Andreola, Daniel M. v. State of Wisconsin

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 22, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1931 Appeal from the United
States District Court for the
DANIEL M. ANDREOLA, SR., Eastern District of Wiscon-
Plaintiff-Appellant, sin.
v.
No. 04-C-0282
STATE OF WISCONSIN, et al., William C. Griesbach,
Defendants-Appellees. Judge.
Order
Daniel Andreola brought this action under 42 U.S.C. §1983 in an effort to obtain,
while in state prison, kosher meals prepared according to a regimen that Andreola
describes as “ultra Orthodox”. He wants “Kosher food that is prepared, wrapped and
sealed and Certified under Rabbinical supervision, so that I can see the Certifica-
tion and only I can open the seal on the food”. He demands both compensatory dam-
ages and equitable relief. The district court denied his motion for a preliminary in-
junction, and Andreola took this interlocutory appeal under 28 U.S.C. §1292(a)(1).
Neither the State of Wisconsin nor the State’s Department of Corrections is a
proper defendant. Neither is a “person” for purposes of §1983. See Lapides v. Uni-
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
No. 05-1931 Page 2
versity of Georgia, 535 U.S. 613, 617–18 (2002); Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). The warden and other officials at Oshkosh Correc-
tional Institution, where Andreola was confined when the suit began, are proper de-
fendants but play no role in this appeal because Andreola has been transferred to
Oakhill Correctional Institution. The claim against these officials is not moot in
light of the demand for damages, but this appeal is limited to equitable relief. An-
dreola’s claim against more senior personnel in the Department of Corrections is
proper under Ex parte Young, 209 U.S. 123 (1908), and is not moot because they can
control his diet throughout the state’s prison system.
We do not consider whether Andreola would be entitled to relief under the Relig-
ious Land Use and Institutionalized Persons Act, see 42 U.S.C. §2000cc–1(a); Cutter
v. Wilkinson, 125 S. Ct. 2113 (2005), because he did not rely on that statute in the
district court. He raised it for the first time in his appellate briefs. A judgment
ought not be disturbed on the basis of arguments that the district court did not have
an opportunity to consider. In considering Andreola’s request for damages and a
permanent injunction, the district judge should turn first to RLUIPA, because
statutory arguments come ahead of constitutional ones. For present purposes, how-
ever, the sole question is whether the district judge abused his discretion in holding
that the first amendment itself does not compel the state to provide Andreola with
meals prepared according to his specifications while the litigation continues.
The district judge did not abuse his discretion. Wisconsin is providing Andreola
with a diet that would be accepted as kosher by most Jews. Although Andreola does
not find this satisfactory, the first amendment does not require prisons to accom-
modate every element of each inmate’s faith; there are so many variations that the
enterprise would be both costly and unavailing (for perfect implementation cannot
be assured at any cost). It also would open the system to abuse, for prisoners might
make “religious” demands motivated more by matters of taste than matters of faith.
We do not say that Andreola has done this, but the rule must be general. Many de-
cisions, of which Johnson v. Horn, 150 F.3d 276 (3d Cir. 1998), overruled on other
grounds by Dehart v. Horn, 227 F.3d 47 (3d Cir. 2000), is an example, hold that it is
enough to accommodate religious dietary needs shared by a significant number of
prisoners; inmate-specific diets are not required.
AFFIRMED