Sharp v. Liebel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES M. SHARP, )

)

Plaintiff, )

) CAUSE NO. 3:20-CV-327-JD-MGG

v. )

)

)

DAVID LIEBEL, )

)

Defendant. )

OPINION AND ORDER

James M. Sharp, a prisoner without a lawyer, brought this lawsuit alleging that

David Liebel, the Director of Religious Services for the Indiana Department of

Correction (IDOC), violated Sharp’s constitutional and statutory rights by denying him

a kosher diet consistent with his Islamic faith. Sharp was granted leave to proceed on

two claims: (1) an official capacity claim for injunctive relief under the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a); and (2) an

individual capacity claim for compensatory and punitive damages under the Free

Exercise Clause of the First Amendment. ECF 7 at 4-5. Currently before the Court are

the parties’ cross-motions for summary judgment. Sharp filed his motion for summary

judgment and a memorandum of law in support on February 2, 2021, as well as a

second memorandum of law in support on April 13, 2021. See ECF 37, 37-2, 47. Director

Liebel filed a cross-motion for summary judgment, and combined memorandum of law

in support and response in opposition to Sharp’s summary judgment motion, on May

17, 2021. See ECF 60, 61. Sharp filed a response to Director Liebel’s motion for summary

judgment on June 30, 2021. See ECF 68. Director Liebel filed a reply brief on July 14,

2021, while Sharp filed a reply brief on August 12, 2021. See ECF 69, 72.

MOTION TO STRIKE

The Court first must address Director Liebel’s motion to strike Sharp’s August 12,

2021 reply brief. See ECF 73. Director Liebel argues that Sharp’s reply brief is an improper

surreply by characterizing Sharp’s June 30, 2021 response to Director Liebel’s cross-

motion for summary judgment as a combined response and reply. Id. ¶ 3. In fact,

however, Sharp’s June 30, 2021 response brief was titled and filed only as a response brief.

See ECF 68. While Director Liebel refers to the “typical four-brief schedule for [ ] original

motion[s] and cross-motion[s],” id. ¶ 5, he cites no local rule or scheduling order

provision requiring Sharp to file a combined response/reply. The two cross-motions are

mirror images raising overlapping legal arguments. But the absence of an explicit

direction in any rule or court order requiring Sharp to file a combined response/reply

brief leads to the conclusion that Sharp had the right to file a separate reply brief in

support of his motion for summary judgment.

Nevertheless, Sharp’s reply brief is untimely, having been filed more than two

months after the initial deadline had passed,1 and three weeks after the extended

1 The unextended deadline for Sharp to file a reply brief was June 1, 2021. See N.D. Ind. L.R. 56-

1(c)(1) (summary judgment reply briefs due 14 days after response filed); ECF 60 (defendant’s

combined summary judgment motion/response filed May 17, 2021); Fed. R. Civ. P. 6(a)(1)(C)

(extending deadline that falls on a national holiday by one day).

deadline set forth in the Court’s June 17, 2021 order.2 Certain factors, however, weigh in

favor of considering Sharp’s belated reply brief. To begin with, Sharp’s reply is the only

summary judgment filing to raise a potentially valid factual question concerning one of

the issues on summary judgment by pointing out that Sharp’s parole was recently

revoked. See ECF 72 at 2.3 While the Court was aware of these developments already,4

there is still another reason for considering Sharp’s belated reply. The arguments made

by Director Liebel in his reply brief, while not new, are sufficiently distinct from his

arguments in his opening brief that the Court would benefit from consideration of

Sharp’s late-filed reply brief with its more sharply focused response to the arguments

made in Director Liebel’s reply. For instance, Director Liebel makes no mention in his

reply brief of the substantial burden argument he focused on in his opening brief, which

was also the focus of Sharp’s response to that brief. In addition, Director Liebel’s reply

brief expands on his argument regarding the issue of lack of sincerity. He previously only

raised a qualified immunity argument on that issue. Although his reply brief does not

2 The Court’s June 17, 2021 order granted Sharp an extension until July 23, 2021 to file a

response to Director Liebel’s motion for summary judgment. ECF 67. But the order does not

mention any simultaneously filed or combined filing of a reply brief in support of Sharp’s own

motion for summary judgment.

3 As will be discussed later in this opinion, Sharp’s parole revocation and current incarceration

with the IDOC goes to the validity of Director Liebel’s mootness argument regarding Sharp’s

RLUIPA claim.

4 Sharp filed a motion on June 14, 2021 asking for a stay of proceedings (ECF 65), which alerted

the Court to his incarceration at the Vanderburgh County Detention Center pending a hearing

to revoke his bail. The Court learned about Sharp’s subsequent return to IDOC custody from

the notice Sharp filed on July 21, 2021 updating his current address. See ECF 70.

ask outright for a merits ruling in his favor based on lack of sincerity (which would be a

new argument improperly raised for the first time in a reply), it does suggest that the

Court reach that result.5 As a result of these considerations and in the interests of justice

the Court will exercise its discretion to consider Sharp’s belated reply brief.

BACKGROUND

The facts material to the parties’ cross-motions for summary judgment are

undisputed unless otherwise noted. Sharp served time in IDOC custody under a prior

conviction, which he completed in January 2009. When Sharp left IDOC custody in

January 2009, his religious preference on record with the IDOC was Muslim. See ECF 71,

Liebel Declaration ¶ 12.6 After returning to IDOC custody in January 2018, Sharp

changed his religious preference from Muslim to General Christian. Id. ¶ 13. He

subsequently changed his religious preference to Muslim on March 20, 2018, to General

Christian on October 19, 2018, and to Muslim on April 3, 2019. Id. ¶¶ 14-15.7

5 See ECF 69 at 2 (“In light of Plaintiff’s complete apathy toward the religious dictates that he

professes to be bound by, it simply cannot be said that he sincerely believes his religion

mandates a kosher diet.”).

6 Director Liebel filed his declaration in support of his motion for summary judgment with page

three (out of five) missing. See ECF 60-1. He later filed the declaration again, but this time it is

missing page four. See ECF 71. Between the two filings, the record contains a complete version

of the declaration so there is no need for it to be filed a third time.

7 These changes are purportedly reflected in the computer printout of Sharp’s Religious

Preference History attached to Director Liebel’s declaration. See ECF 60-2. Sharp has not

disputed the declaration’s factual representations about his designated religious history and

therefore they are taken as true for purposes of the present summary judgment motions.

The Indiana Department of Correction (IDOC) offers three meal options to

offenders whose sincere religious beliefs require special diets: vegan (no animal

products), lacto-ovo vegetarian (may contain eggs and/or dairy products), and

traditional kosher (one that has been certified as such by rabbinic or other recognized

Jewish authority and that complies with traditional Jewish requirements concerning

food preparation and foods that are allowed to be eaten). Id. ¶¶ 8, 10. On or about

February 21, 2019, Sharp submitted a State Form 56144, Application for Religious Diet –

Kosher, in which he requested that he be provided with a kosher diet in accordance

with his religious beliefs. ECF 60-3. While Sharp’s official religious designation at that

time was “General Christian,” he stated that he intended to change that designation to

Muslim “when policy allows me to in April,” and that he had “been practicing for quite

a while, at least a few months.” Id. at 2. In the space provided for specifying the foods

and/or preparation methods he believed were required or prohibited to satisfy his

sincere religious beliefs and why, Sharp wrote:

The Quran speaks thoroughly about foods prohibited for

Muslims to eat. Surah 5. The Spread Table states in Verse 3

that forbidden to us is Carrion, blood, and swine, what is

slaughtered in the name of any other God, but Allah. What

is killed by any other means except by what Allah has

approved. This Committee cannot prove that the food

served in DOC was killed or has been used according to this,

or by any other means.

Id.

State Form 56144 includes a notice to applicants that “[t]he IDOC may review

your commissary, Fresh Favorite and other purchases for the sixty (60) day period prior

to the date you submit your application,” and “may draw an adverse inference

concerning the sincerity of your religious beliefs if you have purchased a significant

amount of commissary items that are not designated as kosher on the commissary

lists.” Id. at 1. On or about March 11, 2019, Director Liebel denied Sharp’s Application

for Religious Diet with the following explanation: “You failed to provide information

showing how your religious practice requires a kosher diet. Also, purchase of non-

kosher commissary, including purchase of cheese nibbles on 2/28/2019.” ECF 37-1 at

11; see also ECF 60-4.

Sharp submitted a grievance contesting the denial of his religious diet

application in which he explained that he applied for a kosher diet because he was a

Muslim and that “kosher” to him meant “purity in the eyes of God.” ECF 37-1 at 6.

Sharp pointed out that, although the cheese nibbles he purchased from the commissary

were not marked “K” for kosher, Director Liebel ignored other commissary items he

had purchased that were kosher. Id. at 5. He explained that he was attempting to buy

mostly kosher items but his kosher choices at the commissary were “limited” and did

not include a cheese nibbles option. Id. He argued that cheese was not against the

kosher diet, and that, even though the cheese nibbles were not “blessed by a Jewish

priest” as being kosher, that did not automatically mean they were processed in a

manner that violated his Islamic faith. Id. at 5-6. Sharp’s grievance and grievance appeal

were denied on March 16, 2019 and April 22, 2019 respectively for the reasons

previously given by Director Liebel. ECF 37-1 at 9.

Sharp did not give up. On November 16, 2019, he submitted a State Form 56094,

Application for Religious Diet, for applicants seeking either a lacto ovo vegetarian or

vegan diet with the option for selecting “other religious diet.” ECF 60-5 at 1-2. Sharp

indicated on this application that his designated religion was Islam/Muslim, and wrote

that he sought a religious diet that was other than a lacto ovo vegetarian or vegan,

providing the following explanation:

I am Muslim and there is no diet for me throughout the

Department of Corrections for me being Muslim. There is no

Halal diet in the Department of Correction that contains

Halal meat. So I am asking to be placed on a kosher diet that

contains meat until the Department of Corrections comes up

with a Halal diet that contains meat. I am not vegan or

vegetarian. Also per Roman Jones v. Indiana Department of

Corrections No. 17-2836 Seventh Circuit Court of Appeals

decided February 15, 2019, I am entitled to this diet.

Id. at 2. Shortly thereafter, on December 28, 2019, Sharp submitted a second State Form

56144, Application for Religious Diet - Kosher, in which he wrote a similar explanation

for why he was seeking a kosher diet. See id. at 3-4.

On February 25, 2020, Director Liebel denied Sharp’s renewed requests for a

religious diet with the following explanation: “Purchase of non-kosher commissary

including ramen, Velveeta cheese, and sausage on 2/2/2020, and bagel, sausage, and

cheese cup on 2/16/2020.” ECF 60-6 at 1.8

8 Director Liebel has submitted what appears to be a computer screenshot indicating that

Sharp’s application(s) was/were denied on February 25, 2020. Sharp, on the other hand,

submits a letter from Director Liebel denying his applications, but the letter, for some reason, is

dated September 22, 2020. See ECF 37-1 at 3. The date discrepancy does not appear to matter

here.

On March 16, 2020, Sharp submitted a second grievance regarding the denial of

his request for a kosher diet, in which he argued that (1) he applied for a kosher diet

based on his Islamic beliefs; (2) while a kosher meal would satisfy his Islamic religious

practices, his commissary purchases should be judged according to his Islamic beliefs,

not Jewish beliefs regarding kosher foods; and (3) it was improper to deny his request

for a kosher diet based on the fact that he ordered non-kosher items such as “meat,

cheese, breads, etc.” because those items are allowed on a halal diet. ECF 37-1 at 1.

Sharp’s second grievance was denied on March 19, 2020 with the following explanation:

Offenders who apply for a kosher diet need to follow the

[kosher] guidelines set forth in policy. This includes what is

ordered from commissary. While your religious practices

may determine you can eat items not allowed on kosher,

offenders will need to follow the kosher guidelines.

ECF 37-1 at 4.

Following the denial of his second grievance, on April 21, 2020, Sharp filed the

present lawsuit.

STANDARD OF REVIEW

Summary judgment must be granted when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Federal

Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the

evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine

issue of material fact exists, the court must construe all facts in the light most favorable

to the non-moving party and draw all reasonable inferences in that party’s favor. Heft v.

Moore, 351 F.3d 278, 282 (7th Cir. 2003). Summary judgment is not appropriate if the

court must choose between competing inferences or weigh the credibility of witnesses,

since these are functions of a jury. Abdullahi v. City of Madison, 423 F.3d 763, 770 (7th Cir.

2005); Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 627 (7th Cir. 2006). However,

summary judgment “is the put up or shut up moment in a lawsuit.” Springer v.

Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). This means that a party opposing a properly

supported summary judgment motion may not rely merely on allegations or denials in

his own pleading, but rather must “marshal and present the court with the evidence

[he] contends will prove [his] case.” Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654

(7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice,”

Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009), and a nonmoving

party’s pro se status does not alleviate this burden, Arnett v. Webster, 658 F.3d 742, 760

(7th Cir. 2011).

DISCUSSION

A claim under either the RLUIPA or the First Amendment begins with proof of a

sincere religious belief. See United States v. Seeger, 380 U.S. 163, 185 (1965) (stating that

sincerity of belief is a “threshold question . . . which must be resolved in every case”).

Once the plaintiff meets his threshold burden of showing a sincere religious belief, he

must demonstrate that the state placed a substantial burden on his religious practices.

See Jones v. Carter, 915 F.3d 1147 (7th Cir. 2019) (RLUIPA claim); Neely-Bey Tarik-El v.

Conley, 912 F.3d 989, 1003 (7th Cir. 2019) (Free Exercise claim); see also Koger v. Bryan, 523

F.3d 789, 802 (7th Cir. 2008) (finding that the defendants were not entitled to qualified

immunity for RLUIPA claim because “the prohibition against substantially burdening

sincerely held religious beliefs [had already been] well-established in Free Exercise

Clause cases”). If the plaintiff demonstrates a substantial burden, the state actor can

avoid liability under the RLUIPA by showing that the challenged restriction “(1) is in

furtherance of a compelling governmental interest; and (2) is the least restrictive means

of furthering that compelling governmental interest.” Jones, 915 F.3d at 1148–49

(quoting 42 U.S.C. § 2000cc-1). Under the Free Exercise Clause of the First Amendment,

the state actor must show that the restriction at issue is “reasonably related to legitimate

penological objectives, which include safety, security, and economic concerns.” Turner

v. Safley, 482 U.S. 78, 89-91 (1987).

The parties make no arguments about the balancing test for either Sharp’s

RLUIPA claim or Free Exercise claim. Instead, the parties’ summary judgment motions

focus on the requirement of a sincere religious belief and the substantial burden test.

Before discussing those issues, however, the Court first addresses Director Liebel’s

mootness argument concerning Sharp’s RLUIPA claim.

A. Mootness Argument as to RLUIPA claim

Director Liebel argues that Sharp’s claim for injunctive relief under the RLUIPA

is moot because Sharp was released from IDOC custody on April 26, 2021. See ECF 61 at

2, 6-7; ECF 69 at 1; ECF 71 ¶ 26. “The correct standard for mootness” is that “no

reasonable expectation exists that the alleged wrong will be repeated.” Lucini Italia Co.

v. Grappolini, 288 F.3d 1035, 1038 (7th Cir. 2002). The record reflects that, although Sharp

was released on parole on April 26, 2021, ECF 49, he was in the custody of the

Vanderburgh County Sheriff as of June 14, 2021 in anticipation of a parole revocation

hearing, ECF 65, 66. He was back in IDOC custody by at least July 21, 2021. See ECF 70.

From the fact that he has not withdrawn his mootness argument, the Court

assumes Director Liebel’s view is that Sharp’s return to IDOC custody has no relevance

to the validity of his mootness argument. But since Director Liebel is silent on the

matter, the Court does not know the legal reasoning behind that apparent position. See

Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 849 (7th Cir. 2015) (holding that

undeveloped factual and legal arguments are waived). The Court finds that, while

intervening circumstances, i.e., Sharp’s parole, suggested that his RLUIPA claim would

become moot, those circumstances did not come to fruition as his parole was revoked

and he was returned to IDOC custody. Moreover, Director Liebel has responsibility for

deciding the requests for a special prison diet by all inmates within the prison system.

Accordingly, Sharp’s RLUIPA claim is not rendered moot by the fact that he is not

currently incarcerated at the same correctional facility where he was incarcerated when

he filed this lawsuit.9 For these reasons, the Court concludes that Sharp’s RLUIPA claim

is not moot.

B. Threshold Requirement of a Sincere Religious Belief

It is well established that prison officials may examine the sincerity of a

prisoner’s religious belief before providing him a religious diet. See Cutter v. Wilkinson,

9 See Andreola v. Wisconsin, 171 F. App’x 514, 515 (7th Cir. 2006) (holding that a prisoner’s claim

for injunctive relief after he was allegedly denied “ultra Orthodox” kosher food when housed at

another prison was “not moot because [the senior personnel in the State of Wisconsin’s

Department of Corrections] can control his diet throughout the state’s prison system”).

544 U.S. 709, 725 n.13 (2005) (“prison officials may appropriately question whether a

prisoner’s religiosity, asserted as the basis for a requested accommodation, is

authentic”). As the Seventh Circuit explained, “[a] prison is entitled to ensure that a

given claim reflects a sincere religious belief, rather than . . . a prisoner’s desire to make

a pest of himself and cause trouble for his captors.” Vinning-El v. Evans, 657 F.3d 591,

594 (7th Cir. 2011).

Sharp asserts that he adheres to the same Islamic beliefs as the plaintiff in the

Jones case. The Jones plaintiff’s Islamic beliefs “forbid the consumption of certain foods

and require that others be prepared in accordance with Islamic law—that is, his food

must be halal.” 915 F.3d at 1148. Director Liebel explains in more detail that the Holy

Text of Islam -- the Qur’an -- dictates that Muslims can eat only certain foods. The food

items that are permitted by the Qur’an are referred to as halal, which means lawful or

permissible. Foods which are not considered halal are deemed haram, or forbidden.

Certain foods, such as pork and alcohol, are always haram, while others, such as meat

from cows, veal, lamb, sheep, goats, chickens, and ducks are deemed halal only if they

are slaughtered in the manner proscribed by the Qur’an. ECF 71 ¶¶ 4-6. “Since there is

an overlap in halal and Jewish kosher requirements,” the Jones plaintiff agreed that the

IDOC’s kosher diet available to those of the Jewish faith would be an acceptable

alternative to a purely halal diet so long as it included either kosher or halal meat. Jones,

915 F.3d at 1148. Sharp takes the same position here.

Director Liebel argues that Sharp’s religious beliefs are insincere based on his

commissary purchase history, which reflects numerous food items that, according to

Director Liebel, are not halal. ECF 60-1 ¶¶ 20-23. 10 “Evidence of nonobservance is

relevant on the question of sincerity, and is especially important in the prison setting,

for an inmate may adopt a religion merely to harass the prison staff with demands to

accommodate his new faith.” Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988). Sharp’s

commissary purchase history reveals that, from April 3, 2019 (the date when Sharp

changed his religious preference from General Christian back to Muslim) until

November 29, 2020 (eight months after he filed this lawsuit), Sharp placed thirty-one

food orders from commissary. See ECF 60-7 at 7-38. Of those orders, twenty-eight

included foods items that Director Liebel identifies as being non-halal. Those orders

included 1,074 individual food items of which 652 are identified by Director Liebel as

being non-halal. More than 60 percent of the food Sharp bought from commissary in

this time period is identified by Director Liebel as being non-halal. Most of those

purchases were Ramen Noodles. Director Liebel contends that the seasoning packet

contained in both standard and flavored varieties of Ramen Noodles are made from

10 Director Liebel also cites as evidence of Sharp’s lack of sincerity a July 23, 2020 email sent by

Sharp to a family member requesting money so that he could purchase “fresh favorite” items

from the commissary such as hamburgers, hot dogs, and chicken sandwiches. See ECF 60-8. The

Court does not place much weight on the email, however, because it refers to generic food items

such as “hamburgers, hot dogs, and chicken sandwiches” that would be allowed by Sharp’s

religious beliefs if none contain pork and are prepared properly. Director Liebel contends in his

declaration that the mentioned items contain meat that has not been slaughtered according to

Islamic or Jewish law. ECF 60-1 ¶ 24. But the email mentions only generic categories of foods,

not specific items from the commissary. Even assuming that all commissary food items that

could possibly fall into the generic categories mentioned in the email contained non-halal

compliant meat, there is no evidence that Sharp knew that was the case when he wrote about

those generic food categories. Thus, it makes sense to focus on the food items Sharp actually

purchased from the commissary rather than to speculate about future hypothetical purchases

his email suggested he might make.

animal extracts which are not certified as halal. Sharp also purchased Hot N Spicy Beef

Sausage, which Director Liebel states is not made with beef or other animal products

that have been slaughtered in accordance with Islamic and/or Jewish law. And Sharp

purchased Velveeta Sharp Cheddar Squeeze, which Director Liebel states contains

rennet, an ingredient that comes from animals that have not been slaughtered in

accordance with Islamic and/or Jewish law. Ramen Noodles, meat products, and

cheese products certified as halal are available for sale through the commissary, but

Sharp did not purchase those products. See generally ECF 60-1 at ¶¶ 21-23.

Sharp argues that Director Liebel “has no right to judge” his religious sincerity

from his conduct, i.e., “spending habits,” because Director Liebel “doesn’t know the

[his] heart[,] only Allah does.” ECF 72 at 4. That argument is incorrect, as “courts have

consistently held that prison officials can evaluate evidence of food purchases that are

inconsistent with a professed religious belief” and may use that information to assist in

evaluating the sincerity of an inmate’s religious beliefs before providing an inmate with

a religious diet. Smith v. Tamayo, No. 19-00537 BLF (PR), 2020 WL 4584229, at *14 (N.D.

Cal. Aug. 10, 2020) (citing Curry v. California Dep't of Corr., 2013 WL 75769, at *7 (N.D.

Cal. June 4, 2013) (evidence of plaintiff’s snack food consumption could be considered

to evaluate the sincerity of his religious beliefs), aff’d sub nom. Curry v. California Dep’t of

Corr. & Rehab., 616 F. App’x 265 (9th Cir. 2015) (affirming grant of summary judgment

on plaintiff's RLUIPA and free exercise claim); Lute v. Jonson, 2012 WL 913749, *7 (D.

Idaho 2012) (finding that the plaintiff’s “[p]urchasing [of] nonkosher foods—both before

and after his kosher diet request—[was] completely inconsistent with [his] professed

religious belief”)).

Sharp also argues he was justified in purchasing the food items in question

because items marked as halal or kosher are too expensive for him to purchase. He cites

to the Jones holding that “when the state forces a prisoner to give away his last dime” by

requiring him to purchase his own halal meat at the commissary, “it is imposing a

substantial burden” on that inmate’s religious practices. 915 F.3d at 1150. This

argument, however, “puts the cart before the horse,” Daly v. Davis, No. 08-2046, 2009

WL 773880, at *2 (7th Cir. Mar. 25, 2009): the IDOC may not substantially burden

Sharp’s religious beliefs only if those beliefs are sincere. Jones does not support Sharp on

the question of sincerity because there, unlike here, the IDOC conceded that the

plaintiff’s religious beliefs were sincere. See Jones, 915 F.3d at 1149. Sharp takes the

language in Jones about forcing a prisoner to spend his last dime at the commissary out

of context. In Jones, the IDOC was requiring the plaintiff to purchase commissary food

items to satisfy his sincerely held religious beliefs. Here, Director Liebel is not saying

that Sharp must purchase anything; only that if he does, he must purchase food items

consistent with his religious beliefs.

Sharp’s last argument is his strongest. He argues that even if some of his

commissary purchases were non-halal, they do not prove that his religious beliefs are

insincere, but rather show “he is continuously trying to meet the requirement to the best

of his ability.” ECF 72 at 3. The Seventh Circuit has “repeat[edly] [ ] warn[ed] . . . that a

sincere religious believer doesn’t forfeit his religious rights merely because he is not

scrupulous in his observance; for where would religion be without its backsliders,

penitents, and prodigal sons.” Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012). Thus,

Sharp’s failure to adhere perfectly to his sincere religious beliefs may be “evidence of

insincerity,” but is not “conclusive evidence of insincerity” such that the factual issue of

lack of sincerity can be resolved in Director Liebel’s favor as a matter of law. See Reed,

842 F.2d at 963 (explaining that “the fact that a person does not adhere steadfastly to

every tenet of his faith does not mark him as insincere,” and observing that “[i]t would

be bizarre for prisons to undertake in effect to promote strict orthodoxy, by forfeiting

the religious rights of any inmate observed backsliding, thus placing guards and fellow

inmates in the role of religious police”).

Sharp’s assertion that he was trying to adhere to the strictures of his faith is not

wholly without record support. First, there is his testimony to that effect. Second, his

commissary history report shows that, between February 21, 2019 and May 2, 2019, he

purchased seventy-four food items that all appear to be halal compliant (at least none

are identified by Director Liebel as being otherwise). Nineteen of those seventy-four

food items are marked with a “K,” a designation that appears to support Sharp’s

assertion in his objections to his grievance denial that he was trying to purchase kosher

food items. ECF 60-7 at 1-6. Sharp may argue he was attempting to comply with the

dietary restrictions but for various reasons (which he explains in his grievances and

summary judgment filings) was less than perfect at it. It would then be up to the

factfinder to decide whether Sharp’s commissary purchase history “suggest[ed] that his

intent to adhere to Islamic law or a halal diet is somehow insincere,” or whether it

instead “demonstrate[s] carelessness at best, and spiritual weakness at worst.” Caruso v.

Zenon, No. 95-MK-1578 (BNB), 2005 WL 5957978, at *11 (D. Colo. July 25, 2005)

(rejecting insincerity defense even though it was undisputed that the plaintiff had

“purchased haram foods from the canteen on some 30 occasions over a three-year

period”).

Furthermore, while the record does not support Sharp’s contention that the less

expensive non-halal food items he purchased from the commissary are not “a direct

violation of his religious preferences,” ECF 72 at 3,11 if he truly yet mistakenly believed

that to be the case then that too may be taken into consideration by the factfinder in

assessing the sincerity of his beliefs. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)

(“It is not within the judicial ken to question the centrality of particular beliefs or

practices to a faith, or the validity of particular litigants’ interpretations of those creeds”)

(emphasis added); see also Colvin v. Caruso, 605 F.3d 282, 298 (6th Cir. 2010) (“the

touchstone for determining whether a religious belief is entitled to free-exercise

protection is an assessment of ‘whether the beliefs professed ... are sincerely held,’ not

whether ‘the belief is accurate or logical’” (quoting Jackson v. Mann, 196 F.3d 316, 320 (2d

Cir. 1999) (citations and internal quotation marks omitted).

11 Sharp claims that even though the IDOC does not consider his commissary purchases to be

halal, that does not mean they are not. ECF 72 at 3. His conclusory assertion that the food items

in question complied with Islamic law, without further explanation, is insufficient to raise a

factual dispute concerning Director Liebel’s declaration testimony that the identified food items

do not comply with the tenants of Islam.

Additionally, Sharp refers albeit somewhat vaguely to a possible change in IDOC

policy effective August 6, 2021 regarding commissary items that previously were not

considered kosher/halal by the IDOC but going forward would be. ECF 72 at 5. He

asserts that this policy change means that he “has been following the kosher/halal diet

requirements since the very beginning.” Id. Although he has not presented evidence to

support this latter statement, the record does suggest some sort of policy change did

take place regarding the IDOC’s consideration of whether certain cheese products were

kosher.12 The fact that the IDOC may change its designation for a food item as either

being kosher or non-kosher suggests there is room for debate on that question. And if

that is the case, then it is difficult to see why Director Liebel’s identification of food

items as being non-halal would be definitive proof of Sharp’s lack of sincerity without

consideration of Sharp’s testimony about his genuine belief that some or all of the items

he purchased from the commissary identified by Director Liebel as being non-halal

were permissible under his sincerely held religious beliefs. For all of these reasons,

Sharp’s sincerity is a disputed factual one, see Seeger, 380 U.S. at 185, on which summary

judgment in either party’s favor would not be appropriate. See, e.g., Zapata v Ducart, No.

17-cv-255 2019 WL 2476685, at * (N.D. Cal. June 13, 2019) (citing cases where “courts

12 Director Liebel’s denial of Sharp’s first application for a religious diet cited to Sharp’s

purchase of “non-kosher” cheese nibbles as a reason for the denial. But Director Liebel’s denial

of Sharp’s later religious diet applications did not mention cheese nibbles as being among

Sharp’s non-kosher commissary purchase. Nor does Director Liebel identify any of Sharp’s

commissary purchases of cheese nibbles on the commissary history report attached to his

declaration as being among the non-halal items Sharp purchased, even though he relied on

those purchases in his initial decision denying Sharp’s request for a religious diet.

have determined that the sincerity of a prisoner’s religious belief is a question of fact for

the jury and that it is inappropriate for a court to grant summary judgment on a First

Amendment or RLUIPA claim based on a plaintiff’s alleged lack of sincerity.13

C. Substantial Burden Test

Sharp argues he is entitled to summary judgment on his RLUIPA and First

Amendment Free Exercise claims because Jones established that when the IDOC refuses

to provide an inmate holding sincere Islamic beliefs with a kosher diet that includes

halal meat, it has placed a substantial burden on that inmate’s religious practices. Jones,

915 F.3d at 1150. Director Liebel, on the other hand, argues that he is entitled to

summary judgment because the undisputed fact that Sharp “continued to eat non-

kosher and non-halal food off of commissary both before and after his application for a

kosher diet were denied” proves that the denial of a kosher diet did not impose a

substantial burden on his religious practices. ECF 61 at 8.

13 See also Monson v. Steward, No. 2:15-CV-00513-PK, 2017 WL 2882709, at *9–10 (D. Or. July 6,

2017) (same); Curry v. Cal. Dep’t of Corr., No. C-09-3408 EMC PR, 2013 WL 75769, at *7 (N.D. Cal.

Jan. 4, 2013) (“Although Curry’s purchases of many foods inconsistent with the Kemetic diet

likely would make a strong impact on a jury, it cannot be said as a matter of law that his canteen

activities show that his religious beliefs were insincere.”), aff’d, 616 F. App’x 265 (9th Cir. 2015);

Johnson v. Nev. Bd. of Prison Comm’rs, 2013 WL 5428423, at *2-3 (D. Nev. Sept. 26, 2013) (although

defendants produced evidence that plaintiff’s beliefs were not sincerely held, the question

“must ultimately be resolved by the trier of fact”); White, 2013 WL 4496364, at *5 (“‘backsliding’

or non-observance of a religious practice is not sufficient to establish as a matter of law that

[plaintiff] is insincere in his religious beliefs”); Monts v. Arpaio, 2012 WL 160246, at *3 (D. Ariz.

Jan. 19, 2012) (although plaintiff presented a “weak” case for the sincerity of his religious belief,

it still presented a question of fact); Bonnell v. Burnett, No. 07-CV-15444, 2009 WL 909575, at *3

(E.D. Mich. Mar. 31, 2009) (same).

If Sharp establishes that his need for a kosher diet is a sincerely held religious

belief, denial of the diet is a substantial burden to his religious practices. Jones, 915 F.3d

at 1148-50. Director Liebel’s attempt to counter that presumption with an argument

regarding Sharp’s non-kosher commissary purchases is without merit. Consistent with

Jones, Director Liebel’s evidence of non-kosher commissary purchase is insufficient to

establish the absence of a substantial burden as a matter of law. Director Liebel’s

argument otherwise is simply a recapitulation of his attack on Sharp’s sincerity.

Director Liebel also argues that Sharp’s religious practices were not substantially

burdened because he has “not provide[d] any evidence as to why the vegan diet offered

by IDOC would substantially burden his [First Amendment] rights.” ECF 61 at 8. It is

difficult to understand this argument, however, given that there is no evidence Director

Liebel “offered” Sharp a vegan diet in response to his request for a religious diet. More

importantly, Sharp explained in his State Form 56094, Application for Religious Diet,

that he is not a vegan or vegetarian, and that, as a Muslim, he desired a kosher diet with

halal meat, per the Jones decision. See ECF 60-5 at 1-2. As the Seventh Circuit explained

in Jones, “[w]hile many Jewish and Muslim inmates would find a nutritionally adequate

vegetarian diet that otherwise satisfies kosher standards to be fully compatible with

their beliefs, . . . Jones and the other members of his sect within Islam believe that the

holy Qur’an plainly commands him to ‘eat what is on earth, Lawful and good’—

including meat.” 915 F.3d at 1148. The record shows that Sharp adequately explained

how a vegan diet imposed a substantial burden on his religious practices.

D. Qualified Immunity

Finally, Director Liebel argues that he is entitled to qualified immunity on

Sharp’s damages claims under the First Amendment because he reasonably concluded

that Sharp’s religious beliefs were not sincere. See ECF 61 at 8-10; ECF 69 at 1-2. The

doctrine of qualified immunity protects government officials from liability for civil

damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “The protection of qualified immunity applies

regardless of whether the government official’s error is a mistake of law, a mistake of

fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (internal quotation marks and citation omitted). Thus, if Director

Liebel “thought [Sharp] was insincere -- in other words, thought that he wanted a

[kosher] diet for a non-religious reason—then [Director Liebel] would be entitled to

immunity, even if a judge or jury disagrees with [Director Liebel’s] conclusion, so long

as [his] error was ‘reasonable.’” Vinning-El, 657 F.3d at 594; see also Grayson, 666 F.3d at

455 (“the defendant is entitled to immunity if he committed a reasonable error in failing

to apply clearly established law—that is, if he reasonably thought the plaintiff insincere

in his religious belief”). Although the question of sincerity is factual, the qualified

immunity question of reasonableness is one of law for the court to decide. Vinning-El,

657 F.3d at 595. But where the “qualified immunity decision depends upon and cannot

be separated from” factual disputes, “which are [also] integral to the merits of [the

plaintiff’s] claim,” summary judgment on qualified immunity grounds is inappropriate.

Smith v. Finkley, No. 20-1754, 2021 WL 3660880, at *1 (7th Cir. Aug. 18, 2021).

Director Liebel states in his declaration that he doubted the sincerity of Sharp’s

religious beliefs because of Sharp’s “inability to articulate clearly the reason he required

a kosher diet, as well as his consistent ordering of non-Kosher and non-Halal food

items.” ECF 71 ¶ 25.14 The first reason was not reasonable as it is not supported by the

record. Sharp’s applications clearly articulated that his request for a religious diet was

based on his Islamic faith and that the religious diet he required was the same as the

plaintiff in Jones, i.e., a kosher diet with meat. Insofar as the second reason is concerned,

Director Liebel does not address the Seventh Circuit’s emphatic support in Reed and

Grayson of the principle that less-than-perfect compliance with the tenants of one’s

religious faith does not render that faith insincere. Nor does he indicate that he ever

went beyond looking at Sharp’s commissary purchases to consider Sharp’s explanations

for them in assessing whether Sharp’s less-than-perfect compliance with the tenants of

his professed religious faith exemplified by those purchases was proof of insincerity or

merely proof of carelessness or spiritual weakness. As the Seventh Circuit has

explained, the qualified immunity inquiry requires the judge to determine whether the

defendant “reasonably attempted to determine whether [the inmate] has a sincere belief

that his religion requires a [religious] diet”; “put slightly differently, the judge needs to

know whether [the defendant] used the tenets of [the inmate’s asserted religion] to

disqualify [him], or only as a reason to suspect that [he] may have been seeking a

14 Director Liebel refers in his summary judgment fact statement to Sharp’s multiple changes to

his official religious designation. But the Court notes he does not purport to have relied on

those changes in reaching his conclusion that Sharp’s religious beliefs were not sincere.

[religious] diet for personal rather than religious reasons.” Vinning-El, 657 F.3d at 595.

Director Liebel has not convinced the Court that, as a factual matter, he did anything

other than use the tenets of Islam to disqualify Sharp. Nor has he presented legal

argument sufficient to convince the Court that the law is unsettled regarding whether it

was reasonable for him to evaluate an inmate’s sincerity solely by reference to the

inmate’s commissary purchases judged against the tenets of the inmate’s professed

faith—essentially applying a litmus test for sincerity using those tenets.

In addition to the inadequacy of the briefing on the issue, the Court also

considers the fact that “qualified immunity protects the defendants only against claims

for damages; it does not protect the defendants against claims for injunctive relief.”

Neely-Bey Tarik-El, 912 F.3d at 1008. Thus, it makes sense to defer a ruling on qualified

immunity at this time given that, even if Sharp’s damages claim under the First

Amendment were to be dismissed on summary judgment, his injunctive relief claim

under the RLUIPA would remain. Because the case will continue against Director Liebel

in his official capacity in any event, “at least it is better to wait and allow a more

complete record to be compiled before attempting to decide whether the defendants can

be held liable in damages.” Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990).

For the foregoing reasons, the Court:

(1) DENIES Director Liebel’s Motion to Strike, ECF 73;

(2) DENIES Plaintiff James M. Sharp’s Motion for Summary Judgment, ECF 37;

and

(3) DENIES Defendant David Liebel’s Motion for Summary Judgment, ECF 60.

SO ORDERED on September 13, 2021

/s/JON E. DEGUILIO

CHIEF JUDGE

UNITED STATES DISTRICT COURT