Vinning-El v. Evans

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1681

M ONDREA V INNING-E L,

Plaintiff-Appellee,

v.

JOHN E VANS and R ICK S UTTON,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05-cv-570-DRH-CJP—David R. Herndon, Chief Judge.

A RGUED F EBRUARY 25, 2011—D ECIDED S EPTEMBER 16, 2011

Before E ASTERBROOK, Chief Judge, and F LAUM and

R OVNER, Circuit Judges.

E ASTERBROOK, Chief Judge. While he was confined at

Pinckneyville Correctional Center, Mondrea Vinning-El

asked for a vegan diet. He told the prison’s

chaplain, Rick Sutton, that he adheres to the Moorish

Science Temple of America. Sutton turned Vinning-El

down, observing that the tenets of Moorish Science

require a non-pork diet, which can include dairy

2 No. 10-1681

products and many kinds of meat and fish. Vinning-El,

who contends that his religious beliefs require a vegan

diet no matter what other members of his sect believe,

then filed this suit against Sutton and John Evans, the

warden, under both 42 U.S.C. §1983 and the Religious

Land Use and Institutionalized Persons Act, 42 U.S.C.

§§ 2000cc to 2000cc–5. Both defendants moved for sum-

mary judgment, which the district court granted on the

RLUIPA claim and denied on the §1983 claim. 694

F. Supp. 2d 1009 (S.D. Ill. 2010). Defendants have taken

an interlocutory appeal, contending that they are

entitled to the benefit of qualified immunity.

Vinning-El is no longer at Pinckneyville and is receiving

a vegan diet at his current prison, so damages would be

the only potential relief. The Supreme Court held in

Sossamon v. Texas, 131 S. Ct. 1651 (2011), that money

damages are not available in suits against states under

the RLUIPA—and suits against state employees in their

official capacity are treated as suits against the states

themselves. See Will v. Michigan Department of State

Police, 491 U.S. 58 (1989). To the extent that Vinning-El

has sued Evans and Sutton in their personal capacities

he fares no better, given our holding in Nelson v.

Miller, 570 F.3d 868 (7th Cir. 2009), that RLUIPA does not

authorize any kind of relief against public employees, as

opposed to governmental bodies that receive federal

funds and accept the conditions attached by the statute.

So both defendants prevail against the RLUIPA claim,

as the district court held.

Warden Evans is entitled to prevail on the §1983 claim

without any need to consider immunity. Section 1983

No. 10-1681 3

does not authorize “supervisory liability.” See Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1947–49 (2009). Section 1983

creates liability only for a defendant’s personal acts or

decisions. Vinning-El does not contend that Evans made

or ratified the decision about his diet. The district court

therefore should have granted Evans’s motion for sum-

mary judgment.

The remaining subject is whether chaplain Sutton has

qualified immunity, which comprises two questions: first

whether the plaintiff has a good constitutional claim,

and second whether the right in question was “clearly

established” before the contested events. Pearson v.

Callahan, 555 U.S. 223, 233–42 (2009), holds that the

court has discretion to resolve either or both of these

questions. We need to consider the first in order to facili-

tate discussion of the second, though it turns out to

be unnecessary to give a definitive answer to either.

Although prisoners enjoy rights under the free-exercise

clause of the first amendment (applied to the states by

the due process clause of the fourteenth amendment),

many decisions hold that these rights are subject to

limits appropriate to the nature of prison life. Restric-

tions are permissible if they are reasonably related to

legitimate penological objectives. Turner v. Safley, 482

U.S. 78, 89–91 (1987); see also, e.g., O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348–49 (1987).

Pinckneyville did not limit Vinning-El’s right to wor-

ship. Instead it turned down a request for an accommoda-

tion of his demand for a diet that is unavailable to non-

believers. Employment Division v. Smith, 494 U.S. 872

4 No. 10-1681

(1990), holds that the free-exercise clause does not

require accommodation of religious practices, and that

identical treatment of believers and non-believers

satisfies the first amendment. The Supreme Court has

never considered how Smith applies to prisons and

whether it supersedes Turner when a prisoner seeks

an accommodation. Several courts of appeals have

noticed the tension between Smith and Turner and

declined to decide which applies, to the extent that they

differ. See, e.g., Boles v. Neet, 486 F.3d 1177, 1181–82 (10th

Cir. 2007) (collecting authority). We likewise can post-

pone resolution of this question, for two reasons.

First, defendants briefed this appeal on the basis of

Turner and even after the issue was raised at oral

argument did not argue that we should apply Smith.

Second, Illinois has not declined to accommodate pris-

oners’ religious dietary requests. Vinning-El complains

not so much about a lack of accommodation as he

does about discrimination against particular religious

beliefs. As Vinning-El characterizes chaplain Sutton’s

policy, the dietary rules of organized faiths will be ac-

commodated, and the dietary rules of personal faiths

will not be. Smith does not apply to such a policy; it

did not change the norm forbidding materially different

treatment of different religious faiths. See, e.g., Al-Alamin

v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991).

A personal religious faith is entitled to as much pro-

tection as one espoused by an organized group. Frazee

v. Illinois Department of Employment Security, 489 U.S. 829,

834 (1989); see also Hernandez v. CIR, 490 U.S. 680, 699

No. 10-1681 5

(1989). Hierarchical religions, such as the Roman Catholic

Church, believe that only the group’s leaders can

establish and articulate the group’s tenets on central

issues of faith. But non-hierarchical religions, such as

most Protestant and Islamic sects, believe that every

worshipper has a direct connection to God. This doc-

trine of the “priesthood of believers” was one of the

major reasons for the Protestant schism from the

Catholic Church. No state is entitled to insist that

the Catholic Church is right and that adherents to every

faith therefore must espouse all, and only, those beliefs

that have the support of a sect’s leadership. If chaplain

Sutton refused to approve religious diets for inmates

who differ on dietary questions from their church’s

leaders, he violated clearly established rules of constitu-

tional law—for Frazee was decided long before Vinning-El

sought a vegan diet.

But is this what Sutton did? Dean Lauren Robel, who

briefed and argued this appeal as amicus curiae on Vinning-

El’s behalf, acknowledges that a special diet need not

be provided on demand. Sincere religious beliefs must be

accommodated (at least when failure to accommodate

a particular belief would amount to discrimination

against one sect, or a personal faith), but non-religious

beliefs need not be. See, e.g., Thomas v. Review Board, 450

U.S. 707, 713 (1981); United States v. Seeger, 380 U.S. 163,

185 (1965); Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th

Cir. 2005); Fifth Avenue Presbyterian Church v. New York

City, 293 F.3d 570, 574 (2d Cir. 2002). A prison is entitled

to ensure that a given claim reflects a sincere religious

belief, rather than a preference for the way a given diet

6 No. 10-1681

tastes, a belief that the preferred diet is less painful

for animals, or a prisoner’s desire to make a pest of

himself and cause trouble for his captors. And although

sincerity rather than orthodoxy is the touchstone, a

prison still is entitled to give some consideration to an

organization’s tenets. For the more a given person’s

professed beliefs differ from the orthodox beliefs of

his faith, the less likely they are to be sincerely held.

Very few people who identify themselves as Baptists

sincerely believe that a halal or vegan diet is obligatory

on religious grounds. Such a belief isn’t impossible, but

it is sufficiently rare that a prison’s chaplain could be

skeptical and conduct an inquiry to determine whether

the claim was nonetheless sincere.

So what did chaplain Sutton do? If he turned Vinning-El

down for the sole reason that Moorish Science does not

make a vegan diet a tenet of religious faith, then he vio-

lated Vinning-El’s clearly established rights and is not

entitled to immunity. But if Sutton thought Vinning-El

insincere—thought, in other words, that he wanted a

vegan diet for a non-religious reason—then Sutton is

entitled to immunity, even if a judge or jury disagrees

with the chaplain’s conclusion. Immunity protects public

employees who make reasonable errors in applying

even clearly established law. See, e.g., Malley v. Briggs,

475 U.S. 335, 341 (1986) (qualified immunity protects “all

but the plainly incompetent or those who knowingly

violate the law”); Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2085 (2011) (reiterating this conclusion).

Unfortunately, the district judge never addressed this

question. Instead of asking whether chaplain Sutton

No. 10-1681 7

had evaluated Vinning-El’s sincerity (as opposed to his

orthodoxy), the judge framed as the controlling question

whether denying Vinning-El’s request for a vegan diet

“was the least restrictive means of furthering a com-

pelling governmental interest”. 694 F. Supp. 2d at 1013.

That’s the standard of RLUIPA, see §2000cc–1(a), not the

standard of the first amendment. It is also the standard

advocated by the Justices who dissented in Smith.

After the Supreme Court decided Smith, Congress

enacted the Religious Freedom Restoration Act, 42 U.S.C.

§§ 2000bb to 2000bb–4, in an effort to adopt a least-

restrictive-means approach for public actors generally.

The Supreme Court replied in Boerne v. Flores, 521 U.S.

507 (1997), that the RFRA cannot be applied to states

through §5 of the fourteenth amendment, precisely

because it departs drastically from the holding of Smith

and therefore does not “enforce” the fourteenth amend-

ment, which is the extent of legislative power under §5.

The RLUIPA, which came next, relies on the national

commerce and spending powers. See 42 U.S.C.

§§ 2000cc(a)(2), 2000cc–1(b). Sossamon recounts this

history and emphasizes that both RFRA and RLUIPA

establish standards that differ from the free-exercise

clause of the first amendment.

The district court believed that our opinion in Nelson

had superseded the Supreme Court’s decisions and

made RLUIPA’s test the constitutional norm too. 694

F. Supp. 2d at 1013. Yet Congress cannot amend the

Constitution by ordinary legislation (RLUIPA was not

adopted through the means specified by Article V), and

8 No. 10-1681

a court of appeals cannot overrule the Supreme Court. It

is true that some passages in Nelson, 570 F.3d at 880,

889, refer to §1983 and RLUIPA in the same breath, but

judicial opinions are not statutes—let alone constitu-

tional amendments. It is always important to under-

stand opinions in light of their holdings and not take

ambiguous statements for all they might be worth. None

of the litigants in Nelson had asked us to hold that

RLUIPA establishes a new constitutional standard,

and we did not purport to do any such thing. Any lan-

guage that could be misunderstood in this fashion is

not compatible with Boerne or Sossamon. It is the

opinions of the Supreme Court, not language of

§2000cc–1(a) or this court, that must be applied when

a question arises about the meaning of the first amend-

ment’s free-exercise clause.

For the reasons we have explained, to decide whether

chaplain Sutton has qualified immunity, the district judge

must determine whether he reasonably attempted to

determine whether Vinning-El has a sincere belief that

his religion requires a vegan diet. To put this slightly

differently, the judge needs to know whether Sutton

used the tenets of Moorish Science to disqualify Vinning-

El, or only as a reason to suspect that Vinning-El may

have been seeking a vegan diet for personal rather than

religious reasons. Qualified immunity poses a question

for the court, not a jury. See Hunter v. Bryant, 502 U.S. 224,

228 (1991). The district judge must hold a hearing and

make whatever findings are required to resolve the

qualified-immunity defense. If the judge concludes that

Sutton based his decision on the tenets of Moorish

No. 10-1681 9

Science, rather than his understanding of Vinning-El’s

own religious beliefs, then Sutton is not entitled to im-

munity, and it will be necessary to hold a jury trial

to determine whether Vinning-El actually had a

sincere religious belief in the necessity of a vegan diet.

(Even if Sutton acted for the wrong reason, and thus

lacks immunity, Vinning-El cannot prevail unless he

establishes that his sincere religious beliefs require

a vegan diet.)

The decision with respect to Evans is reversed, and

the case is remanded with directions to enter judgment

in his favor. The decision with respect to Sutton is

vacated, and the case is remanded for further pro-

ceedings consistent with this opinion.

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