WILLIS v. COMMISSIONER, INDIANA DEPARTMENT OF CORR. (S.D.Ind. 11-1-2010)

and the prison's administrative assistant denied his grievance. [ Id.] Mr. Willis then appealed his grievance, and his appeal was likewise denied. [ Id.]

III. DISCUSSION

In Count I of his Second Amended Complaint, Mr. Willis alleges, on behalf of the class, that the denial of kosher meals for inmates who requested them for religious reasons violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1(a). In Count II, Mr. Willis seeks declaratory relief against DOC for implementing a policy that violated his rights under RLUIPA. [Dkt. 84 at 1.] He further seeks nominal damages under § 1983 against Defendants Dr. Hall and Chaplain Hodges for creating and enforcing DOC policy that required inmates to use their religious diet cards for at least 75 percent of prison meals, lest the card be revoked, in violation of the First Amendment. [ Id.]

At the time kosher diets were suspended, approximately 99 prisoners were authorized to receive kosher diets, and 23 Jewish prisoners were temporarily suspended from those diets; during the last Passover holiday, 74-79 prisoners received kosher meals. [Dkt. 80-21 at 3.]

Plaintiffs also request that the Court enjoin DOC from terminating the religious diets of plaintiff and the putative class and order that kosher diets be restored and continued into the future for qualified prisoners; however, neither party has cogently addressed the propriety or scope of injunctive relief. [Dkt. 17 at 13.] At this point, therefore, the Court assesses only the request for declaratory relief.

A) Does the DOC's Termination of Kosher Diets Violate RLUIPA?

RLUIPA was "enacted . . . in part, to protect inmates and other institutionalized persons from substantial burdens in freely practicing their religions." Charles v. Verhagen, 348 F.3d 601, 606 (7th Cir. 2003). The burden of implementing RLUIPA applies to any facility owned or operated by a state including prisons — but only if the prison system receives federal funding. 42 U.S.C. §§ 2000cc- 1, 1997(1). Because the parties agree that the DOC has received the benefit of

federal funding for its facilities, it is obligated to comply with the conditions Congress attached to that funding. [Dkt. 17 at 5.] Accordingly, RLUIPA prevents the DOC from imposing "a substantial burden on the religious exercise" of inmates, unless it "demonstrates that imposition of the burden . . . (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a).

In making a claim under RLUIPA, a plaintiff inmate bears the burden of persuasion on the issue of whether the challenged practices substantially burden the exercise of their religion. 42 U.S.C. § 2000cc-2(b). Once an inmate establishes "this prima facie case, the defendants bear the burden of persuasion on any [other] element of the claim, . . . namely whether their practice is the least restrictive means of furthering a compelling governmental interest." Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (quotations omitted).

1. Do Kosher Diets Constitute Religious Exercise under RLUIPA?

The first question under RLUIPA is whether the termination of kosher diets affected a "religious exercise," which statute defines as "exercise of religion, whether or 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 . . . the Act does not preclude inquiry into the sincerity of a prisoner's professed religiosity." Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13 (2005).

Here, the DOC does not dispute either that a kosher diet is part of the sincerely held religious beliefs and practices of some observant Jews, or that it is fundamental to the sincerely held religious beliefs and practices of Plaintiffs. [Dkt. 89 at 13; dkt. 84 at 16.] Accordingly, the Court finds that keeping kosher constitutes religious exercise for Plaintiffs.

2. Does Denial of Kosher Diets Create a "Substantial Burden" under RLUIPA?

Plaintiffs bear the burden of persuasion on the issue of whether the challenged practices "substantially burden" the exercise of their religion. 42 U.S.C. § 2000cc-2(b). The term "substantial burden" as used in RLUIPA is not specifically defined in the statute. However, the Seventh Circuit has "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." Koger, 523 F.3d at 799 (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)). In the specific context of dietary restrictions, the Seventh Circuit has held that "a prisoner's religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition." Nelson v. Miller, 570 F.3d 868, 869 (7th Cir. 2009) (finding that denying a non-meat diet during Lent and on Fridays substantially burdened the religious practice of a Roman Catholic prisoner). The Seventh Circuit has further noted that for an observant Jew, demanding a kosher diet is tantamount to "asking for accommodation of a religious exercise rooted in sincerely held beliefs." Koger, 523 F.3d at 798; see also Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) (involving Muslim inmates forced to choose between pork and inadequate nutrition). Thus, if the evidence reveals that DOC denies kosher meals in violation of the plaintiff inmates' religious dietary practices, Plaintiffs will have established a prima facie case. Nelson, 570 F.3d at 869.

In response to Plaintiffs' argument that the denial of kosher meals burdens their religious exercise, the DOC does not claim to provide kosher meals. [Dkt. 83-8 at 20-21.] It does, however, maintain that "the food [(i.e., vegan food)] is being served as part of that menu does not contain items that are restricted by the laws of kosher." [ Id.] In other words, the DOC uses kosher ingredients, but does not guarantee meals prepared according to kosher law. The DOC's argument, therefore, is that "[a]lthough it may be a substantial burden to a Jewish prisoner's exercise to be required to eat food that is not kosher, the mere risk of food with kosher ingredients being contaminated and rendered non-kosher does not present a substantial burden to a prisoner." [Dkt. 84 at 23 (emphasis added).] The DOC goes on to argue (although not until its reply) that because varying degrees of observance exist within the class and within Judaism at large — some of which adhere to the laws of kosher and some of which do not — providing kosher meals to every individual involved in this litigation means that "the State has effectively aligned itself with one side of an internal debate within Judaism," [dkt. 95 at 16], potentially in violation of the Establishment Clause. [Dkt. 95 at 15.]

The Court must, however, reject the DOC's argument for three reasons. First, the provision of kosher meals does not burden any inmate — Jewish or not — who prefer to eat non-kosher meals. The class here is limited to individuals who have self-identified as requiring a kosher diet to properly exercise their religious beliefs. The parties agree that the term "kosher" implicates not only ingredients but also method of preparation. Second, merely reducing the risk that kosher ingredients are contaminated does not make vegan meals kosher, nor does DOC argue otherwise. Finally, the only question at issue here, based on the plain language of RLUIPA, is whether having access to kosher foods is part of the sincere religious exercise of Plaintiffs. 42 U.S.C. § 2000cc-2(a). Again, the parties agree that keeping kosher is part of Plaintiffs' sincerely held religious beliefs, and the class is so defined. Thus, the Court concludes — consistent with Seventh Circuit authority — that the DOC substantially burdened the Plaintiffs' religious exercise when it denied them kosher food. See Nelson, 570 F.3 at 868.

3. Has DOC Met Its Burden under RLUIPA?

Because Plaintiffs established that the denial of kosher diets substantially burdens their religious exercise, the DOC can only avoid a violation of RLUIPA if it can demonstrate that the imposition of this burden furthers a compelling governmental interest and it is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a), -1(b).

a) Is there a Compelling Government Interest?

In Cutter v. Wilkinson, 544 U.S. 709 (2005), the United States Supreme Court stressed that RLUIPA's legislative history demands that courts enforcing the statute give "`due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with considerations of costs and limited resources.'" Id. at 723. However, accommodating a religious practice will generally be more expensive than a failure to accommodate; as such, RLUIPA specifically contemplates that the law "may require a government to incur expenses in its own operations to avoid imposing a substantial burden." 42 U.S.C. § 2000cc-3(c). Because the statute expressly anticipates increased costs, the fact that such diets may be more costly than non-religious diets is not alone a compelling governmental interest under the statute.

Despite the general rule that cost alone is not enough, the DOC argues that cost of kosher diets — when added to the Hallal diets — was unacceptably high, thus creating a compelling governmental interest in reducing "spiraling costs." [Dkt. 90 at 15.] Specifically, it notes, "the minimization of costs is a compelling governmental interest now more than ever," given the onebillion dollar expected revenue shortfall for the state. [Dkt. 84 at 28.]

DOC, however, has cited absolutely no relevant authority to support the conclusion that spiraling cost alone is a compelling government interest. The DOC incorrectly cites Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007), for this proposition. There, the defendants demonstrated that a compelling governmental interest in eliminating diets existed only after they established that 1) the Texas Department of Criminal Justice budget was not big enough to either provide a separate kosher kitchen or bring in kosher food from the outside and simultaneously provide a nutritionally appropriate meal to other offenders, and 2) that such a policy would breed resentment among inmates that would result in a security risk, and 3) that there would be an increased demand by other religious groups for similar diets. Id. at 125. As such, in Baranowski, an increase in costs was only one factor among several, including a security risk that collectively supported a compelling government interest. Id.

The DOC has not, however, come forth with evidence establishing the factors that were at issue in Baranowski. 486 F.3d at 125. Here, the DOC has only presented evidence of a budgetary shortfall, which is not itself a Baranowski factor. [Dkt. 83-12.] DOC argues that the mere fact that it will have to spend money to satisfy the religious needs of some prisoners is itself a compelling governmental interest. [Dkt. 83 at 28.] Insofar as the DOC asks that the Court find that a budgetary shortage alone can qualify as a compelling interest, the Court must reject that claim. Cutter, 544 U.S. at 709.

Furthermore, the idea that cost alone could provide a compelling government interest directly contravenes Seventh Circuit precedent. The Seventh Circuit has also noted that "orderly administration of a prison dietary system, and the accommodations made thereunder are legitimate concerns of prison officials. . . . The problem for the prison officials, however, is that no appellate court has ever found these to be compelling interests." Koger, 523 F.3d at 800. Without offering any additional reasons for terminating kosher meals, the Court cannot find that the government had a compelling interest that might justify burdening the religious exercise of Plaintiffs.

Equally important, DOC attempts to justify its decision to discontinue kosher meals because of the "massive increases" it incurred when it made the decision to include prisoners requesting a Hallal diet with those requesting a kosher diet. The alleged significant spikes in the

cost of kosher meals after Hallal meals were included were thus the result of the DOC's internal decision making, and not result of an increase in kosher meal requests. DOC has produced no evidence whatsoever that the cost of providing kosher foods to the more limited number of individuals in the class at issue would so "massive." Certainly, DOC would undergo increased ex-pense were it to continue the same practice of providing the same pre-packaged kosher meals, but it has provided no evidence to suggest exactly what the cost would be to provide alternative kosher meals to the class.

The DOC has failed to meet its burden of persuasion to show a compelling government interest under RLUIPA, an essential element for which it bears the burden. Summary judgment for the Plaintiffs is therefore appropriate on this basis alone.

b) Is Serving Vegan Meals the Least Restrictive Means of Achieving the Compelling Government Interest?

Even if the DOC could establish that its cost concerns amount to a compelling government interest, it would still have to demonstrate that substituting vegan meals for kosher ones is the least restrictive means of furthering that compelling governmental interest as is required by RLUIPA. 42 U.S.C. § 2000cc-1(a). It has not done so.

Under RLUIPA, the DOC must demonstrate that no feasible less restrictive means exist to achieve the compelling government interest. 42 U.S.C. § 2000cc-1(a). "[A] prison `cannot meet its burden to prove least restrictive alternative unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.'" Shakur v. Schirro, 514 F.3d 878, 890 (9th Cir. 2008).

Here, DOC asserts that discontinuing the kosher diet was the least restrictive means of furthering its interest. [Dkt. 84 at 2.] Furthermore, DOC argues that Mr. Willis has not pre-sented any cost-neutral alternatives that would satisfy inmates who request kosher meals. [Dkt. 95 at 14.] In so arguing, DOC seems to misunderstand or ignore the controlling law: Under RLUIPA, it is not the plaintiff's burden to show that reasonable alternatives do exist — it is DOC's burden to show that reasonable alternatives do not exist. 42 U.S.C. § 2000cc-1(a) (emphasis added). Moreover DOC's cost-neutrality argument directly contravenes the language of the statute which contemplates that compliance with RLUIPA "may require a government to incur expenses in its own operations to avoid imposing a substantial burden." 42 U.S.C. § 2000cc-3(c).

Although DOC contends that did in fact consider and implement several approaches to cost reduction, including allowing Muslim inmates to have prepackaged kosher meals (which, according to the prices of meals stated above, increased — rather than decreased — costs), offering Muslim inmates prepackaged Hallal entrees, and applying the 75-percent participation policy to religious meals to ensure against abuse of religious diets, [dkt. 90 at 8-9], DOC has not considered several obvious less restrictive alternatives to the termination of kosher meals, and no evidence exists in the record indicating otherwise. [Dkt. 89 at 26.]

Although it is not their burden, Plaintiffs have provided a substantial list of additional less restrictive alternatives that DOC could have exercised, or attempted to exercise, in reducing prison costs without eliminating kosher meals altogether. For example, the DOC never considered: whether there were less expensive kosher vendors, restructuring its contract with Aramark, creating a kosher kitchen at one of the facilities, or providing kosher meals that do not have to be frozen or refrigerated as an alternative to the frozen meals, among other alternatives. [Dkt. 89 at 21-26.] The DOC provides no response to Plaintiffs' suggestions.

Another alternative to terminating kosher diets outright is to strengthen safeguards to ensure against inmates abusing the religious diet system — DOC suspects false religious diet requests because the meals taste better. [Dkt. 84 at 27.] DOC can resolve its suspicions by evaluating the religious sincerity of inmates in accordance with their dietary requests, thereby whittling down the population eating kosher meals to only those inmates requesting them for sincerely held religious reasons. [Dkt. 94 at 7-8.] The parties dispute the extent to which it is appropriate for DOC to require inmates to demonstrate their religious sincerity in the RLUIPA context. [Dkts. 84; 90; 91.] However, the Supreme Court has been clear on this point: "Although RLUIPA bars inquiry into whether a particular belief or practice is `central' to a prisoner's religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner's professed religiosity." Cutter, 544 U.S. at 725. As such, contrary to DOC's position, the Court recognizes that instituting safeguards to ensure the religious sincerity of inmates who requested kosher meals under RLUIPA — although requiring effort of prison officials — would be appropriate, feasible, and less restrictive than terminating kosher diets altogether. 42 U.S.C. § 2000cc-1(a).

Therefore, even if cost reduction alone were a compelling government interest, DOC has not met its burden of demonstrating that it considered and rejected the many obvious alternatives, and that no feasible less restrictive means existed to achieve that interest. 42 U.S.C. § 2000cc-1(a). On this evidentiary record, the Court has no choice but to find that, as a matter of law, the termination of kosher diets violated RLUIPA, 42 U.S.C. § 2000cc-1(a), and the Court must grant summary judgment in favor of the Plaintiffs.

B) Does the DOC's 75-Percent Policy as Applied to Mr. Willis Violate His Individual Rights?

In addition to requesting summary judgment on behalf of the class, Mr. Willis seeks individual declaratory relief under RLUIPA and under 42 U.S.C. § 1983 for First Amendment violations concerning the application of the 75-percent policy. [Dkt. 81 at 29.] He further seeks nominal damages under § 1983 against Dr. Hall and Chaplain Hodges in their individual capacities, but because § 1983 does not provide a cause of action for damages against state agencies, he does not seek any damages against the DOC itself. [ Id.]

Mr. Willis also seeks injunctive relief, [dkt. 17 at 13], but given that he has not yet properly illustrated the scope of relief sought, the Court will address only declaratory relief.

1) Have Mr. Willis's First Amendment Rights been Violated?

The parties agree that the United States Supreme Court decision in Turner v. Safley lays out the calculus for determining the extent of inmates' First Amendment rights. 482 U.S. 78 (1987). It held that the government violates the First Amendment if it burdens fundamental rights for reasons not "reasonably related" to legitimate penological interests. Id. at 87. While the courts must show deference to prison officials' policy making expertise, the reasonableness of their regulations will be tested against four factors:

whether the regulation has a valid, rational connection to a legitimate governmental objective;

whether there are alternative means for the prisoners to exercise the rights in question;

what impact will accommodation of the right in question have on guards and other inmates and on the allocation of prison resources generally;

whether there are ready alternatives to the regulation in question. "[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation. . . . By the same token, the existence of obvious, easy alternatives, may be evidence that the regulation is not reasonable, but an `exaggerated response' to prison concerns."

Id. at 89-90.

With respect to the first factor, the legitimate government interest proffered by the DOC in support of the 75-percent policy is saving costs by reducing the number of inmates who receive kosher meals without a sincere religious reason. [Dkt. 83-10 at 4-5.] The evidence establishes, however, that its application to Mr. Willis does not rationally relate to this purpose. Turner, 482 U.S. at 89.

The challenge made here is against the regulation as applied to Mr. Willis. [Dkt. 89 at 35.] Mr. Willis was suspended from his kosher diet because did not eat 75 percent of his meals. [Dkt. 94 at 8.] The undisputed evidence shows that Mr. Willis ate all of the pre-packaged kosher meals available, [dkt. 89 at 25], but those meals were not sufficient to push him over the 75-pecent threshold because pre-packaged kosher meals were only served at two-thirds of mealtimes. Mr. Willis's religious beliefs prevented him from eating breakfast; he did not consider the breakfasts kosher. He lost the ability to eat kosher meals either because the DOC did not provide enough kosher meals in the first place, or because DOC chose a benchmark in excess of the percentage of kosher meals it provided. Given that Mr. Willis sincerely believed the breakfasts DOC provided weren't not kosher, he was doomed to fail once the 75-percent policy was enacted as he was only served kosher meals 66% of the time. Enforcing the 75-percent policy against Mr. Willis does not further the legitimate government interest of screening out insincere inmates — it actually punishes an inmate whose sincerity is not in question. Turner, 482 U.S. at 89.

Neither party disputes that the regulation, as applied, should be assessed under the Turner factors.

The additional Turner prongs likewise favor Mr. Willis. There is no dispute that when Mr. Willis's diet card was taken, he had no alternative to the kosher diet that enabled his religious exercise — he could only receive non-kosher meals for breakfast, which his religious beliefs prevented him from eating. [Dkt. 81 at 31.] Moreover, continuing to provide Mr. Willis with kosher meals during the final month before the diets were terminated would have had minimal impact on prison resources. [ Id.] Finally, as Mr. Willis rightly points out, the clear ready alternative to enforcing this regulation against him would have been to enforce the policy against individuals who were using religious diet cards without a true religious commitment, or to reduce the percentage to one corresponding to the number of kosher meals actually served. [ Id.]

The Court recognizes that this alternative would involve screening for religious sincerity of inmates. However, as stated above, this is not beyond the purview of DOC and would, to the contrary, help the DOC ensure rational application of its religious diet regulations.

Because the DOC's enforcement of its 75-percent policy against Mr. Willis fails each prong of the Turner, its application to him violates his First Amendment rights. 482 U.S. at 78.

2) In Light of the First Amendment Violation, Is DOC Liable for Violating Mr. Willis's RLUIPA Rights?

The First Amendment standard is less demanding on the DOC than RLUIPA in this context. Accordingly, if a First Amendment violation is found, a RLUIPA violation also exists. Harvey v. Adams County Sheriff's Office, 2008 WL 2396761 *2. ("Because the defendants have not established that the failure to provide a kosher diet was reasonable under the First Amendment, they have also failed to meet RUILPA's more demanding standard."). Therefore, because termination of kosher meals violates Mr. Willis's First Amendment rights, it necessarily violates his rights under the more demanding RUILPA standard. Id. The Court therefore finds that Mr. Willis is entitled to declaratory relief against DOC for violating his rights under RLUIPA.

3) Is Mr. Willis Entitled Nominal Damages against Dr. Hall and Chaplain Hodges under § 1983?

In addition to seeking declaratory relief against DOC under RLUIPA, Mr. Willis seeks nominal damages against Dr. Hall and Chaplain Hodges in their individual capacities under § 1983 for the violation of his First Amendment rights. [Dkt. 89 at 25.]

Mr. Willis concedes that under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), which circumscribes the scope of damages available to inmates, a violation of his First Amendment rights, absent physical injury, only entitles him to nominal damages. Calhoun v. DeTella, 319 F.3d 936 (7th Cir. 2003).

Mr. Willis seeks nominal damages against Dr. Hall for formulating, and against Chaplain Hodges for applying, the 75-percent policy that resulted in the denial of Mr. Willis' constitutional rights. [Dkt. 89 at 26.]

To prevail on a § 1983 claim, Mr. Willis must establish that (1) he had a constitutionally protected right, (2) he was deprived of that right in violation of the Constitution, (3) the defendant intentionally caused that deprivation, and (4) the defendant acted under color of state law. McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993). Liability can be based only on a finding that conduct causing a constitutional deprivation occurred at the defendant's direction or with his knowledge and consent. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). In other words, the official sued "must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye. . . ." Id. The Seventh Circuit has stated that "in order [for an inmate] to recover damages against a state actor under § 1983, a plaintiff must show the actor was `personally responsible for the constitutional deprivation.'" J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003).

As discussed above, the 75-percent policy violated Mr. Willis's First Amendment rights; therefore, the first two elements of liability are established as to both Dr. Hall and Chaplain Hodges. Additionally, there is no dispute that the Defendants were acting under color of state law. With respect to both Defendants, the question is whether the third element is met.

With respect to Dr. Hall, Mr. Willis asserts that Dr. Hall's development of 75-percent policy against him constituted a knowing violation of his constitutional rights. However, insofar as this is not a facial challenge to the 75-percent policy, Mr. Willis only seeks to hold Dr. Hall liable for implementing this policy against Mr. Willis. To this point, Defendants assert that it was John Schilling's April 8, 2009 email that effectuated the implementation of the 75-percent policy against inmates with religious preference diets. [Dkt. 84 at 30.] Mr. Willis does not dispute this assertion. Moreover, although Dr. Hall denied Mr. Willis's appeal, this denial alone is not actionable. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (denial of a prisoner's grievance is not actionable as a deprivation of a constitutional right.) Therefore, as a matter of law, Dr. Hall is not liable for nominal damages.

As to Chaplain Hodges, Mr. Willis asserts that Chaplain Hodges is liable for nominal damages for enforcing the policy that violated his constitutional rights. Whether Chaplain Hodges intentionally violated Mr. Willis's constitutional rights depends on whether Chaplain Hodges knew that in directing the confiscation of Mr. Willis's diet card, he was in fact preventing Mr. Willis from complying with the laws of kosher. Gentry, 65 F.3d at 561.

Record testimony reveals that Chaplain Hodges knew that the breakfast meals were not kosher, and that Mr. Willis did not eat the breakfast meals for that reason. [Dkt. 80-5 at 18-20.] Mr. Willis testified that upon directing the confiscation of Mr. Willis's meal card, Chaplain Hodges spoke to Mr. Willis in his office and said that "he wasn't a bad guy, he wasn't trying to violate [Mr. Willis's] rights, although he did agree it was a First Amendment Violation." [Dkt. 80-5 at 20.]

For the purpose of this issue, the evidence is reviewed in the light most favorable to the nonmoving DOC. Celotex, 477 U.S. at 330.

DOC is silent in response to the assertion that when Chaplain Hodges ordered the removal of Mr. Willis's diet card, he knowingly violated Mr. Willis's First Amendment rights. Instead, Chaplain Hodges argues that he never discriminated against Mr. Willis; rather, he even-handedly applied DOC's 75 percent policy. [Dkt. 83-15 at 5.] However, knowingly applying a policy in violation of an inmate's First Amendment rights — even if even-handedly — is not permitted under § 1983. Since Chaplain Hodges does not dispute Mr. Willis's assertion that he knowingly violated his First Amendment rights, the Court finds that he is personally responsible for the constitutional deprivation. Accordingly, he is liable for nominal damages. Gentry, 65 F.3d at 561.

Chaplain Hodges further states that insofar as there was nothing precluding Mr. Willis from going through the line at breakfast (and then declining to accept the meal) to meet the 75-percent threshold, [dkt. 83-15 at 5], Mr. Willis was in fact responsible for the confiscation of his card and therefore the deprivation of his own rights. [Dkt. 84 at 32.] There is conflicting evidence as to the feasibility of Mr. Willis's alternatives to violating the 75-percent policy. [Dkt. 85 at 15; dkt. 83-15 at 5.] But that evidence does not itself raise a genuine issue of material fact — Mr. Willis's alleged option to go through the breakfast line does not abdicate Chaplain Hodges of his responsibility to respect Mr. Willis's First Amendment rights, nor does it bear on Chaplain Hodges's personal involvement in the deprivation of Mr. Willis's rights.

Therefore, the Court determines that, as a matter of law, that Mr. Willis is not entitled to nominal damages against Dr. Hall. Mr. Willis is, however, entitled to nominal damages against Chaplain Hodges.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Summary Judgment. [Dkt. 80.] The motion is granted with respect to Count I. As to Count II, the Court finds that the DOC violated Mr. Willis's First Amendment and RLUIPA rights. The Court grants his claim for nominal damages against Chaplain Hodges and denies his claim as against Dr. Hall.

The Court further GRANTS IN PART AND DENIES IN PART Defendants' Motion for Summary Judgment. [Dkt. 83.] As to Count I, summary judgment is denied. As to Count II, the Court grants summary judgment with respect to Mr. Willis's claim against Dr. Hall and denies summary judgment with respect to his claim against DOC and Chaplain Hodges.

Mr. Willis, on behalf of himself and the class, requests injunctive relief in accordance with this Court's declaratory judgment. DOC does not dispute that insofar as the class as a whole, and Mr. Willis individually, are entitled to declaratory relief, they are likewise entitled to injunctive relief. However, at this point, neither party has presented cogent argument as to whether injunction should issue, nor illustrated what the scope of any injunction should be.

Therefore, the Court will conduct a hearing on the scope of injunctive relief to take place on November 30 at 1:30 pm in Room 307 at US Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Each side will have 20 minutes for oral argument. The parties are encouraged to meet and confer, with the assistance of the Magistrate Judge if requested, to attempt to agree on the terms of an injunction. If the parties cannot agree, they must each file a proposed form of injunction by November 23.