended his kosher meal privileges. Kuperman

4 responded by filing this lawsuit, alleging First Amendment and RLUIPA violations.3

This court granted a preliminary injunction to Kuperman in

April 2007, as recommended by Judge Muirhead after an evidentiary

hearing. See Kuperman v . N.H. Dep’t of Corr.,

, 14

(Muirhead, M.J.) (finding “that this particular prison regulation

... 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”).

The injunction ordered the defendants to restore Kuperman’s

kosher meal privileges immediately and to refrain from suspending

them in the future based on isolated dietary violations.

Kuperman has been on a kosher diet since that time,

notwithstanding one additional instance of alleged kosher food

consumption in the chow hall.

3 Kuperman also brought a number of other claims against the defendants: an Eighth Amendment claim for failure to protect him from a series of sexual assaults; another Eighth Amendment claim for failure to provide adequate medical care; a related common- law negligence claim; and a claim under the Americans with Disabilities Act (“ADA”),

et seq. This court dismissed the ADA claim as legally insufficient. See document nos. 6 and 8 . Kuperman then voluntarily dismissed the federal and state medical-care claims. See document nos. 37 and 4 5 . At oral argument on this summary judgment motion, Kuperman’s counsel informed the court that Kuperman also voluntarily dismissed his failure-to-protect claim (which had been briefed by both parties).

5 The prison has since modified PPD 7.17 in a number of

additional respects, making it more favorable to inmates. The

policy now provides that an inmate’s first three violations of

his religious diet will result in counseling with the prison

chaplain, not a suspension of the diet. After a fourth violation

within a two-year period, the inmate’s diet may be withdrawn by

the prison warden at the recommendation of the chaplain, but only

after the inmate receives fifteen days’ notice and an opportunity

to defend himself in writing. If unsuccessful, the inmate may

file an appeal with the Commissioner (though doing so will not

stay the dietary withdrawal). In addition, the inmate may apply

for reinstatement of his religious diet. The policy prohibits

immediate reinstatement, but no longer imposes a set period of

suspension, stating only that the reinstatement process

“ordinarily may extend up to thirty days.”

III. Analysis

Kuperman alleges that the defendants, by suspending his

kosher meal privileges for a single dietary departure, violated

his rights to free exercise of religion under both the First

Amendment and RLUIPA. As explained below, because Kuperman is

limited to seeking prospective injunctive relief, see supra n.1,

both of his claims have been mooted by the recent changes to the

6 prison’s policy on religious diets. Moreover, Kuperman is

collaterally estopped from litigating these claims because of his

prior, unsuccessful attempt to litigate the identical issue in

state court.

Before addressing these procedural issues, it is important

to put Kuperman’s First Amendment and RLUIPA claims within their

substantive context. The First Amendment states, in relevant

part, that “Congress shall make no law ... prohibiting the free

exercise” of religion. U.S. CONST., amend. I . In the prison

setting, where inmates’ constitutional rights must be balanced

with the need for prison control and administration, the Supreme

Court has adopted a four-part test for analyzing free exercise

challenges: (1) whether the prison policy is rationally related

to a legitimate government interest; (2) whether the inmate has

alternative means of exercising his religion; (3) whether and how

a religious accommodation would impact guards, other inmates, and

the allocation of prison resources; and (4) whether the prison

has ready alternatives to the policy. Turner v . Safley,

8 , 89-90 (1987).

RLUIPA provides even more protection than the First

Amendment. Congress enacted it in 2000 “to accord religious

exercise heightened protection from government-imposed burdens”

7 in prisons and certain other settings. Cutter v . Wilkinson,

(2005). RLUIPA provides in relevant part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... 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). Our court of appeals has interpreted

RLUIPA claims as having four elements. The prisoner must prove

that (1) his religious exercise has been burdened by the prison

policy and (2) the burden is substantial. At that point, the

onus shifts to the government to show that the burden (3)

furthers a compelling governmental interest and (4) is the least

restrictive means of achieving that interest. Spratt v . R.I.

Dep’t of Corr.,

3 , 37-38 (1st Cir. 2007).

With this framework in mind, the court now proceeds to

address the mootness and collateral estoppel issues raised by the

defendants’ summary judgment motion.

8 A. Mootness

To demonstrate mootness, the defendants must show that there

is no longer a “present, live controversy” between the parties.

Steir v . Girl Scouts of the USA,

, 16 (1st Cir. 2004)

(quoting Hall v . Beals,

5 , 48 (1969)). Where, as here,

the case involves only prospective injunctive relief, the mere

fact that the defendants may have harmed the plaintiff in the

past is not enough to establish a live controversy, absent

continuing adverse effects. Id. Nor is it “enough for a

plaintiff to assert that [he] ‘could be’ subjected in the future

to the effects of an unlawful policy or illegal conduct by a

defendant -- the prospect of harm must have an ‘immediacy and

reality.’” Id. (quoting Golden v . Zwickler,

(1969)).

Here, the prison’s changes to PPD 7.17 have removed any real

sense of immediacy from Kuperman’s First Amendment and RLUIPA

claims. When Kuperman originally filed this suit, the prison had

a “zero tolerance” policy: an inmate’s religious diet could be

suspended for a single dietary violation, which happened to

Kuperman three times. But the policy has since been

substantially revised to eliminate the “zero tolerance” approach.

Now, in order for his kosher meal privileges to be suspended

again, Kuperman would need to commit four dietary violations

9 within a two-year period. That is equal to or greater than the

total number of violations he has committed since being

incarcerated in April 2004, a period nearly three times as long.

And at oral argument, the prison confirmed, and Kuperman agreed,

that Kuperman will be starting from a blank slate.

Even in the unlikely event that Kuperman commits four

dietary violations within two years, suspension would be

discretionary, not automatic, based on a recommendation from the

prison chaplain to the warden. The prison chaplain has stated

that he would not recommend suspension for an inmate with sincere

religious beliefs and that he regards Kuperman as a sincere

believer. Even if the chaplain’s view changes, Kuperman would

need to be given prior notice and an opportunity to defend

himself before any dietary suspension. This chain of events is

not impossible, but it is not reasonably foreseeable either,

especially not in the near future. See Anderson v . City of

Boston,

1 , 93 (1st Cir. 2004) (noting that there must

be “a reasonable expectation that the challenged conduct will be

repeated following dismissal of the case” to avoid mootness)

(quotation omitted).

Because the prospect of future harm to Kuperman is remote

and speculative, this court concludes that a live, present

controversy no longer exists and that the prison’s changes to PPD

10 7.17 have been significant enough to moot Kuperman’s First

Amendment and RLUIPA claims. Another judge in this district

recently reached the same conclusion. See Wolff v . Perkins,

(Barbadoro, J . ) , aff’d sub nom., Wolff v . Morse, N o . 08-

2005 (1st Cir. June 2 2 , 2009). As in this case, the inmate in

Wolff brought a RLUIPA claim alleging that the prison wrongly

suspended his kosher meal privileges in response to a single

dietary violation under an earlier version of PPD 7.17. As in

this case, the inmate’s claim was limited to prospective

injunctive relief. Judge Barbadoro concluded that the recent

changes to PPD 7.17 had mooted the claim.

The court of

appeals agreed, explaining:

That suspension [of kosher meal privileges] occurred under a prison policy that has since been revised. Even if the appellant were to break his religious diet in the future, he would not be subjected to suspension again. The district court’s finding that these facts mooted appellant’s request for prospective relief is correct.

Wolff v . Morse, N o . 08-2005 (1st Cir. June 2 2 , 2009)

(unpublished) (citing Steir,

6 ) . The same analysis

applies to Kuperman’s claims.

This is not to say, however, that the prison has resolved

the underlying First Amendment and RLUIPA issues. PPD 7.17

continues theoretically to allow the prison to suspend an

inmate’s religious diet based on a limited number of dietary

11 violations, even if the inmate has sincere religious beliefs

(notwithstanding the prison’s avowed intent to limit suspensions

to inmates whose sincerity it questions). While neither the

Supreme Court nor the First Circuit has squarely addressed the

issue, there is a long line of cases from other circuits holding

that prisoners have a First Amendment right to a diet consistent

with their sincere religious beliefs.4 Indeed, the Supreme Court

has noted that one of the “typical example[s]” of “frivolous or

arbitrary barriers [that] impeded institutionalized persons’

religious exercise” -- as documented by Congress before enacting

RLUIPA -- was a prison’s refusal to provide religious diets to

Muslim inmates. Cutter,

& n.5 (quotation

omitted). RLUIPA has now set the bar even higher than the First

Amendment, requiring the application of strict scrutiny to prison

policies that substantially burden an inmate’s religious

exercise. See Spratt, 482 F.3d at 37-38. Courts have

consistently held that a prison’s refusal to provide religious

4 See, e.g., Ford v . McGinnis,

(2d Cir. 2003 Beerheide v . Suthers,

(10th Cir. 2002); Love v Reed,

(8th Cir. 2000); Makin v . Colo. Dep’t of Corr.,

(10th Cir. 1999); Johnson v . Horn,

(3d Cir. 1998), overruled on other grounds by DeHart v . Horn,

(3d Cir. 2000); Ashelman v . Wawrzaszek,

(9th Cir. 1997); Whitney v . Brown,

(6th Cir. 1989); McElyea v . Babbitt,

(9th Cir. 1987); Kahane v . Carlson,

(2d Cir. 1975). The Fifth Circuit is a notable exception. See Kahey v . Jones,

(5th Cir. 1988).

12 diets to sincere believers cannot withstand strict scrutiny under

RLUIPA.5

The policy here might be regarded as a substantial burden on

religious exercise and therefore subjected to strict scrutiny

under RLUIPA. While it is true that the policy imposes no burden

on the hypothetical prisoner who adheres perfectly to his

religious diet, few religious believers –- especially imprisoned

believers –- would lay claim to perfection. See, e.g., Saint

Augustine, Bishop of Hippo, Sermon CLXX (“This is the very

perfection of a man, to find out his own imperfections.”). For

imperfect but nonetheless sincere believers who happen to stray

from their religious diets four times over the course of two

years (i.e., once every six months), the policy could impose a

heavy burden indeed, resulting in at least a one-month suspension

of the religious diet and thus forcing the inmate to choose

between his religious scruples and his nutritional needs. See

Thomas v . Review Bd. of Ind. Employment Sec. Div.,

0 7 ,

718 (1981) (defining a “substantial burden” as one that “put[s]

5 See, e.g., Nelson v . Miller,

(7th Cir. 2009); Koger v . Bryan,

(7th Cir. 2008); Shakur v . Schriro,

(9th Cir. 2008); Hudson v . Dennehy,

(D. Mass. 2008). The Fifth Circuit is again the exception. See Baranowski v . Hart,

(5th Cir. 2007).

13 substantial pressure on an adherent to modify his behavior and to

violate his beliefs”). 6

For the prison’s current policy to survive strict scrutiny,

the prison would have to show, first, that the burden on

religious exercise “furthers a compelling governmental interest,”

and second, that it “is the least restrictive means of achieving

that compelling interest.” Spratt, 482 F.3d at 3 8 . While the

prison certainly has a valid interest in weeding out insincere

requests for religious diets, there is some question whether that

interest is truly compelling. The evidence presented in this

case suggested that providing religious meals would result in

“minimal” additional expense per inmate and “no disruption in

prison security or order.” Kuperman,

, 1 3 . It is

possible -- as the defendants stressed at oral argument -- that

widespread abuse of religious diets by insincere inmates might

change this calculus. But the defendants have not presented any

evidence that this court’s preliminary injunction -- which deemed

the earlier policy unconstitutional as applied to Kuperman,

6 Imagine, for example, a policy that prohibited inmates from attending weekly worship services if they missed four such services over a two-year period. Such a policy might substantially burden religious exercise. The policy here involves a different form of religious exercise, but the same burden. If anything, the burden might be greater, because the religious exercise occurs multiple times a day, not just once a week, which increases the opportunity for deviation.

14 at 14 -– resulted in a outpouring of dubious requests for

religious diets.

Even assuming that modest cost containment constitutes a

compelling state interest, the prison would have to show that PPD

7.17 is the least restrictive means of achieving i t . Suspending

an inmate’s religious diet is a rather restrictive measure and

could be viewed as overbroad, potentially affecting sincere and

insincere inmates alike (again, notwithstanding the prison’s

avowed intent to limit suspensions to inmates whose sincerity it

questions). Other alternatives, such as the loss of canteen

privileges or even just a higher threshold for dietary

suspension, are arguably less restrictive and more narrowly

tailored. See Spratt, 482 F.3d at 41 n.11 (explaining that,

while a prison need not refute every conceivable alternative, it

should explore some alternatives and explain why they were

rejected in order to satisfy RLUIPA scrutiny).

A circuit split is brewing on this very issue. The Fourth

Circuit Court of Appeals recently held that a prison violated

RLUIPA when it prevented a prisoner from participating in Ramadan

meals and group prayers after catching him breaking his Ramadan

fast. See Lovelace v . Lee,

(4th Cir. 2006). In an

earlier case, however, the Eighth Circuit Court of Appeals

reached the opposite conclusion, upholding such a policy because

15 “[r]ather than burdening Ramadan worshippers, the ... policy

allows full participation in the fast and removes from the

procedures only those worshippers who choose to break the fast.”

Brown-El v . Harris,

8 , 69-70 (8th Cir. 1994). The

Lovelace court distinguished Brown-El because it applied a First

Amendment analysis, whereas Lovelace applied the “more rigorous”

RLUIPA analysis. Lovelace,

n.3. But a

dissenting judge saw no material distinction and argued for the

result in Brown-El. See

(Wilkinson, C.J., concurring

in the judgment in part and dissenting in part).

In a case even closer to this one, the Seventh Circuit Court

of Appeals recently applied the heightened statutory standard7

and nevertheless concluded that suspension of kosher diet

privileges in response to dietary violations is not a substantial

burden on religious exercise because it does not “compel conduct

contrary to religious beliefs: [the prisoner] was forced to eat

the non-kosher meals only because he turned down the kosher

ones.” Daly v . Davis, N o . 08-2046,

(7th Cir.

7 Technically, the court applied the Religious Freedom Resto ration Act (“RFRA”), 42 U.S.C. § 2000bb-1 et seq., a precursor to RLUIPA that the Supreme Court declared unconstitutional as applied to the states, see City of Boerne v . Flores,

(1997), but that still applies to claims by federal prisoners, such as the plaintiff in Daly. RFRA and RLUIPA apply similar standards.

16 2009) (unpublished). This holding also appears to be in tension

with Lovelace.

This court need not pick a side in the debate, because

Kuperman’s claims are moot and, as explained infra, collaterally

estopped. But suffice it to say that the prison’s policy on

religious diets remains open to question under the First

Amendment and RLUIPA, particularly as applied to inmates with

sincere religious beliefs.

B. Collateral estoppel

Even if Kuperman’s First Amendment and RLUIPA claims were

not moot, they would be barred under the doctrine of collateral

estoppel. Two years before filing this suit, Kuperman brought a

similar suit against the prison in state court alleging “that he

has been wrongfully denied continuation of kosher meal

privileges” under PPD 7.17. Kuperman, N o . 04-E-119, at 1 . The

state court dismissed his claim on the merits, holding that PPD

7.17 “provides an opportunity for the petitioner to exercise his

constitutionally guaranteed rights of religious belief.” Id. at

4.

A state court judgment “is entitled to the same preclusive

effect in federal court as it would be given within the state in

which it was rendered.” Giragosian v . Ryan,

9 , 63 (1st

17 Cir. 2008) (citing

) (quotation omitted). Under

New Hampshire law, collateral estoppel has three elements: that

(1) the two cases involve identical issues or facts; (2) the

first action resolved them finally on the merits; and (3) the

party facing estoppel appeared in the first action and had a full

and fair opportunity to litigate. See Cook v . Sullivan,

(2003); Day v . N.H. Ret. Sys.,

2 0 , 122

(1993).

All three conditions have been met here. Kuperman had a

full and fair opportunity in state court to litigate whether PPD

7.17 burdened his religious exercise by allowing the prison to

suspend his kosher meal privileges based on a single departure

from his kosher diet.8 The court resolved that issue on the

merits, concluding that PPD 7.17 did not burden his religious

exercise. This case involves the identical issue. Without

showing such a burden, Kuperman cannot prevail on his First

Amendment claim or his RLUIPA claim. He is therefore

8 Kuperman pled his state court claim very generally, without clarifying whether he brought it under the First Amendment, RLUIPA, or both. The state court’s order focused on the constitutional standard under Turner, 482 U.S. at 7 8 . RLUIPA, though, also requires an inmate to show, as an essential element of his claim, a substantial burden on his religious exercise. Spratt, 482 F.3d at 37-38. Because the state court found no such burden, its order also has an estoppel effect on Kuperman’s RLUIPA claim.

18 collaterally estopped from relitigating the issue under New

Hampshire law.

Kuperman argues that collateral estoppel should not apply

because the prison’s policy on religious diets changed between

the time of his two lawsuits, as did the facility where he was

being incarcerated. But the more significant changes to the

policy -- i.e., the ones that have mooted his claims -- actually

occurred well after he filed this suit. Between the two suits,

the prison made only one notable change to the policy: dietary

suspensions went from being automatic for every violation to

being limited to intentional violations. That change made the

policy more lenient to inmates and thus would not have materially

altered the state court’s decision upholding the policy as

applied to Kuperman. As to the change in facilities, both of

them are part of the same system and applied the same policy in

the same manner, making the transfer also immaterial to the analysis.9

9 At oral argument, Kuperman’s counsel suggested that the facilities engaged in different levels of investigation before finding a dietary violation. The summary judgment record contains no support for this new assertion. But even if it did, the scope of investigation is immaterial to Kuperman’s claims as pled in the complaint, see document n o . 1 , and as reformulated by Judge Muirhead without objection from Kuperman, see document n o . 6. Kuperman is alleging that the prison policy violates the First Amendment and RLUIPA regardless of whether he received due process or even committed a dietary violation.

19 While the court of appeals has “acknowledge[d] that changed

circumstances may defeat collateral estoppel, collateral estoppel

remains appropriate where the changed circumstances are not

material.” Ramallo Bros. Printing, Inc. v . El Dia, Inc.,

6 , 90 (1st Cir. 2007); see also In re Zachary G., N o . 2008-

785,

, *3 (N.H. July 3 1 , 2009) (citing Sheehy v .

Sheehy,

(1936)). “[A] plaintiff cannot avoid

the bar of collateral estoppel simply by suing a defendant for

continuing the same conduct that was found to be lawful in a

previous suit brought by the same plaintiff.” Ramallo Bros.

Printing,

1 . That is exactly what Kuperman

attempted here: to challenge substantially the same prison

policy and conduct in a different forum, only two years later.

This court cannot -- and will not -- substitute its judgment for

that of the state court on the identical issue. Even if

Kuperman’s First Amendment and RLUIPA claims were not moot, they

would be barred by collateral estoppel.

20 IV. Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment10 is GRANTED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N . Laplante United States District Judge

Dated: November 20, 2009

cc: Nancy Sue Tierney, Esq. Danielle Leah Pacik, Esq.

10 Document n o . 6 0 .

21