GREEN v. LIEBAL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

BRANDON GREEN, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00540-JRS-MJD

)

DAVID LIEBAL, )

M. LINCOLN, )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

Plaintiff Brandon Green is an Indiana inmate currently incarcerated at Wabash Valley

Correctional Facility ("Wabash Valley"). He brings this action alleging that the Defendants

violated the First Amendment and the Religious Land Use and Institutionalized Persons Act

("RLUIPA"), 42 U.S.C. § 2000cc et seq., by denying his application for a religious diet.

Defendants David Liebel and Michele Lincoln1 have moved for summary judgment. Dkt. 21. For

the reasons explained below, the motion is granted in part and denied in part.

I.

Standard of Review

Parties in a civil dispute may move for summary judgment, which is a way of resolving a

case short of a trial. See Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no

genuine dispute as to any of the material facts, and the moving party is entitled to judgment as a

matter of law. Id.; Pack v. Middlebury Comm. Sch., 990 F.3d 1013, 1017 (7th Cir. 2021). A

"genuine dispute" exists when a reasonable factfinder could return a verdict for the nonmoving

1 When he filed his complaint, Mr. Green identified the defendants as "David Liebal" and "M.

Lincoln." The clerk is directed to update the docket to reflect the proper spelling of Defendants' names.

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those that

might affect the outcome of the suit. Id.

When reviewing a motion for summary judgment, the Court views the record and draws

all reasonable inferences from it in the light most favorable to the nonmoving party. Khungar v.

Access Cmty. Health Network, 985 F.3d 565, 572-73 (7th Cir. 2021). It cannot weigh evidence or

make credibility determinations on summary judgment because those tasks are left to the fact-

finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court is only required to

consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it is not required to "scour

every inch of the record" for evidence that is potentially relevant. Grant v. Tr. of Ind. Univ., 870

F.3d 562, 573-74 (7th Cir. 2017).

"[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'

which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (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 325.

In this case, Defendants have met that burden through their unopposed motion for summary

judgment. Mr. Green failed to respond to the summary judgment motion. Accordingly, facts

alleged in the motion are "admitted without controversy" so long as support for them exists in the

record. S.D. Ind. L.R. 56-1(f); see S.D. Ind. L.R. 56-1(b) (party opposing judgment must file

response brief and identify disputed facts). However, "[e]ven where a non-movant fails to respond

to a motion for summary judgment, the movant still has to show that summary judgment is proper

given the undisputed facts." Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021) (cleaned up).

II.

Factual Background

Because Defendants have moved for summary judgment under Rule 56(a), the Court views

and recites the evidence "in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009)

(citation omitted). Here, Mr. Green has not responded to the summary judgment motion, so the

Court treats Defendants' supported factual assertions as uncontested. See Hinterberger v. City of

Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020); S.D. Ind. L.R. 56-1(b), (f).

At all relevant times, Mr. Green was incarcerated at Wabash Valley. Dkt. 12 at 1.

Defendant Liebel was and is employed as the Director of Religious Services for the Indiana

Department of Correction ("IDOC"). Id. Defendant Michele Lincoln was and is the Programs

Director for the IDOC. Id.

The IDOC maintains a policy governing the development and delivery of religious

services. Dkt. 20-7. Under the policy, inmates may "request and receive, when feasible, a Personal

Preference Diet for religious purposes." Id. at 26. In addition, under the policy, an inmate

requesting a religious diet must "specify his/her moral or religious reasons in writing to the

Chaplain for approval or denial." Id.

On March 23, 2020, Mr. Green applied for a religious diet. Dkt. 20-1. The application

explains that the IDOC currently offers 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) religious diet

options. Id. at 1. The application states that, if an inmate is seeking any diet other than a vegan or

lacto-ovo diet, he must "specify on the . . . form the foods and or preparation methods that you

believe are required or prohibited to satisfy your sincere religious beliefs and requirements and

why." Id. In addition, it states that the IDOC may review an inmate's "commissary, Fresh Favorites

and other purchases" for the 60-day period before the inmate submits the application. Id. Mr. Green

signed an acknowledgement that he had read and agreed to the terms of the application. Id. On the

application, Mr. Green identified his religious preference as "Muslim/Islam" and explained his

dietary needs by saying, "I'm a Muslim and my food is to be prayed over and it must be halal

kosher is the closest thing to a halal meal." Id. at 2 (errors in original).

On August 10, 2020, Mr. Liebel denied Mr. Green's application, writing:

Your application for a kosher diet has been received and reviewed. Your religious

preference, history of commissary and other purchases in the 60 days prior to

application and any other information you provided was considered. Based upon

the available information, your request is denied.

Reasons for denial include:

You did not address what is halal, and what you believe is haram regarding other

offered diets.

If you wish to grieve this decision through the offender grievance system you may

do so. You will need to follow through to the Grievance Appeal level which will

bring the issue to Central Office.

You may submit a new application for a kosher diet in 90 days.

Dkt. 20-2.

Mr. Green grieved the decision. Dkt. 20-4 at 3. In his grievance, he provided more detail

about his dietary needs. For example, he stated:

I'm a Sunni Muslim . . . . Halal is the things and acts permitted by Allah. One who

does so will be rewarded by Allah; and one who does not do so will be punished by

Allah . . . . I am protected under the . . . law to be a Muslim an eat a religious diet

and the only religious diet I.D.O.C. provides is "kosher." Allah says a Muslim

should not eat the flesh of any animal which is forbidden by Allah, or the flesh of

an animal that has died a natural death or the flesh of an animal which has been

slaughtered by a non-believer. The People of the Book (a Christian or a Jew) is

halal for Muslim as long as the food is cook-n-slaughtered in the name of Allah.

David Liebel said I order non-kosher food. I have not ordered commissary since

last October . . . . I'm force to eat haram food (all that is no halal); the acts and

things the doing of which is forbidden by Allah. The diet I'm provid is haram it is

non-clean not prepared in the name of Allah there for not halal so I'm forbidden to

eat it.

Id. (errors in original). Ms. Lincoln denied the grievance on September 21, 2020, stating:

Central Office denied your religious preference diet because of the history of

commissary and other purchases in the 60 days prior to your application and any

other information you provided was considered.2 You also did not address what is

hala[l], and what you believe is haram regarding other offered diets.

Id. at 1.

Mr. Green filed a second-level appeal. Dkt. 20-5. That appeal was denied on October 9,

2020, by a non-party. Id.

III.

Discussion

In this case, Mr. Green pursues claims for damages and injunctive relief under the First

Amendment and RLUIPA. Dkt. 1. RLUIPA does not authorize any kind of relief against public

employees in their individual capacities. Nelson v. Miller, 570 F.3d 868, 889 (7th Cir. 2009),

abrogation on other grounds recognized by Jones v. Carter, 915 F.3d 1147 (7th Cir. 2019); see

also Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). Thus, pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915A(b)(2), the RLUIPA claims against Mr. Liebel and Ms. Lincoln are

necessarily official-capacity claims, which amount to claims against their employer—the IDOC.

2 Defendants do not address this point, but the statement about denying Mr. Green's application

because of commissary purchases appears to be an error because Mr. Liebel did not deny Mr. Green's

application because of commissary purchases, and the record includes no evidence suggesting that Mr.

Green made commissary purchases inconsistent with his religious beliefs in the 60-day period before he

filed this application. Defendants submitted evidence showing that Mr. Green purchased non-kosher ramen

in October 2019, see dkt. 20-3 at 3, but that was well outside the 60-day window preceding his March 2020

application.

And RLUIPA did not unambiguously waive sovereign immunity to suits for money damages.

Sossamon v. Texas, 563 U.S. 277, 285–86 (2011). Because the IDOC is an agency of the State of

Indiana, it is entitled to sovereign immunity, see de Lima Silva v. Dep’t of Corrections, 917 F.3d

546, 565 (7th Cir. 2019) ("immunity extends to state agencies and state officials in their official

capacities"), and Mr. Green may not recover money damages under RLUIPA in this case. Thus,

his RLUIPA claims are necessarily claims for injunctive relief only.

As to the First Amendment claims, the claims for money damages are necessarily

individual-capacity claims, and the claims for injunctive relief are necessarily official-capacity

claims. Phillips v. Illinois Dep't of Fin. & Prof'l Regulation, 718 F. App'x 433, 435 (7th Cir. 2018)

("If [the plaintiff] did not so specify [the capacity in which he sues the defendant], then we look at

the relief that the plaintiff seeks: when the plaintiff seeks injunctive relief, then he has brought an

official-capacity suit; when the plaintiff seeks damages, then his case is a personal-capacity suit.

(cited authority omitted)).

Defendants contend that they are entitled to summary judgment because they did not

violate Mr. Green's First Amendment rights, did not violate RLUIPA, and—regardless—they are

entitled to qualified immunity. Dkt. 21. Qualified immunity extends only to suits for money

damages, not to suits for injunctive relief. Neely-Bey Tarik-El v. Conley, 912 F.3d 989, 1008–09

(7th Cir. 2019). Thus, the Court first considers whether Defendants are entitled to qualified

immunity as to Mr. Green's First Amendment claims for money damages. Then it proceeds to

consider the merits of his claims for injunctive relief under the First Amendment and RLUIPA.

A. Claims for Money Damages

Defendants argue that they are entitled to judgment as a matter of law based on qualified

immunity. Dkt. 21 at 12. "Qualified immunity attaches when an official's conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known." White v. Pauly. 137 S. Ct. 548, 551 (2017) (citation omitted) (internal quotation marks

omitted). "[T]wo central questions must be addressed in the course of determining whether

qualified immunity is available: whether the plaintiff has alleged a deprivation of a constitutional

right at all, and whether the right at issue was clearly established at the time and under the

circumstances presented." Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (citation

omitted). Once raised, the plaintiff, not the defendant, carries the burden of overcoming the

affirmative defense. Sparing, 266 F.3d at 688 (citing Spiegel v. Cortese, 196 F. 3d 717 (7th Cir.

1999). In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court "held that courts

may grant qualified immunity on the ground that a purported right was not 'clearly established' by

prior case law, without resolving the often more difficult question whether the purported right

exists at all." Id. at 227 (Reichle v. Howards, 566 U.S. 658, 664 (2012)).

This Court's analysis must follow the Supreme Court's rulings. In this regard, Mullenix v.

Luna, 577 U.S. 7 (2015) is instructive. The Supreme Court explained:

A clearly established right is one that is "sufficiently clear that every reasonable

official would have understood that what he is doing violates that right." Reichle v.

Howards, 566 U.S. ––––, ––––, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal

quotation marks and alteration omitted). "We do not require a case directly on point, but

existing precedent must have placed the statutory or constitutional question beyond

debate." Ashcroft v. al–Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).

Put simply, qualified immunity protects "all but the plainly incompetent or those who

knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89

L.Ed.2d 271 (1986).

"We have repeatedly told courts ... not to define clearly established law at a high

level of generality." al–Kidd, supra, at 742, 131 S.Ct. 2074. The dispositive question is

"whether the violative nature of particular conduct is clearly established." Ibid. (emphasis

added). This inquiry "'must be undertaken in light of the specific context of the case, not

as a broad general proposition.'" Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596,

160 L.Ed.2d 583 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121

S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Mullenix, 577 U.S. at 308.

Given the facts in this case, the Court concludes that Defendants have shown that they are

entitled to qualified immunity as to Mr. Green's First Amendment claims for damages. To prevail

on a First Amendment claim against Defendants, Mr. Green must show that Defendants

"personally and unjustifiably placed a substantial burden on his religious practices." Neely-Bey

Tarik-El, 912 F.3d at 1003 (cleaned up). A "substantial burden" is one that "puts substantial

pressure on an adherent to modify his behavior and violate his beliefs." Id. (cleaned up). "Forcing

an inmate to choose between daily nutrition and religious practice is a substantial burden."

Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016). That said, in the correctional context, even

a substantial burden is "justified if it is reasonably related to a legitimate penological interest."

Neely-Bey Tarik-El, 912 F.3d at 1003 (cleaned up).

In this case, the undisputed designated evidence shows that Defendants denied Mr. Green's

application for a religious diet (subject to filing a grievance or resubmission in 90 days) at least in

part because he did not provide sufficient detail about the nature of the diet he needed, including

instructions on how to properly prepare the diet. Defendants assert that it was not clearly

established that denying an inmate's religious diet application (subject to filing a grievance or

resubmission in 90 days) for lack of specificity violated the First Amendment. Dkt. 21 at 13. Mr.

Green has not countered that argument—as he was bound to do. In addition, the Court is also

unaware of any previous case holding that Defendants' particular actions violated the First

Amendment. Accordingly, Defendants' motion for summary judgment is granted as to Mr.

Green's First Amendment claims for money damages.

B. Claims for Injunctive Relief

The Court now considers Mr. Green's claims for injunctive relief, beginning with the

RLUIPA claims and then proceeding to the First Amendment claims.

1. RLUIPA

RLUIPA's protection is broader than the First Amendment. Holt v. Hobbs, 574 U.S. 352,

361–62 (2015). Under RLUIPA, "[n]o government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an institution . . . even if the burden results

from a rule of general applicability, unless the government demonstrates that imposition of the

burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the

least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-

1(a) (emphasis added). A "substantial burden" under RLUIPA is one that "seriously violates or

contradicts" an inmates' religious beliefs. Schlemm v. Wall, 784 F.3d 362, 364 (7th Cir. 2015).

For purposes of summary judgment, Defendants assume that their denial of Mr. Green's

religious diet application imposed a substantial burden on his religious exercise within the meaning

of RLUIPA. Dkt. 21 at 11. They argue, however, that the denial was justified because it was in

furtherance of a compelling government interest and the least-restrictive means of furthering the

compelling interest. Id. at 11–12. Although they bear the burden to prove both the existence of a

compelling governmental interest and that they used the least-restrictive means available, they

offer no evidence in support of their argument. Indeed, they do not even identify the government

interest alleged to be "compelling," beyond stating that the denial of Mr. Green's religious diet

application was necessary to "ensure the appropriate religious diet is being identified and thus

properly prepared by IDOC staff in accordance with the offender's sincerely held religious beliefs."

Id. at 11. They also simply assert that denying Mr. Green's application with leave to resubmit is

"the least restrictive means." Id. at 12.

In making this argument, Defendants fail to acknowledge that they did not simply deny the

application with leave to resubmit—instead, they told Mr. Green that he could either grieve the

denial or file another application in 90 days. Even assuming that the denial was in furtherance of

some governmental interest that is "compelling," Defendants offer no explanation of how requiring

an inmate to file a grievance or wait 90 days to file a new, more specific religious diet application

is "the least restrictive means" available for furthering whatever interest they have in ensuring that

the proper religious diet is identified and prepared for the inmate. And, indeed, an array of obvious

alternatives were available—such as asking an inmate to provide more detail when his application

lacks it rather than denying the application or allowing an inmate to file a new application sooner

than 90 days after the denial. In sum, Defendants have failed to show that they are entitled to

judgment as a matter of law on Mr. Green's RLUIPA claims, and their motion for summary

judgment is denied as to those claims. See Willis v. Commissioner, 753 F. Supp. 2d 768, 779–80,

784 (S.D. Ind. 2010) (denying defendants' motion for summary judgment as to RLUIPA claims

where they failed to establish the absence of a less-restrictive alternative).

2. First Amendment

As explained above, to prevail on his First Amendment claims, Mr. Green must show that

Defendants unjustifiably placed a substantial burden on his religious practice. Neely-Bey Tarik-El,

912 F.3d at 1003. In the First Amendment context, even a substantial burden is justified if it is

reasonably related to a legitimate penological interest. Id. Defendants do not dispute that their

actions burdened Mr. Green's religious practices. See generally dkt. 21 at 9–10.3 Instead, they

3 Arguably related to this point, Defendants do state that "Plaintiff was not prevented from praying

over his food, purchasing food within his religious preference, or attending any religious services he

argue that the burden was justified because Mr. Green did not describe in detail what his diet plan

requires and he could resubmit his application, stating:

Plaintiff also stated essentially one required preparation method: "My food is to be

prayed over." Because Plaintiff did not describe in detail what his diet plan requires

in order to conform to his specific sincerely held religious beliefs, Defendants

denied his Application in accordance with IDOC policy . . . . Plaintiff is able to re-

submit his application. . . . . Due to the fact that this denial was based on Plaintiff's

failure to properly follow the State Form and thus not indicating what his specific

diet preference is, and there being a clear penological purpose for the denial, the

Court should grant summary judgment in favor of the Defendants as a matter of

law.

Id. at 9–10 (internal citations omitted).

Had Defendants denied Mr. Green's application for lack of detail and told him that he could

file a new application right away, the Court might be inclined to agree, although it notes that

Defendants have not explicitly explained what the "legitimate penological interest" was that the

denial furthered and that Mr. Green provided considerably more detail about his dietary needs in

his grievance beyond the claim that his food "needs to be prayed over." Regardless, Defendants

did not simply allow Mr. Green to submit a new application. Instead, Mr. Liebel denied Mr.

Green's application for lack of detail and told him that he either had to grieve the decision or wait

90 days to file a new application. Eleven days later, Ms. Green denied Mr. Green's grievance,

wanted." Dkt. 21 at 9. However, no evidence in the summary judgment record supports these factual

assertions. As to the point about allowing Mr. Green to purchase food that complied with his religious

preference, the Seventh Circuit has held that requiring an inmate "to choose between daily nutrition and

religious practice is a substantial burden" under the First Amendment, and Defendants fail to explain how

requiring Mr. Green to spend money (which he might not even have) to buy religiously compliant food is

not effectively requiring him to choose between nutrition and religious practice. See Thompson, 809 F.3d

at 380; see also Njie v. Dorethy, 766 F. App'x 387, 390, 392 (7th Cir. 2019) (reversing grant of summary-

judgment on First Amendment claim relating to denial of religious diet, finding material issue of fact as to

whether plaintiff's religious practices were substantially burdened, even though he was able to buy

religiously compliant food on commissary). Finally, the fact that Mr. Green might have been able to attend

religious services has nothing to do with the religious practice allegedly burdened here—his diet. Again,

the Seventh Circuit has squarely held that, under the First Amendment, an inmate's religious practices are

substantially burdened if he has to choose between nutrition and violating his religious belief in the

necessity of a certain diet. Thompson, 809 F.3d at 380.

leaving him to either appeal her denial or wait another 79 days to file a new application.

Defendants' brief is entirely silent as to why requiring Mr. Green to either appeal or wait multiple

months to file a more specific request was reasonably related to whatever legitimate penological

interest they might have in administering the religious-diet program. Accordingly, Defendants

have failed to show that they are entitled to judgment as a matter of law on Mr. Green's First

Amendment claims for injunctive relief, and their motion for summary judgment as to those claims

is denied.

IV.

Conclusion

The clerk is directed to update the docket to reflect that the proper names of Defendants

are: (1) David Liebel (currently identified as "David Liebal"); and (2) Michele Lincoln (currently

identified as "M. Lincoln"). For the reasons stated above, Defendants' motion for summary

judgment, dkt. [20], is granted with respect to Mr. Green's claims for money damages and is

denied as to his claims for injunctive relief.

As the case stands, the only claims remaining are official-capacity claims for injunctive

relief against Mr. Liebel and Ms. Lincoln. The real party in interest as to Mr. Green's claims for

injunctive relief is the IDOC. Thus, it is not necessary for both Defendants to remain in the case,

and the claims for injunctive relief against Ms. Lincoln are dismissed as redundant. The clerk is

directed to terminate Michele Lincoln as a Defendant. Because Mr. Green's official-capacity

claims for injunctive relief against Mr. Liebel under the First Amendment and RLUIPA remain

pending in the case, final judgment will not enter at this time.

Assuming Mr. Green's claims for injunctive relief are not moot, as discussed below, they

will be resolved by settlement or bench trial. See Marseilles Hydro Power, LLC v. Marseilles Land

& Water Co., 299 F.3d 643, 648 (7th Cir. 2002) ("If the only relief sought is equitable, such as an

injunction .. . , neither the party seeking that relief nor the party opposing it is entitled to a jury

trial."). If Mr. Green would like the assistance of counsel for settlement or trial, he must complete

and return the enclosed form motion for assistance with recruiting counsel within 30 days of the

date of this Order. If he fails to timely complete and return the form, the Court will assume that

intends to proceed with this case pro se through settlement and trial, if necessary. The clerk is

directed to enclose a form motion for assistance with recruiting counsel with Mr. Green's copy of

this Order.

The Court will set a bench trial by separate entry. Defendants’ summary-judgment brief did

not address the propriety of injunctive relief and did not provide an update as to whether Mr. Green

is currently receiving a religious diet. Accordingly, within 30 days of the date of this Order,

Defendants and Mr. Green shall each file a notice explaining whether the bench trial is necessary.

Each party's notice must state: (1) whether Mr. Green is currently receiving a religious diet that

comports with his sincerely held religious beliefs; and (2) if he is, why his remaining claims for

injunctive relief should not be dismissed as moot.

SO ORDERED.

Date: 08/26/2022

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

13

Distribution:

BRANDON GREEN

190386

WABASH VALLEY - CF

WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels

6908 S. Old US Hwy 41

P.O. Box 1111

CARLISLE, IN 47838

Erica Lee Sawyer

INDIANA ATTORNEY GENERAL

Erica.Sawyer@atg.in.gov