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Akbar v. Overbo

United States District Court, W.D. Wisconsin

December 9, 2019

AL-AMIN ABDULLAH AKBAR, Plaintiff,
v.
TODD OVERBO, Defendant.

          ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE

         Pro se plaintiff Al-Amin Abdullah Akbar is proceeding in this lawsuit on a First Amendment claim against defendant Todd Overbo, related to Overbo's decision to refuse Akbar's July 2012 request for a plant-based halal diet. Overbo has filed a motion for summary judgment (dkt. 52). Akbar has responded fully to Overbo's motion; he also has filed a motion for assistance in recruiting counsel (dkt. 62). Having reviewed the evidence of record in the light most favorable to Akbar, I conclude that a reasonable trier of fact could not find that Overbo's decision violated Akbar's First Amendment rights. In any event, Overbo is entitled to qualified immunity. Finally, I conclude that Akbar's filings establish that he was fully capable of opposing-and did adequately oppose-Overbo's motion. Accordingly, I am granting Overbo's motion for summary judgment, denying Akbar's request for assistance in recruiting counsel, and closing this case.

         UNDISPUTED FACTS[1]

         At all times relevant to his claims, Al-Amin Abdullah Akbar was incarcerated by the Wisconsin Department of Corrections (DOC) at the Wisconsin Secure Program Facility (WSPF), where Todd Overbo was working as a Chaplain. Akbar is Muslim and has practiced Islam throughout his incarceration by the DOC. Akbar's religious practices have included participating in Ramadan, reading Islamic library books, attending Jumma services, and eating Muslim religious meals.

         I. DOC Religious Practices Policies

         DOC prisoners are given opportunities to pursue the lawful religious practices of their religion of choice. DOC's Division of Adult Institutions (DAI) administers religious accommodations through Umbrella Religion Groups (URG). DOC's goal is to address the spiritual needs of prisoners in a manner that factors in rehabilitation objectives, structured programming, and the health, safety, and security concerns of the correctional environment. The URG structure was developed in consultation with community faith group leaders years ago. DOC's policies organize accommodations by grouping prisoners with similar beliefs and practices into URGs that represent and incorporate the range of religious denominations and sub-groups. The eight URGs are Catholic, Eastern Religions, Humanist/Atheist/Agnostic, Islam, Judaism, Native American/American Indian, Pagan, and Protestant/Other Christian.

         Each prisoner may choose and designate his URG, either by an intake interview or by filing a DOC 1090, “Religious Preference” form. This designation determines which religious services or study groups that prisoner may attend, which religious property he may obtain, and which dietary accommodations he may be eligible to receive. Prisoners may seek to supplement these accommodations by engaging in individualized practices or study related to any faith regardless of their URG designation.

         DOC offers three standard religious diets: halal, kosher, and plant-based (previously labeled “vegan”). Relevant to Akbar's claim are the plant-based and halal diets. The halal diet has been available since 2008 to prisoners who have declared an Islamic URG preference. The halal diet is identical to the plant-based diet, except that the halal diet adds meat four times a week, plus halal-compliant fish when it is served on the general menu. The balance of the halal diet is vegan foods, with one exception: the halal diet included milk until 2015, when milk was replaced with a non-dairy fortified fruit drink.

         Prisoners who have not declared a religious preference may request DOC's plant-based diet. Prisoners of any faith or no faith also have the option of choosing to receive the general fare menu and then self-selecting from it to avoid certain foods for any reason, religious or secular.

         DAI Policy and Procedure 309.61.03 governs how facilities administer religious diets. Prisoners may request a religious diet if their personal sincerely held religious beliefs require abstention from foods contained in the general fare menu. To request such a diet, prisoners must submit form DOC-2167 to the institution Chaplain. Prisoners must sign the form, which acknowledges and accepts the Religious Diet Participation Agreement (RDPA). The RDPA states that prisoners are expected to comply with their professed religious dietary tenets at all times, which includes food items purchased from canteen. It further provides that prisoners who violate the RDPA by consuming prohibited foods twice within six months may be removed from their religious diet, after which they must wait six months before reapplying for a religious diet.

         When an institution chaplain receives a prisoner's DOC-2167, the chaplain is responsible for reviewing the form and approving or denying the request. Part of this review may include interviewing the prisoner to assess the basis for his request, during which the chaplain might ask the prisoner for examples of prohibited foods or special handling procedures. The chaplain also may ask the prisoner to cite the religious tenets that support his requested dietary practices. If the chaplain denies the request, then the prisoner may appeal by submitting a DOC-2075, “Request for New Religious Practice” form. The DOC-2075 form is reviewed by the chaplain and the institution supervisor, who make their recommendations and forward the DOC-2075 to DOC's Central Office. At that point, the DOC's Religious Practices Advisory Committee (RPAC) conducts a thorough review, including any necessary research, then makes a recommendation. Based on the cumulative record of the prisoner's request and the recommendations by the chaplain, supervisor and RPAC, the institution's warden makes the final decision on the prisoner's appeal.

         According to Kelli West, the DAI's Religious Practices Coordinator, DOC has a legitimate interest in limiting prisoners' ability to go on-and-off religious diets at will; hence the requirement that prisoners wait six months to renew a request for a religious diet that has been stopped. Specifically, West avers that consistency in religious diets furthers orderly and efficient food services for DOC's population of 23, 000 prisoners across 36 facilities. Beyond pointing out the large population the DOC servers, West explains that DOC's Food Service operations are ill-suited for restaurant-type food preparation and accommodations. While restaurants can cater to individual requests because they use a variety of small-scale pieces of equipment for food preparation, DOC's Food Service operations are more complex than restaurant cooking, in large part due to the DOC's unique security concerns, which require: criminal background checks for all food vendor delivery staff; large-sale, high efficiency, tamper-proof equipment; secure food storage areas; and food deliveries at 1-4 week intervals that require inspections for contraband and stowaways.

         Thus, says West, if DOC changed its approach to allow at-will changes to diets, then DOC would need additional food service staff, different equipment, and more deliveries, which, in turn would require more security staff and procedures. An additional complication is that DOC Food Service operations are staffed by workers and prisoners who often are untrained, may not read well, and require both continual supervision and frequent retraining. Allowing for frequent meal adjustments would add another layer of training and supervision, which, in addition to being less efficient, can lead to mistakes that could result in a food-borne illness outbreak. West further opines that allowing for restaurant or a la carte service would require more time and resources, which simply is not feasible in an institutional setting that operates on a strict timetable.

         West also claims that the DOC furthers its interest in orderly prison administration by ensuring that prisoners are granted access to religious diets only if they demonstrate a sincerely held religious belief supporting their need for the diet. West explains that this policy buttresses consistency within the prison system because prisoners are less likely to withdraw from a genuine religious diet. West reports, however, that in the past decade DOC has experienced an increase in religious diet requests, some of which are made for non-religious reasons. This has inappropriately burdened DOC by increasing costs and inefficiencies. For example, West avers that prisoners have told chaplains that they want a religious diet for health reasons, weight loss, fear of food tampering, or to drive up costs to protest kitchen procedures. West explains that this trend of insincere religious diet requests has burdened the DOC's food service by inappropriately increasing costs and increasing the fluctuation in religious diet numbers.

         III. Akbar's Religious Diet History

         At his deposition, Akbar testified that from 2002 to the present, he has mainly “eaten Muslim religious meals provided by the DOC.” (Akbar Dep. (dkt. 50) 26.) He acknowledges the sometime between 2002 and 2005, he removed himself from that religious diet by choice, which he testified was in accordance with both DOC policy and his religious beliefs:

The reason is that, one, it's my choice formally or religiously, and it's my formal choice because it's within the rules. There's a religious choice to get on the diet or take myself off the diet, and then finally it was - as a matter of fact, I'll leave it there. It was my choice, formally and religiously it was my choice to do it.

(Id. at 30.)

         On June 5, 2005, Akbar submitted a DOC-2167 request for “Plant Based-Animal Free Meals.” Chaplain Overbo approved the request on June 29, 2005, and Akbar started receiving the plant-based diet. About eight months later, on February 7, 2006, Akbar asked to be removed from that diet. That request was granted. Akbar has testified that removing himself from the plant-based diet at that point still complied with his religious beliefs.

         About two years later, on April 3, 2008, Akbar submitted another DOC-2167 form, requesting to be placed on the “Plant-Based diet and or Non Animal or Animal Product” diet. Overbo approved that request on May 9, 2008. On August 20, 2009, Akbar was removed from that diet because on two occasions Akbar had purchased non-vegan food items (cheese popcorn, chocolate chip cookies, Doritos, and Chicken Cup-O-Noodles) from the canteen.

         Akbar acknowledges that he could have reapplied for a religious diet six months later (namely, on February 20, 2010) but he did not reapply until January 14, 2011, 17 months later. Akbar explained at his deposition that he did not “always want to make it look like, you know, you're begging somebody or you're kissing somebody's butt or whatever. So you just try to do for yourself.” (Akbar Dep. (dkt. 50) 52.)

         On January 14, 2011, when Akbar did submit a new request, he asked for a “Plant-Based diet/non Animal and or Non-Animal content (Vegan) diet.” Overbo met with Akbar to discuss this request. Akbar asked whether the plant-based diet had changed, and Overbo responded that it had not. Akbar decided to request the halal diet instead. Overbo approved this request on February 2, 2011, and Akbar was placed on the halal diet.

         On January 9, 2012, Akbar was removed from the halal diet at his own request because he believed that the sodium powder in the food was causing an increase in his blood pressure. Akbar does not recall speaking to anyone in the Health Services Unit about his blood pressure, and he does not know whether sodium powder was used in other diets at the institution at the time. Akbar cannot recall whether he attempted to request a low sodium religious diet accommodation.

         III. Overbo Denies Akbar's Religious Diet Request

         On July 19, 2012, Akbar submitted a request to receive “Vegan meals/ Non-Animal or Non -An im a l cont e nt .” A kb a r does n ot rem e mber hav ing ob ta ined a do c tor's a ppr ov a l to go back on a religious diet at that time. When Overbo received the request, he scheduled an interview with Akbar to discuss the basis of the request, apparently because of Akbar's history of ...


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