Koger, Gregory v. Bryan, Walter

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1904

GREGORY KOGER,

Plaintiff-Appellant,

v.

WALTER L. BRYAN, DENNIS GUTH,

PEARLENE PITCHFORD, ET AL.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 1177—Harold A. Baker, Judge.

____________

ARGUED SEPTEMBER 26, 2007—DECIDED APRIL 24, 2008

____________

Before MANION, EVANS, and SYKES, Circuit Judges.

MANION, Circuit Judge. Gregory Koger (“Koger”), a

former inmate at the Pontiac Correctional Center in

Illinois, filed suit against six prison officials claiming

they failed to accommodate his religious-based requests

for a non-meat diet. Koger claimed that this failure to

accommodate his dietary request was a violation of his

rights as protected by the Religious Land Use and In-

stitutionalized Persons Act (“RLUIPA”), and the First and

Fourteenth Amendments of the Constitution. The defen-

dants moved for summary judgment, arguing that Koger’s

2 No. 05-1904

diet was not changed because his request did not meet

the requirements necessary for prisoners seeking such

an accommodation and that those requirements were

lawful. The district court granted the defendants’ motion

as to all of Koger’s claims, and Koger now appeals. We

reverse the district court’s grant of summary judgment

on Koger’s RLUIPA claim, and remand for further pro-

ceedings consistent with this opinion.

I.

The facts material to this appeal are undisputed. Koger

was remanded to the custody of the Illinois Department

of Corrections (“IDOC”) in 1996, and originally housed at

the Joliet Correctional Center. Upon entering prison,

Koger designated his religious affiliation as Baptist. In

1999, while housed at the Centralia Correctional Center,

Koger changed his religious affiliation to Buddhist. Koger

was not required to provide IDOC officials with any

documentation in support of his original affiliation as a

Baptist, or upon re-affiliating as a Buddhist. In September

2000, Koger was transferred to the Pontiac Correctional

Center. A few months after this transfer, he stopped

eating meat or anything on his meal tray that had touched

meat. Koger adopted this diet to accommodate his yoga

practices, but claimed that it subjected him to extreme

hunger pains.

In May 2001, Koger contacted the prison’s chaplain,

Fr. Walter Bryan (“Bryan”), requesting that his religious

affiliation be changed to reflect that he was no longer a

Buddhist, and that he be provided with a non-meat diet as

part of his religious practices. During the period in ques-

tion, Pontiac served three religious diets—kosher, vegan,

No. 05-1904 3

and lacto-ovo vegetarian. The last two contain no meat,

and would have satisfied Koger’s request. Bryan

responded with a letter stating that Koger’s request

would not be granted absent a letter from a “Rabbi-Imam,

etc.” of Koger’s new religion. Koger replied to Bryan’s

letter saying that he was not a member of a formally

established religion, and accordingly there was no

clergy member available to contact Bryan on his behalf.

Koger’s letter further explained some of his religious

beliefs, stating that his “yoga practices required a non-

meat vegetarian diet.” Bryan did not respond to this letter.

Koger began searching for a religion that fit his beliefs,

and in November 2001, he joined Ordo Templi Orientis

(“OTO”), a group associated with the religion of Thelema.

Thelema was founded by Aleister Crowley in 1904, and

has as its central tenet “Do what thou wilt,” which its

followers consider a divine mandate to discover their

true purpose in life. In December 2001, Koger again wrote

Bryan, requesting that his affiliation be changed from

Buddhism to OTO, and that he be given a non-meat diet.

Koger included with his request an informational letter

from T. Allen Greenfield (“Greenfield”), OTO’s Prison

Ministry Coordinator, setting forth some of OTO’s be-

liefs and practices.1 Notably, Greenfield’s letter stated

that “Thelema imposes no general dietary restrictions;

though each individual Thelemite may, from time to

time, include dietary restrictions as part of his or her

1

While the parties use “OTO” and “Thelema” interchangeably

in the record, Greenfield’s letter clarified that “[w]ithin the

broad context of Thelema, O.T.O. functions as a fraternal,

initiatory, social, and educational organization of a religious

nature.”

4 No. 05-1904

personal regimen of spiritual discipline.” In response to

this second request, Bryan again sent a letter indicating

that Koger’s affiliation and diet would not be changed

without a letter from a “Rabbi-Imam, etc.”

On January 13, 2002, Koger filed an IDOC Grievance

based upon Bryan’s failure to change his affiliation and

diet. Upon review of the Grievance, Grievance Counselor

and Defendant Dennis Guth (“Guth”) responded stating

that he had consulted with Bryan, who indicated that he

needed a “letter” from the religious organization sent

directly to him, and that “information” would not be

considered. Guth’s response was reviewed by Grievance

Officer and Defendant Pearlene Pitchford (“Pitchford”),

and on March 13, 2002, she filed a report finding that

Guth’s response adequately addressed Koger’s concerns.

In making this determination, Pitchford expressly noted

the language from Greenfield’s letter stating that Thelema

imposes no general dietary restrictions. Defendant James

Schomig (“Schomig”), Chief Administrative Officer and

Warden of Pontiac Correctional Center, concurred with

Pitchford’s assessment. Koger subsequently appealed

under the grievance process. On March 25, 2002, Adminis-

trative Review Board Member Douglas A. Cravens

(“Cravens”) and IDOC Director Donald N. Snyder

(“Snyder”) issued their finding that the decisions of

Pitchford and Schomig appropriately addressed Koger’s

grievance.2 Accordingly, they recommended that Koger’s

grievance be denied.

In April 2002, Koger received a copy of a letter Green-

field sent to Bryan indicating that Koger was an OTO

2

We hereafter refer to Bryan, Guth, Pitchford, Schomig,

Cravens, and Snyder collectively as the “prison officials.”

No. 05-1904 5

parishioner, and discussing the organizational nature of

OTO. Relying on this letter, as well as a letter from OTO’s

Treasurer stating that he was a dues-paying member of

OTO, Koger filed a third request with Bryan asking that

his affiliation be changed from Buddhism to OTO, and that

he be provided a non-meat diet. On December 2, 2002,

Assistant Warden Adella Jordan-Luster (“Jordan-Luster”)

sent Koger a response granting his request for affiliation

change, but denying his request for a non-meat diet.

Jordan-Luster indicated that this denial was based upon

information she reviewed indicating that Thelema had

no dietary requirements. There is no indication in the

record that Koger made any further requests for an affilia-

tion or diet change following this last exchange. Koger

was released from the custody of IDOC on parole on

December 11, 2006.

As this protracted correspondence proceeded, on May 1,

2002, Koger filed a pro-se complaint in the district court.

In his initial complaint, Koger alleged violations of the

Free Exercise Clause of the First Amendment and the

Equal Protection Clause of the Fourteenth Amendment

pursuant to 42 U.S.C. § 1983, and the Religious Freedom

Restoration Act of 1993, 42 U.S.C. § 2000bb-1. Snyder,

Cravens, Guth, and Pitchford waived service of process.

Bryan and Schomig were never served with process, nor

did they waive it. After obtaining summonses from the

district court, Koger filed motions on August 2, 2002,

January 19, 2003, February 4, 2003, and June 23, 2004,

pursuant to Federal Rule of Civil Procedure 43 re-

3

“At the plaintiff’s request, the court may order that service be

made by a United States marshal or deputy marshal or by a

(continued...)

6 No. 05-1904

questing that service of process be made by a United States

marshal. In each of those instances, the district court

denied Koger’s motions finding that because Koger was

not proceeding in forma pauperis, it was his responsi-

bility to serve the defendants.

Koger was eventually given leave to file an Amended

Complaint. In his amended complaint, filed October 9,

2003, Koger alleged that the prison officials’ clergy ver-

ification requirement, and their failure to place him on a

non-meat diet because OTO did not require one, vio-

lated the Establishment and Free Exercise Clauses of the

First Amendment and the Equal Protection Clause of

the Fourteenth Amendment, and RLUIPA, 42 U.S.C.

§ 2000cc-1(a). Koger sought declaratory and injunctive

relief, as well as compensatory and punitive damages.

On June 23, 2004, Koger filed a motion to com-

pel better responses to interrogatories he propounded

on the prison officials in an attempt to obtain discovery

he believed would be helpful to his case. This motion

was still pending on August 23, 2004, when Snyder,

Cravens, Guth, and Pitchford filed a motion for sum-

mary judgment. Koger filed a response on September 1,

2004, arguing that the existence of genuine issues of

material fact prohibited entry of summary judgment, or

that the record established that he was entitled to sum-

mary judgment. Additionally, Koger cited Federal Rule

3

(...continued)

person specially appointed by the court. The court must

so order if the plaintiff is authorized to proceed in forma

pauperis under 28 U.S.C. § 1915 . . . .” Fed. R. Civ. P. 4(c)(3).

No. 05-1904 7

of Civil Procedure 56(f)4 and stated that because he had

outstanding discovery requests subject to a motion to

compel, and involving information relevant to his

claims, the motion for summary judgment should be

denied or stayed until he had an opportunity to com-

plete discovery. More than five months after Koger’s

response to the motion for summary judgment, the dis-

trict court denied his motion to compel believing it to

be moot because Koger had responded to the motion for

summary judgment. The denial did not reference Koger’s

invocation of Rule 56(f).

The district court subsequently granted the motion for

summary judgment. The court’s ruling was based on its

finding that the policy requiring Koger to verify his

membership in OTO did not violate the First Amend-

ment because it was reasonably related to a legitimate

penological interest, and did not violate RLUIPA because

the policy was the least restrictive means of furthering

a compelling governmental interest. Additionally, the

district court found that Koger could not support an

equal protection claim because he had not introduced

evidence showing that he suffered discrimination based

upon his membership in any class. The district court

entered summary judgment in favor of the prison officials

on March 24, 2005. Koger now appeals, arguing that the

prison officials’ clergy verification requirement, as well

4

“If a party opposing the motion shows by affidavit that, for

specified reasons, it cannot present facts essential to justify its

opposition, the court may: (1) deny the motion; (2) order a

continuance to enable affidavits to be obtained, depositions to

be taken, or other discovery to be undertaken; or (3) issue

any other just order.” Fed. R. Civ. P. 56(f).

8 No. 05-1904

as their failure to place him on a non-meat diet because

OTO did not require one, violate RLUIPA and the First

and Fourteenth Amendments of the Constitution. Koger

further argues that the district court erred in ruling on

the motion for summary judgment after denying his

motion to compel as moot, and by denying his motions

for service by the marshal.

II.

We review the district court’s grant of summary judg-

ment de novo, examining the record in the light most

favorable to Koger. Peate v. McCann, 294 F.3d 879, 882 (7th

Cir. 2002). As we noted above, the material facts are not

in dispute, and we are therefore presented with the legal

question of whether the prison officials’ conduct accords

with federal law. Charles v. Verhagen, 348 F.3d 601, 606

(7th Cir. 2003). RLUIPA prohibits prisons receiving fed-

eral funds5 from imposing a substantial burden on an

inmate’s religious exercise unless prison officials can

demonstrate “that imposition of the burden on that per-

son (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of fur-

thering that compelling governmental interest.” 42 U.S.C.

§ 2000cc-1(a)(1) - (2). Unlike cases arising under the Free

Exercise Clause of the First Amendment, this prohibition

applies even where the burden on the prisoner “results

from a rule of general applicability.” 42 U.S.C. § 2000cc-

1(a); compare Cutter, 544 U.S. at 732 (Thomas, J., concur-

ring) (citing 42 U.S.C. § 2000cc-1(a) for the proposition

5

“Every state . . . accepts federal funding for its prisons.” Cutter

v. Wilkinson, 544 U.S. 709, 716 n.4 (2005).

No. 05-1904 9

that RLUIPA applies to rules of general applicability),

with Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 531 (1993) (noting that in the Free Exercise

context “a law that is neutral and of general applicability

need not be justified by a compelling governmental inter-

est even if the law has the incidental effect of burdening

a particular religious practice”). In establishing a claim

under RLUIPA, the plaintiff bears the initial burden of

showing (1) that he seeks to engage in an exercise of

religion, and (2) that the challenged practice substantially

burdens that exercise of religion. 42 U.S.C. § 2000cc-2(b).

Once the plaintiff establishes this prima facie case, the

defendants “bear the burden of persuasion on any [other]

element of the claim,” id., namely whether their practice “is

the least restrictive means of furthering a compelling

governmental interest.” Lovelace v. Lee, 472 F.3d 174, 186

(4th Cir. 2006). As noted above, Koger challenges two

practices of the prison officials that he claims placed a

substantial burden on his religious exercise. First, the

prison officials expressly refused to provide Koger with a

non-meat diet because such a diet was not required by

OTO. Second, the prison officials required that an OTO

clergy member submit to Bryan written verification of

Koger’s membership in OTO and its tenets. For ease of

discussion, we will refer to the first challenged practice

as a “religiously required test,” and the second as a

“clergy verification requirement.”

A. Religious Exercise

In considering whether Koger met his burden of estab-

lishing that his non-meat diet was a religious exercise,

we first recall that under RLUIPA, “[t]he term ‘religious

exercise’ includes any exercise of religion, whether or

10 No. 05-1904

not compelled by, or central to, a system of religious

belief.” 42 U.S.C. § 2000cc-5(7)(A). “Although RLUIPA bars

inquiry into whether a particular belief or practice is

central to a prisoner’s religion, . . . [it] does not preclude

inquiry into the sincerity of a prisoner’s professed religios-

ity.” Cutter, 544 U.S. at 725 n.13 (internal quotation and

citation omitted). Because RLUIPA is a guarantor of

sincerely held religious beliefs, it may not be invoked

simply to protect any “way of life, however virtuous and

admirable, . . . if it is based on purely secular consider-

ations.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). For

example, if Koger’s desire for a non-meat diet was rooted

solely in concerns for his bodily health, it would not

be protected by RLUIPA.

The record before us indicates that from the time of

his first request in May 2001, Koger stated that his desire

for a non-meat diet was based on his religious beliefs

and practices. At the time of this first request, Koger’s

beliefs were not affiliated with any organized religion.

This in itself is not necessarily fatal to his claim. See

Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005)

(holding that a person’s religious beliefs “need not be

based on . . . a mainstream faith,” but rather should be

the beliefs “dealing with issues of ultimate concern that

for her occupy a place parallel to that filled by . . . God in

traditionally religious persons”) (citations and quotation

omitted). However, we need not decide this issue based

solely on Koger’s initial unaffiliated request because by

December 2001, he was asking for accommodation of his

religious exercise as a member of OTO. Along with

this second request, he submitted paperwork from OTO

stating that, while his new religion had no general dietary

restrictions, “each individual Thelemite may, from time to

No. 05-1904 11

time, include dietary restrictions as part of his or her

personal regimen of spiritual discipline.” This document

brings Koger’s dietary request squarely within the defini-

tion of religious exercise set forth by RLUIPA. See 42

U.S.C. § 2000cc-5(7)(A). In fact, this portion of Green-

field’s letter can be accurately restated using the statutory

definition, i.e., while there are no dietary restrictions

“compelled by” or “central to” OTO, many of its practitio-

ners adopt such restrictions as part of their “exercise” of

Thelema. We therefore conclude that Koger sought to

refrain from eating meat as a religious exercise as that

term is defined by RLUIPA.

Additionally, the duration of time over which Koger

sought to have his dietary request accommodated, and

the fact that he sought that accommodation primarily as

an OTO member, clearly demonstrates that his beliefs

were sincerely held. If Koger’s beliefs were not sincere,

and if he wanted a non-meat diet for reasons other than

his religious beliefs, he could have attempted to have

his affiliation changed to one of the denominations

whose members regularly received non-meat diets. The

fact that he did not, settling instead on a religion with

which the prison officials were unfamiliar, indicates that

Koger’s beliefs, in addition to being religious in nature,

were sincerely held. While Koger bears the burden on

this point, it is worth noting that the prison officials

introduced no evidence from which a fact finder could

conclude that Koger’s desire for a non-meat diet was the

result of anything other than a sincerely held religious

belief, such as conduct inconsistent with that belief. Based

on the record before us, and the definition of “religious

exercise” provided by RLUIPA, we conclude that, in

requesting a non-meat diet, Koger was asking for ac-

12 No. 05-1904

commodation of a religious exercise rooted in sincerely

held beliefs.

B. The Religiously Required Test

The prison officials defend the religiously required test

solely by arguing that Koger did not meet his burden of

showing that the request was based on sincerely held

religious beliefs. Having concluded that sincerely held

religious beliefs prompted Koger’s request, we further

conclude that to the extent the prison officials’ denials of

Koger’s requests were based on the religiously required

test, they unlawfully restricted Koger’s religious exercise.

The substantial burden was manifest—Koger repeatedly

provided documentation to prison officials stating that

OTO does not impose dietary restriction on all of its

members, but that such restrictions are practiced by

some. Koger’s requests made clear that he was among

the members choosing to practice the restrictions. To

have his request accommodated, however, the prison

officials would have required him to establish exactly

what RLUIPA does not require—that his requested diet

was “compelled by” or “central to” his faith. 42 U.S.C.

§ 2000cc-5(7)(A). Additionally, the prison officials have

not offered evidence that the religiously required test

was employed in furtherance of a compelling govern-

mental interest, or the least restrictive means of fur-

thering that interest. Accordingly, we conclude that it was

a violation of RLUIPA for the prison officials to deny

Koger’s request for a non-meat diet simply because OTO

has no general dietary restrictions.

No. 05-1904 13

C. The Clergy Verification Requirement

Unlike the religiously required test, the clergy verifica-

tion requirement does not clearly violate the express

provisions of RLUIPA, and therefore requires a more

extensive weighing of the record under RLUIPA’s analyti-

cal framework. To determine whether Koger met his

burden of showing that the clergy verification require-

ment substantially burdened his religious exercise, we

must first determine the meaning of “substantial burden”

in the context of RLUIPA. When considering a similar

provision of the Religious Freedom Restoration Act

(“RFRA”) which prohibits the government from “substan-

tially burden[ing] a person’s exercise of religion,” 42 U.S.C.

§ 2000bb-1(a), we held that “a substantial burden on the

free exercise of religion . . . is one that forces adherents

of a religion to refrain from religiously motivated con-

duct, inhibits or constrains conduct or expression that

manifests a central tenet of a person’s religious beliefs,

or compels conduct or expression that is contrary to

those beliefs.” Mack v. O’Leary, 80 F. 3d 1175, 1179 (7th Cir.

1996), vacated by Mack v. O’Leary, 522 U.S. 801 (1997)

(vacating the circuit court decision and remanding for

further proceedings in light of City of Boerne v. Flores,

521 U.S. 507 (1997)).6

6

The RFRA, enacted in 1993, provides similar protections to

those afforded in RLUIPA, however it was intended to apply

to “all Federal and State law,” 107 Stat. 1488, 1489 (1993), and

was enacted pursuant Congress’s enforcement power under

Section 5 of the Fourteenth Amendment. City of Boerne, 521 U.S.

at 516-17. Finding that the RFRA exceeded Congress’s en-

forcement power under Section 5, the Supreme Court invali-

(continued...)

14 No. 05-1904

When Congress enacted RLUIPA, it included the broad

definition of religious exercise stated above, 42 U.S.C.

§ 2000cc-5(7)(A), which was not part of the RFRA. This

inclusion prompted a renewed consideration of what

constitutes a substantial burden. Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752, 760-61 (7th Cir.

2003). Accordingly, in 2003 we held that “in the context

of RLUIPA’s broad definition of religious exercise, a . . .

regulation that imposes a substantial burden on religious

exercise is one that necessarily bears direct, primary,

and fundamental responsibility for rendering religious

exercise . . . effectively impracticable.” Id. at 761. In deter-

mining when an exercise has become “effectively impracti-

cable,” it is helpful to remember that in the context of

the Free Exercise Clause, the Supreme Court held that

a government imposes a substantial burden on a per-

son’s beliefs when it “put[s] substantial pressure on an

adherent to modify his behavior and violate his beliefs.”

Thomas v. Review Bd., 450 U.S. 707, 718 (1981); see also

Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) (recogniz-

ing that a prisoner can bring a claim where he is “put to an

improper choice between adequate nutrition and obser-

vance of the tenets of his faith”).

We conclude that the prison officials’ clergy verifica-

tion requirement was responsible for rendering Koger’s

religious exercise effectively impracticable. We have long

held that “[t]he rights of inmates belonging to minority or

6

(...continued)

dated it as an enforcement vehicle against the states. Id., at 532-

36. Congress responded by enacting RLUIPA in 2000, “in-

voking federal authority under the Spending and Commerce

Clauses . . . .” Cutter, 544 U.S. at 715.

No. 05-1904 15

non-traditional religions must be respected to the same

degree as the rights of those belonging to larger and more

traditional denominations.” Al-Alamin v. Gramley, 926

F.2d 680, 686 (7th Cir. 1991). Here, Koger’s religion lacks

clergy members as traditionally understood, or who fit

Bryan’s description of “Rabbi-Imam, etc.” Instead, the

record indicates that OTO has a handful of officers, most

of whom promote and carry out the group’s administra-

tive affairs. More important, however, there are no univer-

sal requirements that could even be verified by these

leaders, at least when it comes to dietary restrictions. A

clergy verification requirement therefore renders imprac-

ticable religious exercise by members of OTO, or other

religions without traditional clergy or universal require-

ments. See, e.g., Kaufman, 419 F.3d at 681-82 (holding

that atheism can, in the “specialized sense” of applying

First Amendment protections, be considered a religion).

Furthermore, even if Koger belonged to a religion

with traditional clergy and uniform practices, a clergy

verification requirement forms an attenuated facet of any

religious accommodation regime because clergy opinion

has generally been deemed insufficient to override a

prisoner’s sincerely held religious belief. See, e.g., Ford

v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003) (holding

that the role the Eid ul Fitr feast played in a prisoner’s

practice of Islam was determinative of whether there

had been a substantial burden, and not the testimony of

Muslim clerics as to the proper celebration of the feast);

Jackson v. Mann, 196 F.3d 316, 320-21 (2d Cir. 1999) (holding

that it was the sincerity of a prisoner’s beliefs, and not

the decision of Jewish religious authorities, that deter-

mined whether the prisoner was an adherent of Judaism

entitled to a kosher meal); see also Frazee v. Ill. Dep’t of

16 No. 05-1904

Employment Sec., 489 U.S. 829, 834 (1989) (holding that in

the context of a denial of unemployment benefits, the

plaintiff’s refusal, based on his Christianity, to work on

Sundays was entitled to protection even though “there

are assorted Christian denominations that do not profess

to be compelled by their religion to refuse Sunday work”).

We therefore conclude that the prison officials’ clergy

verification requirement imposed a substantial burden

on Koger’s religious exercise.

Koger having established a prima facie case that the

clergy verification requirement violated RLUIPA, we

now consider whether the prison officials established

that such a requirement is the least restrictive means of

furthering a compelling governmental interest. Courts are

to apply RLUIPA with “due deference to the experience

and expertise of prison and jail administrators in estab-

lishing necessary regulations and procedures to maintain

good order, security and discipline . . . .” Cutter, 544 U.S. at

723 (citation omitted). Concerns of security are to be given

“particular sensitivity.” Id. at 722. The prison officials

assert that good order requires that prisoners’ religious

affiliations be verified, and that the prison’s dietary

system be administered in an orderly fashion. Indeed,

verification of religious affiliation has been held to serve

legitimate penological interests. Jackson-Bey v. Hanslmaier,

115 F.3d 1091, 1096-97 (2d Cir. 1997). Likewise, orderly

administration of a prison dietary system, and the accom-

modations made thereunder, are legitimate concerns of

prison officials. See Resnick v. Adams, 348 F.3d 763, 769

(9th Cir. 2003) (“The legitimate governmental interest at

stake here is the orderly administration of a program that

allows federal prisons to accommodate the religious

dietary needs of thousands of prisoners.”) (quotation

No. 05-1904 17

omitted); see also DeHart v. Horn, 227 F.3d 47, 52 (3d Cir.

2000) (agreeing with prison officials that “a simplified

and efficient food service” is a legitimate penological

interest). The problem for the prison officials, however,

is that no appellate court has ever found these to be com-

pelling interests.7 Moreover, the governmental interest

should be considered in light of the prisoner’s request

and circumstances at the detention facility. See Hunafa,

907 F.2d at 47-48. Koger’s request must therefore be

considered in light of the fact that the prison already

served two diets that would have satisfied his request. It

must also be considered in light of the fact that Koger

ultimately supplied to prison officials, among other

things, the letter from Greenfield, the letter from OTO’s

treasurer stating that Koger was a dues-paying mem-

ber, and information setting forth OTO’s beliefs and

practices including that some members practice dietary

restrictions. The prison officials failed to show what

effort would have been involved in providing a meatless

diet to Koger, how this would have hampered prison

administration, or how the clergy verification furthered

any interest not already satisfied by Koger’s submissions.

We can only give deference to the positions of prison

officials as required by Cutter, 544 U.S. at 723, when the

officials have set forth those positions and entered them

7

In the proceedings below, the prison officials cited Jenkins

v. Angelone, 948 F. Supp. 543, 547 (E.D. Va. 1996), for the proposi-

tion that management of a prison dietary department and

its impact on the nutritional needs of inmates are compelling

government interests. The prison officials do not cite Jenkins

on appeal, and we therefore do not consider it other than to

note that the district court therein cited no authority for its

findings that the above interests are compelling.

18 No. 05-1904

into the record. See Lovelace, 472 F.3d at 191 (concluding

that prison officials had failed to meet their burden under

RLUIPA because they had not submitted sworn state-

ments establishing how the challenged practices furthered

any compelling interest). We therefore conclude that the

prison officials failed to meet their burden in showing

that the clergy verification requirement furthered a com-

pelling governmental interest.

Even if the prison officials’ asserted interests were

deemed to be compelling, they do not support their

assertion that a clergy verification requirement was the

least restrictive means of achieving these ends. One less

restrictive means would have been to simply comply,

at least in part, with the Illinois Administrative Code

which requires only that a prisoner provide “written

verification” in order to receive a religious-based dietary

accommodation, with no requirement that the verifica-

tion be from a clergy member. 20 Ill. Adm. Code.

§ 425.70(c). When a prisoner provides his own written

verification, prison officials are still entitled to the bene-

fit of the long-standing requirement that a prisoner pro-

vide sufficient indicia that his request is borne of a sin-

cerely held religious belief. Moreover, the Illinois Admin-

istrative Code provides a further check against abuse

when it provides that “[a] committed person who does

not adhere to the alternative diet shall no longer receive

the alternative diet . . . .” 20 Ill. Adm. Code. § 425.70(e).

Likewise, the federal prison system requires prisoners

seeking dietary accommodations to “provide a written

statement articulating the religious motivation for partici-

pation in the [religious dietary accommodation program].”

Resnick, 348 F.3d at 765 (citing 28 C.F.R. § 548.20(a)).

Having prisoners verify in writing that their dietary

No. 05-1904 19

request is religious-based is just one example of a less

restrictive means by which the prison officials could

have furthered the interests of orderly administration

and verification. One less restrictive means, however, is

sufficient for us to conclude that the prison officials

failed to meet their burden that they were employing

the least restrictive means of furthering compelling gov-

ernmental interests.

Summing up, we conclude that Koger met his burden

of establishing that both the religiously required test

and the clergy verification requirement operated as sub-

stantial burdens on his religious exercise. The prison

officials failed to meet their burden in showing that

their practices were the least restrictive means of fur-

thering a compelling government interest. Accordingly,

the record establishes that the practices challenged by

Koger violated RLUIPA, and judgment in his favor on

this claim is warranted. The district court erred in entering

summary judgment in favor of the prison officials on

Koger’s RLUIPA claim.

D. Koger’s Constitutional Claims and Motion to Compel

Having concluded that the defendants’ conduct vio-

lated RLUIPA, we call to mind the principle that “federal

courts are supposed to do what they can to avoid

making constitutional decisions, and strive doubly to

avoid making unnecessary constitutional decisions.” ISI

Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552

(7th Cir. 2001); see also Borzych v. Frank, 439 F.3d 388, 390

(7th Cir. 2006) (declining to consider a prisoner’s con-

stitutional claims, and considering solely his RLUIPA

claim after noting the heightened protections it offers).

20 No. 05-1904

Because the prison officials are liable under RLUIPA for

the conduct complained of in the constitutional claims,

we decline to consider those latter claims. Additionally,

we need not consider Koger’s challenge to the district

court’s denial of his motion to compel because the addi-

tional evidence sought by Koger is unnecessary to his

RLUIPA claim—that claim succeeds based on the record

as it stands. The discovery sought would therefore only

be material, if at all, to his constitutional claims, which

we are not reviewing.

E. Qualified Immunity

Koger’s success on his RLUIPA arguments will not

result in damages if the prison officials are protected by

qualified immunity, and so we turn to their argument

that they are so protected. “Qualified immunity protects

officers performing discretionary functions from civil

liability so long as their conduct does not violate clearly

established statutory or constitutional rights that a rea-

sonable person would know about.” Mustafa v. City of

Chicago, 442 F.3d 544, 548 (7th Cir. 2006) (emphasis in

original) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A

plaintiff seeking to defeat an assertion of qualified immu-

nity must establish “that the law concerning the plaintiff’s

asserted right was clearly established at the time the

challenged conduct occurred.” Id. Moreover, “[t]he con-

tours of the right must be sufficiently clear that a reason-

able official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). This is not to say that an official will always

be shielded by immunity unless the challenged practice

has previously been deemed unlawful; rather “in the

No. 05-1904 21

light of pre-existing law the unlawfulness must be appar-

ent.” Id.

RLUIPA was enacted on September 22, 2000. Pub. L.

No. 106-274 §§ 2-6, 8, 114 Stat. 803-06. Koger filed

his requests for a non-meat diet in May 2001, December

2001, and April 2002. His internal grievance was filed in

January 2002. Because of the dearth of cases dealing

with RLUIPA during this period, Koger must show

that RLUIPA itself, or principles established in other

contexts and applicable to RLUIPA, established the con-

tours of his rights so that a reasonable official could have

easily discerned them. There are numerous reasons leading

us to conclude that the rights protected by RLUIPA, and

violated by the prison officials as set forth above, were

clearly established during the period the prison officials

denied Koger’s dietary requests. First, RLUIPA did not

announce a right having broad application across many

segments of society. Rather, it prohibited substantially

burdening religious exercise in only two contexts: by land

use regulation, 42 U.S.C. § 2000cc, or while a person is

imprisoned. 42 U.S.C. § 2000cc-1. Moreover, RLUIPA did

not announce a new standard, but shored up protections

Congress had been attempting to provide since 1993 by

means of the RFRA, and which had seen frequent litiga-

tion in the prison context. See, e.g., Craddick v. Duckworth,

113 F.3d 83, 85 (7th Cir. 1997) (applying the standard

shared by the RFRA and RLUIPA and concluding that a

prohibition against wearing medicine bags violated the

RFRA).

Aside from the fact that RLUIPA employs a standard

already contained in the RFRA, it is noteworthy that the

components of its analysis have been used in constitu-

tional litigation for some time. For example, the difficult

22 No. 05-1904

burden laid on a defendant who must show that its con-

duct was the “least restrictive means of achieving some

compelling state interest” has been established for decades.

See Thomas v. Review Bd., 450 U.S. 707, 718 (1981). Similarly,

the prohibition against substantially burdening sin-

cerely held religious beliefs is well-established in Free

Exercise Clause cases. See, e.g., Hernandez v. Comm’n of

Internal Revenue, 490 U.S. 680, 699 (1989) (“The free exer-

cise inquiry asks whether government has placed a sub-

stantial burden on the observation of a central religious

belief or practice . . . .”). RLUIPA has a broader scope of

protection than “central religious beliefs or practices,” but

Congress cleared up any resulting ambiguity by expressly

setting forth what is included within that broader protec-

tive scope—“any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.”

42 U.S.C. § 2000cc-5(7)(A).

While the case will undoubtedly arise where a plaintiff

asserts a right only questionably covered by RLUIPA,

Koger asserted the right to religious accommodation for

a religious practice demonstrably associated with,

though not compelled by, his religion. The prison officials

violated this clearly established right because they re-

quired exactly what RLUIPA provides they cannot—a

religious practice compelled by OTO. Likewise, in requir-

ing clergy verification, the prison officials employed a

clergy-as-arbiter-of-orthodoxy standard that had long

been rejected. See Frazee, 489 U.S. at 834 (rejecting “the

notion that to claim the protection of the Free Exercise

Clause, one must be responding to the commands of a

particular religious organization”and holding that the

believer’s sincerity is the appropriate consideration);

Jackson, 196 F.3d at 320 (rejecting a prison’s policy of

No. 05-1904 23

deferring to Jewish authorities on the question of whether

an inmate is Jewish for the purposes of providing a

kosher meal, and directing the prison officials to con-

sider the sincerity of the inmate’s beliefs). Finally, we

note that the only other circuit court to have considered

this issue held that “[a]lthough the outer boundaries of

RLUIPA may have been uncharted at the time [of the

defendant’s conduct], its core protections were not.”

Lovelace, 472 F.3d at 198 (reversing a grant of qualified

immunity where the district court found that RLUIPA’s

constitutionality was not clearly established because its

constitutionality was presumed when it took effect).

Accordingly, Koger’s right not to be subjected to a reli-

giously required test or a clergy verification require-

ment was clearly established when the prison officials

employed both. Those rights being clearly established at

the relevant time, we conclude that the prison officials

are not entitled to qualified immunity.

F. Service by United States Marshal

Koger’s final argument on appeal is that the district

court erred in denying his motions for service by a

United States marshal simply because he paid the filing

fee instead of proceeding in forma pauperis. Federal Rule

of Civil Procedure 4 provides that “[a]t the plaintiff’s

request, the court may order that service be made by a

United States marshal or deputy marshal or by a person

specially appointed by the court. The court must so order

if the plaintiff is authorized to proceed in forma pauperis

under 28 U.S.C. § 1915 . . . . ” Fed. R. Civ. P. 4(c)(3).

The district court misapplied Rule 4 because it failed to

exercise the discretion given it when the plaintiff pays the

filing fee. See Fed. R. Civ. P. 4 advisory committee’s note

24 No. 05-1904

(1993) (“The court . . . retains discretion to appoint a

process server on motion of a party.”). Because these

denials resulted from its mistaken belief that service by

a marshal was unavailable to a party who paid the filing

fee, the district court abused the discretion afforded it by

Rule 4. Koon v. United States, 518 U.S. 81, 100 (1996) (“A

district court by definition abuses its discretion when it

makes an error of law.”) On remand, the district court

should exercise its discretion to discern whether service

should be made upon Bryan and Schomig pursuant to

Rule 4(c)(3).

G. Additional Considerations

In reversing the district court’s grant of summary

judgment for the prison officials on Koger’s RLUIPA

claim, and directing the entry of judgment for Koger on

that claim, we note a few final points to be kept in mind

by the district court. First, although Koger sought declara-

tory and injunctive relief, as well as compensatory and

punitive damages in his Amended Complaint, his request

for injunctive relief has been rendered moot by his release

from prison. Brown v. Bartholomew Consol. Sch. Corp., 442

F.3d 588, 596 (7th Cir. 2006) (“In an action seeking

only injunctive relief . . . once the threat of the act sought

to be enjoined dissipates, the suit must be dismissed as

moot. If, however, a plaintiff also seeks monetary dam-

ages, his case is not moot even if the underlying miscon-

duct that caused the injury has ceased.”) (citations omit-

ted). Next, RLUIPA provides that a cause of action may

be asserted thereunder to obtain “appropriate relief.” 42

U.S.C. § 2000cc-2(a). However, because the relief herein is

being sought by a former prisoner, the Prisoner Litigation

No. 05-1904 25

Reform Act (“PLRA”) is applicable.8 In particular, Koger’s

suit is limited by the provision of the PLRA that provides

“[n]o Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility,

for mental or emotional injury suffered while in custody

without a prior showing of physical injury.” 42 U.S.C.

§ 1997e(e). We have previously held that this provision

limits the damages available to prisoners not only for

constitutional torts, but for violations of federal statutes.

Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 376-377 (7th

Cir. 2000); see also Smith v. Allen, 502 F.3d 1255, 1271 (11th

Cir. 2007) (holding that the PLRA limits the availability

of compensatory and punitive damages under RLUIPA,

but leaving open the availability of nominal damages).

III.

We conclude that the record establishes that the prison

officials violated Koger’s rights as secured under RLUIPA,

and that judgment in Koger’s favor on his claim brought

under that statute is warranted. Having reached this

conclusion, we do not consider Koger’s constitutional

claims. Additionally, the district court abused its discretion

in failing to exercise the discretion available to it under

Fed. R. Civ. P. 4. Accordingly, we REVERSE the district

court’s grant of summary judgment in favor of the prison

8

We have held that the question of whether a former prisoner’s

claim is governed by the PLRA is determined by “look[ing] to

the status of the plaintiff at the time he brings his suit.” Witzke

v. Femal, 376 F.3d 744, 750 (7th Cir. 2004). Koger filed suit on

May 1, 2002, and was released from prison on December 11,

2006. His claims are therefore governed by the PLRA.

26 No. 05-1904

officials on Koger’s RLUIPA claims, as well as its denials

of Koger’s motions for service by a United States marshal,

and REMAND for proceedings consistent with this opinion.

EVANS, Circuit Judge, concurring. I join Judge Manion’s

fine opinion without any reservations. It touches all the

bases that must be touched and reaches a conclusion with

which I agree. I write separately, however, to note that

I can’t help but feel what has happened here is pretty

close to a waste of time for all concerned.

Start with the State of Illinois. Inmates in its prisons

must be fed, and the vast majority of them receive a

standardized meal—which I assume is an offering of

reasonably healthy food. The prison does, however, offer

three “religious” diets: kosher, vegan, and lacto-ovo

vegetarian.1 Why, I wonder, when Koger asked for either

a vegan or a lacto-ovo vegetarian diet, did the State go to

the mattresses and fight his request all the way up to a

court of appeals in the federal judicial system? Even if the

1

A lacto-ovo vegetarian is a vegetarian who does not eat beef,

pork, poultry, fish, shellfish, or animal flesh of any kind but is

willing to consume cheese, butter, yogurt, and eggs (Lacto-

means “milk” and ovo means “egg”). Most vegetarians are lacto-

ovo vegetarians. Generally, when one uses the term “vegetar-

ian,” a lacto-ovo vegetarian is assumed. A vegan, on the

other hand, consumes no animal products at all.

No. 05-1904 27

prison officials doubted the sincerity of Koger’s “religious

beliefs,” why make a federal case out of it? Certainly if

an inmate wanted to opt for a vegetarian diet, a rule

that would require him to stick with it for a year before

changing his mind again would seem to be quite reason-

able. But what the State did here, digging in its heels

and saying no, seems quite unreasonable to me.

My other concern is with RLUIPA itself, a law that has

been on the books since 2000. Clearly, without RLUIPA,

this case would have been dead in the water when it

was filed because declining Koger’s request for a nonmeat

diet would not have violated the United States Consti-

tution. It was well-settled, before RLUIPA, that a neu-

tral law or rule of general applicability was not required

to be justified by a compelling state interest even if it had

the incidental effect of burdening a particular religious

practice. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993). So, but for RLUIPA, this litigation,

which has been going on now for almost six years,

would have died long ago.

RLUIPA, I submit, fosters the potential for mischief

and game-playing. Koger’s case is, potentially at least, a

pretty good example of that. Koger arrived in the cus-

tody of the Illinois Department of Corrections in 1996 to

begin serving a 19-year sentence following a conviction

for armed violence. Upon entering the prison system, he

said he was a Baptist. A couple of years later he said he

was a Buddhist. Two years after that he said he was a

member of “Ordo Templi Orientis (“OTO”), a group

28 No. 05-1904

associated with the religion of Thelema.2 As Judge Manion

notes, the central tenet of this religion is “Do what thou

wilt” (for me, that’s a tough one to figure out!),

which urges its followers to consider the tenet to be “a

divine mandate to discover their true purpose in life.”

Mr. Koger3 is obviously a very bright guy and an accom-

plished writer—a visit to his blog at gregorykoger.com

makes that pretty clear. But was his request for a nonmeat

diet a mere preference (he practiced yoga) or the result

of a sincerely held religious belief? On this record, we

have no reason to doubt that it was the latter. But one

would not be terribly surprised if Mr. Koger has had a

beef tenderloin or a Big Mac since he left the prison a

little over two years ago.

Finally, the bottom line to our decision, although decid-

edly correct, points out why this case is a bit of a waste

of time. Because Mr. Koger is out of prison—and has been

since December of 2006—his request for injunctive relief

is moot. And because he was in prison when the case

arose, he must proceed under the Prisoner Litigation

Reform Act, which takes compensatory and punitive

damages off the table as he suffered no “physical injury”

but only, at best, a “mental or emotional injury.” And that

limits his recovery to nominal damages.

2

The letter from T. Allen Greenfield, quoted in our opinion, to

the effect that “Thelema imposes no general dietary restrictions”

is interesting, as is Mr. Greenfield himself. According to his

entry at wikipedia.org, Greenfield is “an avid speaker on

subjects related to UFOs and the occult.”

3

Koger was paroled in December of 2006 after serving more

than 10 years of his sentence.

No. 05-1904 29

So when all is said and done, the State of Illinois has

spent a lot of money defending this case for six years.

Koger may end up with a dollar, and his lawyer, Jeffrey L.

Oldham, who by the way has done an outstanding job,

will get a limited amount of attorney’s fees. A waste of

time? Some may disagree, but I lean towards saying “yes.”

USCA-02-C-0072—4-24-08