BEERHEIDE v. SUTHERS

BEERHEIDE v. SUTHERS 10

Charles E. BEERHEIDE, Sheldon Perlman, and Allen Isaac Fistell, Plaintiffs-Appellees, v. John W. SUTHERS, Executive Director, Colorado Department of Corrections;  Gerald M. Gasko, Acting Deputy Director,Colorado Department of Corrections;  Dona Zavislan, Food ServiceAdministration, Colorado Department of Corrections;  Lee Hendrix,Volunteer Service Administrator, Colorado Department of Corrections; and Does 1 Through 10, Defendants-Appellants.

No. 00-1086.

-- April 11, 2002

Before SEYMOUR, and PORFILIO, Circuit Judges, and OWEN,District Judge.*

Jennifer M. Dechtman, Assistant Attorney General, State of Colorado, Denver,CO (Ken Salazar, Attorney General, State of Colorado, Denver, CO, with her onthe briefs), for Defendants-Appellants.Scot M. Peterson of Koff, Corn &Berger, P.C., Denver, CO, for Plaintiffs-Appellees.Stephen E. Abrams of PerkinsCoie LLP, Denver, CO, filed an amicus curiae brief for American Civil LibertiesUnion.Isaac M. Jaroslawicz, Director of Legal Affairs, the Aleph Institute,Surfside, FL, filed an amici curiae brief for The Aleph Institute and JewishPrisoner Services International.

 Charles Beerheide, Sheldon Perlman, and Allen Fistell brought suitunder 42 U.S.C. ß 1983, claiming their First Amendment right to freeexercise of their religion was violated when they were not provided koshermeals while incarcerated in the Colorado prison system.   Defendants JohnSuthers, Gerald Gasko, Dona Zavislan, and Lee Hendrix, officials of theColorado Department of Corrections (DOC), appeal from the district court'sdecision in favor of plaintiffs following trial to the court.   Weaffirm.1

I.

In December 1996, plaintiffs filed a motion for a preliminary injunction ontheir claims that the DOC's failure to provide a kosher diet violated theirrights under the Free Exercise Clause of the First Amendment to theConstitution and the Religious Freedom Restoration Act. After evidentiaryhearings and a recommendation from a magistrate judge, the district courtconducted a de novo review of the facts and legal analysis in therecommendation and defendants' objections thereto.   On March 16, 1998,the court entered a preliminary injunction directing the DOC to provide kosherfood to plaintiffs free of charge and in accordance with Orthodox Jewish law.  Beerheide v. Zavaras, 997 F.Supp. 1405, 1413 (D.Colo.1998) (BeerheideI ).

While the case was pending, the Religious Freedom Restoration Act wasdeclared unconstitutional in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct.2157, 138 L.Ed.2d 624 (1997).   The district court thereafter reviewed thecase under pre-RFRA standards.   See Beerheide v. Suthers, 82 F.Supp.2d1190, 1192 (D.Colo.2000) (Beerheide II ).   The district court helda bench trial at which the parties stipulated that “the findings of factand conclusions contained in Beerheide I, are adopted for purposes of the trialof the following remaining issues in this case:  1) PlaintiffBeerheide's sincerity of belief in Judaism;  2) Plaintiff Fistell'ssincerity of belief in Judaism;  and 3) the constitutionality of[defendants'] proposed kosher diet cost-sharing program.”  Id. at1192.

After considering the evidence, the district court found the followingfacts:

Plaintiffs are inmates at Fremont Correctional Facility, one of twenty-oneadult correctional facilities in the State of Colorado Department ofCorrections housing approximately 10,000 to 12,000 inmates.   Mr.Beerheide, whose father is Jewish, was not raised Jewish and did not practiceJudaism before he was incarcerated.   After Mr. Beerheide was sent toprison, he became interested in Judaism, studied Judaism, and has followed thetenets of Orthodox Judaism since 1994.   Mr. Fistell, born and raised inthe Jewish faith, has not always been an observant Jew. At some time after hiscommitment to the DOC, Mr. Fistell resumed practicing Orthodox Judaism.  Mr. Perlman, born in 1933, was raised in an Orthodox Jewish family.  Until approximately 10 years before he was incarcerated in 1989, Mr. Perlmankept a kosher home.   After his incarceration, Mr. Perlman resumed hispractice of Orthodox Judaism.   Plaintiffs testified that they wish toobserve the practices of Orthodox Judaism including eating only kosher food.

Rabbi Yisroel Engle, qualified by the Court as an expert witness on Jewishlaw and Jewish dietary law, testified that “keeping kosher” is acentral tenet of Orthodox Judaism.   Rabbi Steven Foster, an expertwitness on Jewish law and Jewish conversion, agreed.   As outlined inBeerheide I, “keeping kosher” includes adherence to specific rulesconcerning which foods may be eaten and which are forbidden.   Foods thatmay be eaten include all non-animal products such as fruits and vegetables,meat from animals without cloven hooves including cows and sheep, and fishwhich have fins and scales.  “Kosher” also dictates specificmethods by which allowable foods are prepared for consumption.   Forexample, kosher food is no longer “kosher” if it is prepared incontainers which have held non-kosher food.   To keep kosher foodsuntainted, containers, pots and pans, utensils, and all other implements usedin their preparation must not come into contact with any item that is or hashad contact with nonkosher food.   Also, to keep kosher food“kosher,” it must be served on plates and bowls and eaten withutensils which have not had nonkosher contact.   See Beerheide I, 997F.Supp. at 1408-09.

It is undisputed that after the issuance of the preliminary injunction inthis case, the DOC Food Services department began serving Plaintiffs a kosherdiet.   To assist in the implementation of the program, DOC set up amodified kosher kitchen within the regular prison kitchen.   Mr. Beerheidebegan working in the kitchen in a special locked and caged area set aside forthe preparation of the kosher food trays for himself, and his co-Plaintiffs.  In addition, DOC has provided a microwave oven, preparation table, twocutting boards, two nondisposable knives, one pot, one pan, plastic tubs,plastic storage drawers, plastic wear and trays, butcher paper, and aluminumfoil for exclusive use in the preparation of the kosher meals.   BeerheideTestimony, October 12, 1999.   The parties agree that the cost ofproviding a kosher diet to Plaintiffs is higher than the cost of the generalfare.

Beerheide II, 82 F.Supp.2d at 1192-93.   Applying the standardsrelevant to the alleged denial of a prisoner's constitutional rights, seeTurner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), thedistrict court concluded that the DOC had violated plaintiffs' First Amendmentright to the free exercise of their religion by failing to provide them with akosher diet.   The court entered a permanent injunction requiring DOC toprovide plaintiffs with a “diet that complies with the kosher dietaryrequirements of Orthodox Judaism at no cost to Plaintiffs.” Beerheide II, 82 F.Supp.2d at 1200.

On appeal, the DOC asserts the district court wrongly applied Turner v.Safley in holding not only that the DOC must make a kosher diet available, itmust also provide the diet with no contribution from the inmates.  Specifically, the DOC also maintains the court erred in rejecting its proposalthat it be allowed to charge prisoners a co-payment of 25% of the extra cost ofkosher meals.

II.

 In a long line of cases, the Supreme Court has recognized thatprisoners retain constitutional rights when incarcerated.   The Court hasreiterated that “ ‘convicted prisoners do not forfeit allconstitutional protections by reason of their conviction and confinement inprison.’ ”   O'Lone v. Estate of Shabazz, 482 U.S. 342,348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (quoting Bell v. Wolfish, 441 U.S.520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979));  see also Turner, 482U.S. at 84, 107 S.Ct. 2254 (“Prison walls do not form a barrierseparating prison inmates from the protections of the Constitution.”).  In some instances, however, constitutional rights must be curtailed dueto the very fact of incarceration or for valid penological reasons. O'Lone, 482 U.S. at 348, 107 S.Ct. 2400.  “[W]hen a prisonregulation impinges on inmates' constitutional rights, the regulation is validif it is reasonably related to legitimate penological interests.”  Turner, 482 U.S. at 89, 107 S.Ct. 2254.

The Turner decision marked a confirmation of the Supreme Court's deferentialapproach in matters of prison administration and the constitutional rights ofprisoners.   In a series of cases throughout the 1970s, the Court heldthat regulations promulgated by prison officials should be upheld by courtsunless the regulations are shown to be unreasonable or an exaggerated responseto administrative and security concerns.   See Pell v. Procunier, 417 U.S.817, 827, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (regulation upheld unlesssubstantial evidence that it constitutes exaggerated response to security andadministrative concerns);  Jones v. North Carolina Prisoners' LaborUnion, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (If securityconcerns unreasonable, corrections officials required to show furtherjustification for regulations);  Bell v. Wolfish, 441 U.S. 520, 550, 99S.Ct. 1861, 60 L.Ed.2d 447 (1979) (inmates' rights not violated if rulerational response to an obvious problem).

One case, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224(1974), required that prison officials meet a “least restrictive”means test if their regulations infringed on the constitutionally-protectedrights of non-prisoners.   Because some circuits adopted the Martinez testas the standard for all prisoner rights cases, the Supreme Court in Turnerclarified its standard.  Turner reiterated the view that “[C]ourtsare ill equipped to deal with the increasingly urgent problems of prisonadministration and reform.”  Turner, 482 U.S. at 84, 107 S.Ct. 2254(quoting Martinez, 416 U.S. at 405, 94 S.Ct. 1800).   The Court plainlystated that its decision was driven by a concern that courts had becomeunnecessarily involved in the day-to-day affairs of prison administration. Id. at 89, 107 S.Ct. 2254.

Turner recognized the institutional capabilities possessed by prisonofficials.  “[J]udgments regarding prison security are particularlywithin the province and professional expertise of corrections officials, and inthe absence of substantial evidence in the record to indicate that theofficials have exaggerated their response to these considerations, courtsshould ordinarily defer to their expert judgment in such matters.” Id. at 86, 107 S.Ct. 2254 (quoting Jones v. North Carolina Prisoners'Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)).   Thus,if a regulation is reasonably related to legitimate penological interests (adetermination made by applying the four-pronged test discussed below), theregulation is valid.   Id. at 89, 107 S.Ct. 2254.  “[S]uch astandard is necessary if ‘prison administrators ․, and not thecourts, [are] to make the difficult judgments concerning institutionaloperations.”  Id. at 89, 107 S.Ct. 2254 (quoting Martinez, 416 U.S.at 407, 94 S.Ct. 1800).

Turner constituted a corrective to decisions that granted prison officialsnext to no deference in how they accommodated the rights of prisoners.  At the same time, it did not take from the courts all power to interpret andapply the Constitution within the prison context.   As discussed below,Turner itself found a prison system's regulation banning inmate marriages to beunreasonable and thus struck it down.   See Turner, 482 U.S. at 97-99, 107S.Ct. 2254;  see also Lile v. McKune, 224 F.3d 1175 (10th Cir.2000),cert. granted, 532 U.S. 1018, 121 S.Ct. 1955, 149 L.Ed.2d 752 (2001); Makin v. Colo. Dep't of Corr., 183 F.3d 1205 (10th Cir.1999).

 In order to balance the guarantees of the Constitution with thelegitimate concerns of prison administrators, Turner requires a court todetermine:  (1) whether a rational connection exists between the prisonpolicy regulation and a legitimate governmental interest advanced as itsjustification;  (2) whether alternative means of exercising the rightare available notwithstanding the policy or regulation;  (3) what effectaccommodating the exercise of the right would have on guards, other prisoners,and prison resources generally;  and (4) whether ready,easy-to-implement alternatives exist that would accommodate the prisoner'srights.   See Turner, 482 U.S. at 89-91, 107 S.Ct. 2254;  see alsoMakin, 183 F.3d at 1209.  Turner thus requires courts, on a case-by-casebasis, to look closely at the facts of a particular case and the specificregulations and interests of the prison system in determining whetherprisoners' constitutional rights may be curtailed.   The DOC contends thatunder the Turner analysis it is not constitutionally required to provide akosher diet to prisoners, and that if it is so required, it should be allowedto charge a co-payment to those prisoners who participate in the kosher mealprogram.

 This circuit recognizes that prisoners have a constitutional right toa diet conforming to their religious beliefs.  LaFevers v. Saffle, 936F.2d 1117, 1119-20 (10th Cir.1991);  see also Makin, 183 F.3d at 1214(failure to accommodate Muslim fasting requirements during Ramadan infringed oninmate's First Amendment rights).   In Makin we were presented with anarrow question of law:  whether defendants improperly infringed on theplaintiff's right to observe Ramadan.  Makin, 183 F.3d at 1211.  Similarly, we must determine here whether defendants have improperly infringedupon plaintiffs' right to observe the dietary laws of Judaism.   Inassessing whether the district court properly applied Turner, we review itsunderlying factual findings for clear error but we review its legaldeterminations de novo.   See id. at 1211.

A.

 Under the Turner analysis, the first determination is whether arational connection exists between the prison policy and a legitimategovernmental interest advanced as its justification.  Turner, 482 U.S. at89, 107 S.Ct. 2254.   At trial, the DOC proffered two penologicalinterests to justify its policy against providing Kosher diets: budgetary concerns, and other prisoners' responses to the provision ofsuch a diet.   Beerheide II, 82 F.Supp.2d at 1197.2  The districtcourt found both these concerns were legitimate DOC interests, and held thatthis factor weighs in favor of defendants.  Id. We agree.   Tosatisfy this prong of the test, the prison administration is required to make aminimal showing that a rational relationship exists between its policy andstated goals.   Without doubt, prison administrators have a legitimateinterest in working within a fixed budget.   Moreover, there is alegitimate concern that other inmates' might react negatively to providing someprisoners with a kosher diet.3

B.

The second determination is whether plaintiffs have alternative means bywhich to exercise the right to maintain a kosher diet.   The districtcourt rejected two alternatives proffered by the DOC. The DOC argued thatplaintiffs could purchase kosher meals in the prison canteen.   Theevidence showed, however, that plaintiffs were financially unable to exercisethis option due to the high cost of canteen meals.   The DOC also assertedthat the Jewish community could provide kosher food to prisoners.   Thedistrict court found that daily provision of kosher food by the community isnot feasible. Moreover, the court cannot order community groups to providefood.   The court thus concluded that plaintiffs have no “viablealternative to observing the essential tenet of Judaism of eating a kosherdiet.”  Id.

 On appeal, the DOC contends the district court failed to addresstestimony that inmates could obtain an “alternative religious diet”free of charge through the prison's “common fare” program.  Aplt. Br. at 23.   Meals in this program are prepared with no pork or porkby-products, or are vegetarian.   In its brief, the state claims thatwhile the diet does not meet the “strictest orthodox standards,” it“meets the basic tenants [sic ] of a kosher diet.” Id.

Testimony showed kosher laws do not deal simply with whether a food itemdoes or does not contain pork or other non-kosher animal products.  Kosher laws govern not only the ingredients (both animal and vegetable), butthe source, storage, and preparation of those ingredients, and the service ofmeals.   A vegetarian meal prepared in a non-kosher kitchen is notkosher.4  See Ashelman v. Wawrzaszek, 111 F.3d 674, 675 & n. 2 (9thCir.1997);  see also Gerald F. Masoudi, Kosher Food Regulation & TheReligion Clauses of the First Amendment, 60 U. Chi. L.Rev. 667, 669 (1993).  The DOC's alleged “alternative,” then, is not an alternativeat all.   The district court did not commit clear error in failing to findfacts favorable to the DOC.

The district court also correctly applied the law.   In upholding arestriction on inmate-to-inmate correspondence, the Supreme Court in Turnerfound that while prison regulations barred communication with a limited classof people about whom officials had particular cause for concern, there remainedmany people with whom prisoners could still communicate.  Turner, 482 U.S.at 92, 107 S.Ct. 2254.   Plaintiffs in this case are not presented with analternative means of following Jewish dietary laws.   Purchasing meals inthe canteen is financially impossible for prisoners of limited means.  The Jewish community cannot be expected or required to provide food to theprisoners.   Nor is participation in the “common fare program”an alternative means of keeping kosher.   The term “strictkosher” as used by the DOC is a misnomer.   Under Orthodox kashruthlaw, a person either keeps kosher or he does not.   Ashelman, 111 F.3d at675 & n. 2. In short, these suggestions are not sufficient alternatives toproviding plaintiffs with a kosher diet.

 That the plaintiffs are entitled to a kosher diet does not resolvewhether the DOC can charge prisoners a co-payment for the added cost of koshermeals.   Prior to the hearing on the injunction, the DOC proposed that anyprisoner wishing to take part in the kosher meal program be required to make aco-payment of no more than 25% of the additional cost of providing the meals.  The DOC proffered evidence (which the district court ultimately foundunreliable) that the cost of a kosher diet is between $2.50 and $4.50 per meal. Beerheide II, 82 F.Supp.2d at 1196.   The district court found thatunder the DOC's proposed co-payment plan, a prisoner maintaining a kosher dietwould be expected to pay $90 per month and would incur a debt to his or herinmate account if unable to pay.5  The court expressed serious concernsabout the implications of expecting prisoners to fall into debt in order tomaintain their religious beliefs, questioning whether the proposed co-paymentprogram would in fact run counter to penological goals.

I have serious concerns that if Plaintiffs do not have sufficient funds topay the 25% co-pay, their inmate accounts would maintain a negative balance tobe turned over to DOC collections upon the inmate's discharge from prison.  A major goal of parole is rehabilitation.   See Griffin v.Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987);  Lattav. Fitzharris, 521 F.2d 246, 249 (9th Cir.1975) (“The overriding goal ofthe parole system is to give the parolee a chance to further and to demonstratehis rehabilitation while serving a part of his sentence outside the prisonwalls.”).   To begin parole with a financial debt to DOC runscounter to this laudatory goal.   Moreover, it sets the questionableprecedent of encouraging the inmate to spend money he does not have.

Beerheide II, 82 F.Supp.2d at 1198.

While $90 dollars a month may seem like a pittance, it must be assessed inthe prison context where inmates make between $1.00 and $1.87 per day for amaximum of $56.58 per month.   App. vol. IV at 1236.   Thus, aprisoner living solely on earnings from prison work would incur a debt of morethan $30.00 per month in order to maintain his religious beliefs.   Oneprison official testified that although prisoners may go into debt under theproposal, he had yet to see the state pursue a debt after a prisoner isreleased.   App. vol.   III at 917-18.   Such an admissionunderscores the unreasonable nature of the 25% co-payment program.   Itwould force prisoners into debt far beyond what they might earn, thus failingto teach prisoners about responsible spending, while doing little to curb costsper prisoner since the state does not regularly collect such debts uponrelease.   In short, while contradicting other penological goals, it doeslittle to further the stated goals of the prison system that could not beaccomplished through a less onerous co-payment program.

Of course, prisoners sometimes receive money from family, friends, and otheroutside sources.   DOC points to evidence that Mr. Fistell's inmateaccount averages over $100.00 per month and Mr. Perlman's account totalednearly $100.00 per month in one year.   Aplt. Br. at 9 (App. at 1216).6 While Messrs.   Fistell and Perlman are fortunate to have more thanthe minimal income prisoners earn from their work, the co-payment would requireeven them to sacrifice nearly all of that income to maintain their religiousduties, leaving little or no money for other essentials such as stationary,telephone calls, medication, medical visits, and clothing.   App. vol IIIat 869.   Forcing prisoners to decide between communicating with familyand legal representatives, seeking medical treatment, and following religioustenets constitutes a Hobson's choice rather than a true alternative.

Thus, while meeting the proposed co-payment of 25% of additional cost mightnot be impossible for some prisoners, we cannot say the district court erred inconcluding on this record that the DOC proposal was not a reasonablealternative, particularly when, as discussed below, there are alternative meansof accommodating the plaintiffs' right to kosher meals at a minimal cost to theprison.

C.

Third, the district court was required to determine what effectaccommodating the exercise of the right would have on guards, other prisoners,and prison resources generally.  Turner, 482 U.S. at 90, 107 S.Ct. 2254. Turner makes clear that our task is to determine whether the prisonregulations are reasonably related to the penological goals and concerns laidout by the prison administration.  Id. In Turner, the prison officialsidentified both security and rehabilitation concerns to support a regulationthat permitted an inmate to marry only with the permission of thesuperintendent of the prison and provided that such permission should be givenonly if there were compelling reasons to do so.  Id. at 82, 97, 107 S.Ct.2254.   Officials testified that female prisoners were often overlydependent on male figures and subject to abuse in marriage, and that such abusewas connected to the crimes they committed.  Id. at 97, 107 S.Ct. 2254.The prison superintendent testified that the policy was also driven by therehabilitative goal of developing skills of self-reliance.  Id. The policywas presented as the result of the prison Superintendent's experience inoperating the prison.  Id. The policy furthered prison security concernsby avoiding the creation of “love triangles” within the prison. Id. at 98, 107 S.Ct. 2254.

 The Court rejected the evidence presented by prison officials and heldthat the regulation was not reasonably related to the prison's stated concernsand goals.   Referring to the rehabilitative goals, the Court found theregulation “sweeps much more broadly” than necessary to achievethose goals.   Id. As to the security objectives, the Court relied on itsown “common sense,” id., to summarily reject the evidence presentedby the prison, concluding that obvious, easy alternatives to the regulationexisted that imposed a de minimis burden on the pursuit of the prison'sobjectives.  Id. Thus, while Turner requires us to defer to the expertiseof prison officials, that deference is not absolute.   In order to warrantdeference, prison officials must present credible evidence to support theirstated penological goals.   See Lile, 224 F.3d at 1191;  Makin, 183F.3d at 1213-1214.

On appeal, the DOC argues that providing kosher meals in prison would impactthe prison's financial resources, “people resources,” andadministration.   Aplt. Br. at 24.   In applying Turner's thirdprong, the district court considered two factors:  cost and programabuse.   The court recognized that the cost of providing kosher meals isgreater than the cost of providing non-kosher meals.   Nevertheless,evidence of the actual cost of kosher meals was elusive.   One witness'testimony differed each of three times she testified, leading the districtcourt to find, “Further testimony revealed that DOC's cost estimate isfluid at best and appears unreliable.”  Beerheide II, 82 F.Supp.2dat 1197-1198.   The reliability of cost reports was further undermined bytestimony revealing that the kosher meals budget was charged for case lots ofkosher fruits and vegetables that were far too large for plaintiffs to consumein a timely fashion.   Rather than use the excess amounts to feed thegeneral prison population, as one would logically expect, the food was left torot, resulting in significant waste.   Based on this evidence, thedistrict court found that “DOC's cost estimates are unreliable and cannotserve as a valid basis of an assessment of the cost of the kosher diets.” Id. at 1198.

The DOC contends on appeal that it is “indisputable” koshermeals will cost the prison more than regular meals.   We agree, but wecannot say the district court was clearly erroneous in finding that it couldnot evaluate the impact on the DOC budget on this record.   The DOC failedto present reliable evidence that the cost impact would be more than deminimis.

 The DOC also challenges the district court's determinations relatingto the impact on guards and other inmates.   See Turner, 482 U.S. at 90,107 S.Ct. 2254.  “When accommodation of an asserted right will havea significant ‘ripple effect’ on fellow inmates or on prison staff,courts should be particularly deferential to the informed discretion ofcorrections officials.”  Id. However, the Supreme Court alsorecognizes that “few changes will have no ramifications on the liberty ofothers or on the use of the prison's limited resources for preservinginstitutional order.”  Id. In other words, prison officials cannotsimply point to any impact to win their case.

On the record before us, the DOC's evidence to support the alleged impactsthat implementation of the kosher meal program without a co-payment would haveon the guards implementing the program is tenuous, at best.   The DOCpoints to only two pieces of testimony to support its claim.   First, itrelies on the food service supervisor for the Fremont Correctional Facility whotestified that the program has put those inmates who prepare the meals in aposition of power vis-‡-vis guards due to the guards' unfamiliarity with theprovisions of kosher laws and the prison's policy regarding their provision.  Such difficulties, however, stem from the difficulties inherent inimplementing any new policy.   As guards quickly become familiar with theDOC-promulgated kosher regulations, such tensions will likely ease.  Moreover, such testimony simply isn't relevant to whether a co-payment shouldbe charged for provision of kosher meals.   There will be friction betweenguards and prisoners as the kosher policy is implemented independent of theco-payment.

Second, the DOC points to testimony regarding difficulties the Oregon prisonsystem had in implementing its kosher meal program.   However, the Oregonprogram was a model of illogic because, when it was introduced, it placed norestrictions whatsoever on who could participate in the program.7  Afterhundreds of prisoners enrolled as participants, state prison officials wereforced to undertake a lengthy administrative process after the fact in order toscreen each applicant and keep in the program only those prisoners whosereligious beliefs required them to keep kosher.   All the evidence hereshows the DOC has no intention of implementing such a poorly-designed program.  On the contrary, it already has in place a well-established system thatserves as a screen to keep out prisoners who seek to participate in the koshermeal program without a legitimate reason.   The DOC regulations require aninmate to file a request for a religious diet documenting his or her religion'sdietary laws, and allow an inmate to change religious affiliation only once ayear.   The district court found “the effectiveness of DOC's currentmethod of testing an inmate's religious sincerity is demonstrated by the factthat relatively few inmates, fourteen, have sought to keep kosher since thepreliminary injunction was issued in the case.”  Beerheide II, 82F.Supp.2d at 1199.

The DOC also erroneously asserts the district court erred in failing toaddress the impact a kosher meal program will have on other inmates.   Inso doing, the DOC points to no evidence that shows how providing kosher mealsto Orthodox Jewish prisoners might affect other prisoners except to influencethem to seek religious diets as well.   The DOC's argument turns on thepossibility that providing kosher meals might cause “a floodgate oflitigation and equal protection claims” from other inmates seekingreligious meals. The district court addressed this argument and rejected it inits ruling at the preliminary injunction phase of trial.  Beerheide I, 997F.Supp. at 1412.   We agree that this is a specious argument and reject itas well.   See supra n. 2.

In sum, while courts must defer to prison officials on such matters, Turnerand its progeny do not give prison officials absolute deference.   Theymust still make their case by presenting evidence, however minimal thatevidence might be.   On this record, we are not convinced the districtcourt erred in holding the DOC simply failed to make its case that either itsbudget or its guards or other inmates would be more than minimally impacted.

D.

The fourth and final prong of the Turner test required the district court tolook at the presence or absence of ready alternatives that would fullyaccommodate the plaintiffs' rights at de minimis costs to valid penologicalinterests of the DOC. Id. at 90.   According to Turner, the existence of“obvious, easy alternatives may be evidence that the regulation is notreasonable, but is an ‘exaggerated response’ to prisonconcerns.”  Id. The district court found on the record before itthat providing prisoners with kosher meals free of charge while using aselective screening method unrelated to money was an available alternative witha de minimis impact on DOC's annual food service budget, $13,000 out of $8.25million, or .158 percent, even accepting DOC's cost estimate despite the factthat the district court found it unreliable, see Beerheide II, 82 F.Supp.2d at1200.   Under these circumstances, the district court concluded thatcharging a co-payment that plaintiffs couldn't afford was not rationallyrelated to the stated penological goals of cost and prisoner abuse of theprogram.

 On appeal, the DOC contends the district court erred in applyingTurner's fourth prong, citing to evidence that the co-payment policy isreasonable.   In doing so, the DOC misinterprets Turner.   Inapplying the fourth Turner factor, courts are to look for obvious, easyalternatives to the prison's asserted policy and examine whether the impact ofthose alternatives on penological goals is de minimis.   As the SupremeCourt held:

[I]f an inmate claimant can point to an alternative that fully accommodatesthe prisoner's rights at de minimis cost to valid penological interests, acourt may consider that as evidence that the regulation does not satisfy thereasonable relationship standard.

Id. at 90-91, 107 S.Ct. 2254 (citation omitted).   We emphasize, as didthe Supreme Court in Turner, that this is not a least restrictive alternativetest.   Prison officials need not demonstrate they have considered ortried all other methods of dealing with the issue before courts will besatisfied with the prison's resolution.  Turner, 482 U.S. at 91, 107 S.Ct.2254.

Absent convincing evidence that the cost to valid penological goals ofproviding kosher meals without a co-payment is other than de minimis, a programthat provides prisoners with kosher meals free of charge fits well into thecategory of “quick, easy alternatives.”   We are convinced, aswas the district court, that the reasons given for the co-payment program,controlling cost and abuse, are barely impinged upon by provision of the mealsfree of charge rather than with a co-payment to the few prisoners who have metthe prison's stringent standards for receiving a kosher diet.   Thedistrict court correctly observed that the DOC's tested method of screeninginmates for religious diet programs serves the same goals the co-paymentallegedly serves by controlling both cost and abuse 8 without makingprisoner observance of kosher laws a matter of choosing between incurringsignificant debt or defiling their bodies.   As the Ninth Circuit hasusefully observed, there is a distinction between

a religious practice which is a positive expression of belief and areligious commandment which the believer may not violate at peril of his soul.  It is one thing to curtail various ways of expressing belief, for whichalternative ways of expressing belief may be found.   It is another thingto require a believer to defile himself, according to the believer'sconscience, by doing something that is completely forbidden by the believer'sreligion.

Ward v. Walsh, 1 F.3d 873, 878 (9th Cir.1993).

III.

In sum, the district court held that the DOC's proposed co-payment plan wasnot rationally related to the legitimate penological concerns of cost andabuse.  Beerheide II, 82 F.Supp.2d at 1200.   We easily conclude onthis record that the district court's findings of fact are not clearlyerroneous, nor are its conclusions of law incorrect.

We AFFIRM the judgment of the district court.

I am one with the majority holding that a prison inmate with sincerely-heldreligious beliefs should, under normal circumstances, receive meals thatconform to those beliefs.   Here, the three plaintiff inmates havesatisfied the prison authorities of the sincerity of their beliefs and in theirfacility are receiving such meals.   What compels this concurring opinionis the majority's giving minimal credit to the Colorado Department ofCorrections' (DOC) perception of the problems this creates and accordingly theinstitutional need for its regulation imposing a 25% co-pay on akosher-receiving inmate for whatever is the acknowledged extra cost 1 ofthe concededly better meals 2 over and above standard prison fare.  The DOC gives a number of reasons for establishing this, but the twomajor ones which I feel require addressing are:  (1) serious potentiallyeruptible frictions, real and subliminal between those who get and those whocan't;  (2) security concerns, some of various unpredictable andtroublesome kinds, which occasion extra expense of greater or lesserdegree.3

It hardly needs stating that one who is getting a recognizably inferior mealis envious of one who, for whatever reason, is getting a superior meal, whichmay cause an exacerbated reaction in a criminal penitentiary setting ofperpetual confinement.4  The testimony of John Suthers, Executive Directorof the DOC before the District Court is illustrative:

“As I indicated everything we do in DOC has ramifications typicallybeyond the specific issue.   This case, for example, there are inmates inDOC waiting to see the outcome of this case, and if DOC is required to providea religious meal free of cost, that will open the door to some that I can'teven fathom at this present time to seek similar sorts of treatment.  When you have a co-pay our experience is that doesn't happen.”

* * *

THE COURT:  What's the factual basis for your concern that this casecould lead to a proliferation of requests for religious diets?

THE WITNESS:  Your Honor, the factual basis is just about everythingwe do leads to-if inmates perceive that someone else is getting something thatthey're not getting-and you can look at this as kosher or not.   You canlook at the particular food offering.   Let's say somebody's saying, well,they're getting fresh vegetables, or something like that.   They will makesimilar demands.

It is therefore the considered view of the DOC that the existence of aco-pay requirement for some portion of the extra cost can have the effect ofdampening this tension between the kosher receivers and the non-receiversbecause the non-receivers are aware that the receivers are paying something forit.   This, it seems to me to be a reasonable and permissible 5response within the teaching of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254,96 L.Ed.2d 64 (1987).

․[J]udgments regarding prison security “are peculiarly withinthe province and professional expertise of corrections officials, and, in theabsence of substantial evidence in the record to indicate that the officialshave exaggerated their response to these considerations, courts shouldordinarily defer to their expert judgment in such matters.”

Id. at 86, 107 S.Ct. 2254.  (Emphasis supplied).

․[W]hen a prison regulation impinges on inmates' constitutionalrights, the regulation is valid if it is reasonably related to legitimatepenological interests.   In our view, such a standard is necessary if“prison administrators ․, and not the courts, [are] to make thedifficult judgments concerning institutional operations.”

Id. at 89, 107 S.Ct. 2254.  (Emphasis supplied).

Especially appropriate is Turner, 482 U.S. at 90, 107 S.Ct. 2254.

․A third consideration is the impact accommodation of the assertedconstitutional right will have on guards and other inmates, and on theallocation of prison resources generally.   In the necessarily closedenvironment of the correctional institution, few changes will have noramifications on the liberty of others or on the use of the prison's limitedresources for preserving institutional order.   When accommodation of anasserted right will have a significant “ripple effect” on fellowinmates or on prison staff, courts should be particularly deferential to theinformed discretion of corrections officials.6

Id. at 90, 107 S.Ct. 2254.

Given the foregoing and given the DOC's perception of the situation it isfacing, it is my view that the DOC's response-a co-pay regulation-is not anexaggerated response and is conceptually reasonable as related to itslegitimate governmental interest in dampening a potentially troublesome prisonsituation created by the difference in the quality of meals, as well as otherinterests listed above.

Only remaining is the question whether on this record evidence as to theproblems the regulation would address was sufficiently put before the courtbelow, to the point where, under Turner, that court should have deferred to theDOC's expert judgment and sustained the regulation.   As to this, themajority concludes at p. 1191 that:  “On this record, we are notconvinced the district court erred in holding the DOC simply failed to make itscase that either its budget or its guards or other inmates would be more thanminimally impacted.”   While I see more in the DOC's presentation, Iam not prepared to say that the DOC here crossed the line demarcating itsburden although the harbingers suggest that the DOC may need and becompellingly able to press these issues before our courts again at some futuretime.   Accordingly, I concur in today's majority's affirmance.

FOOTNOTES

1.  The Amicus briefs filed in this case were vigorously opposed by theDOC, who moved this court to strike the briefs from the record.   App.Motion to Strike (Jan. 10, 2001).   As we do not rely on factual matterspresented in those briefs that were not established at trial, we deny the DOC'smotion.

2.  At the preliminary injunction phase, the DOC argued that its policyof not providing religious diets was also justified by a concern that soproviding would lead to the proliferation of other lawsuits.   BeerheideI, 997 F.Supp. at 1412.   The district court rejected this justificationoutright using compelling reasoning:The concern of proliferation of lawsuitsseeking various accommodations is speculative at best.   Moreover, to denythese plaintiffs their right to observe a central tenet of their religion onthe ground that it might lead to other lawsuits is specious.   The DOC'slogic would effectively preclude provision of any accommodations for religiouspractices in prison.   Prisoners retain the right to the protections ofthe First Amendment, including the free exercise of religion.   To denyplaintiffs their right to free exercise of their sincerely held religiousbeliefs because it might lead to other inmates filing lawsuits isunreasonable.Beerheide I, 997 F.Supp. at 1412 (citation omitted).  Denying protection of a constitutional right in order to prevent other inmatesfrom seeking recognition and enforcement of their constitutional rights iscontrary to the most basic principles of our system of government.   Asthe Supreme Court declared in Turner, 482 U.S. at 84, 107 S.Ct. 2254, becauseprisoners retain constitutional rights, when “a prison regulation orpractice offends a fundamental constitutional guarantee, federal courts willdischarge their duty to protect constitutional rights.”   See alsoProcunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 40 L.Ed.2d 224(1974).

3.  In its brief, the DOC contends the district court erred in applyingthis first prong.   Aplt. Br. at 21-22.   The DOC's argument appearspremised upon a misreading of the district court's application of the Turnerfactors.   The court ruled in favor of the DOC on the first factor.  The court's discussion to which the DOC objects was in fact directed not to thefirst factor but to the third factor, i.e., the impact of the co-paymentprogram on inmates, guards and prison resources.   See Beerheide II, 82F.Supp.2d at 1197-98.

4.  Even the DOC's own expert witness, Rabbi Steven A. Foster,acknowledged on cross-examination that a vegetarian kitchen is not necessarilya kosher kitchen.Q If I have a kosher kitchen that's isolated from allother kitchens, that's a kosher kitchen and that can maintain itself as akosher kitchen, correct?A Yes.Q And it doesn't matter whether thatkitchen serves vegetables, or whatever, as long as the food that goes in iskosher, the product goes out is kosher, and it's isolated, then that's a kosherkitchen, correct?A Yes.Q And you can maintain that kitchen as avegetarian kitchen if you want to, correct?A Yes.Q And it doesn'tlose its character as a kosher kitchen?A It doesn't lose its character asa vegetarian kitchen that has not been abused by non-kosher foods.Aplt.App.vol.   III at 968-969 (emphasis added).

5.  To further support its position that it should be allowed to chargeprisoners a co-payment for the provision of kosher meals, the DOC points to thefact that it uses a co-payment program as a means of preventing inmate abuse ofthe medical services program.   The district court was not persuaded bythis argument as the medical co-pay program (as amended following litigation)requires a co-payment only if inmates see a physician without a referral from anurse or physician's assistant.   Moreover, inmates are not charged aco-payment for medical services received as treatment for an ongoing orpreexisting condition.   The medical co-payment thus serves a gate-keepingfunction, but does not punish prisoners for requiring regular legitimatemedical care.   Consequently, the medical co-payment program is far lessburdensome than the proposed kosher meal co-payment requiring a monthly fee forprovision of religiously-mandated alimentation.   See Beerheide II, 82F.Supp.2d at 1199.

6.  According to testimony at trial, Mr. Beerheide's monthly earningswere only $30.00.   App. vol.   IV at 1238.   At the time oftrial all, three plaintiffs carried much lower balances in their inmateaccounts.   Mr. Beerheide had $19.86 available, Mr. Perlman had $87.50,and Mr. Fistell had only eight cents ($00.08).   App. vol. IV at 1215.

7.  The DOC relies on the testimony of Chaplain Gary Friedman of JewishPrisoner Services International, who worked with the Oregon prison system toimplement its kosher diet plan.Q. How many people take advantage of thekosher plan?A. Initially, we had 500 who applied when we opened it toeverybody.   At present, we whittled it down to a couple of dozen that areapproved.Aplt.App. vol.   IV at 1311 (emphasis added).   ChaplainFriedman admitted that when Oregon commenced its kosher plan it was“available to everybody or anybody who wanted to participate.” Id. at 1267.   In short, Oregon's plan, when established, was whollyunregulated, whereas Colorado's is not.

8.  As the district court noted, the DOC has strict rules for stayingon a kosher diet even after the prisoner becomes entitled to one.   Once aprisoner convinces the DOC that the sincerity of his beliefs and the dictatesof his religion entitle him to a religious diet, he may lose this privilege forany of the following reasons:a.  An offender is observed violatingreligious dietary requirements.b. An offender is observed providing all orportions of their specially prepared meal to other offenders.c. Anoffender is observed eating both their specially prepared meal and the generaldiet meal offered to the general population.d. It is determined that anoffender no longer practices the associated religion.Beerheide II, 82 F.Supp.2dat 1199.

1.  See the District Court's acknowledgment at 82 F.Supp.2d, 1190,1197, “The parties agree that the cost of providing kosher meals isgreater than the cost of the non-kosher diet served to the generalpopulation.”

2.  See the District Court's opinion id. at 1198:  “If aninmate must pay for kosher meals, there may well be fewer requests from inmateswho want the kosher diet simply because it breaks routine or seems moredesirable than the general fare.”  (Emphasis supplied).And there isspecific supporting testimony of Dona Zavislan, Food Service Director for theDOC in the record before the District Court:Q: Are you familiar with theindividual who tried to intervene in this case?A: I've heard about that,yes, Mr. Boles or-Q: Mr. Boles.   And he said that-I think his phrasewas he was looking longingly at the plump, fresh vegetables and the gourmet TVdinners?A: Yes, I've heard that.Q: Is that what you're serving forthose on the kosher diet program?A: I wouldn't characterize it as suchmyself.Q: But at least there's one individual who perceives it assuch?A: That's true.

3.  For example, in the plaintiffs' facility, the DOC has built andfurnished utilities for a separate fenced-off kitchen unit in which the threekosher-receiving inmates prepare their meals.   As another example, whentuna is on their diet, the lid of each small can of specially-purchased koshertuna must be removed and taken away by a guard from the said separate kitchenunit.   The obvious reason for this is that on removal, a lid could beused as a dangerous weapon.

4.  It may be appropriate to keep in mind that not only are prisonconditions breeding grounds for tensions large and small, but prison officialsare dealing with those tensions affecting inmates both peaceful and thoseimprisoned for acts of violence, and consequently potentially a risk to guardsand other inmates if self-control or other is lost.

5.  The concept of reasonable co-pay regulations is not in seriousquestion, and on this record it appears that efforts to collect negativebalances from prisoners after release are never made.

6.  [Footnote by the writer hereof.]   The majority in its opinionmentions the DOC calling attention to the possibility that providing koshermeals will cause a flood of litigation from other inmates.   The majorityrejects this at p. ---- of its opinion.   The testimony of Ms. Zavislan inthe record in this area is at least a beginning.Q: To your knowledge havethere been any other requests by Jewish inmates who have requested koshermeals?A: I've had 14.   Those are representing inmates that are stillin the department.   There have been others that haveleft.*   *   *Q: Okay. In terms of that haveyou provided a diet to any of those 14 individuals?A: A kosher diet?  No.Q: A kosher diet.A: No.Q: Okay. Why not?A: Forall the reasons we have been discussing, the cost, the difficulty, the physicalplant issues, trying to make sure that we keep items kosher, not only buy themthat way, concerns about having specific groups, perhaps at least with theperception of some treated better than others, having their own specialpreparation area.   All of those kinds of concerns.   Concerns aboutmany more inmates wanting something special and different and a proliferationof requests from that sort ofthing.*   *   *Q: To your knowledge do anyof these 14 individuals have lawsuits currently pending?A: There are fourI know of.

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