# Koger v. Bryan > Court of Appeals for the Seventh Circuit · April 24, 2008 · 523 F.3d 789 URL: https://www.frixlaw.com/law-library/cases/9631566 ## Case - **Full name:** Gregory KOGER, Plaintiff-Appellant, v. Walter L. BRYAN, Dennis Guth, Pearlene Pitchford, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** April 24, 2008 - **Citations:** 523 F.3d 789; 70 Fed. R. Serv. 3d 532; 2008 U.S. App. LEXIS 8825; 2008 WL 1821311 - **Precedential status:** Published - **Opinion:** Concurrence by Evans - **Judges:** Manion, Evans, Sykes - **Cited by:** 222 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9631566 ## How later opinions describe it (automated extraction) - holding that where Thelema religion had no general dietary requirements but where individual Thelemites often included dietary restrictions as part of “personal regimen of spiritual discipline,” prisoner’s request for special diet was “desire ... based on his religious beliefs… - holding that denial of a prisoner’s request for a special diet constituted a substantial burden under RLUIPA, even though the prisoner’s religion did not require the dietary restriction, but where many followers, including prisoner, chose to practice the restrictions - stating, in dicta, that “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.” - 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” - stating that “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.” ## Opinion text 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 *805 Why, I wonder, when Roger 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 prison officials doubted the sincerity of Roger’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 reasonable. 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 Roger’s request for a nonmeat diet would not have violated the United States Constitution. It was well-settled, before RLUIPA, that a neutral 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 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (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. Roger’s case is, potentially at least, a pretty good example of that. Roger arrived in the custody 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 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. Roger 3 is obviously a very bright guy and an "accomplished 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. Roger 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 decidedly correct, points out why this case is a bit of a waste of time. Because Mr. Roger 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. So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Roger may *806 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.” . 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 "vegetarian,” a lacto-ovo vegetarian is assumed. A *805 vegan, on the other hand, consumes no animal products at all. . 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.” . Koger was paroled in December of 2006 after serving more than 10 years of his sentence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9631566. Public record. Not legal advice.