Kosher Complaints Must Follow Prison Verification Rules; Sporadic Errors Do Not Clearly Violate Free Exercise: Sixth Circuit Affirms Qualified Immunity in Blanton v. Histed

Court: United States Court of Appeals for the Sixth Circuit

Date: October 24, 2025

Case No.: 24-2029; File Name: 25a0498n.06 (Not Recommended for Publication)

Panel: Chief Judge Sutton; Judges Gibbons and Clay

Author: Chief Judge Sutton

Introduction

This appeal arises from an inmate’s long-running dispute over the provision and handling of kosher meals at the Alger Correctional Facility in Michigan’s Upper Peninsula. The plaintiff, Paul Blanton, is a Jewish prisoner who alleged that prison officials both retaliated against him for complaining about cross-contamination of his kosher meals and failed to accommodate his religious diet in violation of the First Amendment’s Free Exercise Clause (and originally, RLUIPA). The defendants are Michigan Department of Corrections food-service personnel and supervisors, including food stewards and directors at Alger.

Two principal issues framed the appeal:

Whether a food-service steward’s threat to issue a misconduct ticket constituted unconstitutional retaliation for protected speech when the inmate’s complaints were made in violation of reasonable verification procedures.
Whether alleged, sporadic departures from kosher preparation and Passover meal requirements violated clearly established Free Exercise rights so as to overcome qualified immunity and allow damages.

After discovery, the district court granted summary judgment to the defendants, holding that Blanton’s First Amendment retaliation claim failed on the merits and that qualified immunity barred his Free Exercise damages claim. On appeal, the Sixth Circuit affirmed.

Notably, Blanton’s requests for injunctive relief became moot after his transfer to Thumb Correctional Facility, leaving only claims for damages under the First Amendment. The panel did not grant relief under RLUIPA in light of the mootness of forward-looking relief and the case’s posture on appeal.

Summary of the Opinion

The Sixth Circuit affirmed summary judgment for the defendants on both surviving claims:

Retaliation: Blanton’s complaints were not protected by the First Amendment because he persistently violated reasonable prison procedures requiring him to open his sealed kosher meal in the presence of a food-service employee or custody staff. The court also found no evidence that protected speech—as opposed to noncompliance with those procedures—was the but-for cause of the steward’s warning about a misconduct ticket.
Free Exercise and Qualified Immunity: Even accepting Blanton’s evidence of intermittent cross-contamination and occasional noncompliance with kosher and Passover requirements, he failed to identify published, on-point precedent clearly establishing that such sporadic errors—amid a certified kosher program with rabbinic oversight—violate the Free Exercise Clause. The court emphasized that RLUIPA decisions do not clearly establish Free Exercise law for damages purposes and that unpublished or out-of-circuit authorities cannot satisfy the clearly established requirement.

In resolving evidentiary disputes, the court rejected Blanton’s hearsay objection to an affidavit by a defendant, finding the statements grounded in personal knowledge acquired through grievance handling.

Analysis

Precedents Cited and Their Influence

Gillis v. Miller, 845 F.3d 677 (6th Cir. 2017): Provided the de novo standard for reviewing summary judgment and the requirement to view facts in the light most favorable to the non-movant.
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc): Supplied the three-part test for First Amendment retaliation (protected conduct, adverse action, causation). The court applied this framework and resolved the first and third prongs against Blanton.
Smith v. Campbell, 250 F.3d 1032 (6th Cir. 2001) and Herron v. Harrison, 203 F.3d 410 (6th Cir. 2000): Recognized inmates’ rights to file grievances but underscored that speech which violates legitimate prison regulations is not protected. This was pivotal to the conclusion that Blanton’s method of complaining was unprotected.
Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018): Acknowledged that inmates can raise complaints about staff, but, again, subject to compliance with legitimate rules—a limit that controlled here.
Clark v. Stone, 998 F.3d 287 (6th Cir. 2021) and Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007): Articulated the causation standard for retaliation: protected conduct must be a substantial or motivating factor—essentially but-for cause. The court found the record tied the steward’s warning to Blanton’s noncompliance, not protected speech.
Fed. R. Evid. 801(c): Defined hearsay. The court held the challenged affidavit relied on first-hand knowledge from grievance responses and thus was not hearsay.
Ashcroft v. al-Kidd, 563 U.S. 731 (2011); White v. Pauly, 580 U.S. 73 (2017); Anderson v. Creighton, 483 U.S. 635 (1987); Arrington-Bey v. City of Bedford Heights, 858 F.3d 988 (6th Cir. 2017); Malley v. Briggs, 475 U.S. 335 (1986): These authorities frame qualified immunity’s two prongs and the need for a “particularized” clearly established right. The panel demanded close factual fit and rejected general statements of Free Exercise rights.
Colvin v. Caruso, 605 F.3d 282 (6th Cir. 2010): Reaffirmed that prisons must provide an adequate diet without violating religious restrictions, with adequacy measured by sustaining health. The court used Colvin to recognize obligations but distinguished occasional errors from policy-level denials.
Johnson v. Moseley, 790 F.3d 649 (6th Cir. 2015): Emphasized that qualified immunity protects reasonable mistakes and those not knowingly violating the law; important to treating the alleged lapses as “mistaken judgments,” not clearly unlawful acts.
Ali v. Adamson, 132 F.4th 924 (6th Cir. 2025): Held that RLUIPA’s more demanding standards cannot be used to “clearly establish” the contours of the Free Exercise Clause for damages liability. This was decisive in sidelining plaintiff’s reliance on RLUIPA precedents.
Ackerman v. Washington, 16 F.4th 170 (6th Cir. 2021): Found a RLUIPA violation concerning holy day meals. The panel explained why Ackerman, as a RLUIPA case, did not clearly establish Free Exercise law applicable to damages claims.
Bell v. City of Southfield, 37 F.4th 362 (6th Cir. 2022): Clarified that unpublished opinions are non-binding in the Sixth Circuit and cannot clearly establish the law.

Together, these cases positioned the court to insist on compliance with reasonable prison procedures as a precondition for First Amendment protection, and to demand a tight, published, in-circuit fit to defeat qualified immunity on Free Exercise damages claims.

Legal Reasoning

1) Retaliation: Protected Conduct and Causation Failures

The retaliation claim turned on the threshold question of protected conduct. Although inmates have First Amendment rights to file grievances and complain about staff, those rights do not extend to conduct that violates legitimate penological rules. Here, Alger required inmates to open sealed meal trays in the presence of food-service or custody staff so that any alleged cross-contamination could be verified and remedied immediately. Blanton refused, repeatedly opening meals outside staff presence and showing trays to security cameras monitored by non-food-service personnel. This directly contravened reasonable verification procedures tailored to address his concerns.

Because Blanton’s complaints were lodged through noncompliant means, they were not protected by the First Amendment. That conclusion alone defeated the retaliation claim. The court further found that causation was lacking: the steward’s warning about a misconduct ticket was motivated by Blanton’s continued noncompliance with complaint procedures, not by protected speech. The record contained no evidence that he ever brought his trays in the required manner either before or after the warning. Even if the “adverse action” prong (a credible threat of misconduct) could be debated, the court did not need to decide it given the failures on protected conduct and causation.

On evidentiary matters, the court rejected a hearsay challenge to a defendant’s affidavit because it relied on first-hand involvement in grievance handling, not out-of-court statements offered for their truth.

2) Free Exercise: Qualified Immunity and the Demands of “Clearly Established” Law

On the Free Exercise claim, the panel resolved qualified immunity at the “clearly established” step. The prison maintained a rabbi-certified kosher kitchen, subjected to frequent inspection, and provided kosher meals. Blanton’s evidence suggested that there were occasion-specific mistakes—cross-contamination, inadequate segregation of utensils, and incomplete Passover offerings—reported over time. But the court emphasized that:

Intermittent mistakes in implementing a religious diet program do not, without more, establish a clearly established Free Exercise violation warranting damages.
Blanton did not allege malnutrition or an inadequate diet in the Colvin sense—i.e., a diet insufficient to maintain health, nor a policy-level refusal to provide kosher meals. And his own refusal to follow the verification process impeded timely correction.
To overcome qualified immunity, a plaintiff must identify published, materially similar precedent clearly establishing that the specific conduct is unconstitutional. RLUIPA cases cannot be used to clearly establish Free Exercise law (Ali v. Adamson), and unpublished or out-of-circuit decisions cannot carry that burden (White; Bell).

Blanton’s reliance on Ackerman v. Washington was unavailing because Ackerman is a RLUIPA decision addressing a policy-level denial of certain holy day foods, not a Free Exercise case about sporadic errors amid an ongoing kosher program. Absent published, on-point Sixth Circuit or Supreme Court case law putting the alleged conduct “beyond debate,” the defendants were entitled to qualified immunity.

Impact and Forward-Looking Significance

Although the opinion is non-precedential, it provides a clear roadmap for both inmates and corrections administrators in the Sixth Circuit:

Complaint Procedures Matter: Inmate complaints—even about religious diets—may lose First Amendment protection if made in violation of reasonable verification protocols. Institutions can require real-time inspection in staff presence to verify contamination and facilitate immediate remediation.
Qualified Immunity in Religious-Diet Cases: Plaintiffs seeking damages must tether their claims to published, closely analogous Free Exercise precedents. Evidence of sporadic mistakes, without policy-level denial or clearly unlawful conduct, is unlikely to defeat qualified immunity.
RLUIPA vs. Free Exercise: RLUIPA’s more protective standards cannot supply the “clearly established” law needed to overcome qualified immunity on a Free Exercise damages claim. Plaintiffs must look to Free Exercise case law, not RLUIPA, for clearly established contours.
Documented Oversight Helps: Rabbinic certification, frequent inspections, and documented training can demonstrate good-faith efforts to accommodate religious diets, reinforcing a qualified immunity defense when isolated errors occur.
Evidence of Harm and Pattern: Absence of malnutrition, a lack of ongoing policy-level denial, and the presence of remedial mechanisms all diminish the likelihood of a Free Exercise damages award. Conversely, a well-documented, repeated, and uncorrected pattern might present a different case in the future.

Practically, the decision encourages prisons to formalize and enforce complaint-handling procedures and to train food-service staff on religious dietary rules. For inmates, it underscores the importance of following grievance and verification procedures to preserve constitutional claims.

Complex Concepts Simplified

First Amendment Retaliation: To win, an inmate must show (1) he engaged in protected conduct, (2) he suffered adverse action that would deter an ordinary person from exercising rights, and (3) the protected conduct was a motivating (but-for) factor for the action.
Protected Conduct in Prison: Speech or grievances are protected unless they violate legitimate prison rules designed to maintain order, security, and workable processes—such as real-time verification of complaints.
Qualified Immunity (QI): Shields officials from damages unless they violate a constitutional right that was “clearly established” at the time. “Clearly established” demands a high level of specificity—published cases with closely similar facts.
Clearly Established Law: General statements of law are insufficient. The plaintiff must point to precedent that would give fair warning to a reasonable official that the specific conduct at issue was unlawful. Unpublished, out-of-circuit, or RLUIPA-only decisions typically do not suffice.
Free Exercise in Prison: Prisons must reasonably accommodate religious diets and provide an adequate diet that does not violate religious restrictions. Implementation mistakes, especially if correctible and not systemic, may not amount to constitutional violations—particularly for damages liability under QI.
RLUIPA vs. Free Exercise: RLUIPA provides robust protection and is often litigated for injunctive relief, but it does not define what is “clearly established” for Free Exercise damages claims. Courts will not use RLUIPA holdings to defeat QI on a Free Exercise claim.
Mootness by Transfer: When an inmate is transferred from the challenged facility, requests for injunctive relief about that facility’s conditions typically become moot, leaving only damages claims (if any) to be adjudicated.
Summary Judgment: A case can be decided without trial when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. The court views the facts in the light most favorable to the non-moving party but requires more than speculation or unsupported assertions to create a triable issue.
Hearsay (Rule 801(c)): Out-of-court statements offered for their truth are hearsay and generally inadmissible. Statements based on a witness’s personal knowledge (e.g., responding to grievances) are not hearsay.

Conclusion

The Sixth Circuit’s decision in Blanton v. Histed reinforces two practical and doctrinal points. First, inmate speech about religious diets is not immune from reasonable prison protocols; complaints lodged in violation of verification procedures are not protected under the First Amendment. Second, in the Free Exercise context, occasional implementation errors within an otherwise bona fide kosher program—especially one with rabbinic certification and inspections—do not, without more, violate clearly established constitutional rights for purposes of damages liability. The court’s insistence on published, closely analogous Free Exercise precedent—and its refusal to treat RLUIPA opinions or unpublished decisions as clearly establishing the law—preserves qualified immunity’s role in shielding officials from damages except where unlawfulness is beyond debate.

Although designated “not for publication,” the opinion offers a detailed, structured approach that future litigants will likely find persuasive: follow prison complaint procedures, document patterns (not isolated errors), and, to overcome qualified immunity, ground the claim in published, on-point Free Exercise caselaw.

Key takeaways:

Complaints about religious meals must comply with reasonable verification requirements to receive First Amendment protection.
Isolated kosher-preparation errors are insufficient, standing alone, to pierce qualified immunity on a Free Exercise damages claim.
RLUIPA precedent cannot clearly establish Free Exercise law for damages, and unpublished or out-of-circuit cases generally will not suffice.
Robust oversight and documentation by corrections officials can demonstrate reasonable accommodation and support qualified immunity defenses.