Koger, Gregory v. Bryan, Walter

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1904
GREGORY KOGER,
Plaintiff-Appellant,
v.
WALTER L. BRYAN, DENNIS GUTH,
PEARLENE PITCHFORD, ET AL.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 1177—Harold A. Baker, Judge.
____________
ARGUED SEPTEMBER 26, 2007—DECIDED APRIL 24, 2008
____________
Before MANION, EVANS, and SYKES, Circuit Judges.
MANION, Circuit Judge. Gregory Koger (“Koger”), a
former inmate at the Pontiac Correctional Center in
Illinois, filed suit against six prison officials claiming
they failed to accommodate his religious-based requests
for a non-meat diet. Koger claimed that this failure to
accommodate his dietary request was a violation of his
rights as protected by the Religious Land Use and In-
stitutionalized Persons Act (“RLUIPA”), and the First and
Fourteenth Amendments of the Constitution. The defen-
dants moved for summary judgment, arguing that Koger’s
2 No. 05-1904
diet was not changed because his request did not meet
the requirements necessary for prisoners seeking such
an accommodation and that those requirements were
lawful. The district court granted the defendants’ motion
as to all of Koger’s claims, and Koger now appeals. We
reverse the district court’s grant of summary judgment
on Koger’s RLUIPA claim, and remand for further pro-
ceedings consistent with this opinion.
I.
The facts material to this appeal are undisputed. Koger
was remanded to the custody of the Illinois Department
of Corrections (“IDOC”) in 1996, and originally housed at
the Joliet Correctional Center. Upon entering prison,
Koger designated his religious affiliation as Baptist. In
1999, while housed at the Centralia Correctional Center,
Koger changed his religious affiliation to Buddhist. Koger
was not required to provide IDOC officials with any
documentation in support of his original affiliation as a
Baptist, or upon re-affiliating as a Buddhist. In September
2000, Koger was transferred to the Pontiac Correctional
Center. A few months after this transfer, he stopped
eating meat or anything on his meal tray that had touched
meat. Koger adopted this diet to accommodate his yoga
practices, but claimed that it subjected him to extreme
hunger pains.
In May 2001, Koger contacted the prison’s chaplain,
Fr. Walter Bryan (“Bryan”), requesting that his religious
affiliation be changed to reflect that he was no longer a
Buddhist, and that he be provided with a non-meat diet as
part of his religious practices. During the period in ques-
tion, Pontiac served three religious diets—kosher, vegan,
No. 05-1904 3
and lacto-ovo vegetarian. The last two contain no meat,
and would have satisfied Koger’s request. Bryan
responded with a letter stating that Koger’s request
would not be granted absent a letter from a “Rabbi-Imam,
etc.” of Koger’s new religion. Koger replied to Bryan’s
letter saying that he was not a member of a formally
established religion, and accordingly there was no
clergy member available to contact Bryan on his behalf.
Koger’s letter further explained some of his religious
beliefs, stating that his “yoga practices required a non-
meat vegetarian diet.” Bryan did not respond to this letter.
Koger began searching for a religion that fit his beliefs,
and in November 2001, he joined Ordo Templi Orientis
(“OTO”), a group associated with the religion of Thelema.
Thelema was founded by Aleister Crowley in 1904, and
has as its central tenet “Do what thou wilt,” which its
followers consider a divine mandate to discover their
true purpose in life. In December 2001, Koger again wrote
Bryan, requesting that his affiliation be changed from
Buddhism to OTO, and that he be given a non-meat diet.
Koger included with his request an informational letter
from T. Allen Greenfield (“Greenfield”), OTO’s Prison
Ministry Coordinator, setting forth some of OTO’s be-
liefs and practices.1 Notably, Greenfield’s letter stated
that “Thelema imposes no general dietary restrictions;
though each individual Thelemite may, from time to
time, include dietary restrictions as part of his or her
1
While the parties use “OTO” and “Thelema” interchangeably
in the record, Greenfield’s letter clarified that “[w]ithin the
broad context of Thelema, O.T.O. functions as a fraternal,
initiatory, social, and educational organization of a religious
nature.”
4 No. 05-1904
personal regimen of spiritual discipline.” In response to
this second request, Bryan again sent a letter indicating
that Koger’s affiliation and diet would not be changed
without a letter from a “Rabbi-Imam, etc.”
On January 13, 2002, Koger filed an IDOC Grievance
based upon Bryan’s failure to change his affiliation and
diet. Upon review of the Grievance, Grievance Counselor
and Defendant Dennis Guth (“Guth”) responded stating
that he had consulted with Bryan, who indicated that he
needed a “letter” from the religious organization sent
directly to him, and that “information” would not be
considered. Guth’s response was reviewed by Grievance
Officer and Defendant Pearlene Pitchford (“Pitchford”),
and on March 13, 2002, she filed a report finding that
Guth’s response adequately addressed Koger’s concerns.
In making this determination, Pitchford expressly noted
the language from Greenfield’s letter stating that Thelema
imposes no general dietary restrictions. Defendant James
Schomig (“Schomig”), Chief Administrative Officer and
Warden of Pontiac Correctional Center, concurred with
Pitchford’s assessment. Koger subsequently appealed
under the grievance process. On March 25, 2002, Adminis-
trative Review Board Member Douglas A. Cravens
(“Cravens”) and IDOC Director Donald N. Snyder
(“Snyder”) issued their finding that the decisions of
Pitchford and Schomig appropriately addressed Koger’s
grievance.2 Accordingly, they recommended that Koger’s
grievance be denied.
In April 2002, Koger received a copy of a letter Green-
field sent to Bryan indicating that Koger was an OTO
2
We hereafter refer to Bryan, Guth, Pitchford, Schomig,
Cravens, and Snyder collectively as the “prison officials.”
No. 05-1904 5
parishioner, and discussing the organizational nature of
OTO. Relying on this letter, as well as a letter from OTO’s
Treasurer stating that he was a dues-paying member of
OTO, Koger filed a third request with Bryan asking that
his affiliation be changed from Buddhism to OTO, and that
he be provided a non-meat diet. On December 2, 2002,
Assistant Warden Adella Jordan-Luster (“Jordan-Luster”)
sent Koger a response granting his request for affiliation
change, but denying his request for a non-meat diet.
Jordan-Luster indicated that this denial was based upon
information she reviewed indicating that Thelema had
no dietary requirements. There is no indication in the
record that Koger made any further requests for an affilia-
tion or diet change following this last exchange. Koger
was released from the custody of IDOC on parole on
December 11, 2006.
As this protracted correspondence proceeded, on May 1,
2002, Koger filed a pro-se complaint in the district court.
In his initial complaint, Koger alleged violations of the
Free Exercise Clause of the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983, and the Religious Freedom
Restoration Act of 1993, 42 U.S.C. § 2000bb-1. Snyder,
Cravens, Guth, and Pitchford waived service of process.
Bryan and Schomig were never served with process, nor
did they waive it. After obtaining summonses from the
district court, Koger filed motions on August 2, 2002,
January 19, 2003, February 4, 2003, and June 23, 2004,
pursuant to Federal Rule of Civil Procedure 43 re-
3
“At the plaintiff’s request, the court may order that service be
made by a United States marshal or deputy marshal or by a
(continued...)
6 No. 05-1904
questing that service of process be made by a United States
marshal. In each of those instances, the district court
denied Koger’s motions finding that because Koger was
not proceeding in forma pauperis, it was his responsi-
bility to serve the defendants.
Koger was eventually given leave to file an Amended
Complaint. In his amended complaint, filed October 9,
2003, Koger alleged that the prison officials’ clergy ver-
ification requirement, and their failure to place him on a
non-meat diet because OTO did not require one, vio-
lated the Establishment and Free Exercise Clauses of the
First Amendment and the Equal Protection Clause of
the Fourteenth Amendment, and RLUIPA, 42 U.S.C.
§ 2000cc-1(a). Koger sought declaratory and injunctive
relief, as well as compensatory and punitive damages.
On June 23, 2004, Koger filed a motion to com-
pel better responses to interrogatories he propounded
on the prison officials in an attempt to obtain discovery
he believed would be helpful to his case. This motion
was still pending on August 23, 2004, when Snyder,
Cravens, Guth, and Pitchford filed a motion for sum-
mary judgment. Koger filed a response on September 1,
2004, arguing that the existence of genuine issues of
material fact prohibited entry of summary judgment, or
that the record established that he was entitled to sum-
mary judgment. Additionally, Koger cited Federal Rule
3
(...continued)
person specially appointed by the court. The court must
so order if the plaintiff is authorized to proceed in forma
pauperis under 28 U.S.C. § 1915 . . . .” Fed. R. Civ. P. 4(c)(3).
No. 05-1904 7
of Civil Procedure 56(f)4 and stated that because he had
outstanding discovery requests subject to a motion to
compel, and involving information relevant to his
claims, the motion for summary judgment should be
denied or stayed until he had an opportunity to com-
plete discovery. More than five months after Koger’s
response to the motion for summary judgment, the dis-
trict court denied his motion to compel believing it to
be moot because Koger had responded to the motion for
summary judgment. The denial did not reference Koger’s
invocation of Rule 56(f).
The district court subsequently granted the motion for
summary judgment. The court’s ruling was based on its
finding that the policy requiring Koger to verify his
membership in OTO did not violate the First Amend-
ment because it was reasonably related to a legitimate
penological interest, and did not violate RLUIPA because
the policy was the least restrictive means of furthering
a compelling governmental interest. Additionally, the
district court found that Koger could not support an
equal protection claim because he had not introduced
evidence showing that he suffered discrimination based
upon his membership in any class. The district court
entered summary judgment in favor of the prison officials
on March 24, 2005. Koger now appeals, arguing that the
prison officials’ clergy verification requirement, as well
4
“If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) deny the motion; (2) order a
continuance to enable affidavits to be obtained, depositions to
be taken, or other discovery to be undertaken; or (3) issue
any other just order.” Fed. R. Civ. P. 56(f).
8 No. 05-1904
as their failure to place him on a non-meat diet because
OTO did not require one, violate RLUIPA and the First
and Fourteenth Amendments of the Constitution. Koger
further argues that the district court erred in ruling on
the motion for summary judgment after denying his
motion to compel as moot, and by denying his motions
for service by the marshal.
II.
We review the district court’s grant of summary judg-
ment de novo, examining the record in the light most
favorable to Koger. Peate v. McCann, 294 F.3d 879, 882 (7th
Cir. 2002). As we noted above, the material facts are not
in dispute, and we are therefore presented with the legal
question of whether the prison officials’ conduct accords
with federal law. Charles v. Verhagen, 348 F.3d 601, 606
(7th Cir. 2003). RLUIPA prohibits prisons receiving fed-
eral funds5 from imposing a substantial burden on an
inmate’s religious exercise unless prison officials can
demonstrate “that imposition of the burden on that per-
son (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of fur-
thering that compelling governmental interest.” 42 U.S.C.
§ 2000cc-1(a)(1) - (2). Unlike cases arising under the Free
Exercise Clause of the First Amendment, this prohibition
applies even where the burden on the prisoner “results
from a rule of general applicability.” 42 U.S.C. § 2000cc-
1(a); compare Cutter, 544 U.S. at 732 (Thomas, J., concur-
ring) (citing 42 U.S.C. § 2000cc-1(a) for the proposition
5
“Every state . . . accepts federal funding for its prisons.” Cutter
v. Wilkinson, 544 U.S. 709, 716 n.4 (2005).
No. 05-1904 9
that RLUIPA applies to rules of general applicability),
with Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 531 (1993) (noting that in the Free Exercise
context “a law that is neutral and of general applicability
need not be justified by a compelling governmental inter-
est even if the law has the incidental effect of burdening
a particular religious practice”). In establishing a claim
under RLUIPA, the plaintiff bears the initial burden of
showing (1) that he seeks to engage in an exercise of
religion, and (2) that the challenged practice substantially
burdens that exercise of religion. 42 U.S.C. § 2000cc-2(b).
Once the plaintiff establishes this prima facie case, the
defendants “bear the burden of persuasion on any [other]
element of the claim,” id., namely whether their practice “is
the least restrictive means of furthering a compelling
governmental interest.” Lovelace v. Lee, 472 F.3d 174, 186
(4th Cir. 2006). As noted above, Koger challenges two
practices of the prison officials that he claims placed a
substantial burden on his religious exercise. First, the
prison officials expressly refused to provide Koger with a
non-meat diet because such a diet was not required by
OTO. Second, the prison officials required that an OTO
clergy member submit to Bryan written verification of
Koger’s membership in OTO and its tenets. For ease of
discussion, we will refer to the first challenged practice
as a “religiously required test,” and the second as a
“clergy verification requirement.”
A. Religious Exercise
In considering whether Koger met his burden of estab-
lishing that his non-meat diet was a religious exercise,
we first recall that under RLUIPA, “[t]he term ‘religious
exercise’ includes any exercise of religion, whether or
10 No. 05-1904
not compelled by, or central to, a system of religious
belief.” 42 U.S.C. § 2000cc-5(7)(A). “Although RLUIPA bars
inquiry into whether a particular belief or practice is
central to a prisoner’s religion, . . . [it] does not preclude
inquiry into the sincerity of a prisoner’s professed religios-
ity.” Cutter, 544 U.S. at 725 n.13 (internal quotation and
citation omitted). Because RLUIPA is a guarantor of
sincerely held religious beliefs, it may not be invoked
simply to protect any “way of life, however virtuous and
admirable, . . . if it is based on purely secular consider-
ations.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). For
example, if Koger’s desire for a non-meat diet was rooted
solely in concerns for his bodily health, it would not
be protected by RLUIPA.
The record before us indicates that from the time of
his first request in May 2001, Koger stated that his desire
for a non-meat diet was based on his religious beliefs
and practices. At the time of this first request, Koger’s
beliefs were not affiliated with any organized religion.
This in itself is not necessarily fatal to his claim. See
Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005)
(holding that a person’s religious beliefs “need not be
based on . . . a mainstream faith,” but rather should be
the beliefs “dealing with issues of ultimate concern that
for her occupy a place parallel to that filled by . . . God in
traditionally religious persons”) (citations and quotation
omitted). However, we need not decide this issue based
solely on Koger’s initial unaffiliated request because by
December 2001, he was asking for accommodation of his
religious exercise as a member of OTO. Along with
this second request, he submitted paperwork from OTO
stating that, while his new religion had no general dietary
restrictions, “each individual Thelemite may, from time to
No. 05-1904 11
time, include dietary restrictions as part of his or her
personal regimen of spiritual discipline.” This document
brings Koger’s dietary request squarely within the defini-
tion of religious exercise set forth by RLUIPA. See 42
U.S.C. § 2000cc-5(7)(A). In fact, this portion of Green-
field’s letter can be accurately restated using the statutory
definition, i.e., while there are no dietary restrictions
“compelled by” or “central to” OTO, many of its practitio-
ners adopt such restrictions as part of their “exercise” of
Thelema. We therefore conclude that Koger sought to
refrain from eating meat as a religious exercise as that
term is defined by RLUIPA.
Additionally, the duration of time over which Koger
sought to have his dietary request accommodated, and
the fact that he sought that accommodation primarily as
an OTO member, clearly demonstrates that his beliefs
were sincerely held. If Koger’s beliefs were not sincere,
and if he wanted a non-meat diet for reasons other than
his religious beliefs, he could have attempted to have
his affiliation changed to one of the denominations
whose members regularly received non-meat diets. The
fact that he did not, settling instead on a religion with
which the prison officials were unfamiliar, indicates that
Koger’s beliefs, in addition to being religious in nature,
were sincerely held. While Koger bears the burden on
this point, it is worth noting that the prison officials
introduced no evidence from which a fact finder could
conclude that Koger’s desire for a non-meat diet was the
result of anything other than a sincerely held religious
belief, such as conduct inconsistent with that belief. Based
on the record before us, and the definition of “religious
exercise” provided by RLUIPA, we conclude that, in
requesting a non-meat diet, Koger was asking for ac-
12 No. 05-1904
commodation of a religious exercise rooted in sincerely
held beliefs.
B. The Religiously Required Test
The prison officials defend the religiously required test
solely by arguing that Koger did not meet his burden of
showing that the request was based on sincerely held
religious beliefs. Having concluded that sincerely held
religious beliefs prompted Koger’s request, we further
conclude that to the extent the prison officials’ denials of
Koger’s requests were based on the religiously required
test, they unlawfully restricted Koger’s religious exercise.
The substantial burden was manifest—Koger repeatedly
provided documentation to prison officials stating that
OTO does not impose dietary restriction on all of its
members, but that such restrictions are practiced by
some. Koger’s requests made clear that he was among
the members choosing to practice the restrictions. To
have his request accommodated, however, the prison
officials would have required him to establish exactly
what RLUIPA does not require—that his requested diet
was “compelled by” or “central to” his faith. 42 U.S.C.
§ 2000cc-5(7)(A). Additionally, the prison officials have
not offered evidence that the religiously required test
was employed in furtherance of a compelling govern-
mental interest, or the least restrictive means of fur-
thering that interest. Accordingly, we conclude that it was
a violation of RLUIPA for the prison officials to deny
Koger’s request for a non-meat diet simply because OTO
has no general dietary restrictions.
No. 05-1904 13
C. The Clergy Verification Requirement
Unlike the religiously required test, the clergy verifica-
tion requirement does not clearly violate the express
provisions of RLUIPA, and therefore requires a more
extensive weighing of the record under RLUIPA’s analyti-
cal framework. To determine whether Koger met his
burden of showing that the clergy verification require-
ment substantially burdened his religious exercise, we
must first determine the meaning of “substantial burden”
in the context of RLUIPA. When considering a similar
provision of the Religious Freedom Restoration Act
(“RFRA”) which prohibits the government from “substan-
tially burden[ing] a person’s exercise of religion,” 42 U.S.C.
§ 2000bb-1(a), we held that “a substantial burden on the
free exercise of religion . . . is one that forces adherents
of a religion to refrain from religiously motivated con-
duct, inhibits or constrains conduct or expression that
manifests a central tenet of a person’s religious beliefs,
or compels conduct or expression that is contrary to
those beliefs.” Mack v. O’Leary, 80 F. 3d 1175, 1179 (7th Cir.
1996), vacated by Mack v. O’Leary, 522 U.S. 801 (1997)
(vacating the circuit court decision and remanding for
further proceedings in light of City of Boerne v. Flores,
521 U.S. 507 (1997)).6
6
The RFRA, enacted in 1993, provides similar protections to
those afforded in RLUIPA, however it was intended to apply
to “all Federal and State law,” 107 Stat. 1488, 1489 (1993), and
was enacted pursuant Congress’s enforcement power under
Section 5 of the Fourteenth Amendment. City of Boerne, 521 U.S.
at 516-17. Finding that the RFRA exceeded Congress’s en-
forcement power under Section 5, the Supreme Court invali-
(continued...)
14 No. 05-1904
When Congress enacted RLUIPA, it included the broad
definition of religious exercise stated above, 42 U.S.C.
§ 2000cc-5(7)(A), which was not part of the RFRA. This
inclusion prompted a renewed consideration of what
constitutes a substantial burden. Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 760-61 (7th Cir.
2003). Accordingly, in 2003 we held that “in the context
of RLUIPA’s broad definition of religious exercise, a . . .
regulation that imposes a substantial burden on religious
exercise is one that necessarily bears direct, primary,
and fundamental responsibility for rendering religious
exercise . . . effectively impracticable.” Id. at 761. In deter-
mining when an exercise has become “effectively impracti-
cable,” it is helpful to remember that in the context of
the Free Exercise Clause, the Supreme Court held that
a government imposes a substantial burden on a per-
son’s beliefs when it “put[s] substantial pressure on an
adherent to modify his behavior and violate his beliefs.”
Thomas v. Review Bd., 450 U.S. 707, 718 (1981); see also
Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) (recogniz-
ing that a prisoner can bring a claim where he is “put to an
improper choice between adequate nutrition and obser-
vance of the tenets of his faith”).
We conclude that the prison officials’ clergy verifica-
tion requirement was responsible for rendering Koger’s
religious exercise effectively impracticable. We have long
held that “[t]he rights of inmates belonging to minority or
6
(...continued)
dated it as an enforcement vehicle against the states. Id., at 532-
36. Congress responded by enacting RLUIPA in 2000, “in-
voking federal authority under the Spending and Commerce
Clauses . . . .” Cutter, 544 U.S. at 715.
No. 05-1904 15
non-traditional religions must be respected to the same
degree as the rights of those belonging to larger and more
traditional denominations.” Al-Alamin v. Gramley, 926
F.2d 680, 686 (7th Cir. 1991). Here, Koger’s religion lacks
clergy members as traditionally understood, or who fit
Bryan’s description of “Rabbi-Imam, etc.” Instead, the
record indicates that OTO has a handful of officers, most
of whom promote and carry out the group’s administra-
tive affairs. More important, however, there are no univer-
sal requirements that could even be verified by these
leaders, at least when it comes to dietary restrictions. A
clergy verification requirement therefore renders imprac-
ticable religious exercise by members of OTO, or other
religions without traditional clergy or universal require-
ments. See, e.g., Kaufman, 419 F.3d at 681-82 (holding
that atheism can, in the “specialized sense” of applying
First Amendment protections, be considered a religion).
Furthermore, even if Koger belonged to a religion
with traditional clergy and uniform practices, a clergy
verification requirement forms an attenuated facet of any
religious accommodation regime because clergy opinion
has generally been deemed insufficient to override a
prisoner’s sincerely held religious belief. See, e.g., Ford
v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003) (holding
that the role the Eid ul Fitr feast played in a prisoner’s
practice of Islam was determinative of whether there
had been a substantial burden, and not the testimony of
Muslim clerics as to the proper celebration of the feast);
Jackson v. Mann, 196 F.3d 316, 320-21 (2d Cir. 1999) (holding
that it was the sincerity of a prisoner’s beliefs, and not
the decision of Jewish religious authorities, that deter-
mined whether the prisoner was an adherent of Judaism
entitled to a kosher meal); see also Frazee v. Ill. Dep’t of
16 No. 05-1904
Employment Sec., 489 U.S. 829, 834 (1989) (holding that in
the context of a denial of unemployment benefits, the
plaintiff’s refusal, based on his Christianity, to work on
Sundays was entitled to protection even though “there
are assorted Christian denominations that do not profess
to be compelled by their religion to refuse Sunday work”).
We therefore conclude that the prison officials’ clergy
verification requirement imposed a substantial burden
on Koger’s religious exercise.
Koger having established a prima facie case that the
clergy verification requirement violated RLUIPA, we
now consider whether the prison officials established
that such a requirement is the least restrictive means of
furthering a compelling governmental interest. Courts are
to apply RLUIPA with “due deference to the experience
and expertise of prison and jail administrators in estab-
lishing necessary regulations and procedures to maintain
good order, security and discipline . . . .” Cutter, 544 U.S. at
723 (citation omitted). Concerns of security are to be given
“particular sensitivity.” Id. at 722. The prison officials
assert that good order requires that prisoners’ religious
affiliations be verified, and that the prison’s dietary
system be administered in an orderly fashion. Indeed,
verification of religious affiliation has been held to serve
legitimate penological interests. Jackson-Bey v. Hanslmaier,
115 F.3d 1091, 1096-97 (2d Cir. 1997). Likewise, orderly
administration of a prison dietary system, and the accom-
modations made thereunder, are legitimate concerns of
prison officials. See Resnick v. Adams, 348 F.3d 763, 769
(9th Cir. 2003) (“The legitimate governmental interest at
stake here is the orderly administration of a program that
allows federal prisons to accommodate the religious
dietary needs of thousands of prisoners.”) (quotation
No. 05-1904 17
omitted); see also DeHart v. Horn, 227 F.3d 47, 52 (3d Cir.
2000) (agreeing with prison officials that “a simplified
and efficient food service” is a legitimate penological
interest). The problem for the prison officials, however,
is that no appellate court has ever found these to be com-
pelling interests.7 Moreover, the governmental interest
should be considered in light of the prisoner’s request
and circumstances at the detention facility. See Hunafa,
907 F.2d at 47-48. Koger’s request must therefore be
considered in light of the fact that the prison already
served two diets that would have satisfied his request. It
must also be considered in light of the fact that Koger
ultimately supplied to prison officials, among other
things, the letter from Greenfield, the letter from OTO’s
treasurer stating that Koger was a dues-paying mem-
ber, and information setting forth OTO’s beliefs and
practices including that some members practice dietary
restrictions. The prison officials failed to show what
effort would have been involved in providing a meatless
diet to Koger, how this would have hampered prison
administration, or how the clergy verification furthered
any interest not already satisfied by Koger’s submissions.
We can only give deference to the positions of prison
officials as required by Cutter, 544 U.S. at 723, when the
officials have set forth those positions and entered them
7
In the proceedings below, the prison officials cited Jenkins
v. Angelone, 948 F. Supp. 543, 547 (E.D. Va. 1996), for the proposi-
tion that management of a prison dietary department and
its impact on the nutritional needs of inmates are compelling
government interests. The prison officials do not cite Jenkins
on appeal, and we therefore do not consider it other than to
note that the district court therein cited no authority for its
findings that the above interests are compelling.
18 No. 05-1904
into the record. See Lovelace, 472 F.3d at 191 (concluding
that prison officials had failed to meet their burden under
RLUIPA because they had not submitted sworn state-
ments establishing how the challenged practices furthered
any compelling interest). We therefore conclude that the
prison officials failed to meet their burden in showing
that the clergy verification requirement furthered a com-
pelling governmental interest.
Even if the prison officials’ asserted interests were
deemed to be compelling, they do not support their
assertion that a clergy verification requirement was the
least restrictive means of achieving these ends. One less
restrictive means would have been to simply comply,
at least in part, with the Illinois Administrative Code
which requires only that a prisoner provide “written
verification” in order to receive a religious-based dietary
accommodation, with no requirement that the verifica-
tion be from a clergy member. 20 Ill. Adm. Code.
§ 425.70(c). When a prisoner provides his own written
verification, prison officials are still entitled to the bene-
fit of the long-standing requirement that a prisoner pro-
vide sufficient indicia that his request is borne of a sin-
cerely held religious belief. Moreover, the Illinois Admin-
istrative Code provides a further check against abuse
when it provides that “[a] committed person who does
not adhere to the alternative diet shall no longer receive
the alternative diet . . . .” 20 Ill. Adm. Code. § 425.70(e).
Likewise, the federal prison system requires prisoners
seeking dietary accommodations to “provide a written
statement articulating the religious motivation for partici-
pation in the [religious dietary accommodation program].”
Resnick, 348 F.3d at 765 (citing 28 C.F.R. § 548.20(a)).
Having prisoners verify in writing that their dietary
No. 05-1904 19
request is religious-based is just one example of a less
restrictive means by which the prison officials could
have furthered the interests of orderly administration
and verification. One less restrictive means, however, is
sufficient for us to conclude that the prison officials
failed to meet their burden that they were employing
the least restrictive means of furthering compelling gov-
ernmental interests.
Summing up, we conclude that Koger met his burden
of establishing that both the religiously required test
and the clergy verification requirement operated as sub-
stantial burdens on his religious exercise. The prison
officials failed to meet their burden in showing that
their practices were the least restrictive means of fur-
thering a compelling government interest. Accordingly,
the record establishes that the practices challenged by
Koger violated RLUIPA, and judgment in his favor on
this claim is warranted. The district court erred in entering
summary judgment in favor of the prison officials on
Koger’s RLUIPA claim.
D. Koger’s Constitutional Claims and Motion to Compel
Having concluded that the defendants’ conduct vio-
lated RLUIPA, we call to mind the principle that “federal
courts are supposed to do what they can to avoid
making constitutional decisions, and strive doubly to
avoid making unnecessary constitutional decisions.” ISI
Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552
(7th Cir. 2001); see also Borzych v. Frank, 439 F.3d 388, 390
(7th Cir. 2006) (declining to consider a prisoner’s con-
stitutional claims, and considering solely his RLUIPA
claim after noting the heightened protections it offers).
20 No. 05-1904
Because the prison officials are liable under RLUIPA for
the conduct complained of in the constitutional claims,
we decline to consider those latter claims. Additionally,
we need not consider Koger’s challenge to the district
court’s denial of his motion to compel because the addi-
tional evidence sought by Koger is unnecessary to his
RLUIPA claim—that claim succeeds based on the record
as it stands. The discovery sought would therefore only
be material, if at all, to his constitutional claims, which
we are not reviewing.
E. Qualified Immunity
Koger’s success on his RLUIPA arguments will not
result in damages if the prison officials are protected by
qualified immunity, and so we turn to their argument
that they are so protected. “Qualified immunity protects
officers performing discretionary functions from civil
liability so long as their conduct does not violate clearly
established statutory or constitutional rights that a rea-
sonable person would know about.” Mustafa v. City of
Chicago, 442 F.3d 544, 548 (7th Cir. 2006) (emphasis in
original) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A
plaintiff seeking to defeat an assertion of qualified immu-
nity must establish “that the law concerning the plaintiff’s
asserted right was clearly established at the time the
challenged conduct occurred.” Id. Moreover, “[t]he con-
tours of the right must be sufficiently clear that a reason-
able official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). This is not to say that an official will always
be shielded by immunity unless the challenged practice
has previously been deemed unlawful; rather “in the
No. 05-1904 21
light of pre-existing law the unlawfulness must be appar-
ent.” Id.RLUIPA was enacted on September 22, 2000. Pub. L.
No. 106-274 §§ 2-6, 8, 114 Stat. 803-06. Koger filed
his requests for a non-meat diet in May 2001, December
2001, and April 2002. His internal grievance was filed in
January 2002. Because of the dearth of cases dealing
with RLUIPA during this period, Koger must show
that RLUIPA itself, or principles established in other
contexts and applicable to RLUIPA, established the con-
tours of his rights so that a reasonable official could have
easily discerned them. There are numerous reasons leading
us to conclude that the rights protected by RLUIPA, and
violated by the prison officials as set forth above, were
clearly established during the period the prison officials
denied Koger’s dietary requests. First, RLUIPA did not
announce a right having broad application across many
segments of society. Rather, it prohibited substantially
burdening religious exercise in only two contexts: by land
use regulation, 42 U.S.C. § 2000cc, or while a person is
imprisoned. 42 U.S.C. § 2000cc-1. Moreover, RLUIPA did
not announce a new standard, but shored up protections
Congress had been attempting to provide since 1993 by
means of the RFRA, and which had seen frequent litiga-
tion in the prison context. See, e.g., Craddick v. Duckworth,
113 F.3d 83, 85 (7th Cir. 1997) (applying the standard
shared by the RFRA and RLUIPA and concluding that a
prohibition against wearing medicine bags violated the
RFRA).
Aside from the fact that RLUIPA employs a standard
already contained in the RFRA, it is noteworthy that the
components of its analysis have been used in constitu-
tional litigation for some time. For example, the difficult
22 No. 05-1904
burden laid on a defendant who must show that its con-
duct was the “least restrictive means of achieving some
compelling state interest” has been established for decades.
See Thomas v. Review Bd., 450 U.S. 707, 718 (1981). Similarly,
the prohibition against substantially burdening sin-
cerely held religious beliefs is well-established in Free
Exercise Clause cases. See, e.g., Hernandez v. Comm’n of
Internal Revenue, 490 U.S. 680, 699 (1989) (“The free exer-
cise inquiry asks whether government has placed a sub-
stantial burden on the observation of a central religious
belief or practice . . . .”). RLUIPA has a broader scope of
protection than “central religious beliefs or practices,” but
Congress cleared up any resulting ambiguity by expressly
setting forth what is included within that broader protec-
tive scope—“any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”
42 U.S.C. § 2000cc-5(7)(A).
While the case will undoubtedly arise where a plaintiff
asserts a right only questionably covered by RLUIPA,
Koger asserted the right to religious accommodation for
a religious practice demonstrably associated with,
though not compelled by, his religion. The prison officials
violated this clearly established right because they re-
quired exactly what RLUIPA provides they cannot—a
religious practice compelled by OTO. Likewise, in requir-
ing clergy verification, the prison officials employed a
clergy-as-arbiter-of-orthodoxy standard that had long
been rejected. See Frazee, 489 U.S. at 834 (rejecting “the
notion that to claim the protection of the Free Exercise
Clause, one must be responding to the commands of a
particular religious organization”and holding that the
believer’s sincerity is the appropriate consideration);
Jackson, 196 F.3d at 320 (rejecting a prison’s policy of
No. 05-1904 23
deferring to Jewish authorities on the question of whether
an inmate is Jewish for the purposes of providing a
kosher meal, and directing the prison officials to con-
sider the sincerity of the inmate’s beliefs). Finally, we
note that the only other circuit court to have considered
this issue held that “[a]lthough the outer boundaries of
RLUIPA may have been uncharted at the time [of the
defendant’s conduct], its core protections were not.”
Lovelace, 472 F.3d at 198 (reversing a grant of qualified
immunity where the district court found that RLUIPA’s
constitutionality was not clearly established because its
constitutionality was presumed when it took effect).
Accordingly, Koger’s right not to be subjected to a reli-
giously required test or a clergy verification require-
ment was clearly established when the prison officials
employed both. Those rights being clearly established at
the relevant time, we conclude that the prison officials
are not entitled to qualified immunity.
F. Service by United States Marshal
Koger’s final argument on appeal is that the district
court erred in denying his motions for service by a
United States marshal simply because he paid the filing
fee instead of proceeding in forma pauperis. Federal Rule
of Civil Procedure 4 provides that “[a]t the plaintiff’s
request, the court may order that service be made by a
United States marshal or deputy marshal or by a person
specially appointed by the court. The court must so order
if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 . . . . ” Fed. R. Civ. P. 4(c)(3).
The district court misapplied Rule 4 because it failed to
exercise the discretion given it when the plaintiff pays the
filing fee. See Fed. R. Civ. P. 4 advisory committee’s note
24 No. 05-1904
(1993) (“The court . . . retains discretion to appoint a
process server on motion of a party.”). Because these
denials resulted from its mistaken belief that service by
a marshal was unavailable to a party who paid the filing
fee, the district court abused the discretion afforded it by
Rule 4. Koon v. United States, 518 U.S. 81, 100 (1996) (“A
district court by definition abuses its discretion when it
makes an error of law.”) On remand, the district court
should exercise its discretion to discern whether service
should be made upon Bryan and Schomig pursuant to
Rule 4(c)(3).
G. Additional Considerations
In reversing the district court’s grant of summary
judgment for the prison officials on Koger’s RLUIPA
claim, and directing the entry of judgment for Koger on
that claim, we note a few final points to be kept in mind
by the district court. First, although Koger sought declara-
tory and injunctive relief, as well as compensatory and
punitive damages in his Amended Complaint, his request
for injunctive relief has been rendered moot by his release
from prison. Brown v. Bartholomew Consol. Sch. Corp., 442
F.3d 588, 596 (7th Cir. 2006) (“In an action seeking
only injunctive relief . . . once the threat of the act sought
to be enjoined dissipates, the suit must be dismissed as
moot. If, however, a plaintiff also seeks monetary dam-
ages, his case is not moot even if the underlying miscon-
duct that caused the injury has ceased.”) (citations omit-
ted). Next, RLUIPA provides that a cause of action may
be asserted thereunder to obtain “appropriate relief.” 42
U.S.C. § 2000cc-2(a). However, because the relief herein is
being sought by a former prisoner, the Prisoner Litigation
No. 05-1904 25
Reform Act (“PLRA”) is applicable.8 In particular, Koger’s
suit is limited by the provision of the PLRA that provides
“[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” 42 U.S.C.
§ 1997e(e). We have previously held that this provision
limits the damages available to prisoners not only for
constitutional torts, but for violations of federal statutes.
Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 376-377 (7th
Cir. 2000); see also Smith v. Allen, 502 F.3d 1255, 1271 (11th
Cir. 2007) (holding that the PLRA limits the availability
of compensatory and punitive damages under RLUIPA,
but leaving open the availability of nominal damages).
III.
We conclude that the record establishes that the prison
officials violated Koger’s rights as secured under RLUIPA,
and that judgment in Koger’s favor on his claim brought
under that statute is warranted. Having reached this
conclusion, we do not consider Koger’s constitutional
claims. Additionally, the district court abused its discretion
in failing to exercise the discretion available to it under
Fed. R. Civ. P. 4. Accordingly, we REVERSE the district
court’s grant of summary judgment in favor of the prison
8
We have held that the question of whether a former prisoner’s
claim is governed by the PLRA is determined by “look[ing] to
the status of the plaintiff at the time he brings his suit.” Witzke
v. Femal, 376 F.3d 744, 750 (7th Cir. 2004). Koger filed suit on
May 1, 2002, and was released from prison on December 11,
2006. His claims are therefore governed by the PLRA.
26 No. 05-1904
officials on Koger’s RLUIPA claims, as well as its denials
of Koger’s motions for service by a United States marshal,
and REMAND for proceedings consistent with this opinion.
EVANS, Circuit Judge, concurring. I join Judge Manion’s
fine opinion without any reservations. It touches all the
bases that must be touched and reaches a conclusion with
which I agree. I write separately, however, to note that
I can’t help but feel what has happened here is pretty
close to a waste of time for all concerned.
Start with the State of Illinois. Inmates in its prisons
must be fed, and the vast majority of them receive a
standardized meal—which I assume is an offering of
reasonably healthy food. The prison does, however, offer
three “religious” diets: kosher, vegan, and lacto-ovo
vegetarian.1 Why, I wonder, when Koger asked for either
a vegan or a lacto-ovo vegetarian diet, did the State go to
the mattresses and fight his request all the way up to a
court of appeals in the federal judicial system? Even if the
1
A lacto-ovo vegetarian is a vegetarian who does not eat beef,
pork, poultry, fish, shellfish, or animal flesh of any kind but is
willing to consume cheese, butter, yogurt, and eggs (Lacto-
means “milk” and ovo means “egg”). Most vegetarians are lacto-
ovo vegetarians. Generally, when one uses the term “vegetar-
ian,” a lacto-ovo vegetarian is assumed. A vegan, on the
other hand, consumes no animal products at all.
No. 05-1904 27
prison officials doubted the sincerity of Koger’s “religious
beliefs,” why make a federal case out of it? Certainly if
an inmate wanted to opt for a vegetarian diet, a rule
that would require him to stick with it for a year before
changing his mind again would seem to be quite reason-
able. But what the State did here, digging in its heels
and saying no, seems quite unreasonable to me.
My other concern is with RLUIPA itself, a law that has
been on the books since 2000. Clearly, without RLUIPA,
this case would have been dead in the water when it
was filed because declining Koger’s request for a nonmeat
diet would not have violated the United States Consti-
tution. It was well-settled, before RLUIPA, that a neu-
tral law or rule of general applicability was not required
to be justified by a compelling state interest even if it had
the incidental effect of burdening a particular religious
practice. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993). So, but for RLUIPA, this litigation,
which has been going on now for almost six years,
would have died long ago.
RLUIPA, I submit, fosters the potential for mischief
and game-playing. Koger’s case is, potentially at least, a
pretty good example of that. Koger arrived in the cus-
tody of the Illinois Department of Corrections in 1996 to
begin serving a 19-year sentence following a conviction
for armed violence. Upon entering the prison system, he
said he was a Baptist. A couple of years later he said he
was a Buddhist. Two years after that he said he was a
member of “Ordo Templi Orientis (“OTO”), a group
28 No. 05-1904
associated with the religion of Thelema.2 As Judge Manion
notes, the central tenet of this religion is “Do what thou
wilt” (for me, that’s a tough one to figure out!),
which urges its followers to consider the tenet to be “a
divine mandate to discover their true purpose in life.”
Mr. Koger3 is obviously a very bright guy and an accom-
plished writer—a visit to his blog at gregorykoger.com
makes that pretty clear. But was his request for a nonmeat
diet a mere preference (he practiced yoga) or the result
of a sincerely held religious belief? On this record, we
have no reason to doubt that it was the latter. But one
would not be terribly surprised if Mr. Koger has had a
beef tenderloin or a Big Mac since he left the prison a
little over two years ago.
Finally, the bottom line to our decision, although decid-
edly correct, points out why this case is a bit of a waste
of time. Because Mr. Koger is out of prison—and has been
since December of 2006—his request for injunctive relief
is moot. And because he was in prison when the case
arose, he must proceed under the Prisoner Litigation
Reform Act, which takes compensatory and punitive
damages off the table as he suffered no “physical injury”
but only, at best, a “mental or emotional injury.” And that
limits his recovery to nominal damages.
2
The letter from T. Allen Greenfield, quoted in our opinion, to
the effect that “Thelema imposes no general dietary restrictions”
is interesting, as is Mr. Greenfield himself. According to his
entry at wikipedia.org, Greenfield is “an avid speaker on
subjects related to UFOs and the occult.”
3
Koger was paroled in December of 2006 after serving more
than 10 years of his sentence.
No. 05-1904 29
So when all is said and done, the State of Illinois has
spent a lot of money defending this case for six years.
Koger may end up with a dollar, and his lawyer, Jeffrey L.
Oldham, who by the way has done an outstanding job,
will get a limited amount of attorney’s fees. A waste of
time? Some may disagree, but I lean towards saying “yes.”
USCA-02-C-0072—4-24-08