15‐1018 Williams v. Annucci

1

2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2017 8 9 ARGUED: OCTOBER 11, 2017 10 DECIDED: JULY 10, 2018 11 12 No. 15‐1018 13 14 DEANDRE WILLIAMS, A/K/A DAVID WILLIAMS, 15 Plaintiff‐Appellant, 16 17 v. 18 19 ANTHONY J. ANNUCCI, Commissioner of NYS Department of 20 Corrections and Community Supervision, CHERYL V. MORRIS, 21 Director, Ministerial, Family and Volunteer Services, NYS 22 Department of Corrections and Community Supervision, OMEGA 23 ALSTON, Assistant Director, Ministerial, Family and Volunteer 24 Services, Department of Corrections and Community 25 Supervision, D. ROCK, Superintendent, Upstate Correctional Facility, 26 M. LIRA, Deputy Superintendent, Upstate Correctional Facility, 27 TIMOTHY C. HAWK, Chaplain, Upstate Correctional Facility, a/k/a J. 28 HAWK, DON HAUG, Food Administrator, Upstate 29 Correctional Facility, KAREN BELLAMY, Director, Inmate Grievance 30 Program, NYS Department of Corrections and Community 31 Supervision, KENNETH S. PERLMAN, Deputy Commissioner, Program 32 Services, NYS Department of Correctional Services, ALEC 33 FRIEDMANN, Jewish Chaplain, Upstate Correctional Facility, 2 No. 15‐1018

1 Defendants‐Appellees.1 2 ________ 3 4 Appeal from the United States District Court 5 for the Northern District of New York. 6 No. 11 Civ. 379 – Norman A. Mordue, Judge, Therese Wiley Dancks, 7 Magistrate Judge. 8 ________ 9 10 Before: WALKER, POOLER, Circuit Judges, and CRAWFORD, District 11 Judge.2 12 ________ 13

14 Plaintiff‐Appellant DeAndre Williams appeals from a

15 memorandum and order of the United States District Court for the

16 Northern District of New York (Mordue, J.). The district court,

17 adopting the recommendation of the magistrate judge (Dancks, M.J.),

18 granted summary judgment to the defendants, various officials of the

19 New York State Department of Corrections and Community

20 Supervision (“DOC”), on Williams’s claim that the DOC’s policy of

21 not accommodating the dietary restrictions imposed by his Nazarite

22 Jewish faith violated the Religious Land Use and Institutionalized

23 Persons Act of 2000 (RLUIPA). The district court, adopting the

24 reasoning of the magistrate judge, denied Williams’s request for a

The Clerk of the Court is directed to amend the caption as set forth 1

above. 2 Judge Geoffrey W. Crawford, of the United States District Court for the

District of Vermont, sitting by designation. 3 No. 15‐1018

1 permanent injunction because it found that, assuming Williams’s

2 beliefs were “sincerely held” and “substantially burdened” by the

3 DOC’s policy, the DOC’s refusal to modify the menu for Williams

4 furthered a compelling state interest in minimizing costs and

5 administrative burdens, and the DOC’s policy constituted the least

6 restrictive means of furthering those interests. Special App’x 45–47.

7 We conclude that the district court erred in granting summary

8 judgment to the DOC because, in the wake of the Supreme Court’s

9 decision in Holt v. Hobbs,

(2015), it failed to appreciate

10 the substantial showing that the government must make to justify

11 burdening an individual plaintiff’s practice of a sincerely held

12 religious belief. We therefore VACATE the district court’s grant of

13 summary judgment on Williams’s claim for injunctive relief under

14 RLUIPA, and REMAND for further proceedings consistent with this

15 opinion. The DOC’s motion to vacate the judgment and remand is

16 DENIED as moot.

17 ________ 18 19 RAJEEV MUTTREJA, (Meir Feder, Lauren Pardee 20 Ruben, on the brief), Jones Day, New York, NY, for 21 Plaintiff‐Appellant.

22 ZAINAB A. CHAUDHRY (Andrew D. Bing, Barbara 23 D. Underwood, on the brief), for Barbara D. 24 Underwood, Attorney General of the State of New 25 York, New York, NY, for Defendants‐Appellees. 4 No. 15‐1018

1 ________ 2 3 JOHN M. WALKER, JR., Circuit Judge:

4 Plaintiff‐Appellant DeAndre Williams appeals from a

5 memorandum and order of the United States District Court for the

6 Northern District of New York (Mordue, J.). The district court,

7 adopting the recommendation of the magistrate judge (Dancks, M.J.),

8 granted summary judgment to the defendants, various officials of the

9 New York State Department of Corrections (“DOC”), on Williams’s

10 claim that the DOC’s policy of not accommodating the dietary

11 restrictions imposed by his Nazarite Jewish faith violated the

12 Religious Land Use and Institutionalized Persons Act of 2000

13 (RLUIPA). The district court, adopting the reasoning of the magistrate

14 judge, denied Williams’s request for a permanent injunction because

15 it found that, assuming Williams’s beliefs were “sincerely held” and

16 “substantially burdened” by the DOC’s policy, the DOC’s refusal to

17 modify the menu for Williams furthered a compelling state interest in

18 minimizing costs and administrative burdens, and the DOC’s policy

19 constituted the least restrictive means of furthering those interests.

20 Special App’x 45–47.

21 We conclude that the district court erred in granting summary

22 judgment to the DOC because it failed to appreciate, in the wake of

23 the Supreme Court’s decision in Holt v. Hobbs,

(2015), 5 No. 15‐1018

1 the substantial showing that the government must make to justify

2 burdening an individual plaintiff’s practice of a sincerely held

3 religious belief. We therefore VACATE the district court’s grant of

4 summary judgment on Williams’s claim for injunctive relief under

5 RLUIPA, and REMAND for further proceedings consistent with this

6 opinion. The DOC’s motion to vacate the judgment and remand is

7 DENIED as moot.

8 BACKGROUND

9 Plaintiff‐Appellant DeAndre Williams is a practicing Nazarite

10 Jew and a prisoner of the New York State DOC. As part of his faith,

11 Williams believes he must consume a grape‐free, egg‐free, vegetarian

12 diet that is also kosher. Williams also has a dairy intolerance.

13 At the time this appeal was filed, the DOC prepared meals for

14 inmates in two steps: first, it processed food at a central production

15 center; then, it shipped that food to each prison facility where meals

16 were prepared and served to inmates. The DOC makes two different

17 menus available to prisoners: the general confinement menu

18 (“GCM”), and the Cold Alternative Diet (“CAD”). The GCM meals,

19 which are not certified kosher, include an entrée, side dishes, and a

20 beverage. Many items on this menu include meat, dairy, or grapes.

21 The DOC also typically offers an alternative entrée that does not

22 contain meat, but that may contain dairy or grape products. The CAD 6 No. 15‐1018

1 menu, on the other hand, provides kosher food, but it includes meat,

2 dairy, and grapes.

3 The DOC allows inmates to submit requests to substitute food

4 for medical reasons, which the DOC then reviews on a case‐by‐case

5 basis. The DOC generally does not permit substitutions for religious

6 reasons. Instead, the DOC’s policy is to advise inmates to “refrain

7 from eating those food items which are contrary to [their] religious

8 beliefs.” App’x 250.

9 The DOC accommodates Williams’s dairy allergy, but often in

10 ways that conflict with his religion’s requirements. For example, the

11 DOC frequently replaces Williams’s cream cheese with grape jelly or

12 his cheese with meat. As a result, Williams cannot eat much of the

13 food the DOC offers him. His diet is largely confined to hot cereal,

14 bread, fruit, vegetables, soup, and peanut butter. Sometimes he tries

15 to trade the food he cannot eat with other inmates, even though

16 trading food is discouraged.

17 Since 2002, Williams has filed multiple grievances based on the

18 DOC’s refusal to accommodate his religiously required diet. Over the

19 years, he has asked for a variety of accommodations, including

20 transferring him to a facility that serves full kosher meals, providing

21 him with a kosher vegetarian meal that does not include grapes,

22 replacing the items he cannot eat with other items on the CAD, or 7 No. 15‐1018

1 removing the items he cannot eat from his tray.3 These requests were

2 denied in accordance with the DOC’s policy regarding religious diets.

3 In April 2011, Williams, acting pro se, brought this action.

4 Williams alleged that the DOC violated his rights under the First

5 Amendment and RLUIPA by refusing to accommodate his religious

6 dietary restrictions, and he sought an injunction ordering the DOC to

7 provide him with the meals his religion required. The district court

8 denied Williams’s motion for a preliminary injunction in March 2012,

9 but denied the DOC’s motion to dismiss the following February.

10 In May 2014, the DOC moved for summary judgment, arguing

11 that it had a compelling interest in controlling costs and avoiding

12 administrative burdens. By way of support, the DOC proffered a

13 sworn declaration from Robert Schattinger, the DOC’s Director of

14 Correctional Food and Nutritional Services. Schattinger claimed that

15 the DOC’s experience with a kosher food line at its Green Haven

16 facility had taught it that running such a program is “extremely

17 expensive and administratively burdensome” and that such a service

18 “[could] not be provided” statewide. App’x 392. The declaration

19 stated that “maintaining the integrity of kosher [food] at the facility

20 level is problematic.”

To make kosher meals available to inmates

To Williams, it is important that an item he cannot eat be removed from 3

his tray because if it seeps onto other acceptable items it contaminates them. 8 No. 15‐1018

1 statewide, Schattinger anticipated that the DOC would have to

2 prepare meals at a kosher site, seal them, and ship them to each

3 facility, which would require purchasing new equipment and hiring

4 more staff. Additionally, Schattinger anticipated that extra time and

5 energy would be required to figure out how to provide inmates

6 adequate nutrition in a menu without meat. Due to these “fiscal and

7 practical considerations,” Schattinger declared, “the Department has

8 determined that a [kosher vegetarian] menu will not be provided,”

9 since doing so is “not financially or administratively feasible.” App’x

10 392–93.

11 The district court assigned the motion for summary judgment

12 to a magistrate judge. The magistrate judge determined that there was

13 no dispute that Williams’s religious beliefs were “sincerely held” and

14 that those beliefs were “substantially burdened” by the DOC’s policy.

15 Special App’x 45–47. Nevertheless, the magistrate judge found that

16 the DOC’s refusal to modify the menu for Williams furthered a

17 compelling state interest in minimizing costs and administrative

18 burdens and was the least restrictive way of furthering those interests.

19 The magistrate judge thus recommended that the district court grant

20 summary judgment to the DOC. Shortly before the district court

21 decided the motion, the Supreme Court handed down Holt v. Hobbs,

22

(2015), clarifying the standard applicable to RLUIPA

23 claims. The district court adopted the magistrate’s recommendation 9 No. 15‐1018

1 and entered summary judgment for the DOC without considering

2 Holt. Williams timely appealed.

3 After the district court granted summary judgment, the DOC

4 reported that it had made significant changes to its kosher meal

5 program. In fact, the day after the DOC’s brief was due in this appeal,

6 the facility where Williams was then housed adopted a new kosher

7 menu. The new menu is a largely vegetarian diet, with meat served

8 twice per week and eggs once per week. The new meals are prepared

9 at a kosher facility and prepackaged with a clear plastic lid and

10 double‐wrapping. That packaging gives the DOC greater capability

11 to make kosher‐compliant substitutions on a case‐by‐case basis.

12 Williams, however, was transferred to a facility that does not

13 participate in the new menu program. Regardless, even this new

14 menu includes items he cannot eat, and he has said that he will not

15 elect to adopt it.

16 In November 2015, we appointed pro bono counsel for Williams

17 to brief the issue of “whether summary judgment was warranted on

18 Appellant’s claim for injunctive relief (a nutritionally adequate diet

19 compliant with his religious beliefs) under the Religious Land Use

20 and Institutionalized Persons Act.” Mot. Order, Williams v. Fischer,

21 No. 15‐1018 (2d Cir. Nov. 4, 2015), ECF No. 55. 10 No. 15‐1018

1 DISCUSSION

2 Williams argues on appeal that the district court erred in

3 granting summary judgment to the DOC because the district court

4 misunderstood, post‐Holt, the extent to which the DOC’s evidence of

5 a compelling interest and least restrictive alternatives must be

6 particularized to adequately respond to Williams’s specific request

7 for accommodations.

8 “We review a grant of summary judgment de novo, examining

9 the evidence in the light most favorable to, and drawing all inferences

10 in favor of, the non‐movant.” Sheppard v. Beerman,

, 354

11 (2d Cir. 2003). Summary judgment is appropriate where “there is no

12 genuine dispute as to any material fact and the movant is entitled to

13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he submissions

14 of a pro se litigant must be construed liberally and interpreted to raise

15 the strongest arguments that they suggest.” Triestman v. Fed. Bureau of

16 Prisons,

(2d Cir. 2006) (per curiam) (internal

17 quotation marks and emphasis omitted).

18 I. Availability of a Permanent Injunction

19 The district court construed Williams’s complaint as seeking a

20 permanent mandatory injunction, but concluded that there was no

21 defendant against whom effective injunctive relief could be awarded

22 under RLUIPA. As the DOC concedes, this was an error. 11 No. 15‐1018

1 Williams sued Brian Fischer, the Commissioner of the DOC, in

2 his official capacity. Before the district court ruled on Williams’s

3 motion for summary judgment, Fischer retired, and Williams did not

4 separately sue his successor.

5 Fischer’s retirement had no effect on Williams’s ability to obtain

6 injunctive relief. It is settled that “suits against officers in their official

7 capacity . . . are directed at the office itself.” Tanvir v. Tanzin, No. 16‐

8 1176,

, at *7 n.7 (2d Cir. June 25, 2018) (as amended)

9 (citing Fed. R. Civ. P. 17(d)). So, when a “defendant in an official

10 capacity suit leaves office, the successor to the office replaces the

11 originally named defendant.” Id.; see also Fed. R. Civ. P. 25(d) (“An

12 action does not abate when a public officer who is a party in an official

13 capacity . . . ceases to hold office while the action is pending. The

14 officer’s successor is automatically substituted as a party.”).

15 Once Fischer retired, his successor, Acting Commissioner

16 Anthony Annucci, was “automatically substituted” as a defendant.

17 Fed. R. Civ. P. 25(d). And it is Annucci who has the power to order

18 that Williams be accommodated. See

(1).

19 II. The Effect of Changes in DOC Policy

20 Next, we must decide what effect, if any, the recent changes to

21 the DOC’s dietary policy have on Williams’s appeal. The DOC

22 suggests that in light of these changes this case might be moot under

23 RLUIPA’s safe harbor provision or otherwise. 12 No. 15‐1018

1 “In order for a federal court to retain jurisdiction over a case,

2 an actual controversy must exist at all stages of review, not merely at

3 the time the complaint is filed.” Prins v. Coughlin,

(2d

4 Cir. 1996) (per curiam) (internal quotation marks omitted). “A case is

5 deemed moot where the problem sought to be remedied has ceased,

6 and where there is no reasonable expectation that the wrong will be

7 repeated.”

(internal quotation marks omitted). “[A] case becomes

8 moot only when it is impossible for a court to grant any effectual relief

9 whatever to the prevailing party.” Chevron Corp. v. Donziger,

(2d Cir. 2016) (internal quotation marks and emphasis

11 omitted). RLUIPA encourages institutions to accommodate inmate

12 requests by exempting from liability institutions that change

13 challenged policies, exempt substantially burdened inmates, or take

14 “any other means that eliminates the substantial burden.”

2000cc‐3(e).

16 First, the DOC argues that the mootness point is better resolved

17 by the district court. The DOC relies on Lumbermens Mutual Casualty

18 Co. v. RGIS Inventory Specialists, LLC,

, 453–54 (2d Cir.

19 2009), a case in which we remanded to the district court to determine

20 whether the action was mooted by a settlement in another case

21 because “the question of mootness is, at least in part, factual” and

22 “dependent . . . on the terms and circumstances of the settlement.”

23 at 454. That case is distinguishable. Here, the facts pertaining to 13 No. 15‐1018

1 mootness are uncontested: the DOC has not agreed to provide

2 Williams with his requested diet; the new menu, like the old menu,

3 includes items that Williams cannot eat; and the new kosher menu is

4 not available where Williams is currently incarcerated. No additional

5 factfinding is required.

6 In a variation of its mootness argument, the DOC argues that

7 we should remand without addressing the merits so the district court

8 can consider the new record in the first instance. The DOC’s reliance

9 on Farmer v. Brennan,

, 846–48 (1994), for this point is

10 misplaced, however, because there the Supreme Court clarified the

11 Eighth Amendment standard before remanding for the district court

12 to apply it. See

In the “interest[] of judicial economy,” we opt to do

13 the same with regard to Williams’s RLUIPA claim. Florez v. Cent.

14 Intelligence Agency,

(2d Cir. 2016).4

15

The DOC has also asked us to invoke our inherent authority to “vacate, 4

set aside or reverse any judgment, decree, or order of a court” under

and employ our so‐called Jacobson remand procedure by remanding the case to the district court to “consider arguments” and “weigh relevant evidence . . . in the first instance” while keeping the appeal. Florez,

; see also United States v. Jacobson,

, 21–22 (2d Cir. 1994). Because we conclude that there are independent reasons for remanding to the district court, we do not separately address this issue. On remand, as discussed further in Section III, infra, the district court should consider the DOC’s ability to accommodate Williams in light of the recent changes to DOC policy. See Farmer, 511 U.S. at 846–48 (clarifying applicable standard before remanding for the district court to apply it with reference to the updated factual record). 14 No. 15‐1018

1 III. RLUIPA Claim

2 RLUIPA states that “[n]o government shall impose a

3 substantial burden on the religious exercise of a person residing in or

4 confined to an institution . . . unless the government demonstrates

5 that imposition of the burden on that person—(1) is in furtherance of

6 a compelling governmental interest; and (2) is the least restrictive

7 means of furthering that compelling governmental interest.” 42

8 U.S.C. § 2000cc‐1(a). In practice, RLUIPA claims are evaluated under

9 a burden‐shifting framework whereby a plaintiff must first

10 demonstrate that the state has imposed a substantial burden on the

11 exercise of her religion; the burden then shifts to the state to

12 demonstrate “that the challenged policy or action furthered a

13 compelling governmental interest and was the least restrictive means

14 of furthering that interest.” Redd v. Wright,

(2d Cir.

15 2010).

16 The district court agreed with Williams that his religious

17 exercise had been substantially burdened by the DOC’s policy of not

18 providing him with religious dietary accommodations, but

19 determined that the DOC had “met the burden of showing that for

20 financial and administrative reasons” the DOC had a compelling state

21 interest in limiting menu options. Special App’x 56. Williams argues

22 that the DOC’s compelling interest showing was inadequate

23 particularly in the wake of Holt. 15 No. 15‐1018

1 In Holt, the Supreme Court considered a Muslim inmate’s

2 RLUIPA challenge to an Arkansas Department of Correction policy

3 that prohibited him from growing a half‐inch beard. See

859. The department justified its policy by asserting compelling

5 interests in (1) stopping the flow of contraband, and (2) facilitating

6 prisoner identification. See

The department’s staff testified to these

7 concerns, but was unable to point to any actual problems that beards

8 had caused. See

. One official acknowledged that prisoners

9 could also hide contraband in clothing or the hair on their heads and

10 could not explain why taking photos of inmates without a beard

11 would not address the identification concern. See

That official also

12 testified that keeping track of exempt inmates’ beard length would be

13 difficult, but he could not offer any reason why doing so would be

14 any more difficult than tracking the beard length of those with

15 medical exemptions, something the department already did. See

16 Even so, the district court held that the department had sufficiently

17 shown that banning half‐inch beards was the least restrictive means

18 of furthering its compelling interest in security. See

The Eighth

19 Circuit affirmed.

20 The Supreme Court reversed, holding that the department’s

21 evidence did not discharge its burden to show that it had a compelling

22 interest in burdening Holt.

at 863–67. The Court’s reasoning is

23 helpful guidance in applying RLUIPA to Williams’s case. 16 No. 15‐1018

1 First, Holt made it plain that courts need not accept the

2 government’s claim that its interest is compelling on its face. See

at

3 864, 866. The Court held that the district court erred in thinking that

4 it was required to defer to the government’s assertion that inmates

5 could hide contraband in their beards, a claim that even the

6 magistrate judge had remarked was “almost preposterous.”

,

7 863–64. The Court acknowledged that courts should respect prison

8 officials’ expertise in “evaluating the likely effects of altering prison

9 rules.”

. But because Congress passed RLUIPA “to provide

10 very broad protection for religious liberty,” courts abdicate their

11 responsibility to “apply RLUIPA’s rigorous standard” by deferring to

12 the government’s “mere say‐so” without question.

.

13 Second, evidence of a policy’s underinclusiveness relative to

14 “analogous nonreligious conduct” may cast doubt on both whether

15 the government’s asserted interest is compelling and whether that

16 policy actually is the least restrictive means of furthering that interest.

17 See

(internal quotation marks omitted). In Holt, the Court

18 observed that the department insisted that it needed inmates to shave

19 their beards to stop the spread of contraband and to quickly identify

20 prisoners, but did not require them to go “bald, barefoot, or naked,”

21 which suggested a tailoring problem—namely, that “those interests

22 could be achieved by narrower ordinances that burdened religion to

23 a far lesser degree.”

(internal quotation marks omitted); accord 17 No. 15‐1018

1 United States v. Secʹy, Fla. Depʹt of Corr.,

(11th Cir.

2 2016) (noting that the lack of explanation for why the government

3 offered special, nonreligious diets at similar costs, but not kosher

4 meals, suggested a less burdensome policy was possible). This

5 observation was consistent with previous cases in which the Court

6 had found that a policy’s underinclusiveness suggests that the

7 proffered interest is not quite as compelling as the government claims.

8 See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

,

9 547 (1993) (“[A] law cannot be regarded as protecting [a compelling

10 interest] when it leaves appreciable damage to that supposedly vital

11 interest unprohibited.” (internal quotation marks and alteration

12 omitted)); accord Yellowbear v. Lampert,

(10th Cir. 2014)

13 (in which then–Circuit Judge Gorsuch wrote that “[a] law’s

14 underinclusiveness—its failure to cover significant tracts of conduct

15 implicating the law’s animating and putatively compelling interest—

16 can raise with it the inference that the government’s claimed interest

17 isn’t actually so compelling after all”).

18 Third, the government’s compelling interest must be defined at

19 an appropriately reduced level of generality—that is, the government

20 must justify its conduct by demonstrating not just its general interest,

21 but its particularized interest in burdening the individual plaintiff in

22 the precise way it has chosen. See Holt,

. The Court in

23 Holt rejected the government’s “broadly formulated” interest in 18 No. 15‐1018

1 prison safety and security and insisted instead that the government

2 “demonstrate that the compelling interest test is satisfied through

3 application of the challenged law to the person—the particular

4 claimant whose sincere exercise of religion is being substantially

5 burdened.”

(internal quotation marks and alterations omitted).

6 While the Court agreed that the government had a compelling

7 interest in “staunching the flow of contraband into and within its

8 facilities,” the Court rejected the government’s argument that “this

9 interest would be seriously compromised by allowing an inmate to

10 grow a ½–inch beard.”

11 With these principles in mind, we consider Williams’s

12 challenge to the DOC’s dietary policy.

13 A. The Government’s Interest

14 In the district court, the DOC justified its refusal to

15 accommodate Williams’s dietary requirements by citing its

16 compelling interest in controlling costs and avoiding administrative

17 burdens. Neither party disputes that the DOC generally has a

18 compelling interest in controlling costs and avoiding administrative

19 burdens—or as another circuit has put it, an interest in “cost‐efficient

20 food service.” See Curry v. Cal. Dep’t of Corr. & Rehab.,

(9th Cir. 2015). What the parties do dispute is the specificity

22 with which the DOC is required to make such a showing.

23 19 No. 15‐1018

1 We first observe that the government’s interest in reducing

2 costs is less compelling in the RLUIPA context than it is elsewhere.

3 That is because RLUIPA explicitly states that complying with its

4 terms “may require a government to incur expenses in its own

5 operations to avoid imposing a substantial burden on religious

6 exercise,” codifying a congressional preference that prisons incur

7 additional costs to accommodate inmates’ free exercise rights. 42

8 U.S.C. § 2000cc‐3(c).

9 Even before Holt, our circuit insisted that the government‘s

10 proffered interests be particularized. For instance, in Salahuddin v.

11 Goord,

(2d Cir. 2006), an inmate challenged the

12 prison’s joint Ramadan services for Sunnis and Shi’ites. The prison

13 argued that the burden to the Sunni plaintiff of having to attend a

14 joint service was outweighed by the prison’s legitimate penological

15 concerns regarding “security, as well as fiscal, space, and staffing

16 limitations,” but did not point to any evidence in the record to

17 support those claims.

. We vacated the grant of summary

18 judgment to the defendants, reasoning that this court cannot

19 “manufacture facts out of thin air” and that “it is the defendants’ duty

20 on summary judgment to cite record evidence” to establish that its

21 interest is compelling.

. In contrast, in Jova v. Smith,

(2d Cir. 2009) (per curiam), we held that the government had

23 sufficiently justified certain dietary restrictions it imposed on a 20 No. 15‐1018

1 practicing Tulukeesh inmate who required a “complex, highly

2 regimented non‐soybean‐based vegan diet” only after the

3 government submitted “voluminous affidavits and exhibits”

4 documenting the burdens of accommodation.

at 414–16. In doing

5 so, we made clear that “the state may not merely reference an interest

6 . . . to justify its actions”; “rather, the particular policy must further

7 this interest, and must be more than conclusory.” Id. at 415 (internal

8 citation and quotation marks omitted).

9 The DOC, citing to pre‐Holt cases, argues that the district court

10 correctly concluded that by proffering Schattinger’s declaration it met

11 its burden to show that it had a compelling interest in cost‐efficient

12 food service. We disagree.

13 At the most, the DOC’s cases and others show that courts have

14 found a compelling government interest in reducing costs where the

15 government submitted detailed affidavits that showed that adopting

16 the requested dietary restriction would significantly increase costs

17 and administrative burdens. See, e.g., Curry,

, aff’g

18

, at *4, *9 (N.D. Cal. Jan. 4, 2013) (affirming grant of

19 summary judgment where the record included specific evidence

20 calculating the costs of accommodating the inmate’s restrictions to be

21 thirty times more than the regular cost of feeding a prisoner and

22 showing that the closest store where appropriate food could be

23 purchased was 35 miles away). But see Moussazadeh v. Tex. Depʹt of 21 No. 15‐1018

1 Criminal Justice,

, 795–96 (5th Cir. 2012) (remanding for

2 further factfinding as to whether there was a compelling interest in

3 cost savings in denying kosher meals where there was evidence in the

4 record that providing kosher meals to all observant prisoners would

5 cost around $88,000 a year, causing the court to be “skeptical that

6 saving less than .05% of the food budget constitutes a compelling

7 interest”).

8 The DOC has not shown on the present record that

9 accommodating Williams would significantly increase costs and

10 administrative burdens. The record, unlike the one in Jova, is not

11 replete with “voluminous affidavits and exhibits,” 582 F.3d at 414–16,

12 but instead includes only one declaration that claims, in a conclusory

13 manner, that “[d]ue to fiscal and practical considerations . . . the

14 Department has determined that a [kosher vegetarian] menu will not

15 be provided”; that “[d]esignating and providing a new kosher

16 vegetarian food line would bring . . . challenges”; and that providing

17 the food would be “exceedingly burdensome to existing staff and

18 facility resources” so it “is not financially or administratively

19 feasible.” App’x 392–93. The DOC has not said precisely how much

20 these changes would cost or the amount of that cost relative to the

21 overall cost of feeding inmates. Nor has it shown the added cost, if

22 any, of accommodating Williams’s alternative suggestions, such as

23 not placing foods he cannot eat on his tray or giving him more of 22 No. 15‐1018

1 certain foods the DOC already prepares. The DOC’s showing of what

2 seems to be its “marginal interest” in cost‐efficiency as to Williams

3 falls short of meeting its justification burden. Holt,

.

4 As was the case in Holt, the DOC’s policy is underinclusive

5 because the DOC accommodates comparable medical dietary

6 restrictions. Such unexplained disparate treatment of “analogous

7 nonreligious conduct” leads us to question whether the DOC’s

8 interest in cost‐efficiency is as compelling as it suggests given that

9 there is no evidence that these medical accommodations have

10 increased costs significantly or impaired efficiency. See Church of the

11 Lukumi Babalu Aye, 508 U.S. at 546–47. Of course, the DOC might have

12 a reasonable explanation for this evident underinclusiveness, but, to

13 date, it has not offered one. See Knight v. Thompson,

, 944–

14 45 (11th Cir. 2015).

15 Even if the DOC’s evidence were more detailed, it still might be

16 inappropriate to accept its word that Williams’s accommodations

17 would be cost inefficient. See Holt,

. The fact that the

18 DOC continues to operate a kosher meal facility at Green Haven and

19 has since reformed its system by providing prepackaged kosher

20 meals casts considerable doubt on the DOC’s claim that providing

21 kosher vegetarian food to Williams is too expensive and

22 administratively burdensome. Indeed, it appears that the systems are

23 now in place that Schattinger anticipated would be too costly to 23 No. 15‐1018

1 build—namely, systems for preparing food off site, individually

2 sealing it, and then reheating it on site. Taking the DOC at its word

3 under such circumstances would involve “a degree of deference that

4 is tantamount to unquestioning acceptance.”

.5

5 To the extent that the DOC’s argument is that Williams’s

6 request is administratively burdensome because it would lead to

7 more requests for accommodation from inmates, it is the “classic

8 rejoinder of bureaucrats throughout history” rejected by the Supreme

9 Court in Holt.

(internal quotation marks omitted). In fact,

10 narrowing the pool of potential accommodations is what the sincerity

11 requirement accomplishes: it ensures that accommodations are only

12 available to the few who sincerely hold protected beliefs.

at 866–67

13 (noting that if prison officials suspect inmates are using

14 accommodations in bad faith “prison officials may appropriately

15 question whether a prisoner’s religiosity, asserted as the basis for a

16 requested accommodation, is authentic”); see also Fla. Depʹt of Corr.,

This is not to say that we would hold against a prison the efforts that it 5

makes to accommodate inmates. In fact, RLUIPA provides a safe harbor for prisons that remediate infringing policies. See 42 U.S.C. § 2000cc‐3(e). But where a facility has demonstrated a capability to accommodate inmates but chooses not to do so, we are well within bounds to consider that capability when determining how burdensome accommodating the plaintiff would actually be. See Secʹy, Fla. Depʹt of Corr., 828 F.3d at 1347–48 (considering fact that department had previously provided kosher meals statewide relevant to whether current policy denying kosher food furthered state’s compelling interest in cost containment). 24 No. 15‐1018

1

(rejecting argument that cutting statewide kosher

2 food service furthered state’s compelling interest in cost containment

3 where record included evidence that the department was not

4 enforcing the rules of participation or screening out insincere

5 applicants).

6 In sum, we conclude that the DOC failed to meet its burden of

7 showing with particularity that it had a compelling interest in not

8 accommodating Williams.

9 B. Least Restrictive Means

10 The government has also failed to show that its policy of not

11 accommodating Williams is the least restrictive means of achieving

12 its stated goal of running a cost‐efficient food service program.

13 “The least‐restrictive‐means standard is exceptionally

14 demanding, and it requires the government to show that it lacks other

15 means of achieving its desired goal without imposing a substantial

16 burden on the exercise of religion by the objecting party.” Holt, 135 S.

17 Ct. at 864 (internal quotation marks and alterations omitted). “If a less

18 restrictive means is available for the Government to achieve its goals,

19 the Government must use it.”

(internal alteration omitted).

20 Whether a proffered alternative is the least restrictive means is a fact‐

21 intensive inquiry. See Jova,

(remanding because further

22 factfinding was required to determine whether the chosen policy was 25 No. 15‐1018

1 the least restrictive means); Robinson v. Superintendent Houtzdale SCI,

2

(3d Cir. 2017).

3 To establish that its chosen policy is the least restrictive means,

4 the DOC must prove that each of the inmate’s proffered alternatives

5 is too burdensome. See Holt, 135 S. Ct. at 864–65 (holding that

6 defendants “fail[ed] to prove that [inmate’s] proposed alternatives

7 would not sufficiently serve its . . . interests”). For example, in Jova,

8 the Tulukeesh‐inmate plaintiff challenged the government’s refusal

9 to provide him specific foods, on particular days, prepared only by

10 Tulukeesh adherents.

. Although we held that the

11 government was not required under RLUIPA to grant the defendant’s

12 full dietary request, we remanded because “there [was] no indication

13 that the Defendants discussed, let alone demonstrated, why they

14 [could not] provide an entirely vegetarian menu to inmates who

15 request it” and therefore they “did not demonstrate that the

16 religious/meatless alternative menu was the least restrictive means of

17 furthering their compelling administrative interests.”

18 To show that the chosen policy is the least restrictive means of

19 furthering the government’s compelling interest, the government

20 must again account for a policy’s underinclusiveness. See Holt, 135 S.

21 Ct. at 864–66. For example, in Holt, the government failed to show that

22 its policy preventing inmates from growing a half‐inch beard was the

23 least restrictive means where it already searched the quarter‐inch 26 No. 15‐1018

1 beards of inmates with dermatological conditions and “[i]t ha[d]

2 offered no sound reason why hair, clothing, and ¼–inch beards can

3 be searched but ½–inch beards cannot.” Id. at 864; see also Knight, 797

4 F.3d at 944–45, 947 (upholding district court’s judgment for the

5 department in case challenging department’s policy requiring only

6 male inmates to have short hair where department introduced

7 evidence of specific incidents where male, but not female, inmates

8 had used long hair to conceal contraband and infections, cut hair to

9 conceal identity, and grabbed hair during fights).

10 The DOC here has not made this difficult showing. First, the

11 policy’s underinclusiveness suggests, as it did in Holt, that a more

12 tailored policy, less burdensome to Williams, is possible.

866. Specifically, the DOC has not explained how the religious

14 exception Williams has asked for (swapping out religiously forbidden

15 foods) is any more administratively burdensome than the medical

16 exception he already receives (swapping out allergy‐producing

17 foods). Such unexplained disparate treatment of “analogous

18 nonreligious conduct” leads us to suspect that a narrower policy that

19 burdens Williams to a lesser degree is in fact possible. See

20 Second, the DOC has not shown that Williams’s proposed

21 alternatives are not viable. See

at 864–65. Construing Williams’s pro

22 se district court submissions liberally, as we must, Triestman,

at 474, he has identified three ways the DOC could accommodate him, 27 No. 15‐1018

1 each of which is potentially less restrictive than its current policy: the

2 DOC could (1) serve Williams a kosher vegetarian meal—whether by

3 establishing a kosher vegetarian line at the facility level or shipping

4 in prepackaged kosher food; (2) provide Williams with a modified

5 version of the CAD menu, replacing items Williams cannot eat with

6 high‐protein foods or with other CAD items; or (3) refrain from

7 putting forbidden foods on Williams’s tray. Like the department in

8 Jova, the DOC here did not discuss, much less demonstrate, why it

9 could not, at least, give Williams more of the acceptable food it

10 already prepares or stop serving him foods he cannot eat. See

. Moreover, it seems that Williams’s request that he be served a

12 full kosher vegetarian meal could be no more than minimally

13 burdensome given the DOC’s new ability to make kosher‐compliant

14 substitutions. Just how restrictive these alternatives are, however, is a

15 fact question that is better left for the district court to consider in the

16 first instance. See

17 For these reasons, the DOC has not satisfied its burden under

18 RLUIPA, and the district court erred in granting it summary

19 judgment. Because fact questions remain as to whether the DOC’s

20 interest is compelling and its means are the least restrictive, in light of

21 Williams’s suggested alternatives, we remand for further factfinding.

22 See

28 No. 15‐1018

1 We would be remiss not to express our disappointment with

2 the DOC’s approach to litigating this case. It has been seven years

3 since Williams initially filed his complaint. During that time, the

4 record indicates that every day, three meals a day, Williams has been

5 forced to cobble together sufficient food to eat while adhering to his

6 protected religious diet. Meanwhile, the DOC failed to file a brief that

7 grappled with Williams’s argument about how Holt impacted the

8 RLUIPA analysis, thereby prolonging this case. In situations like this,

9 we would have to be naïve to overlook that it is in the government’s

10 interest to wage a war of attrition that draws out judicial proceedings

11 until the plaintiff‐inmate is released and the case is mooted. Now that

12 the applicable standard has been clarified, we look forward to a

13 speedy resolution of this dispute.

14 CONCLUSION

15 We therefore VACATE the district court’s grant of summary

16 judgment on Williams’s claim for injunctive relief, and REMAND for

17 further proceedings consistent with this opinion. The DOC’s motion

18 to vacate judgment and remand is DENIED as moot.

19