AKEEM ABDUL MAKIN, Plaintiff-Appellee,

COLORADO DEPARTMENT OF CORRECTIONS, COLORADO STATE PENITENTIARY, FRANK O.GUNTER, ARISTEDES ZAVARAS, DONICE NEAL, and JERRY GASKO, Defendants,

and

GEORGE E. SULLIVAN and H.B. JOHNSON, Defendants-Appellants.

No. 98-1272

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 12, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO(D.C. No. 93-D-479)

Vincent C. Todd, Lakewood, Colorado, for Plaintiff-Appellee.

Ken Salazar, Attorney General, Grace A. Belsches, Special Assistant AttorneyGeneral, Denver, Colorado, for Defendants-Appellants.

Before PORFILIO, McKAY, and LUCERO, Circuit Judges.

PORFILIO, Circuit Judge.

Defendants George E. Sullivan and H.B. Johnson appeal from the districtcourt's judgment following trial to the court in favor of plaintiff Akeem AbdulMakin on his 42 U.S.C. 1983 claim for violation of his First Amendment right toexercise his religion while incarcerated in the Colorado prison system. Weagree with the district court that defendants violated Mr. Makin's rights, butconclude that the court improperly determined the amount of damages awarded tohim. We therefore affirm the judgment on liability, but vacate the damagesaward and remand for further proceedings.1

* In 1993 and 1994, Mr. Makin was incarcerated under the jurisdiction of theColorado Department of Corrections, confined in 1993 at the ColoradoTerritorial Correctional Facility and in 1994 at the Colorado StatePenitentiary. He is a follower of Islam, and in both years wanted to observethe Muslim holy month of Ramadan. Critical to the observance of Ramadan is therequirement that Muslims fast between dawn and sunset each day. Mr. Makincontended that defendants improperly interfered with his ability to fast duringRamadan in 1993 and 1994, and brought this 1983 action alleging that by doingso, they violated his First Amendment right to the free exercise of hisreligion. Prior to trial, the district court dismissed all defendants exceptMessrs. Sullivan, Johnson and Gasko. In 1993, Mr. Sullivan was the deputydirector of operations for the Department of Corrections, and Mr. Johnson wasthe superintendent of the Colorado Territorial Correctional Facility and Mr.Sullivan's subordinate. Mr. Gasko replaced Mr. Sullivan as deputy director in1994. Following a trial to the court, the court held that Mr. Makin's rightshad been violated in 1993 but not in 1994, and it found Messrs. Sullivan andJohnson liable for the 1993 violation. Because Mr. Makin does not cross-appealthe district court's conclusion there was no violation in 1994, we focus onlyon activities relating to Ramadan in 1993.

As part of the settlement agreement resolving a lawsuit alleging that theDepartment of Corrections was inattentive to the needs of its Muslim inmates,the Department hired Imam Mohammed Kharrubi to advise it on Islamic practices.In this position, Imam Kharrubi worked with food service and security personnelto arrange for provision of timely and nutritional meals to Muslim inmatesparticipating in Ramadan--that is, meals provided between sunset and dawn thatwere nutritionally equivalent to the three meals provided each day at theregular times. Department policy with respect to Ramadan stated that"'[i]nmates participating in the fast of Ramadan shall be given the opportunityto receive at least two hot meals during the time period between sunset anddawn for each . . . day of the fast.'" Appellants' App. Vol. II at 247 (quotingexhibit 32).2 A February 19, 1993 memo to the kitchen staff at the TerritorialCorrectional Facility explained meal procedures to be generally followed duringRamadan that year:

"The observance of the Islamic month of Ramadan is scheduled this year fromFebruary 23rd through March 24, 1993. Muslims must fast from . . . two hoursprior to sunrise until after sunset during the entire month. Those inmatesparticipating will be escorted by security to the north dining hall forbreakfast at 4 a.m. Supper is scheduled for 6:30 p.m. also in the north dininghall."

Id. Vol. I at 33 (quoting exhibit A7). By memorandum dated February 1, 1993,Mr. Sullivan directed that the general meal procedures would not apply toinmates in segregation. The memo stated that "[d]uring the month of Ramadaninmates in segregation will be unable to participate in special feedingactivities. Regular meals with alternative meatless entrees will be madeavailable through the usual meal delivery system." Id. at 34. Mr. Johnsonimplemented the directive at the Territorial Correctional Facility. Prisonersin segregation ate their meals in their cells, and the "usual meal deliverysystem" made meals available to prisoners in segregation only during the periodafter dawn and prior to sunset.

During Ramadan in 1993, Mr. Makin was housed in punitive segregation forpossession of dangerous contraband. To maintain his fast, he was unable to eathis meals when delivered. He was able to keep his meal trays in his cell untilafter sundown and eat what he could then. That included his supper and foodsuch as dry cereal and crackers that he saved from lunch and breakfast;3 healso could keep cereal and crackers in his cell overnight to eat before dawn.Mr. Makin was able to maintain his fast for the entire month, although hecontended that it was extremely difficult to do that and that, as a result, hewas unable to enjoy the full spiritual experience of Ramadan.

Applying the standards relevant to the alleged denial of a prisoner'sfundamental constitutional rights, see Turner v. Safley, 482 U.S. 78, 89-90(1987), O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-50 (1987), the districtcourt concluded that defendants Sullivan and Johnson had violated Mr. Makin'sFirst Amendment right to the free exercise of his religion. It computed damagesfor denial of this right on a per diem basis of $300 or $9,000 for the entiremonth of Ramadan, assessed jointly and severally against defendants. On appeal,defendants challenge the district court's ruling on three grounds: (1) thecourt erred in rejecting their defense of qualified immunity; (2) the denial ofspecial meal accommodations during Ramadan did not violate Mr. Makin's FirstAmendment rights; and (3) the court's determination of damages wasincorrect.

Even though they are incarcerated, prisoners retain fundamentalconstitutional rights. See Turner, 482 U.S. at 84. These rights include thereasonable opportunity to pursue one's religion as guaranteed by the freeexercise clause of the First Amendment. See Shabazz, 482 U.S. at 348; Mosier v.Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991). However, because of the inherentdifficulties and concerns in running a prison, "what constitutes a reasonableopportunity must be evaluated with reference to legitimate penologicalobjectives of the prison." Id. Thus, the standard for reviewing the validity ofa prison regulation or policy affecting a prisoner's fundamental constitutionalright, such as the free exercise of his or her religion, is this: "when aprison regulation impinges on inmates' constitutional rights, the regulation isvalid if it is reasonably related to legitimate penological interests." Turner,482 U.S. at 89. This reasonableness inquiry considers several factors: (1)whether there exists a rational connection between the prison policy orregulation and a legitimate governmental interest advanced as itsjustification; (2) whether there are alternative means of exercising the rightnotwithstanding the policy or regulation; (3) what effect accommodating theexercise of the right would have on guards, other prisoners, and prisonresources generally; and (4) whether there are ready, easy-to-implementalternatives that would accommodate the prisoner's rights. See id. at 89-91;Mosier, 937 F.2d at 1525. Like the district court, we assess the parties'contentions within this framework.

A. Qualified Immunity

As a preliminary matter, defendants contend that the district court erred indenying their claim that they were qualifiedly immune from liability for anyimproper infringement on Mr. Makin's right to freely exercise his religion."The doctrine of qualified immunity provides that '[w]hen government officialsare performing discretionary functions, they will not be held liable for theirconduct unless their actions violate clearly established statutory orconstitutional rights of which a reasonable person would have known.'" Mitchellv. Maynard, 80 F.3d 1433, 1447 (10th Cir. 1996) (quoting Pueblo NeighborhoodHealth Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988) (furtherquotation omitted)). Defendants contend they are entitled to qualified immunitybecause at the time of the relevant events, there was no clearly establishedlaw, that is, Supreme Court or Tenth Circuit authority, "which sets forth theparameters of special feeding accommodation for the celebration of Ramadan inthe prison setting especially for those inmates whose own voluntary behaviorlanded them in segregation." Appellants' Br. at 15.

Defendants first raised this issue in a motion for summary judgment that wasreferred to a magistrate judge. The magistrate judge issued a reportrecommending that the motion be denied:

The current record does not support the defendants' claim of qualifiedimmunity. Mr. Makin's right to reasonable access to his religiously requireddiet was clearly established at the time of the violations alleged in hiscomplaint. The defendants' motion for summary judgment does not address thequestion of whether the restrictions placed on Mr. Makin's religious diet werereasonable under the Turner standard. Therefore, summary judgment cannot begranted on that basis.

Appellants' App. Vol. I at 11. Defendants did not object to therecommendation, and the district court accepted it. See id. at 16. Defendantsre-raised the issue of qualified immunity at trial. Noting that defendants hadnot objected to the magistrate judge's recommendation and that the court hadearlier adopted it, the court determined that the recommendation stood as lawof the case and would not reconsider it.

Defendants contend that the district court erred in ruling that thequalified immunity determination was law of the case not subject to furtherconsideration at the time of trial. Without citing authority, they contend thatthe failure to file written objections to a magistrate judge's recommendationbased on an erroneous determination of the law, as opposed to an erroneousdetermination of fact, does not bar subsequent review by either the districtcourt or, anticipating a potential waiver problem on appeal, this court. Theycontend the error of law was the "Magistrate's ruling the law was clearlyestablished requiring prison officials to provide special feeding accommodationfor the Ramadan fast on the grounds that religious diet must be accommodated."Appellants' Br. at 12.

Regardless of whether defendants' failure to object to the magistratejudge's recommendation made the court's adoption of that recommendation law ofthe case in a technical sense, their failure to object precludes ourconsideration of their qualified immunity argument on appeal. The magistratejudge's recommendation effectively involved two legal determinations--that therelevant legal issue was Mr. Makin's "right to reasonable access to hisreligiously required diet" and that that right was clearly established at thetime of the violations alleged in his complaint. See Romero v. Fay, 45 F.3d1472, 1475 (10th Cir.1995). But contrary to defendants' unsupported contention,the failure to object to a magistrate judge's recommendation "waives appellatereview of both factual and legal questions," Moore v. United States, 950 F.2d656, 659 (10th Cir. 1991) (emphasis added), absent other considerations notapplicable here. The fact that the magistrate judge's recommendation alsoconcluded there were unresolved factual issues precluding summary judgment doesnot detract from its legal determinations nor relieve defendants of theirobligation to object to those determinations to preserve their right toappellate review. We therefore will not consider defendants' qualified immunityargument.4

B. Violation of First Amendment Rights

Defendants next challenge the district court's determination that the denialof special meal accommodations during Ramadan violated Mr. Makin's FirstAmendment rights. Their argument takes two tracks. First, they argue that therewas no violation because Mr. Makin was able to fast for the entire month ofRamadan despite their failure to deliver his meals at times when he could eat.Second, they contend that any infringement on his rights was justified bylegitimate penological interests in deterrence of improper conduct,rehabilitation, prison security, and budgetary considerations. We review thedistrict court's factual findings underlying its reasonableness determinationfor clear error, see, e.g., Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996), but our review of the ultimate reasonableness inquiry is de novo, seeMosier, 937 F.2d at 1525.

Before addressing defendants' specific arguments, we must note the limitedbreadth of the issue presented for review. That issue, as defined bydefendants, is whether they improperly infringed on Mr. Makin's right toexercise his right to observe Ramadan in 1993. It is not the broader issue ofwhether their actions improperly infringed on his right to exercise his beliefin Islam in a more general sense, as was the case, for example, in Shabazz. See482 U.S. at 352.5 By limiting our focus to the observance of Ramadan, however,we do not mean to diminish the significance of Ramadan as part of the FivePillars of Islam. See, e.g., Appellants' App. Vol. II at 20-21, 30, 63.

The district court rejected defendants' argument that the fact that Mr.Makin was able to fast the entire month of Ramadan absolved them of anyliability their restrictions on meal service may have warranted:

Although Mr. Makin was able to engage in the fast through personal sacrificeby the act of simply not eating his breakfast or lunch and trying to save foodfrom his dinner tray to eat after sundown, it is clear to this Court that thequalitative spiritual experience that was eloquently described by Mr. Makin,and which was corroborated by the testimony of the Islamic coordinator, wassubstantially diminished by the regulations in place.

Appellants' App. Vol. I at 39-40. Although defendants' argument could beviewed as relating to the Turner factor regarding alternative means ofexercising the right, their argument appears to go to the more fundamentalproposition that Mr. Makin's rights were not infringed at all. As did thedistrict court, we address the argument in that posture.

At trial, Imam Kharrubi explained the religious experience of Ramadan asfollows:

The month of Ramadan is a special season. Muslims believe that during thatmonth there are more angels around. Rewards are multiplied, and sins aremultiplied as well. So we--we are highly encouraged by these perceptions, ofcourse, by the practice within our community to avoid all kinds of sins,gossip, backbiting, and all the other bad things. And, of course, maximize ourgood behavior and good practices.

And it's basically a special season to maximize spirituality, getting closerto God. Blessings is much easier to receive in Ramadan than otherwise.

. . . .

. . . Islam emphasizes discipline, and it's through discipline and throughadherence to these practices that you would grow spiritually. This growththat's gained through the practice itself is . . . something similar to theword zakat, which is charity, the third pillar of Islam. And basically, whenyou give in charity, you gain purification of your soul. When youpractice--when you pray, when you fast, when you do all the other good deedsthat you're required to do, that's when you get spiritual growth andpurification.

If . . . somebody practices fasting, they would get a blessing from God. Andthrough the practice of that self-discipline, they would get purification aswell. If a person was not allowed to fast or if a person was not in theposition, was not able to fast, then with still through their intention wantedto fast but could not, would get a blessing from God, but would miss out on thepurification or the growth that would be received through the actual practiceitself.

Appellants' App. Vol. II at 64-66. Mr. Makin further explained thebeneficial experience of Ramadan, and the negative effect of defendants'restrictions on meal service and his opposition to those restrictions, asfollow:

That I would ordinarily attain [during Ramadan] would be a state of peace ofmind, a state of knowing and feeling that everybody throughout the year thathas not had food, they are also feeling the pains that I'm also feeling. And itis our way of getting in touch with the inner forces within us.

. . . .

. . .Within the month of Ramadan, that I supposed to be within a peacefulstate of mind. I do not supposed to engage in war, arguments or nothing likethat. When I'm placed within a position to where I'm now must engage withinthis [complaints to prison authorities regarding meal accommodations], allright, that my nice, peaceful aura is now broken. . . .

. . . .

[as to physical deprivation] It was horrible. It's standing around sweating,being in bed sweating, It's--during Ramadan you're going to encounter, youknow, the urge to eat. You're going to feel hungry. Compound that on withhaving extremely hot [he testified the cells were very hot], and you're alsoengaged within this close confinement and also engaged in combativeness totrying to get it so that you can at least eat right.

Id. at 30-32.

As noted above, the district court relied on this testimony in finding aninfringement on Mr. Makin's right to freely exercise his religion becausedefendants actions substantially diminished his qualitative spiritualexperience. Defendants essentially argue that the burden they placed on Mr.Makin's ability to fast during Ramadan should be ignored because he overcamethat burden and did fast. We reject this argument for several reasons. First,it is founded on the unacceptable notion that prison authorities may burden theobservance of religious practices for no legitimate reason at all. Second, itmakes the question of the legitimacy of government action dependent on thepersonal strength of the individual affected.

Third, and what the district court found most important, it ignores thereligious experiential aspects of Ramadan beyond the fasting itself. There isno question, as the district court found based on undisputed evidence, that Mr.Makin sincerely holds his religious beliefs. See generally Mosier, 937 F.2d at1526-27 (discussing requirement that religious beliefs be sincerely held to beprotected). Should defendants be implicitly inviting us to question thevalidity or importance of these other aspects of Ramadan as described by Mr.Makin (and Imam Kharrubi), we heartily reject their invitation. See, e.g.,Employment Division v. Smith, 494 U.S. 872, 887 (1990) ("Repeatedly and in manydifferent contexts, we have warned that courts must not presume to determinethe place of a particular belief in a religion or the plausibility of areligious claim."); Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) ("It isnot within the judicial ken to question the centrality of particular beliefs orpractices to a faith, or the validity of particular litigants' interpretationsof those creeds."); United States v. Seeger, 380 U.S. 163, 184-85 (1965)("Religious experiences which are as real as life to some may beincomprehensible to others. . . . [A court's] task is to decide whether thebeliefs professed by [an individual] are sincerely held and whether they are,in his own scheme of things, religious.") (quotation omitted).

As the testimony by Imam Kharrubi and Mr. Makin demonstrated, and thedistrict court held, the burden defendants placed on Mr. Makin diminished thespiritual experience he otherwise could gain through Ramadan. This issufficient to constitute an infringement on his right to freely exercise hisreligion. A complete denial of the ability to observe a religious practice isnot required to demonstrate an infringement, though the fact that a spiritualexperience was only diminished rather than denied may factor into the strengthof the penological interests necessary to justify the infringement. We thusturn to defendants' argument that legitimate penological interests warrantedtheir interference with Mr. Makin's rights.

Defendants contend that the Ramadan policy for inmates in segregation servedfour governmental interests: deterrence, rehabilitation, security and budget.Defendants argue generally that restricting a prisoner's right to exercise hisreligion while in punitive segregation "deter[s] inmates from behaving in amanner which caused them to be placed in segregation." Appellants' Br. at 7.However, they cite neither evidence indicating that the policy had anydeterrent or rehabilitative goal, nor authority supporting their impliedcontention that restriction of religious freedom is a proper tool for deterringimproper conduct. Cf. Young v. Coughlin, 866 F.2d 567, 570 (2d Cir. 1989) ("Italso was error to assume that prison officials were justified in limitingappellant's free exercise rights simply because [he] was in disciplinaryconfinement."). Moreover, defendants ignore Mr. Sullivan's testimony thatdeterrence and rehabilitation were not considerations in promulgating thepolicy.

As he explained:

The intent [of the policy] would not have been rehabilitation or deterrence.The intent would have been to simply meet the operational security needs of theprison with the limited staff we had available. We just simply didn't have thestaff available and the resources available to accommodate the program forthose inmates in segregation.

There was no processing of goals and objectives of corrections in terms of,is this rehabilitative or a deterrence effect? That was not in the process. Theprocess was very limited to the availability of staff necessary to carry outthe program.

Appellants' App. Vol. II at 91.

Mr. Sullivan's testimony does support the general idea that the policyserved the related interests of security and budgetary considerations, but hedid not further elaborate on these interests, and the record does not containother evidence of their relevance or applicability. Based on Mr. Johnson'stestimony that the security and budgetary impact of accommodating Mr. Makin insegregation would have been minimal, the district court found the security andbudgetary interests to be nonexistent.6 Defendants contend that the districtcourt improperly dismissed budgetary concerns because the directive applied toall prisons and prisoners within the Department of Corrections system, not justTerritorial and Mr. Makin. However, as noted above, they presented no evidenceof the budgetary or security impact of accommodating prisoners in segregationat these other facilities. Given the evidence before the district court, itsfinding that there were no legitimate budgetary and security interests behindthe policy is not clearly erroneous.

We thus agree with the district court that the directive infringed on Mr.Makin's right to exercise his religion and that defendants did not put forthany legitimate penological interests to justify that infringement. Defendantstherefore denied Mr. Makin a reasonable opportunity to pursue his religion, andare liable for damages under 1983.

C. Damages

Defendants contend that should we agree with the district court that theyviolated Mr. Makin's constitutional rights, we should vacate the districtcourt's compensatory damages award of $9,000 because Mr. Makin did not sufferany actual injury. They contend that only an award of $1 in nominal damages isappropriate. While we agree the district court improperly determined the amountof damages, we do not agree that Mr. Makin is entitled only to nominaldamages.

Damages are available for violations of 1983 "to compensate persons forinjuries caused by the deprivation of constitutional rights." Carey v. Piphus,435 U.S. 247, 254 (1978). A damages award must be based on actual injuries; id.at 264; "the abstract value of a constitutional right may not form the basisfor 1983 damages." Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308(1986).

The district court concluded that "[t]he best way that the Court canquantify a damage figure is on a per diem basis, i.e., that a certain amountper day be awarded which represents what this Court believes to be a reasonabledamage award to this Plaintiff who was unconstitutionally denied his ability tofreely exercise his religion for the month of Ramadan in 1993." Appellants'App. Vol. I at 42-43 (emphasis added). In doing so, the court incorrectly basedits award on the abstract value of the constitutional right rather than on theactual injuries Mr. Makin suffered from the denial of that right, and we mustvacate its award. We disagree with defendants, however, that there was noevidence of actual damages and that we must therefore impose nominal damages ofonly $1. Mr. Makin's testimony provides some evidence that he suffered mentalor emotional distress as a result of defendants' actions for which he mayrecover. See Carey, 435 U.S. at 264. We leave for the district court'sdetermination on remand the amount of damages, if any, the evidencesupports.

III

In sum, we conclude that the district court correctly held that defendants'failure to accommodate Mr. Makin's meal requirements during Ramadan in 1993violated his First Amendment right to freely exercise his religion, but thatthe district court improperly determined the amount of damages. The judgment ofthe district court in favor of Mr. Makin is therefore AFFIRMED in part, theaward of damages is VACATED, and the case is remanded to the district court forproceedings consistent with this opinion.

Notes:

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs withoutoral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

None of the parties submitted copies of the trial exhibits to this courtwith the record on appeal. To the extent we can refer to them at all, we relyon quotations and references contained in the trial transcript or districtcourt orders.

Mr. Makin testified that the temperature in the segregated cells was veryhigh, 75 to 80 degrees, and he could not save other food items from breakfastor lunch because they would spoil. There was no contradictory testimony.

Moreover, even were we to consider this argument on the merits, we wouldfind it unpersuasive. They frame the inquiry into the right that must beclearly established--"the parameters of special feeding accommodation for thecelebration of Ramadan"--much too narrowly. See LaBounty v. Coughlin, 137 F.3d68, 73-74 (2d Cir. 1998); Melton v. City of Okla. City, 879 F.2d 706, 729 n.37(10th Cir. 1989) ("[S]tructuring the inquiry [into what right must be clearlyestablished] too narrowly would render the defense [of qualified immunity]available to all public officials except in those rare cases in which aprecedential case existed which was 'on all fours' factually with the case atbar.") (quotation omitted), modified in part on other grounds on reh'g, 928F.2d 920 (10th Cir. 1991) (en banc). The general right to the reasonableopportunity to exercise one's religion, clearly established, e.g., by Turner,Shabazz, and Mosier, best encompasses the alleged conduct. Cf. LaFevers v.Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (recognizing constitutionalprotection for dietary restrictions based on religious beliefs).

In Shabazz, Muslim prisoners challenged regulations restricting theirability to attend a congregational service called Jumu'ah. In its analysis, theCourt said "we think it appropriate to see whether under these regulations [theprisoners] retain the ability to participate in other Muslim religiousceremonies," including Ramadan. 482 U.S. at 352. After noting the prisoners didretain that ability, the Court concluded that "this ability on the part of [theprisoners] to participate in other religious observances of their faithsupports the conclusion that the restrictions at issue here were reasonable."Id. We note that the record on appeal in this case says little about any otherIslamic observances or practices in which Mr. Makin was able to participate.

The court based its finding primarily on its questioning of Mr. Johnson onthis point as follows:

THE COURT: . . . Let's assume that instead of being told that inmates insegregation would be unable to participate in special feeding activities, youwere told they would be allowed to participate in special feeding activities,how would you have accommodated that directive?

THE WITNESS: I would have realigned the staff. I would have made specialprovisions, as I did for Ramadan itself.

THE COURT: So could you have accommodated that request so that inmates--

THE WITNESS: Could I have accommodated it? Absolutely.

THE COURT: Okay. How would you have done that?

THE WITNESS: I would have probably brought in overtime staff, and I wouldhave taken--when we brought the inmates over to the general mess hall, then Iwould have had staff pick up the food from the general mess hall and deliver itto the administrative segregation.

THE COURT: Okay. You're talking about the inmates who were taken at 4 a.m.for breakfast in the . . . general population, and you would have taken a foodtray back to the inmates in segregation.

THE WITNESS: Yes. And I would have taken it within the time frames the sameas we ran our other program.

THE COURT: Okay. And then in the evening, because the policy specified thatthose who were in the general population would have their dinner meal at 6:30p.m., which would have been after sundown, you would have done the same thingin the evening?

THE WITNESS: Yes, sir, I would have.

THE COURT: Okay. So really the only reason that you didn't do that for Mr.Makin was because you had gotten this directive from Mr. Sullivan which saidthat inmates in segregation would be unable to participate in special feedingactivities. Is that what you are saying?

THE WITNESS: Yes, sir.

Appellants' App. Vol. II at 183-84.

top of page

Thank you for visiting the site!