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Tatum v. Meisner

United States District Court, W.D. Wisconsin

September 26, 2017

ROBERT TATUM, and all similarly situated DOC/CCI Inmates, Plaintiff,


          WILLIAM M. CONLEY, District Judge

         While incarcerated by the Wisconsin Department of Corrections (“DOC”), plaintiff Robert Tatum requested a nutritionally adequate diet in line with the Nation of Islam (“NOI”) diet espoused in Elijah Muhammad's book, How to Eat to Live. After denying defendants Michael Meisner and Cathy Jess's motion for summary judgment on plaintiff's claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b), a trial to the court was held to resolve two, disputed material facts: (1) whether Tatum has made a prima facie case that the denial of a NOI diet substantially burdened his religious exercise; and (2) if so, whether that denial was the least restrictive means of furthering a compelling government interest.

         In this opinion, the court finds that defendants substantially burdened Tatum's religious exercise in violation of RLUIPA by denying him a religious diet, and the denial was not the least restrictive means of furthering compelling interests. Accordingly, the court will enter an injunction as set forth in the order below, which requires the Department of Corrections to provide Tatum with a single, daily nutritionally adequate NOI diet, consistent with Trial Exhibits 503a and 503b. This opinion also addresses several, post-trial motions filed by Tatum, including a motion to reconsider the court's denial of damages and a motion for reconsideration of class treatment. For the reasons explained below, however, the court will deny these motions.


         I. Liability as to RLUIPA Claim

         The court previously issued an opinion and order on the parties' cross-motions for summary judgment, which set forth undisputed facts and the law governing plaintiff's claims. Rather than repeating much of that opinion, the court incorporates those facts and law for context, limiting this opinion to resolution of the disputed, material facts.

         Here, Tatum pursues a claim under RLUIPA's substantial burden provision, which states in pertinent part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

         A. Substantial Burden

         The United States Supreme Court has defined “substantial burden” as something that “seriously violates [one's] religious beliefs, ” regardless of whether alternative means of religious exercise are available. Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2775 (2014)). A serious violation is something more than just a “modest” violation. Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015). The Supreme Court has further clarified that this includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Holt, 135 S.Ct. at 860 (quoting 42 U.S.C. § 2000cc-5(7)(A)). Still, “[b]ecause RLUIPA is a guarantor of sincerely held religious beliefs, it may not be invoked simply to protect any ‘way of life, however virtuous and admirable, . . . if it is based on purely secular considerations.'” Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). In addition to showing that his desire to follow the NOI diet is religiously based, plaintiff must also show at least (1) a loss of benefits or (2) that the prison applied pressure to modify his behavior. Koger, 523 F.3d at 799 (holding that government conduct is substantially burdensome when it “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs”) (internal citations and quotation marks omitted).

         At trial, Tatum testified that he has been a strict adherent of the NOI diet for over twenty years. Before his incarceration, he described a typical daily diet consisting of a single meal of navy beans or lentils, vegetables, often in a soup, fresh fruits, whole milk, and whole bread or farina. During earlier stints at the Milwaukee County jail and at a mental health facility, Tatum further testified about his efforts to secure a nutritionally adequate NOI diet. When transferred to state custody in 2011, Tatum again requested a religious diet at his intake interview. Specifically, he continued to press for an NOI diet while an inmate at Columbia Correctional Institution (“CCI”), seeking support from CCI chaplains, other CCI employees and central office DOC administrators. These ongoing efforts culminated in his filing this lawsuit.

         Tatum also testified to going on hunger strikes. Both medical records and the testimony of Dr. Hoftiezer substantiated his testimony, although there appears to be some question as to whether Tatum engaged in hunger strikes to protest the denial of an NOI diet, or because he believed staff was tampering with his food. Regardless, the court credits the sincerity of Tatum's religious beliefs and long-standing adherence, and attempts at adherence, to the NOI diet. While not a requirement under RLUIPA, Tatum's testimony also established his sincere belief that: (1) the NOI diet was a core or central element of his religious exercise generally, and (2) the diet espoused in How to Eat to Live by Elijah Mohammad was mandated by Allah specifically. Elijah Muhammad, How to Eat to Live Book 1 pp.8, 53 (Secretarius MEMPS Publications 1967) (describing the “eating regulations” as a “must;” stating that the diet came from Allah).[1]

         Defendants nevertheless challenged Tatum's sincerity by identifying several, repeat canteen purchases that appear not to be in compliance with his NOI diet, including Ramen noodles, Twix bars, chips and cookies. As Tatum testified, however, the fact that he purchased these items did not necessarily mean that he consumed them. Instead, Tatum testified that he either traded certain items for services, e.g., hair braiding, or avoided eating prohibited portions of the goods, e.g., the flavor pack with the Ramen noodles. Tatum also testified that he did not personally view certain of these foods as problematic, directing the court to passages from How to Eat to Live in which NOI practitioners were cautioned to not make a meal out of sweets or eat them every day, but not required to avoid them altogether. How to Eat to Live Book 1 at p.30. Regardless, as the court observed at trial, occasional lapses from strict compliance with the NOI diet does not undermine a finding of Tatum's sincerely held religious belief, especially in light of the undisputed length of his practice and his consistent and pronounced efforts to maintain an NOI diet while incarcerated.[2]

         Having found that Tatum's efforts to comply with the NOI diet constitute religious exercise, the court must consider whether defendants' denial of the requested NOI diet constitutes a substantial burden. Here, too, the question is not a close one. As defendants conceded at trial the option that Tatum “self-select” NOI-compliant foods from either the general diet or a religious diet (e.g., halal or plant-based) would not meet his basic nutritional needs. In particular, DOC's dietary services director Christine Berndt-Miles testified that if Tatum were not to eat NOI-prohibited foods, the general diet menu would not meet his nutritional needs, including sufficient calories and key nutrients, resulting in serious under nutrition and a lack of energy. Indeed, during the course of this lawsuit, in response to Tatum's weight loss and low body mass index (“bmi”), Tatum was placed on two versions of a high caloric (“DM 327”) diet.[3]

         In their post-trial brief, defendants argue that individualized meal planning is not required under RLUIPA, directing the court to a case out of the Eastern District of Wisconsin, Andreola v. State of Wis., No. 04-C-282, 2006 WL 897787 (E.D. Wis. Apr. 4, 2006). Andreola is readily distinguishable. As an initial matter, the section relied on by defendants concerned that plaintiff's claims under the First Amendment. Moreover, the court found the logistical and budgetary problems associated with his request for a separate kosher kitchen were “obvious, ” resulting in its holding that plaintiff's First Amendment claim failed to meet the Turner v. Safley, 482 U.S. 78 (1987), standard. Finally, even on this fairly outlandish claim, the district court allowed the plaintiff in Andreola to proceed to trial on his RLUIPA claim.[4]

         Still, the court agrees with the general proposition that a prison need not accommodate every exercise of an inmate's faith, however sincerely held. In this case, the prison's proposed accommodation -- that Tatum adhere to the NOI diet on the general meal plan or one of the existing religious meal plans -- is not feasible. Indeed, there is no dispute that Tatum cannot achieve sufficient nutritional value from so-called self-selection.

         As the court indicated at summary judgment, while defendants denied Tatum's request for an NOI diet, he has presented something of a moving target in describing his exact needs. Part of the difficulty is because the book on which he relies is not a model of clarity. Even when testifying at trial, Tatum waffled at times as to whether a certain item of food was acceptable. For example, when questioned as to whether bread made of wheat and white flour would be acceptable, he initially indicated that it would, but then testified that it would not because whole wheat is specified in How to Eat to Live. At least at times, Tatum also testified that he could drink whole milk, regardless of whether it was homogenized or not, perhaps an inconsistent reading of the strict guidelines presented in the book.

         Still, during the course of this case and in particular during trial, two key components of Tatum's religious exercise have been consistent: (1) one meal a day, which Tatum described as one of the most important tenets of the NOI belief system; and (2) the lengthy list of prohibited foods necessarily requires the provision of certain preferred foods to meet minimum nutritional requirements. As explained at the close of trial, the court finds that plaintiff has met his ...

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