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Kemp v. Liebel

United States Court of Appeals, Seventh Circuit

December 11, 2017

Larry Kemp, et al., Plaintiffs-Appellants,
David Liebel, Defendant-Appellee.

          Argued October 26, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. l:14-cv-1728 - Sarah Evans Barker, Judge.

          Before Flaum, Ripple, and Manion, Circuit Judges.

          Flaum, Circuit Judge.

         Plaintiffs Larry Kemp and Brian Woodring were Jewish inmates at prisons operated by the Indiana Department of Corrections ("DOC").[1] In 2014, Kemp and Woodring were transferred from one DOC facility to another in order to maintain a kosher diet. Plaintiffs allege that defendant David Liebel, the DOC Director of Religious and Volunteer Services, violated the Free Exercise Clause of the First Amendment by failing to delay that transfer until the new facility offered opportunities for Jewish group worship and study. On cross motions for summary judgment, the district court found for Liebel on the ground that plaintiffs failed to overcome Liebel's qualified immunity defense. We affirm.

         I. Background

         The factual background is mostly undisputed. Plaintiffs Kemp and Woodring were prisoners at Pendleton Correctional Facility ("Pendleton") until April 2014, when they were transferred to Wabash Valley Correctional Facility ("Wabash Valley") in order to maintain a kosher diet. Defendant Liebel is the DOC Director of Religious and Volunteer Services. In that role, he is responsible for establishing religious programming, managing religious services, setting guidelines for religious group meetings, and maintaining the DOC Handbook of Religious Belief and Practices.[2] Liebel is not, however, involved in the operation of day-to-day activities at DOC facilities. For instance, he does not directly supervise chaplains or decide whether a group can meet for services or study.

         The DOC maintains a general policy regarding religious services and study: recognized religious groups are permitted to participate in one hour of group worship and one hour of group study each week. The DOC mandates that group worship and study be supervised by chaplains, religious specialists, or qualified volunteers in order to maintain the "integrity and authenticity of beliefs and practice." If an outside leader is unavailable, inmates are permitted to lead group services only if certain conditions are met. First, an outside religious authority must explain to a DOC chaplain how the service is run and certify that the inmate-leader has requisite knowledge to lead the service. Second, the inmate-leader must be qualified by the DOC facility. Finally, a DOC chaplain must supervise the meeting.

         While the DOC employs chaplains at its facilities to lead Christian services, it does not employ leaders of other religions, including Judaism. Instead, the DOC contracts with Lubavitch of Indiana, an Orthodox Jewish group. Lubavitch rabbis visit some DOC facilities-including Pendleton but not Wabash Valley-once a month to lead services and study and to certify inmate leaders. Thus, while at Pendleton, Kemp and Woodring attended group services and study each week. However, Wabash Valley could not offer any group services, including inmate-led services, because no volunteers were available.

         Inmates at DOC facilities can also keep a kosher diet, both for religious and non-religious reasons. Until 2013, kosher meals were provided exclusively in pre-packaged form, and were about four times more expensive than regular meals. In 2013, in order to centralize kosher food production and reduce costs, the DOC initiated a plan to create kosher kitchens at four of its facilities. The plan included Wabash Valley but not Pendleton. The locations were chosen based on physical amenities, availability of Aramark staff (the contracted food provider), and security level. Liebel did not choose the kosher kitchen facilities, but was involved in the project; for example, he objected to opening the kitchens in December 2013 because they had not been certified as kosher and he did not want to open them during Hanukkah. Although the record is not clear about the exact cost of kosher meals, both parties agree that the kosher kitchen project was developed in order to provide kosher meals at a lower cost compared to providing pre-packaged kosher meals.[3]

         In late 2013, the DOC determined that all inmates who kept kosher would be housed at facilities with the new kitchens. Kosher inmates at Pendleton received a notice from Liebel informing them they would be transferred to accommodate their diet. They were given the option, however, of forgoing kosher food in order to remain at Pendleton. Some inmates took that option, while others, including Kemp and Woodring, accepted the transfer. Liebel provided Jack Hen-drix, the DOC's executive director of classification, with a list of inmates to be moved. Hendrix, and not Liebel, chose which kosher kitchen facility inmates would be transferred to; the decision was based on a variety of factors, including security, medical and mental health, programming, and other prisoner needs. Liebel did, however, have the ability to request that an inmate's transfer be delayed, and he was aware Wabash Valley did not offer congregate Jewish services or study at the time of the proposed transfer.

         Eventually, a rabbi certified the new kitchens as kosher, and in April 2014, the DOC transferred about twenty kosher inmates from Pendleton to facilities with kosher kitchens. Kemp and Woodring were moved to Wabash Valley. At least three inmates remained at Pendleton and continued to receive pre-packaged kosher meals. The transfer of these individuals was postponed because at that time, they lived in special housing for non-religious reasons. For example, they had restrictive housing status, required mental health treatment, or lived in special housing for disciplinary reasons. Eventually, these inmates were also moved, though at least one inmate resided at Pendleton and receive pre-packaged kosher meals until December 2014.

         At the time of the transfer, the DOC was unable to recruit Jewish volunteers to Wabash Valley to lead worship or train inmate leaders; therefore, no Jewish services or group study were available. Liebel was aware that inmates, including Kemp and Woodring, made requests for worship and study. He made a concerted effort to locate Jewish volunteers to set up services and certify inmates. The DOC called Jewish synagogues in the area, and Liebel met personally with a rabbi. However, these efforts were unsuccessful until January 2015, when a Jewish leader came to Wabash Valley and certified inmates, including Kemp, to become leaders.[4] Ever since, Wabash Valley has offered congregate Jewish services and study.

         On October 22, 2014, after exhausting all administrative remedies, Kemp and Woodring filed a complaint seeking declaratory relief, injunctive relief, and damages against the Commissioner of the DOC in his official capacity, the Chaplain of Wabash Valley in his official capacity, and Liebel, in both his official and individual capacity. They asserted claims pursuant to 42 U.S.C. § 1983 for an alleged violation of the Free Exercise Clause of the First Amendment, and 42 U.S.C. § 2000cc, et seq., the Religious Land Use and Institutionalized Persons Act. On October 20, 2015, plaintiffs moved for partial summary judgment on the issue of liability and conceded that their claims for declaratory and injunctive relief were moot because Wabash Valley started offering congregate Jewish services and study. On December 18, 2015, Liebel filed a cross-motion for summary judgment. One week later, plaintiffs dismissed their official ...

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