The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HOSAM MAHER SMADI,
Plaintiff,
v. Case No. 19–CV–00217–JPG
JOSHUA MICHAELIS and
WILLIAM TRUE, III,
Defendants.
MEMORANDUM OPINION AND ORDER
This is a prisoner civil-rights case. Before the Court is Defendants Joshua Michaelis and
William True, III’s Motion to Dismiss and Alternatively Motion for Partial Summary Judgment.
(ECF No. 19) [hereinafter “Defs.’ Mot.”]. Plaintiff Hosam Maher Smadi responded. (ECF No. 21).
For the reasons below, the Court GRANTS IN PART and DENIES IN PART the Defendants’
Motion.
I. PROCEDURAL & FACTUAL HISTORY
Smadi is a Jordanian national convicted of “attempted use of a weapon of mass destruction”
in 2009 and sentenced to 24-years’ imprisonment. (Compl. 4, 15, ECF No. 2). From 2015 to 2020,
he was incarcerated at the U.S. Penitentiary in Marion, Illinois (“USP Marion”), within this
District. (Id. at 19; Notice 1, ECF No. 29).
Smadi is also a Sunni Muslim with “deeply, and sincerely, held religious beliefs.” (Id.
at 20). Thus, he only eats halal food, meaning food that is processed and prepared in accordance
with Islamic dietary laws. (Id.). Kosher food, for example, would “not meet the requirements . . .
as it is prepared in a manner inconsistent with Islamic law, and, contains ingredients, like wine,
which are prohibited by Islamic law.” (Id.). Moreover, Smadi “adheres to the Salafi interpretation
of Islam,” which further restricts his diet to “meat prepared in accordance with the Salafi”
tradition.1 (Id.). This “require[s] that Smadi not eat food prepared in a container, including a
microwave, that has been used to cook pork, and/or, other forbidden . . . food, unless said container
be ritually purified in a manner not readily available in a prison environment.” (Id.).
“Prior to April 9, 2018, Smadi communicated with Michaelis” (the warden of USP Marion)
and True (the food-service administrator) and “notified them of his sincerely held religious
beliefs . . . and, the related dietary requirements, and, asked them to make a halal meal available
to him.” (Id. at 24). They told him “that Kosher meals were available, and, that they were not
otherwise required to accommodate [his] sincerely held religious beliefs.” (Id. at 24–25).
Smadi then filed a grievance requesting halal meals:
Smadi does not receive Halal meat at mealtimes, while Judaic
inmates are accommodated with Kosher meat. Kosher meals are
not compatible with Smadi religious believe [sic]. Smadi request
non-Kosher halal meat at meals pursuant to the RFRA [and the
First and Fifth Amendments].
(See Request for Administrative Remedy (June 14, 2018), ECF No. 19-2 at 126). It was denied by
the General Counsel in October 2018:
This is in response to your Central Office Administrative Remedy
Appeal wherein you request the Food Service Department at USP
Marion accommodate your religious dietary needs as a Muslim by
providing you with certified Halal food items.
We have reviewed the documentation related to your appeal. Based
on this review, we concur with the manner in which the Warden
and Regional Director addressed your concerns. Program
Statement 5360.09, Religious Beliefs and Practices, section 18,
part a, states: “The Bureau [of Prisons (“BOP”)] provides inmates
requesting a religious diet reasonable and equitable opportunity to
observe their religious dietary practice within the constraints of
budget limitations and the security and orderly running of the
institution and the Bureau through a religious diet menu.” The
1 “Salafism . . . is a largely pietistic, apolitical sect favoring a literalist reading of the Quran and Sunna, and
whose adherents seek to ‘live like the companions of the prophet’ during the seventh century in Mecca and Medina.”
Christian Joppke & John Torpey, Legal Integration of Islam: A Transatlantic Comparison 27 (Harv. Univ. Press
2013).
religiously certified meals, in conjunction with the no-flesh menu,
currently being served are adequate to meet their religious dietary
requirements.
We advise you that the [BOP] is currently evaluating the feasibility
of providing certified Halal prepackaged meals that meet the
BOP’s specifications. In the interim, you may continue to purchase
in the Commissary. Additionally, you are allowed to purchase
Halal certified entrees through the Special Purpose Order []
procedures . . . .
(Admin. Remedy Resp. (Oct. 22, 2018), ECF No. 19-2 at 129).
Smadi also filed a grievance requesting a new microwave:
[The Communications Management Unit (“CMU”)] is an isolated
special unit where limited access to wide range activities [sic],
including food service kitchen. Most of the time food is served
cold by cart, therefor[e] it’s important to have microwave for this
unit in the hall eating area. Please consider this request to provide
microwaves in food area “chow hall” so we can heat our cold
served food, or just replace microwaves in CMU as they broke.
CMU has a separate budget and must be able to provide
microwaves for our food.
(See Request for Admin. Remedy (Aug. 31, 2018), ECF No. 19-2 at 132). It was denied by the
warden and the regional director in October 2018:
This is in response to your Administrative Remedy . . . wherein
you request microwaves to heat your food that is being served cold
from food carts. In addition, the Administrative Remedy addresses
replacing microwaves as they break and a separate budget for
CMU.
The Trust Fund Branch in Central Office does not provide funding
for microwaves. Program Statement 4500.11, Trust Fund Manual,
Ch 3.3, states “consumable items and medical items sold shall
complement, not supplement, diet and medical care provided to the
inmate population." All food items sold in the commissary can be
prepared via the hot water dispensers provided in the housing units
or the items can be consumed without heating. Therefore, a
microwave is not required to heat items purchased and microwaves
will not be replaced.
In regards to your request that the CMU receives a separate budget,
the institution receives one budget and the amount is distributed
between the different cost centers within the institution. Also, the
Food Service department will examine the dining procedures in
CMU and address any issues with food temperature that does not
meet policy guidelines.
(Admin. Remedy Resp. (Oct. 2, 2018), ECF No. 19-2 at 135; Admin. Remedy Resp. (Oct. 31,
2018), ECF No. 19-2 at 137).
In December 2018, Smadi sued Michaelis and True in this Court alleging that their
“refus[al] to reasonably accommodate [his] need for halal meals, and, to provide [him] with a
separate microwave in which to prepare such meals,” violated rights secured by the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. (Id. at 27). He seeks
“[n]ominal, compensatory, and, punitive damages, as well as appropriate injunctive, and,
declaratory relief for each count . . . .” (Id. at 28).
II. LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Federal Rules of Civil Procedure thus “mandate[] the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
“[T]he burden on the moving party may be discharged by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s case.” Id.
at 322. So “[i]f the defendant in a run-of-the-mill civil case moves for summary judgment . . .
based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, 477 U.S. 242, 252
(1986). Even still, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson, 477 U.S. at 255.
III. LAW & ANALYSIS
The Supreme Court recently clarified that RFRA authorizes suits for money damages
against federal officials, preserving Smadi’s pursuit for monetary relief. That said, he failed to
exhaust his administrative remedies for the microwave issue: The grievances that he submitted
could not put the defendants on notice that he sought a separate microwave to accommodate his
religious beliefs. Even so, Smadi met his burden of showing that his right to dietary
accommodations was clearly established at the time of the challenged conduct, thus defeating the
defendants’ qualified-immunity defense.
A. Smadi May Pursue Monetary Damages Under RFRA.
The Court deferred ruling on the defendants’ Motion until the Supreme Court decided FNU
Tanzin v. Tanvir, — S. Ct. 550 —, 2020 WL 7250100 (2020). There, the Court clarified that
“RFRA provides, as one avenue for relief, a right to seek damages against Government
employees.” Id. at *4. In other words, “RFRA’s express remedies provision permits litigants, when
appropriate, to obtain money damages against federal officials.” Id. at *5. The defendants’
argument that Smadi may not pursue monetary damages under RFRA is therefore moot.
B. Smadi Did Not Exhaust His Administrative Remedies for the Microwave
Claim.
The Prison Litigation Reform Act (“PLRA”) requires “that inmates complaining about
prison conditions exhaust prison grievance remedies before initiating suit.” Jones v. Bock,
549 U.S. 199, 204 (2007) (citing 42 U.S.C. § 1997e(a)). “[T]he benefits of exhaustion . . . include
allowing a prison to address complaints about the program it administers before being subjected
to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a useful record.” Id. at 219. “There is no
question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court.” Id. at 211. Even so, “failure to exhaust is an affirmative defense that the
defendants have the burden of pleading and proving.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.
2004).
“The level of detail necessary in a grievance to comply with the grievance procedure will
vary from system to system and claim to claim, but it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Id. at 218. “When the administrative
rulebook is silent,” however, “a grievance suffices if it alerts the prison to the nature of the wrong
for which redress is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). For federal
prisoners, federal administrative law provides a four-step exhaustion process:
Step 1: The inmate must first attempt to resolve the issue
informally. 28 C.F.R. § 542.13.
Step 2: If the inmate is unable to resolve the issue informally, the
inmate must submit a formal “Administrative Remedy
Request” . . . [to] the warden of the institution where the inmate is
located. 28 C.F.R. § 542.14.
* * *
Step 3: If the inmate is dissatisfied with the Warden’s response to
the Administrative Remedy Request, the inmate may appeal the
Warden’s decision to the appropriate Regional Director. 28 C.F.R.
§ 542.15.
* * *
Step 4: If the inmate is dissatisfied with the Regional Director’s
response to the appeal, the inmate may appeal once more to the
BOP’s General Counsel. 28 C.F.R. § 542.15. . . . An appeal to the
BOP General counsel is the final step in the BOP administrative
review process.
(Nelson Decl. 2, ECF No. 19-2 at 2).
The defendants contend that it is “clear that [Smadi] failed to exhaust his administrative
remedies on the microwave issue.” (Defs.’ Mot. at 15). For support, they rely on a declaration
submitted by Ryan Nelson, a senior BOP attorney “familiar with the BOP administrative remedy
program.” (Nelson Decl. at 1–2). According to Nelson, Smadi’s “administrative remedy
requesting a microwave be placed in the dining area of his unit to heat up cold food . . . does not
mention Hala[l] meals . . . .” (Id. at 4). Nelson also noted that “Smadi submitted a clarified remedy
indicating he wanted microwaves put in the CMU dining area so the inmates could heat food that
was cold.” (Id.). Moreover, Nelson revealed that although “Smadi submitted an appeal of this
remedy to the Regional Director, . . . [n]o further remedy submission . . . [was] received by the
BOP.” (Id. at 4–5). In other words, the defendants contend that Smadi failed to exhaust his
administrative remedies on the microwave issue for two reasons: (1) Smadi requested a microwave
because his food was cold, not because it was required by his religious beliefs, as he argues here;
and (2) Smadi failed to appeal the regional director’s response to the BOP’s general counsel.
In response, Smadi argues that his separate halal-meals grievance implied “the need for a
separate microwave”: “[T]he term ‘halal’, as understood by Smadi, and, based upon the Islamic
jurisprudence of figures like ibn-Qudamah al-Magdisi, encompasses more than the slaughter of
meat, but, also the preparation of the food in general, including its preparation in an
uncontaminated vessel, such as a microwave.” (Pl.’s Resp. at 3). The Court disagrees.
Smadi’s halal-meals grievance did not also suffice to alert the prison of his request for a
new microwave based on religious concerns. The grievance did not refer to Smadi’s definition of
halal or the Salafi interpretation. Instead, Smadi specifically requested halal meat, suggesting the
way it is processed and prepared. True enough, the “[b]urden is on the defendants” to support their
exhaustion defense. (Id. at 4). They did not, however, have to “ask[] Smadi to define the term
halal, or, to clarify the parameters of his request”—he said what he wanted, “Halal meat at
mealtime.” (Id.). That’s a far cry from requesting a microwave.2 What’s more, Smadi’s actual
grievance requesting a new microwave said nothing about his religious beliefs—the old
microwave broke, so he wanted a new one to “heat [his] cold served food.” Again, Smadi failed
to put the defendants on notice that he was requesting a microwave to satisfy a sincerely held
religious belief. At any rate, that grievance is not properly before the Court because Smadi did not
appeal the regional director’s decision to the general counsel. In short, Smadi failed to exhaust his
administrative remedies for his purported request for a separate microwave to accommodate his
religious beliefs. Even so, the Court will proceed with Smadi’s exhausted halal-meals claim and
not “dismiss the entire action” just because the microwave claim “is not properly exhausted.”
Jones, 549 U.S. at 220.
C. The Defendants Are Not Entitled to Qualified Immunity on the Halal-Meals
Claim.
“As recognized at common law, public officers require . . . protection to shield them from
undue interference with their duties and from potentially disabling threats of liability.” Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982). Because of this qualified immunity, government officials
are shielded “from money damages unless a plaintiff pleads facts showing (1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.”3 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow,
457 U.S. at 818).
2 Smadi also suggests that a court order from the District of Colorado in a different case put the defendants
here on notice that Smadi was seeking “a religious services microwave.” (Pl.’s Resp. at 4). That case, however, is
too far removed to have placed the defendants on notice of Smadi’s desire for a new microwave; and it is not
binding precedent establishing a clearly established right.
3 Citing Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (“Rasul II”), the defendants assume that
“[t]he defense of qualified immunity applies not only to constitutional claims, but also to claims brought for alleged
violations of RFRA.” (Defs.’ Mot. at 11).
The plaintiff bears the burden of proving that the rights were clearly established. Kemp v.
Liebel, 877 F.3d 346, 351 (7th Cir. 2017). He need not refer to “a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft, 563 U.S. at 741. In the Seventh Circuit, “we look to controlling Supreme Court precedent
and our own circuit decisions on the issue. In the absence of controlling precedent, we broaden our
survey to include all relevant caselaw in order to determine ‘whether there was such a clear trend
in the caselaw that we can say with fair assurance that the recognition of the right by a controlling
precedent was merely a question of time.’ ” Jacobs v. City of Chi., 215 F.3d 758, 767 (7th Cir.
2000) (quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)).
Here, Smadi argues that the defendants’ refusal to provide him with halal meals violated
rights clearly established by RFRA, which prohibits the Government from “substantially
In Rasul v. Myers, 512 F.3d 644, 668 (D.C. Cir. 2008) (“Rasul I”), the D.C. Circuit held that nonresident
alien detainees are not protected “ ‘person[s]’ under RFRA.” There, four nonresident alien detainees at a military
facility in Guantanamo Bay, Cuba sued the former secretary of defense and ten senior U.S. military officials,
“claim[ing] they suffered physical and psychological trauma as a result of their detention at Guantanamo” in
violation of RFRA, among other things. Id. at 651. The court, however, analyzed the Supreme Court’s Fourth and
Fifth Amendment jurisprudence as well as the text of RFRA and concluded that “[b]ecause the plaintiffs are aliens
and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not
fall with [RFRA’s] definition of ‘person.’ ” Id. at 672.
The Hon. Janice Brown wrote a concurrence in which she stated that she “would have no trouble
concluding” that the defendants were also “protected by qualified immunity” because “[t]here was strong reason
for” the defendants to believe that they were not violating a clearly established law. See id. at 676 (Brown,
concurring). That said, she recognized that “[t]here is some uncertain[t]y about whether qualified immunity is
available to federal official sued under RFRA.” Id. at 676 n.5. The plaintiff-detainees simply “assumed that qualified
immunity [was] available and . . . thus waived any argument to the contrary.” Id. (emphasis added).
The D.C. Circuit’s opinion in Rasul I was ultimately vacated by the Supreme Court on other grounds, Rasul
v. Meyers, 129 S. Ct. 763 (Mem.) (2008); but when the case returned, the D.C. Circuit’s analysis of the RFRA claim
remained unchanged: Nonresident alien detainees “are not among the protected ‘person[s]’ for whom RFRA created
a private right of action,” Rasul II, 563 F.3d at 528. In a footnote, however, the court added, “In the alternative, for
the reasons stated in Judge Brown’s initial concurring opinion, defendants are entitled to qualified immunity against
plaintiffs’ RFRA claim.” Id. at 528 n.6.
To be sure, the D.C. Circuit concluded that qualified immunity applies to RFRA claims, but it did so in
dicta without significant analysis. See also FNU Tanzin, 2020 WL 7250100, at *5 n.2 (“Both the Government and
respondents agree that government officials are entitled to asserts a qualified immunity defense when sued in their
individual capacities for money damages under RFRA.”). That said, Smadi, like the plaintiffs in Rasul, assumes that
qualified immunity is available. Like the D.C. Circuit, therefore, this Court will refrain from making an unnecessary
constitutional decision and proceed on the assumption that the doctrine of qualified immunity applies to claims
brought under RFRA.
burden[ing] a person’s exercise of religion . . . .” 42 U.S.C. § 4200bb-1(a). “The term ‘religious
exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” Id. § 2000cc-5(7)(A); see id. § 2000bb-2(4).
For support, Smadi points to the Seventh Circuit’s decision in Koger v. Bryan, 523 F.3d
789, 799 (7th Cir. 2007), where the court “held that it was a violation of the First Amendment and
the [Religious Land Use and Institutionalized Persons Act (“RLUIPA”)] for prison officials to
deny an inmate’s request for a non-meat diet on the ground that his religion does not require such
a dietary religion,” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009) (citing Koger, 523 F.3d
at 797–800), abrogated on other grounds, Jones v. Carter, 915 F.3d 1147, 1149–50 (7th Cir.
2019). There, the plaintiff-inmate was a member of the Ordo Templi Orientis (“OTO”) religion,
which “may, from time to time, include dietary restrictions as part of his or her personal regiment
of spiritual discipline.” Koger, 523 F.3d at 794 (internal quotation marks omitted). The inmate—
who would not eat “meat or anything on his meal tray that had touched meat”—requested “a non-
meat diet as part of his religious practices.” Id. at 793. Although the prison offered “vegan and
lacto-ovo vegetarian” meals that “would have satisfied [the inmate’s] request,” officials refused to
give him either unless he complied with a prison “policy requiring [him] to verify his membership
in OTO” with “a ‘letter’ from the religious organization sent directly to him.” Id. at 794–96.
Because the OTO “religion lacks clergy members as traditionally understood,” the Seventh Circuit
concluded that the prison’s “clergy verification requirement was responsible for rendering [the
inmate’s] religious exercise effectively impracticable,” thus “impos[ing] a substantial burden on
[his] religious exercise.” Id. at 799. The court also found that the officials were not entitled to
qualified immunity because the inmate asserted a clearly established “right to religious
accommodation for a religious practice demonstrably associated with, though not compelled by
his religion.” Id. at 802.
The defendants, on the other hand, contend that it was not until February 2019 that the
Seventh Circuit held in Jones v. Carter, 915 F.3d 1147, 1150 (7th Cir. 2019), “that prisoners have
a clearly established statutory right to specifically requested Halal meats . . . .” (Defs.’ Mot. at 12).
Indeed, the Court recognized earlier in this case that a prison’s “refusal to provide [an inmate] with
a halal diet, unless he purchased the halal food items himself[,] places a substantial[] burden on
the exercise of his religion . . . .” (Mem. & Order 4, ECF No. 8 (citing Jones, 915 F.3d at 1150)).
For all that, the Court agrees with Smadi that his right to a halal meal was clearly
established at the time of the challenged conduct. “RFRA was designed to provide very broad
protection for religious liberty.” Burwell v. Hobby Lobby, 573 U.S. 682, 706 (2014). Although
Koger is not directly on point, the Seventh Circuit still recognized the right to accommodation for
an inmate’s idiosyncratic dietary restrictions associated with his religion. See Koger, 523 F.3d
at 802–803. The same was true in Jones, where the inmate had to purchase halal meat from the
prison commissary to supplement his diet because his interpretation of Islam required regular meat
intake—as here, the vegetarian kosher alternative wouldn’t do. Jones, 915 F.3d at 1148. There too,
the Seventh Circuit noted that “[w]hen the state forces a prisoner to choose between adequate
nutrition and religious practice, it is imposing a substantial burden on his religious practice . . . .”
Id. at 1150. The court also noted that two 2016 Supreme Court decisions “articulated a standard
much easier to satisfy” than the effectively impracticable standard used in Koger: “After these
recent cases, there can be no doubt that when the state forces a prisoner to give away his last
dime so that his daily meals will not violate his religious practices, it is imposing a substantial
burden.” Id. at 1150 (emphasis added). Yet the Seventh Circuit noted that even before those cases,
“other circuits found that asking prisoners to pay daily for religious complaint diets was a
substantial burden . . . .” Id. (collecting cases). Moreover, given that Jones came down less than a
year after the challenged conduct here, the Court can say “with fair assurance that the recognition
of the right by a controlling precedent was merely a question of time.’ ” Jacobs, 215 F.3d at 767.
In other words, the defendants are not entitled to qualified immunity.4
IV. CONCLUSION
The Court GRANTS IN PART and DENIES IN PART Defendants Joshua Michaelis and
William True, III’s Motion to Dismiss and Alternatively Motion for Partial Summary Judgment.
IT IS SO ORDERED.
Dated: Monday, December 21, 2020
S/J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE
4 This conclusion, of course, does not end the case: The defendants may still show that the burden placed on
Smadi’s exercise of religion was (1) to further a compelling governmental interest and (2) the least restrictive means
of furthering that interest. 42 U.S.C. § 2000bb-1(b).