Abdulhaseeb v. Calbone

FILED
United States Court of Appeals
Tenth Circuit

April 2, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MADYUN ABDULHASEEB,
a/k/a Jerry L. Thomas,

Plaintiff-Appellant,

v. No. 08-6092

SAM CALBONE, Warden; KEN
WOOD, Chaplain; LT. BARGER,
Disciplinary Officer; TRAVIS
SMITH, Deputy Warden;
J. HASKINS, Grievance Coordinator;
VANWEY, Case Manager;
ELIZONDO, Unit Manager;
BRANUM, Investigator; RON WARD,
Director; MELINDA GUILFOYLE,
Manager of Administrative Review &
Designee; DEBBIE MORTON,
Manager of Administrative Review &
Designee; RICHARD KIRBY, General
Counsel; RON ANDERSON, Deputy
General Counsel; MIKE MULLIN,
Warden; G. FRANZESE, Chaplain;
KAMERON HARVANEK, Deputy
Warden; MR. MOCK, Food Service
Supervisor; MS. CARTWRIGHT,
Food Service Supervisor; MAJOR
DEVAUGHN, Chief of Security;
LT. BEASLEY; Z. JACQUES, Deputy
Warden at GPCF; DISHMAN,
Grievance Coordinator,

Defendants-Appellees,

and
 KENNY DEMBY, Food Service
Supervisor,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:05-CV-01211-W)

Elizabeth L. Harris (Andrew Myers with her on the brief), Jacobs Chase Frick
Kleinkopf & Kelley, LLC, Denver, Colorado, for Plaintiff-Appellant.

Kim M. Rytter, Assistant Attorney General, Oklahoma Attorney General’s Office,
Litigation Section, Oklahoma City, Oklahoma, for Defendants-Appellees Ward,
Guilfoyle, Morton, Kirby, Anderson, Mullin, Franzese, and Harvanek.

Don G. Pope, Don G. Pope & Associates, P.C., Norman, Oklahoma, for
Defendants-Appellees Calbone, Vanwey, Wood, Branam, Elizondo, Beasley,
Jacques, Haskins, DeVaughn, Barger, Dishman, and Smith.

Peter M. Coppinger and Gregory D. Cote, McCarter & English, LLP, Boston,
Massachusetts, for Defendants-Appellees Mock and Cartwright.

Before HENRY, Chief Judge, EBEL and GORSUCH, Circuit Judges.

HENRY, Chief Judge.

Madyun Abdulhaseeb, an Oklahoma inmate who follows the Islamic faith,

filed suit under the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, 1 and 42 U.S.C. § 1983, setting forth

1
RLUIPA applies to programs or activities receiving federal financial
(continued...)

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seventeen claims concerning his conditions of incarceration. The district court

dismissed without prejudice several of his claims for failure to exhaust

administrative remedies and granted summary judgment to defendants on the

remaining claims. Mr. Abdulhaseeb appeals. Initially he proceeded pro se, but

we appointed counsel to represent him for supplemental briefing and oral

argument. 2

We have jurisdiction under 28 U.S.C. § 1291. We affirm the judgment in

favor of defendants on the majority of Mr. Abdulhaseeb’s claims, but we vacate

and remand for further proceedings on two claims. Mr. Abdulhaseeb established

that he was entitled to proceed with his RLUIPA claims, first, that his religious

exercise was substantially burdened when officials at the Oklahoma State

Penitentiary (OSP) denied his request for a halal diet and, second, when officials

at the Great Plains Correctional Facility (GPCF) denied his request for halal meat

for an Islamic feast. See, e.g., Williams v. Morton, 343 F.3d 212, 215 (3d Cir.

2003) (“A Halal, or lawful, diet includes fruits, vegetables, seafood, and meat

from herbivorous animals such as cows and chickens that are properly

1
(...continued)
assistance. 42 U.S.C. § 2000cc-1(b)(1). Defendants have not argued that the
Oklahoma correctional system does not receive federal financial assistance, and
we presume that it does. See Cutter v. Wilkinson, 544 U.S. 709, 716 n.4 (2005)
(“Every State . . . accepts federal funding for its prisons.”).
2
Our appointment of counsel was for purposes of the appeal only. We
request that the district court appoint counsel for Mr. Abdulhaseeb on remand so
that evidentiary hearings can be pursued properly.

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slaughtered.”). The record with regard to these two RLUIPA claims is

insufficient for us to determine whether the burden on Mr. Abdulhaseeb’s

religious exercise is justified by a compelling governmental interest and is the

least restrictive means of accomplishing that interest. Thus, these claims are

remanded for further proceedings in the district court.

I. BACKGROUND

A. The events underlying the litigation.

Between June 4, 2001, and January 27, 2005, Mr. Abdulhaseeb was

incarcerated at GPCF, a private prison that contracts with the state of Oklahoma

to hold Oklahoma prisoners. Defendants Calbone, Vanwey, Wood, Branum,

Elizondo, Beasley, Jacques, Haskins, DeVaughn, Barger, Dishman, and Smith

(the GPCF Defendants) are or were employees at GPCF. Defendants Mock and

Cartwright (the Canteen Defendants) are or were employed by a third-party

company to work in the GPCF canteen.

While at GPCF, among other issues related to the prison’s treatment of

Muslims and issues unrelated to his religion, Mr. Abdulhaseeb sought to be

provided halal foods. In October 2004, he filed a request to staff and a grievance

concerning being forced to accept puddings and jello on his tray. In his request to

staff, he stated that some of the GPCF Defendants and the Canteen Defendants

“are representing this pudding & jello as halal and kosher, but it doesn’t have an

U, K, or H. So it is unlawful, containing forbidden monoglyceride, lecithin, and

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whey.” R. Doc. 62, Exh. 2, p. 4 of 4. A GPCF staff member (apparently

defendant DeVaughn), responded, “IM [Inmate] Thomas, you will be served in

accordance with the approved menu.” Id. 3 Mr. Abdulhaseeb followed up with a

grievance to the warden (defendant Calbone), noting that “[t]he puddings/jello are

not Halal. They don’t carry Halal or kosher symbols (H, K, and U).” Id., p. 2 of

4. He requested that he be provided “with an alternative to pudding & jello,” id.,

and that GPCF purchase halal-certified or kosher-certified desserts or allow him

fruit as an alternative. Defendant Calbone denied relief, indicating that

Mr. Abdulhaseeb had not been forced to place jello or pudding on his tray and

that the jello and pudding were pork-free and did not contain pork by-products,

“thus meeting your Islamic beliefs.” R. Doc. 125, Exh. 3 at 2.

In November 2004, Mr. Abdulhaseeb filed another request to staff and a

grievance requesting that GPCF provide halal chickens for the general population

for the Islamic feast of Eid-ul-Adha in January 2005. Defendant Calbone denied

the grievance, stating, “DOC policy allows you to purchase a Hallal meal through

an approved vendor. The practice at GPCF, which includes this year, is to

provide an Hallal meal at the conclusion of Ramadan. Relief denied.”

R. Doc. 62, Exh. 5, p. 3 of 4. Mr. Abdulhaseeb unsuccessfully appealed to the

3
At that time, Oklahoma Department of Corrections (ODOC) did not offer a
kosher meal option. The pertinent portions of ODOC Policy OP-030112,
effective June 26, 2002, and its amendments are appended to this opinion.

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Oklahoma Department of Corrections (ODOC), arguing that under Tenth Circuit

precedent he should not have to purchase religious food or have it donated.

On January 27, 2005, Mr. Abdulhaseeb was transferred to OSP, a facility

run by ODOC. Defendants Mullin, Franzese, and Harvanek (the OSP Defendants)

are or were employed at OSP. The remaining defendants (Ward, Guilfoyle,

Morton, Kirby, and Anderson) are or were employees of ODOC (the ODOC

Defendants).

Soon after his arrival at OSP, among other issues related to the prison’s

treatment of Muslims, Mr. Abdulhaseeb again requested halal foods. In a

February 6, 2005, request to staff, he wrote:

I am a Muslim. I request a Halal diet that is consistent with my
sincerely held religious beliefs and does not substantially burden my
freedom of religious expression and is the least restrictive means of
vindicating your penological interests. Your non-pork common fare
diet and vegetarian diet are not diets that are consistent with Islamic
dietary laws.

Id., Exh. 9, p. 4 of 4. He requested that OSP “[p]rovide [him] [an] Islamic diet in

which animals are fed, raised, and slaughtered according to Islamic dietary laws

and ingredients are clearly Halal and foods and ingredients which are

questionable (unknown) are completely avoided, such as jello and puddings.” Id.

Defendant Franzese responded, “[a]s per policy OP-030112 VII.A., the

Department of Corrections provides two types of diets for religious reasons:

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(1) non-pork, (2) vegetarian. For a modified health diet, you must contact the

medical staff.” Id. Mr. Abdulhaseeb then filed a grievance, in which he stated:

I am a Muslim. The Qur’an and Sunnah (traditions) of Prophet
Muhammad order me to eat food that is good and lawful pursuant to
Islamic dietary laws. In this 10th Circuit, inmates have a
constitutional right to a diet consistent with their sincerely held
religious beliefs. You feed me a common fare non-pork diet or a
vegetarian diet[]. Those diets are sinful and repugnant to me and
violate the requirements of Halal Islamic dietary laws. I require a
Halal diet defined by the Qur’an and Sunnah, including meats and
poultry raised, grain fed, no steroids, and slaughtered according to
Islamic laws. My diet also requires that I avoid foods that are
questionable with regard to its make up and ingredients. Doubtful or
questionable ingredients are forbidden.

Id., p. 2 of 4. He requested that OSP provide him “with a Halal diet that is

consistent with my sincerely held Islamic dietary law.” Id. Defendant Mullin,

then the warden at OSP, responded, “as you were informed in the response to

your request to staff, dated February 7, 2005, OP-030112 provides (2) two diets

for religious reasons. You may elect either the non-pork or the vegetarian

diet. . . . Your request for a special Islamic diet is denied.” Id., p. 1 of 4.

Mr. Abdulhaseeb unsuccessfully appealed to ODOC, arguing

1. The Reviewing Authority erred in denying my request for a diet
that is consistent with my sincerely held religious belief under the
color of state laws. Supporting Facts. The Holy Qur’an and Sunnah
mandate that I eat meats lawfully slaughtered and all good foods.
The two diets in OP-030112.VII.A do not me[et] the Islamic
standard. Beerheide v. Suther, 286 F.3d 1194 (10th Cir. 2002).
2. Reviewing authority erred in that his resolution was not the least
restrictive and substantial[ly] burdens my free expression of religion.
Supporting Facts. The nonpork diet is most restrictive and forces me
to eat meats prohibited (not slaughtered Islamically) to survive. The

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 vegetarian diet usurps the power of God to prescribe what is lawful
and prohibited and is a form of [indiscipherable] (Association of
Partners with God). God says eat lawful meats. Allah (God) says
avoid doubtful matters. I am forced to do without food or eat food I
don’t know what ingredients are in it like or what it is made of like
jello and pudding. See 42 U.S.C. § 2000cc et seq. (2000).

Id.

On March 3, 2005, Mr. Abdulhaseeb returned to GPCF, where he remained

for a time until he again was transferred. He currently is incarcerated at the

Lawton Correctional Facility, which, we were informed at oral argument, also is

subject to ODOC policies. Under the current ODOC policy, prisoners may select

a non-pork or vegetarian meal option, and Jewish prisoners may select a kosher

meal option.

B. The proceedings in the district court.

Mr. Abdulhaseeb’s second amended (and verified) complaint asserted

seventeen claims under RLUIPA and § 1983. The claims are summarized below

by number, with parentheticals indicating the underlying legal basis for the claim:

A. Initial Claims Concerning GPCF

Claim 1: Failing to provide him a full-time paid Muslim spiritual
leader at GPCF (RLUIPA);

Claim 2: Forcing him to accept jello and pudding on his food tray at
GPCF (RLUIPA);

Claim 3: Denying his request to add a second friend to his visiting
list at GPCF (§ 1983);

Claim 4: Failing to host an Islamic revival at GPCF (RLUIPA);

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Claim 5: Failing to provide halal meats for the Islamic feast of
Eid-ul-Adha in January 2005 at GPCF (RLUIPA);

Claim 6: Establishing Christianity as the state religion at GPCF
(RLUIPA);

Claim 7: Printing and passing out Christian religious pamphlets at
GPCF during the winter holiday season (RLUIPA);

Claim 8: Retaliating against him for exercising his right to petition
for redress of grievances at GPCF (§ 1983); and

Claim 9: Failing to allow Muslim inmates to purchase halal meats
for the Islamic feast of Eid-ul-Fitr at GPCF (RLUIPA).

B. Claims Concerning OSP

Claim 10: Denying him a halal diet at OSP (RLUIPA);

Claim 11: Spending state-appropriated money on secular needs only
and not on religious needs; treating religion differently (RLUIPA,
§ 1983);

Claim 12: Failing to provide a paid Muslim spiritual leader at OSP
(RLUIPA);

Claim 13: Failing to replace his confiscated hardcover Islamic books
with soft-cover books at OSP (RLUIPA); and

Claim 14: Denying him the opportunity to attend Jumu’ah services
at OSP (RLUIPA).

C. Further Claims Concerning GPCF

Claim 15: Refusing to adjust his classification level at GPCF after a
misconduct was overturned (§ 1983);

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 Claim 16: Denying a promotion and earned credit at GPCF after a
misconduct was overturned (§ 1983); and

Claim 17: Denying special pay for a special project at GPCF
(§ 1983).

All defendants moved for summary judgment, and the magistrate judge

issued a comprehensive report and recommendation. He concluded that

Mr. Abdulhaseeb had not exhausted his administrative remedies with regard to

Claims 6 through 9 and 14 through 17. He recommended a grant of summary

judgment on the merits of all the remaining claims. Mr. Abdulhaseeb objected.

Arguing that the magistrate judge had stayed discovery pending defendants’

preparation of a special report, he also requested time to conduct discovery

pursuant to Federal Rule of Civil Procedure 56(f). The district court denied the

Rule 56(f) motion. The district court adopted the report and recommendation and

entered judgment on all claims in favor of the defendants. Mr. Abdulhaseeb

appeals.

C. Summary of our opinion.

In Part II.A., we affirm the district court’s dismissal of Claims 6 through 9

and 14 through 17 for failure to exhaust administrative remedies. In Part II.B.,

we reject Mr. Abdulhaseeb’s contention that he was improperly barred from

conducting discovery as a separate ground for reversing the district court’s

decision, and we hold that the district court did not abuse its discretion in denying

the Rule 56(f) motion. In Part II.C., we turn our attention to the two RLUIPA

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claims that we conclude require further proceedings. Concluding that the claims

are not moot even though Mr. Abdulhaseeb has been transferred away from OSP

and GPCF, we hold that the district court erred in granting summary judgment to

the OSP Defendants and the ODOC Defendants on Claim 10 and to the GPCF

Defendants and the ODOC Defendants on Claim 5. In Part II.D., we consider the

claims on which we affirm the grant of summary judgment to defendants, and,

finally, in Part III, we state our conclusion.

II. ANALYSIS

A. The district court properly dismissed the unexhausted claims.

Mr. Abdulhaseeb first challenges the district court’s determination that he

failed properly to exhaust his administrative remedies with regard to Claims

6 through 9 and 14 through 17. Having reviewed the determination of failure to

exhaust de novo, see Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1112

(10th Cir. 2007), we are not persuaded that the administrative process was

inadequate, whether because of the ex parte communications of which

Mr. Abdulhaseeb complains or otherwise. For substantially the reasons set forth

in the magistrate judge’s report and recommendation, we accept the conclusion

that Claims 6 through 9 and 14 through 17 were not exhausted and affirm the

dismissal without prejudice of those claims.

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B. The district court did not err in staying discovery pending the
defendants’ preparation of a Martinez report or in denying
Mr. Abdulhaseeb’s subsequent Rule 56(f) motion.

Mr. Abdulhaseeb next argues that the district court erred in granting

summary judgment to defendants on his exhausted claims because he was not

allowed to conduct any discovery. The magistrate judge’s order for a report,

pursuant to Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (en banc)

(per curiam), stayed further discovery until the court ordered otherwise.

Mr. Abdulhaseeb complains that the magistrate judge entered his report and

recommendation without lifting the stay on discovery, and, moreover, that the

local practice of staying plaintiffs’ discovery pending defendants’ preparation of a

Martinez report is inconsistent with the discovery provisions of the Federal Rules

of Civil Procedure.

Discovery and scheduling are matters within the district court’s broad

discretion. See King v. PA Consulting Group, Inc., 485 F.3d 577, 591 (10th Cir.

2007). The practice of ordering a Martinez report, which was approved by this

circuit in 1978, allows the assembly of a record “necessary for the orderly

consideration of the issues.” Martinez, 570 F.2d at 319. We are not persuaded

that staying discovery pending an evaluation of the report constitutes an abuse of

discretion or impermissibly contravenes the discovery provisions of the federal

rules.

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 To the extent Mr. Abdulhaseeb believed he did not have sufficient

opportunity to discover necessary evidence, Federal Rule of Civil Procedure 56(f)

provided his remedy. He filed a Rule 56(f) motion before the district court, and

he argues on appeal that the court did not construe his motion liberally. The

denial of a Rule 56(f) motion is reviewed for abuse of discretion. Trask v.

Franco, 446 F.3d 1036, 1042 (10th Cir. 2006). For two reasons, the district court

did not abuse its discretion in denying the motion.

First, Mr. Abdulhaseeb failed to invoke Rule 56(f) before the magistrate

judge, instead filing his motion in the district court after the magistrate judge’s

report and recommendation was filed. Thus, he waived his Rule 56(f) issues.

See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for

the first time in objections to the magistrate judge’s recommendation are deemed

waived.”); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.

1998) (“[T]he nonmovant must carry its burden in the district court in a timely

fashion . . . or explain why it cannot pursuant to Rule 56(f). Otherwise, the

nonmovant acts, or fails to act, at its peril.” (citation omitted)).

Second, while pro se litigants are entitled to a liberal reading of their

filings, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), they still

must follow the established procedures governing Rule 56(f) motions, DiCesare v.

Stuart, 12 F.3d 973, 979 (10th Cir. 1993). “A party seeking to defer a ruling on

summary judgment under Rule 56(f) must file an affidavit that explains why facts

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precluding summary judgment cannot be presented. This includes identifying the

probable facts not available and what steps have been taken to obtain these facts.”

Trask, 446 F.3d at 1042 (quotation omitted); see also Garcia v. U.S. Air Force,

533 F.3d 1170, 1179 (10th Cir. 2008) (“A party may not invoke Rule 56(f) by

simply stating that discovery is incomplete but must state with specificity how the

additional material will rebut the summary judgment motion.”) (quotations

omitted). Mr. Abdulhaseeb’s conclusory declaration under penalty of perjury

failed to provide the specific information required for relief under Rule 56(f).

We will not reverse the grant of summary judgment on the basis of the Rule 56(f)

ruling.

C. The district court erred in granting summary judgment on two claims
under RLUIPA.

Mr. Abdulhaseeb raises several arguments regarding the merits of the

district court’s grant of summary judgment on Claims 1 through 5 and 10 through

13. “This court reviews an award of summary judgment de novo, viewing the

record in the light most favorable to the non-moving party. Moreover, this court

construes a pro se party’s pleadings liberally.” Hammons v. Saffle, 348 F.3d

1250, 1254 (10th Cir. 2003) (citation omitted). Summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.

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“[A] verified complaint may be treated as an affidavit for purposes of summary

judgment if it satisfies the standards for affidavits set out in Rule 56(e).”

Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) (per curiam). While we

affirm the district court’s disposition of the majority of the claims, see Section

II.D. below, we conclude that RLUIPA Claims 5 and 10 must be remanded for

further proceedings.

1. The RLUIPA claims are not moot.

First, however, we must consider whether we retain jurisdiction to consider

the RLUIPA claims, in light of Mr. Abdulhaseeb’s transfer away from OSP and

GPCF, and his representation to this court that he brought his RLUIPA claims

against defendants in their official capacities, see Aplt. Pro Se Opening Br.,

Attach. p. 24. 4

“Article III delimits the jurisdiction of federal courts, allowing us to

consider only actual cases or controversies.” Kan. Jud. Review v. Stout, 562 F.3d

1240, 1245 (10th Cir. 2009). “[A]n actual controversy must be extant at all

stages of review, not merely at the time the complaint is filed.” Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997) (quotation omitted). “In

deciding whether a case is moot, the crucial question is whether granting a

4
Mr. Abdulhaseeb also asserts that he brought his § 1983 claims against
defendants in their individual capacities. Because money damages are available,
mootness is not an issue with regard to those claims.

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present determination of the issues offered will have some effect in the real

world. When it becomes impossible for a court to grant effective relief, a live

controversy ceases to exist, and the case becomes moot.” Kan. Jud. Review,

562 F.3d at 1246 (citation and quotation omitted).

RLUIPA provides for an award of “appropriate relief against a

government,” 42 U.S.C. § 2000cc-2(a), but it does not specify exactly what

type(s) of relief may be “appropriate.” Mr. Abdulhaseeb requested both money

damages and injunctive relief.

Because Mr. Abdulhaseeb has been transferred away from OSP and GPCF,

it appears that declaratory and injunctive relief will not be available against the

OSP Defendants, the GPCF Defendants, and the Canteen Defendants. See Green

v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997) (holding that once prisoner was

released from the prison system, neither declaratory nor injunctive relief would

have any effect on defendants’ behavior); Love v. Summit County, 776 F.2d 908,

910 n.4, 912 (10th Cir. 1985) (indicating that the general rule applies to a transfer

between prisons).

Further, he may not be able to recover money damages on his RLUIPA

claims, at least not against the OSP Defendants and the ODOC Defendants.

Several circuit courts have held, under the principles of sovereign (Eleventh

Amendment) immunity, that money damages are not available for

official-capacity RLUIPA claims. See Van Wyhe v. Reisch, 581 F.3d 639, 654-55

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(8th Cir. 2009), petition for cert. filed (Jan. 8, 2010) (No. 09-821), petition for

cert. filed (Feb. 9, 2010) (No. 09-953); Nelson v. Miller, 570 F.3d 868, 884-85

(7th Cir. 2009); Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir.), petition for

cert. filed, 78 U.S.L.W. 3065 (July 22, 2009) (No. 09-109); Sossamon v. Lone

Star State of Tex., 560 F.3d 316, 331 (5th Cir.), petition for cert. filed,

77 U.S.L.W. 3657 (May 22, 2009) (No. 08-1438); Madison v. Virginia, 474 F.3d

118, 131 (4th Cir. 2006). This view is supported by the statement by one of

RLUIPA’s sponsors in the House of Representatives. See 146 Cong. Rec. 19123

(Sept. 22, 2000) (statement of Rep. Canady) (“These claims and defenses lie

against a government, but the Act does not abrogate the Eleventh Amendment

immunity of states.”). On the other hand, one circuit court has concluded that

monetary relief is available against official-capacity defendants in RLUIPA suits

(although, the court also acknowledged, for a prisoner plaintiff, the Prisoner

Litigation Reform Act generally will limit such relief to nominal damages).

Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007).

But we need not decide the issue of Eleventh-Amendment immunity in this

appeal. The defendants have not raised the issue before us, and we find it

unnecessary at this time to decide sua sponte whether money damages are

available against official-capacity defendants in a RLUIPA case. See U.S. ex rel.

Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (noting that

Eleventh-Amendment immunity is waivable, and need not be raised by the court

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sua sponte). Even if Mr. Abdulhaseeb cannot recover money damages against any

defendant or injunctive relief against the prison-specific defendants, the courts

may still fashion some effective relief. The ODOC Defendants, particularly the

director of ODOC, remain parties to the litigation. The reasons given for denying

Mr. Abdulhaseeb’s requests for halal foods involved ODOC policies, and the

director of ODOC has final policymaking authority for ODOC. Mr. Abdulhaseeb

remains incarcerated in ODOC’s custody, subject to ODOC policies, and a

judgment in his favor may require ODOC to modify those policies. Thus, relief

remains available, and the RLUIPA claims are not moot. See Randolph v.

Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (holding that an Americans With

Disabilities Act claim was not moot, despite plaintiff’s transfer to a different state

prison, where plaintiff sued the Department of Corrections, “which controls both

prisons and the funding necessary to provide the sign language interpreter

requested”).

2. For purposes of avoiding summary judgment on his Claim 10,
Mr. Abdulhaseeb adequately demonstrated a genuine issue of
material fact whether the denial of halal foods at OSP
substantially burdened his religious exercise.

In Claim 10, Mr. Abdulhaseeb complains that at OSP he was denied a halal

diet that included meat, in violation of RLUIPA. In relevant part, RLUIPA

provides that:

No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .

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 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). Thus, to proceed with his RLUIPA claim,

Mr. Abdulhaseeb must demonstrate he wishes to engage in (1) a religious exercise

(2) motivated by a sincerely held belief, which exercise (3) is subject to a

substantial burden imposed by the government. See Kikumura v. Hurley,

242 F.3d 950, 960 (10th Cir. 2001) (requiring these elements in prisoner suit

under the similar language of the Religious Freedom Restoration Act of 1993

(RFRA)) 5; see also Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir. 1995)

(holding that “the burdened belief must be sincerely held by the plaintiff”);

Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 660-61

(10th Cir. 2006) (assuming that a religious exercise under RLUIPA must be

sincerely held); Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“[RLUIPA]

5
This court has recognized that the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and First Amendment precedent
provides guidance in interpreting RLUIPA. See Grace United Methodist Church
v. City of Cheyenne, 451 F.3d 643, 661 (10th Cir. 2006). This view is supported
by RLUIPA’s legislative history. See 146 Cong. Rec. 19123 (Sept. 22, 2000)
(statement of Rep. Canady) (“Section 3(a) applies the RFRA standard to protect
the religious exercise of persons residing in or confined to institutions . . . such as
prisons . . . .”).

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does not preclude inquiry into the sincerity of a prisoner’s professed

religiosity.”).

a. Mr. Abdulhaseeb believes he should consume a
halal-certified diet that includes meats.

There are varying Islamic dietary traditions among Muslims, some more

strict than others. According to the Islamic Food and Nutrition Council of

America (IFANCA) and Islamic Services of America (ISA), a “halal,” or “lawful”

diet, prohibits items deemed “haram” (or “unlawful”), including pork and its

by-products, animals improperly slaughtered or killed, alcohol and intoxicants,

blood and blood by-products, and foods contaminated with haram products. See

Islamic Food and Nutrition Council of America, What is Halal?,

http://www.ifanca.org/halal/ (last visited February 26, 2010); Islamic Services of

America (ISA), What is Halal?, http://www.isaiowa.org/content.asp?ID=1677

(last visited February 26, 2010); see also Williams, 343 F.3d at 215. Food

containing gelatin, enzymes, and emulsifiers are questionable because of their

unclear origins; they may be halal or haram. See IFANCA, What is Halal?; ISA,

What is Halal?. Organizations such as IFANCA and ISA offer a certification

procedure, by which halal products are marked with a logo that confirms their

halal status. See IFANCA, About IFANCA, http://www.ifanca.org/about/ (last

visited February 26, 2010); ISA, The Certification Process,

http://www.isaiowa.org/content.asp?ID=1680 (last visited February 26, 2010).

-20-
 The record is not entirely clear as to whether Mr. Abdulhaseeb seeks a

halal-certified diet, or simply halal-certified meats as part of a diet that is “halal”

in the sense that the foods provided are not “haram.” Giving him the benefit of

all inferences in his favor at this summary-judgment stage, we proceed on the

understanding that he seeks a halal-certified diet that includes halal-certified

meats. Thus, this appeal does not involve a request for halal-certified meats in

the context of a diet that otherwise is “halal” in the sense of simply not being

“haram,” and we do not address those circumstances.

The district court held that Mr. Abdulhaseeb had not presented evidence

that the OSP vegetarian and pork-free diets forced him to modify or violate his

religious beliefs, and noted that other courts have upheld refusals to provide a

halal diet. Mr. Abdulhaseeb counters that he sincerely believes that he must eat a

halal diet that includes halal meats, a belief that is not satisfied by the OSP’s

vegetarian and pork-free diets. See, e.g., Lewis v. Ryan, No. 04cv2468 JLS

(NLS), 2008 WL 1944112, at *19 (S.D. Cal. May 1, 2008) (referring to specific

Qur’an passages supporting the belief Islam requires adherence to a diet that

includes halal meats); see also Patel v. U.S. Bureau of Prisons, 515 F.3d 807,

810-11 (8th Cir. 2008) (summarizing a plaintiff’s belief that adherence to a halal

diet does not allow him to consume any meat unless the animal has been

slaughtered during a prayer to Allah, and noting that even vegetarian dishes can

be “haram”).

-21-
 b. We define “substantial burden” and, proceeding with the
RLUIPA analysis, conclude that Mr. Abdulhaseeb has
shown a genuine issue of material fact as to substantial
burden.

The standards under RLUIPA are different from those under the Free

Exercise Clause. Kay v. Bemis, 500 F.3d 1214, 1221 (10th Cir. 2007).

“[RLUIPA] defines ‘religious exercise’ to include ‘any exercise of religion,

whether or not compelled by, or central to, a system of religious belief.’” Id.

(quoting 42 U.S.C. § 2000cc-5(7)(A)); see also 42 U.S.C. § 2000cc-3(g)

(mandating that RLUIPA “be construed in favor of broad protection of religious

exercise”); Cutter, 544 U.S. at 725 n.13 (“RLUIPA bars inquiry into whether a

particular belief or practice is ‘central’ to a prisoner’s religion.”); Grace,

451 F.3d at 663 (recognizing that the district court erred in requiring the burdened

religious activities to be “fundamental”). In considering whether a practice is a

“religious exercise,” we certainly are not prohibited from referring to standard

religious practice or interpretation. See Levitan v. Ashcroft, 281 F.3d 1313, 1321

(D.C. Cir. 2002) (stating, in the First Amendment context, that “[a] court may

also consider whether the litigants’ beliefs find any support in the religion to

which they subscribe, or whether the litigants are merely relying on a self-serving

view of religious practice. . . . [A] court may determine whether the litigants’

views have any basis whatsoever in the creed or community on which they

-22-
purport to rest their claim.”). 6 Contrary to defendants’ arguments, however, the

issue is not whether the lack of a halal diet that includes meats substantially

burdens the religious exercise of any Muslim practitioner, but whether it

substantially burdens Mr. Abdulhaseeb’s own exercise of his sincerely held

religious beliefs. 7

There is no evidence in this record that Mr. Abdulhaseeb does not sincerely

hold his expressed beliefs that he should eat a halal diet that includes meats, even

though other Muslims may find a vegetarian or non-pork diet sufficient to satisfy

Islam. The defendants apparently do not challenge the religious nature of

Mr. Abdulhaseeb’s beliefs. See Koger v. Bryan, 523 F.3d 789, 797 (7th Cir.

6
“In assessing this burden, courts must not judge the significance of the
particular belief or practice in question. RLUIPA bars inquiry into whether [the]
belief or practice is ‘central’ to a prisoner’s religion. RLUIPA does not, however,
preclude inquiry into the sincerity of a prisoner’s professed religiosity.” Lovelace
v. Lee, 472 F.3d 174, 187 n.2 (4th Cir. 2006) (quotations and citations omitted).
7
Neither this court nor defendants are qualified to determine that a non-pork
or vegetarian diet should satisfy Mr. Abdulhaseeb’s religious beliefs. See Mosier
v. Maynard, 937 F.2d 1521, 1523 (10th Cir. 1991) (“Intrafaith differences are
common and cannot be resolved by secular courts.”); LaFevers v. Saffle, 936 F.2d
1117, 1119 (10th Cir. 1991) (“Differing beliefs and practices are not uncommon
among followers of a particular creed.”); see also Nelson, 570 F.3d at 881 (“It
simply is not appropriate for a prison official to argue with a prisoner regarding
the objective truth of a prisoner’s religious belief.”); Sossamon, 560 F.3d at 333
(“Prison chaplains are not arbiters of the measure of religious devotion that
prisoners may enjoy or the discrete way that they may practice their religion.”);
Levitan, 281 F.3d at 1321 (recognizing that the court’s inquiry does not require
“deciding whether appellants’ beliefs accord in every particular with the religious
orthodoxy of their church” or “adjudicating intrafaith differences in practice or
belief”).

-23-
2008) (holding that plaintiff’s request for a vegetarian diet qualified as a religious

exercise because the request stemmed from the plaintiff’s practice of Ordo Templi

Orientis, not secular concerns); Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir.

2007) (stating that “[t]here is no question” that keeping kosher is a religious

exercise for purposes of RLUIPA); see also United States v. Meyers, 95 F.3d

1475, 1482-83 (10th Cir. 1996) (stating, in enumerating factors relevant to

determining whether a belief is religious, that “[r]eligions often prescribe or

prohibit the eating of certain foods and the drinking of certain liquids on

particular days or during particular times” (quotation omitted)). Therefore, the

question before us is whether, in light of Mr. Abdulhaseeb’s sincerely held

religious beliefs, he has established a genuine issue of material fact whether his

religious exercise is substantially burdened by the denial of a halal diet that

includes meats. See Kikumura, 242 F.3d at 961 (focusing on substantial burden in

RFRA case where the plaintiff’s request appeared to be a protected religious

exercise and the defendants did not challenge the plaintiff’s sincerity).

i. Defining “substantial burden” under § 2000cc-1(a).

Because we have not yet had the opportunity to determine the meaning of

the term “substantial burden” in the context of § 2000cc-1(a), we appointed

counsel for Mr. Abdulhaseeb and ordered supplemental briefing on the issue.

We conclude that a religious exercise is substantially burdened under 42 U.S.C.

§ 2000cc-1(a) when a government (1) requires participation in an activity

-24-
prohibited by a sincerely held religious belief, or (2) prevents participation in

conduct motivated by a sincerely held religious belief, or (3) places substantial

pressure on an adherent either not to engage in conduct motivated by a sincerely

held religious belief or to engage in conduct contrary to a sincerely held religious

belief, such as where the government presents the plaintiff with a Hobson’s

choice—an illusory choice where the only realistically possible course of action

trenches on an adherent’s sincerely held religious belief.

We do not believe that the first and second parts of this test require further

explanation. The third part, the “substantial pressure” test, stems from the

Supreme Court’s decisions in Thomas v. Review Board of Indiana Employment

Security Division, 450 U.S. 707 (1981), and Sherbert v. Verner, 374 U.S. 398

(1963), in accordance with Congress’s desires that “substantial burden” “should

be interpreted by reference to Supreme Court jurisprudence” and that it “is not

intended to be given any broader interpretation than the Supreme Court’s

articulation of the concept of substantial burden [on] religious exercise.”

146 Cong. Rec. 16698, 16700 (July 27, 2000) (joint statement of Sen. Hatch and

Sen. Kennedy). In Thomas, the Supreme Court held that

[w]here the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such a
benefit because of conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to modify his behavior
and to violate his beliefs, a burden upon religion exists. While the
compulsion may be indirect, the infringement upon free exercise is
nonetheless substantial.

-25-
450 U.S. at 717-18. Similarly, in Sherbert, the Court stated,

[h]ere not only is it apparent that appellant’s declared ineligibility for
benefits derives solely from the practice of her religion, but the
pressure upon her to forgo that practice is unmistakable. The ruling
forces her to choose between following the precepts of her religion
and forfeiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the other hand.

374 U.S. at 404; see also id. at 406 (“[T]o condition the availability of benefits

upon this appellant’s unwillingness to violate a cardinal principle of her religious

faith effectively penalizes the free exercise of her constitutional liberties.”). We

also note that the Court recognized a “coercion” aspect to substantial burden in

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988)

(“It is true that this Court has repeatedly held that indirect coercion or penalties

on the free exercise of religion, not just outright prohibitions, are subject to

scrutiny under the First Amendment.”).

While recognizing that RLUIPA’s protection extends beyond practices that

are central to a religion, we do not intend to imply that every infringement on a

religious exercise will constitute a substantial burden. “The practice burdened

need not be central to the adherent’s belief system, but the adherent must have an

honest belief that the practice is important to his free exercise of religion.”

Sossamon, 560 F.3d at 332; see also Smith, 502 F.3d at 1278 (“[A]t a minimum

the substantial burden test requires that a RLUIPA plaintiff demonstrate that the

government’s denial of a particular religious item or observance was more than an

-26-
inconvenience to one’s religious practice.”); Adkins v. Kaspar, 393 F.3d 559, 570

(5th Cir. 2004) (“[T]he Supreme Court’s express disapproval of any test that

would require a court to divine the centrality of a religious belief does not relieve

a complaining adherent of the burden of demonstrating the honesty and accuracy

of his contention that the religious practice at issue is important to the free

exercise of his religion.” (footnote omitted)); Levitan, 281 F.3d at 1321 (stating,

in the First Amendment context, that “a rule that bans a practice that is not

‘central’ to an adherent’s religious practice might nonetheless impose a

substantial burden, if the practice is important and based on a sincere religious

belief”).

ii. Mr. Abdulhaseeb has shown a genuine issue of
material fact as to substantial burden.

Having defined “substantial burden,” we now must consider whether

Mr. Abdulhaseeb has shown a genuine issue of material fact as to substantial

burden. This case comes before us from a grant of summary judgment, in which

all reasonable inferences must be construed in favor of the non-movant. In light

of that procedural posture and the state of the record, we conclude that there are

genuine issues of material fact on the issue of whether the ODOC policy

regarding halal foods substantially burdened Mr. Abdulhaseeb’s religious exercise

at OSP. See, e.g., Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (holding

that “[t]he extent to which the prison’s policies pressured Shakur to betray his

-27-
religious beliefs is another factual dispute to be resolved by the district court.”);

Hudson v. Dennehy, 538 F. Supp. 2d 400, 411 (D. Mass. 2008) (finding, after

bench trial, that refusal of halal menu consistent with their beliefs “substantially

burdened plaintiffs’ exercise of their religious beliefs by creating pressure on

plaintiffs to consume meals that do not conform with their understanding of the

requirements of Islamic law”).

According to Mr. Abdulhaseeb’s verified second amended complaint and

the attached exhibits, the prison refused his request for a halal diet that included

meat. It is a reasonable inference that ODOC’s failure to provide a halal diet

either prevents Mr. Abdulhaseeb’s religious exercise, or, at the least, places

substantial pressure on Mr. Abdulhaseeb not to engage in his religious exercise by

presenting him with a Hobson’s choice—either he eats a non-halal diet in

violation of his sincerely held beliefs, or he does not eat. See Nelson, 570 F.3d at

879 (“We have held that a prisoner’s religious dietary practice is substantially

burdened when the prison forces him to choose between his religious practice and

adequate nutrition.”); Shakur, 514 F.3d at 889 (noting prisoner’s argument that

the prison’s dietary policy forced him into “a Hobson’s choice between options

that are mutually unacceptable to his practice of his religious faith” (quotation

omitted)); see also Baranowski, 486 F.3d at 125 (holding that prison’s “policy of

not providing kosher food may be deemed to work a substantial burden upon

[Plaintiff]’s practice of his faith”). In exhausting his administrative remedies,

-28-
Mr. Abdulhaseeb explained this dilemma, stating, “I am forced to do without food

or eat food I don’t know what ingredients are in it . . . .” R. Doc. 62, Exh. 9, p. 1

of 4. “It is one thing to curtail various ways of expressing belief, for which

alternative ways of expressing belief may be found. It is another thing to require

a believer to defile himself, according to the believer’s conscience, by doing

something that is completely forbidden by the believer’s religion.” Beerheide v.

Suthers, 286 F.3d 1179, 1192 (10th Cir. 2002) (quotation omitted).

More than one court has held the lack of a halal diet to be a substantial

burden on a Muslim’s religious exercise. See Hudson, 538 F. Supp. 2d at 411;

Thompson v. Williams, No. C06-5476FDB-KLS, 2007 WL 3244666, at *19 (W.D.

Wash. Oct. 31, 2007); Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 WL

5957978, at *12 (D. Colo. July 25, 2005). Other courts have found a genuine

issue of material fact as to whether the lack of a halal diet may create a

substantial burden. See Shakur, 514 F.3d at 889; Muhammad v. Crosby,

No. 4:05cv193-WS, 2008 WL 2229746, at *15 (N.D. Fla. May 29, 2008); Lewis,

2008 WL 1944112, at *29; Fayson v. Earle, No. Civ. 04-219-KAJ, 2006 WL

3220062, at *9 (D. Del. Nov. 7, 2006).

And the cases not finding such a burden are clearly distinguishable from

our present facts. In Patel v. United States Bureau of Prisons, although the

Eighth Circuit held that the inmate had not set forth enough evidence to show a

substantial burden, there was uncontested evidence that he could consume

-29-
Common Fare kosher non-meat meals and could purchase his own halal

commissary meals, and he had not shown that the financial burden would be

substantial. 515 F.3d at 814-15; see also Pratt v. Corr. Corp. of Am., 267 F.

App’x 482, 482-83 (8th Cir. 2008) (citing Patel in finding no substantial burden).

In Watkins v. Shabazz, 180 F. App’x 773, 775 (9th Cir. 2006), the Ninth Circuit

held that there was no substantial burden because defendants gave the inmate two

alternatives—eating the nutritionally adequate meat-substitute meals or finding an

outside organization to provide halal meat.

Again, unlike the prisoner in Patel, Mr. Abdulhaseeb has not been given

the opportunity to eat kosher meals; in fact, ODOC policy restricts kosher meals

to certain religions, not including Islam. In any event, to the extent that the

above-cited cases rely on prisoners being able to purchase or obtain donated halal

foods, they are unpersuasive. First, any ability to purchase is chimerical where a

plaintiff is indigent, as is Mr. Abdulhaseeb. Second, the record in this case

contains an affidavit from the GPCF Chaplain in which he admits that “[a]s

regards [Appellant’s] request for Halal meals, no Halal vendors have been

approved by DOC and policy specifies that such food must be brought in by an

approved vendor.” R. Doc. 125, Exh. 8 at 2. The reasonable inference is that, at

least for some time periods relevant to this action, Mr. Abdulhaseeb could not

have purchased halal foods even if he had funds. Finally, in the free exercise

context, this circuit has rejected the assertion that Jewish inmates had an

-30-
alternative means of practicing their religion by purchasing or obtaining donated

kosher foods. “Purchasing meals in the canteen is financially impossible for

prisoners of limited means. The Jewish community cannot be expected or

required to provide food to the prisoners.” Beerheide, 286 F.3d at 1187; see also

id. at 1189 (noting that prisoners had to pay for “essentials such as station[e]ry,

telephone calls, medication, medical visits, and clothing,” and stating, “[f]orcing

prisoners to decide between communicating with family and legal representatives,

seeking medical treatment, and following religious tenets constitutes a Hobson’s

choice rather than a true alternative”).

Even with genuine issues of material fact concerning substantial burden,

however, it does not necessarily follow that Mr. Abdulhaseeb has established a

RLUIPA violation. Rather, the burden of proof shifts to the defendants to show

the substantial burden results from a “compelling governmental interest” and that

the government has employed the “least restrictive means” of accomplishing its

interest. 42 U.S.C. § 2000cc-1(a). Congress “anticipated that courts would apply

[RLUIPA’s] standard with due deference to the experience and expertise of prison

and jail administrators.” Cutter, 544 U.S. at 723 (quotation omitted). “At the

same time, however, inadequately formulated prison regulations and policies

grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will

not suffice to meet the act’s requirements.” 146 Cong. Rec. 16698, 16699 (July

27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy) (quotation omitted).

-31-
 On appeal, the OSP Defendants and ODOC Defendants argue that providing

a halal diet that includes meat “would have been cost-prohibitive and

unreasonably time-consuming. Reducing costs, streamlining its food production,

limiting the number of required staff, maintaining consolidation of its vendors,

and preventing security risks are compelling justifications under the RLUIPA.”

ODOC Aplee. Br. at 39. One or more of these interests may well qualify as a

“compelling governmental interest.” See Sossamon, 560 F.3d at 334 (“Texas

obviously has compelling governmental interests in the security and reasonably

economical operation of its prisons . . . .”); Lovelace v. Lee, 472 F.3d 174, 189

(4th Cir. 2006) (“[T]he policy’s burdens or restrictions could be justified by

compelling considerations of security or good order.”); 146 Cong. Rec. 16698,

16699 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy)

(mentioning good order, security, discipline, costs, and limited resources); but see

Mem’l Hosp. v. Maricopa County, 415 U.S. 250, 263 (1974) (rejecting cost as a

compelling governmental interest sufficient to justify penalizing the right to

travel to and settle in another state). In this appeal, however, we need not decide

whether these interests satisfy the RLUIPA standard, because there simply is no

record evidence regarding the defendants’ contentions. See Beerheide, 286 F.3d

at 1189 (noting, in the constitutional context, “[i]n order to warrant deference,

prison officials must present credible evidence to support their stated penological

goals”); see also Shakur, 514 F.3d at 891 (reversing and remanding a district

-32-
court’s summary disposition of Plaintiff’s claims based on a sparse factual record,

stating, “the record is not sufficiently developed to ascertain the precise weight

that cost should be afforded”); Lovelace, 472 F.3d at 190-92 (refusing to hold that

asserted interests were compelling as a matter of law given government’s failure

to present evidence). Further, there has been no discussion of whether refusing to

provide a halal-certified diet is the least restrictive means which the state can

employ to satisfy its interests. See Lovelace, 472 F.3d at 192 (holding “[t]here is

no basis in this case for a court . . . to declare the least restrictive means test

satisfied without any substantive explanation from prison officials”); Murphy v.

Mo. Dep’t of Corr., 372 F.3d 979, 989 (8th Cir. 2004) (“It is not clear that [the

prison system] seriously considered any other alternatives, nor were any explored

before the district court.”).

“On this record, where there is factual dispute as to the extent of the burden

on [Plaintiff’s] religious activities, the extent of the burden that would be created

by accommodating [Plaintiff’s] request, and the existence of least restrictive

alternatives, we cannot conclude that summary judgment on the RLUIPA claim

was appropriate.” Shakur, 514 F.3d at 891. Accordingly, we remand

Mr. Abdulhaseeb’s RLUIPA Claim 10 for further proceedings against the ODOC

Defendants and the OSP Defendants in their official capacities. 8

8
There is no indication that the GPCF Defendants or the Canteen Defendants
(continued...)

-33-
 3. For purposes of avoiding summary judgment on his Claim 5,
Mr. Abdulhaseeb adequately demonstrated a genuine issue of
material fact whether the denial of halal meat for an Islamic
feast substantially burdened his religious exercise.

Claim 5 alleges that the defendants violated RLUIPA when they refused

Mr. Abdulhaseeb’s request to serve halal meat for the January 2005 Eid-ul-Adha

(the Feast of the Sacrifice). The district court held that

[Mr. Abdulhaseeb] does not provide any evidence that Halal meat is
necessary to celebration of the Feast, or even that failure to celebrate
the Feast itself would substantially burden his religious exercise.
Furthermore, ODOC policy allows food for festive or ceremonial
meals to be purchased by the faith community or donated, and for the
meals to be eaten together by the faith community.

R. Doc. 137 at 69. We disagree with the district court’s analysis.

Mr. Abdulhaseeb’s verified second amended complaint describes the

Eid-ul-Adha feast as “an Islamic [h]oliday that is central to Islamic beliefs and

practices.” Id. Doc. 62, Count V; see also id. Doc. 78, Attach. 27-D at 2 (April 1,

2003, ODOC addendum to “Religious Programs” policy listing Eid feasts as

occasions on which Muslim inmates must abstain from work or participate in a

religious service at a specific time). While he does not specifically express why

halal meat is desirable for Eid-ul-Adha feast, it is a reasonable inference from this

record that he wishes to observe a halal diet for both feast and non-feast days, and

8
(...continued)
had any involvement in the events underlying Claim 10 or the implementation of
ODOC’s policy regarding halal foods at OSP. Accordingly, we affirm the grant
of summary judgment to those defendants on Claim 10.

-34-
that halal meat is important to this feast, see id. Doc. 78, Attach. 27-D at 3 (April

1, 2003, ODOC addendum to “Religious Programs” policy listing sweets and

halal meats as having religious significance for Eid feasts). If an inability to eat

proper foods for a religious holiday prevents one from engaging in conduct

motivated by a sincerely held religious belief or forces one to engage in conduct

prohibited by a sincerely held religious belief, it may constitute a substantial

burden. See Ford v. McGinnis, 352 F.3d 582, 593-94 (2d Cir. 2003); see also

Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1211-13 (10th Cir. 1999)

(discussing the spiritual importance of the Ramadan fast); Meyers, 95 F.3d at

1482-83 (noting, in enumerating factors relevant to determining whether a belief

is religious, that “[r]eligions often prescribe or prohibit the eating of certain foods

and the drinking of certain liquids on particular days or during particular times”

(quotation omitted)); 146 Cong. Rec. 14283, 14284 (July 13, 2000) (statement of

Sen. Hatch) (stating that “some Jewish prisoners have been denied matzo, the

unleavened bread Jews are required to consume during Passover”). We believe

that the district court erred in not giving Mr. Abdulhaseeb the benefit of these

inferences in its summary judgment analysis.

Further, as discussed above, ODOC’s policy is that halal meats and sweets

for feasts can be purchased from approved vendors or donated. The record

contains an affidavit from the then-GPCF Chaplain in which he admits that “[a]s

regards [Appellant’s] request for Halal meals, no Halal vendors have been

-35-
approved by DOC and policy specifies that such food must be brought in by an

approved vendor.” R. Doc. 125, Exh. 8 at 2. To the extent that there were or may

have been periods when there are no approved halal vendors, the district court

erred in holding that an ability to purchase halal meats translates into no

substantial burden on a Muslim inmate’s religious exercise.

A reasonable jury could determine that ODOC prevented Mr. Abdulhaseeb

from consuming halal meats as part of his celebration of the Eid-ul-Adha in 2005,

and therefore substantially burdened his religious exercise. Thus, we must

remand this claim for further proceedings against the GPCF Defendants and the

ODOC Defendants in their official capacities. 9

D. The district court correctly granted summary judgment to the
defendants on the remainder of Mr. Abdulhaseeb’s claims.

1. Defendants were entitled to summary judgment on the remaining
RLUIPA claims.

Mr. Abdulhaseeb’s second amended complaint included six other exhausted

claims under RLUIPA. For the following reasons, we agree with the district court

that defendants are entitled to summary judgment on each of those claims.

We first address the RLUIPA claims involving events at OSP. In Claim 11,

Mr. Abdulhaseeb alleges that ODOC’s policy of spending money for secular

9
There is no indication that the Canteen Defendants or the OSP Defendants
had any involvement in the events underlying Claim 5 or the implementation of
ODOC’s policy regarding halal foods at GPCF. Accordingly, we affirm the grant
of summary judgment to those defendants on Claim 5.

-36-
needs, not religious needs, violates RLUIPA. In Claim 12, he contends that

RLUIPA requires ODOC to pay a Muslim spiritual leader. And in Claim 13, he

complains that ODOC’s policy of not paying for soft-cover Islamic books for

prisoners who cannot keep their hardback Islamic books violates RLUIPA. The

district court held that RLUIPA requires governments to refrain from

substantially burdening religion, not to affirmatively subsidize religion.

We agree. See 42 U.S.C. § 2000cc-3(c) (“Nothing in this chapter shall

create . . . a right of any religious organization to receive funding or other

assistance from a government, or of any person to receive government funding for

a religious activity, but this chapter may require a government to incur expenses

in its own operations to avoid imposing a substantial burden on religious

exercise.”) (emphasis added); Cutter, 544 U.S. at 720 n.8 (“Directed at

obstructions institutional arrangements place on religious observances, RLUIPA

does not require a State to pay for an inmate’s devotional accessories.”);

Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir. 2002) (holding

RLUIPA constitutional under the Establishment Clause because “[i]t does not

impose affirmative duties on states that would require them to facilitate or

subsidize the exercise of religion”); see also Werner, 49 F.3d at 1480 (“[RFRA]

need not drive a prison to employ clergy from every sect or creed found within its

walls.”). The district court appropriately granted summary judgment to the

defendants on the RLUIPA aspect of Claim 11 and on Claims 12 and 13.

-37-
 The remaining three RLUIPA claims concern events at GPCF. Claim 1

alleges that defendants violated RLUIPA by failing to provide a full-time paid

Muslim spiritual leader. As we have just stated, RLUIPA does not oblige a

government to affirmatively subsidize religion. Summary judgment was

appropriate on Claim 1 on that ground.

Claim 2 alleges that defendants violated RLUIPA by forcing

Mr. Abdulhaseeb to accept on his food tray jello and pudding, which he

considered to be questionable at best and contaminated with pork products at

worst. The district court held that he failed to show a substantial burden on his

religious exercise. We agree.

We accept Mr. Abdulhaseeb’s contentions that the jello and pudding were

questionable at best, and thus placing them on his tray rendered all the food on

the tray contaminated and inedible for him. We are not willing to conclude,

however, that every single presentation of a meal an inmate considers

impermissible constitutes a substantial burden on an inmate’s religious exercise.

See Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (characterizing the

unavailability of pork-free meals on three out of 810 occasions as a “de minimis

burden”). Although we assume that as the frequency of presenting unacceptable

foods increases, at some point the situation would rise to the level of a substantial

burden, we need not decide that question. In this case, the record contains

evidence of one specific incident of Mr. Abdulhaseeb purportedly being forced to

-38-
accept jello and pudding on his tray. Otherwise, he submits only general

allegations that the practice continues. “The purpose of a summary judgment

motion, unlike that of a motion to dismiss, is to determine whether there is

evidence to support a party’s factual claims. Unsupported conclusory allegations

thus do not create a genuine issue of fact.” L&M Enter., Inc. v. BEI Sensors &

Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000). By identifying only one occasion

when he was forced to accept the objectionable products and failing to provide

any other specific evidence to support his Claim 2 allegations, Mr. Abdulhaseeb

failed to establish a genuine issue of material fact as to substantial burden, and

thus summary judgment was appropriate.

In Claim 4, Mr. Abdulhaseeb argues that the defendants violated RLUIPA

by failing to host an Islamic revival, while hosting a Christian revival.

Mr. Abdulhaseeb lists several benefits to him from participating in an Islamic

revival, but as the district court held, there is no evidence that the defendants’

failure to host a revival substantially burdened his religious exercise. We affirm

the grant of summary judgment to defendants on this claim.

2. Defendants were entitled to summary judgment on the § 1983
claims.

Several of Mr. Abdulhaseeb’s claims appeared to invoke constitutional

issues such as the Establishment Clause and the Free Exercise Clause, and in an

abundance of caution the district court analyzed them as constitutional claims in

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addition to RLUIPA. Further, in Claim 11 of his second amended complaint

Mr. Abdulhaseeb specifically invoked his constitutional rights to equal protection

and the free exercise of his religion. The district court found no constitutional

violations with regard to any of his claims.

It appears that Mr. Abdulhaseeb has not appealed the analyses arising out

of the district court’s abundance of caution (he states on appeal that his religious

claims were brought under RLUIPA, not § 1983). Thus, we do not consider those

rulings. To the extent that he has appealed the free exercise portion of Claim 11,

we affirm for substantially the reasons stated in the magistrate judge’s report and

recommendation.

With regard to the equal protection portion of Claim 11, we affirm for

reasons other than those stated in the magistrate judge’s report and

recommendation. Claim 11, as pleaded in the Second Amended Complaint,

complains that ODOC spends money on nonreligious items but not religious ones.

In arguing the claim, Mr. Abdulhaseeb briefly asserted that ODOC provides

Jewish inmates with kosher meals, but refuses to provide Muslim inmates with

halal meals. It appears that the district court addressed this argument as a

separate claim, granting summary judgment on the ground that “Plaintiff does not

allege treatment stemming from his membership in a suspect class, and he has not

submitted any evidence to show that other groups of similarly-situated inmates

received different or better treatment than he did.” R. Doc. 137 at 61. We

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disagree that judgment would be proper on this basis, had Mr. Abdulhaseeb

actually asserted a claim contrasting the treatment of Jewish inmates and Muslim

inmates. 10 But he did not assert that claim, and we shall not reverse the district

court’s disposition of the claim he actually did assert.

Finally, Claim 3 alleges that Mr. Abdulhaseeb’s constitutional right to

equal protection was violated because the defendants refused to amend his visitor

list to include more than one friend. As the district court concluded,

Mr. Abdulhaseeb’s support for this claim consisted merely of vague and

conclusory allegations, without any specific facts, that white inmates were treated

more favorably. Accordingly, summary judgment in favor of defendants was

appropriate. See L&M Enter., Inc., 231 F.3d at 1287.

10
Equal protection “is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985). Religion is a suspect classification. See United States
v. Batchelder, 442 U.S. 114, 125 n.9 (1979) (“The Equal Protection Clause
prohibits selective enforcement based on an unjustifiable standard such as race,
religion, or other arbitrary classification.” (quotation omitted)); City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (listing religion as an
example of an “inherently suspect distinction[]”); see also Colo. Christian Univ.
v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008) (“From the beginning, this
nation’s conception of religious liberty included, at a minimum, the equal
treatment of all religious faiths without discrimination or preference.”). In a
previous case involving this appellant, we stated, “[a]ll appellant must allege to
properly state an equal protection claim is that he was personally denied equal
treatment on the basis of his religion.” Abdulhaseeb v. Saffle, 65 F. App’x 667,
673 (10th Cir. 2003). In that case, we reversed a grant of summary judgment and
the dismissal of claims where the district court had determined that
Mr. Abdulhaseeb had not shown that he was deprived of prison opportunities
because of a suspect classification. Id. at 673-75.

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 III. CONCLUSION

We AFFIRM the grant of summary judgment to all defendants on Claims 1,

2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, and 17. The only remaining claims are

Claims 5 and 10. With regard to these claims, we AFFIRM the grant of summary

judgment to the OSP Defendants and the Canteen Defendants on Claim 5, and to

the GPCF Defendants and the Canteen Defendants on Claim 10. We VACATE

the grant of summary judgment and REMAND for further proceedings, consistent

with this opinion, with regard to Claim 5 against the GPCF Defendants and the

ODOC Defendants, all in their official capacities, and with regard to Claim 10

against the OSP Defendants and the ODOC Defendants, all in their official

capacities. We request that the district court appoint counsel for

Mr. Abdulhaseeb for the remand proceedings. Mr. Abdulhaseeb’s motion to

proceed in forma pauperis is GRANTED, and he is reminded of his obligation to

continue making partial payments until the entire balance of his appellate filing

fee is paid.

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 APPENDIX

According to the record, ODOC Policy OP-030112, effective June 26,
2002, stated in relevant part:

VII. Foods for Special Religious Ceremonies

1. All religious restricted meals will be offered through a common
pork-free or meat free meal. No religious test will be applied for
religious meals. . . .

2. Menus for approved festive religious meals will be taken from the
standard menu served to the rest of the inmate population that day,
unless specific food restrictions are required by the faith such as a
pork-free meal.

R. Doc. 78, Attach. 27-A at 6 (emphasis added). The policy was amended
effective April 1, 2003, to add the following language:

D. No special accommodations will be made for Religious Feasts and
Festive meals except as follows:

a. Where program space and security level allows, inmates who
are celebrating a recognized religious feast or festive meal will
be able to eat their meal together as a faith community. The
food will be the same as that which is served to the rest of the
general population for that meal.

b. Foods that have a verifiable religious significance may be
donated by an outside religious organization or purchased by
the inmate from an authorized vendor for ceremonial meals.
Foods purchased by an individual inmate will be for that
inmate’s use only. Foods purchased by a faith group may be
shared among the group. The religious significance must be
verified by the faith group’s sacred text and outside religious
authority. All donations or purchases must be arranged
through the facility Chaplain and approved by the facility head
or their designee. . . . The following faiths have established
religious significance for specific foods:

...

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 ii. Muslim – Dates (a traditional fruit) for the month of
Ramadan, Sweets and Hallal Meats for the Eid
celebrations.

...

Id., Attach. 27-D at 3 (emphasis added).

The policy again was revised on December 29, 2004. See id., Attach. 27-E.
The religious diet language was moved to Section VI, but the other changes are
not material to the issues before this court.

Effective December 5, 2005, ODOC began offering a kosher meal option,
and revised the policy to state in Section VI.A.:

All religious restricted meals will be offered through a common
pork-free or meat free meal or kosher diet. The kosher diet will be
provided only to inmates that demonstrate that their religious faith
mandates compliance with a kosher diet. An inmate who wishes to
receive one of these diets for religious reasons must submit a
“Religious Diet Request Form” . . . to the facility chaplain.

Id., Attach. 27-G at 1 (emphasis added). The required “Religious Diet Request
Form” provided that religious diet requests “must be verified by religious
officials from the specified faith group. Religious officials must verify that the
inmate meets the requirements of the faith group to be recognized as a member
and that the faith group requires a special religious diet.” Id. at 2.

The policy again was amended in April 2006, see id., Attach. 27-H, but
those changes are not relevant to the issues on appeal.

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08-6092, Abdulhaseeb v. Calbone

GORSUCH, Circuit Judge, concurring.

The court today holds that the Religious Land Use and Institutionalized

Persons Act (RLUIPA) prohibits the government from forcing a prisoner to

choose between following his sincerely held religious beliefs and staying alive.

With this, I agree. I write only to clarify what the court does not hold but instead

entrusts to future panels to decide.

RLUIPA prohibits the government from creating a substantial burden on a

prisoner’s sincerely held religious beliefs. As the panel opinion notes, the

defendants in this case do not contest the religiosity or the sincerity of Mr.

Abdulhaseeb’s beliefs. See Maj. Op. at 23-24. Accordingly, we have no

opportunity to decide when a prisoner’s beliefs qualify as religious or when they

are sincerely held. The only question before the court is whether the government

has imposed a substantial burden. In evaluating that question, we will say that

a religious exercise is substantially burdened under 42 U.S.C.
§ 2000cc-1(a) when a government (1) requires participation in an
activity prohibited by a sincerely held religious belief, or (2) prevents
participation in conduct motivated by a sincerely held religious belief,
or (3) places substantial pressure on an adherent either not to engage in
conduct motivated by a sincerely held religious belief or to engage in
conduct contrary to a sincerely held religious belief, such as where the
government presents the plaintiff with a Hobson’s choice — an illusory
choice where the only realistically possible course of action trenches on
an adherent’s sincerely held religious belief.

Maj. Op. at 24-25.
 In evaluating whether Mr. Abdulhaseeb has satisfied that test, we have

struggled to ascertain the exact parameters of his pro se complaint. Claim 10, for

example, obviously concerns his daily diet, but it’s fairly susceptible of at least

three possible interpretations: (1) Mr. Abdulhaseeb can only eat food that is

expressly certified halal by an Islamic authority, much as some members of the

Jewish faith may eat only certified kosher food, and nothing provided by the

Oklahoma Department of Corrections (ODOC) or available for purchase from

approved vendors meets that standard; (2) he can eat any food that isn’t haram

(that is, explicitly forbidden), but the periodic (or sporadic) placement of

questionable foods, such as jell-o and pudding, onto his cafeteria tray renders all

of the tray’s contents haram and thus inedible; or (3) he can, consistent with his

religion, eat the non-haram vegetarian diet provided by ODOC, but also has a

religious obligation to eat halal meat with some unspecified level of frequency,

yet such meat is neither provided nor available from approved vendors.

As both the summary judgment non-movant and a pro se litigant, Mr.

Abdulhaseeb deserves the benefit of the doubt. Accordingly, we charitably

interpret Claim 10 to allege only the first, most troublesome scenario — that Mr.

Abdulhaseeb requires a halal-certified diet that he is not currently receiving and

that ODOC has provided no means for him to procure for himself. Or, put

another way, that he has been forced to choose between violating his religious

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beliefs and starving to death. Whatever else might be said about RLUIPA,

redressing this sort of Hobson’s choice surely lies at its heart.

The choice posed to Mr. Abdulhaseeb puts him in a similar (if more dire)

position as the petitioners in Sherbert v. Verner, 374 U.S. 398 (1963), and

Thomas v. Review Board, 450 U.S. 707 (1981), two cases that the Supreme Court

abrogated in Employment Division v. Smith, 494 U.S. 872 (1990), and that

Congress sought to resurrect when it passed RLUIPA. See Maj. Op. at 25; cf.

Cutter v. Wilkinson, 544 U.S. 709, 714-17 (2005). In both cases, the Supreme

Court found First Amendment violations when the government denied

unemployment benefits to religious adherents because they followed their beliefs.

“[A] burden upon religion exists,” the Court told us, “[w]here the state conditions

receipt of an important benefit upon conduct proscribed by a religious faith, or

where it denies such a benefit because of conduct mandated by religious belief.”

Thomas, 450 U.S. at 717-18. To say that access to edible food qualifies as “an

important benefit” is to put it mildly, and Mr. Abdulhaseeb’s Claim 10 thus falls

squarely within the Sherbert-Thomas prohibition.

We evaluate Mr. Abdulhaseeb’s other RLUIPA claims under the same

framework. Claim 5 asserts that ODOC failed to approve any Muslim food

vendors and thus prevented Mr. Abdulhaseeb from purchasing the halal meat he

allegedly required for a mandatory and significant religious holiday. This claim

satisfies the standard for a triable RLUIPA claim because the jury could, even if it

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need not necessarily, find that the restrictions rendered Mr. Abdulhaseeb’s

religious exercise — the celebration of a mandatory holiday — impossible. Claim

2, on the other hand, doesn’t meet that threshold. By alleging that ODOC

sporadically placed questionable foods, such as jell-o and pudding, onto his

cafeteria tray, thus rendering all of the tray’s contents inedible, Mr. Abdulhaseeb

has described only a moderate impediment to — and not a constructive

prohibition of — his religious exercise. It’s surely a burden to forgo an

occasional meal. But it’s not a substantial burden, and RLUIPA proscribes only

government actions that substantially burden religious exercise.

The resolution of Mr. Abdulhaseeb’s RLUIPA claims still leaves many

questions unanswered. In particular, we do not address the third possible

interpretation of Claim 10. We thus have no opportunity to consider whether a

prisoner who may eat ODOC’s vegetarian diet but who is denied any access to

halal-certified meats can state a RLUIPA claim. And we certainly do not suggest

that RLUIPA requires the state to provide prisoners — even indigent prisoners —

with everything they need for religious purposes. See Cutter, 544 U.S. at 720 n.8

(“RLUIPA does not require a State to pay for an inmate’s devotional

accessories.”). This case compels us to address only whether prison officials can

violate RLUIPA by denying an inmate in their charge all means of accessing food

he can eat consistent with his (uncontested) sincerely held religious beliefs —

thus effectively forcing him to choose between remaining pious or starving. We

-4-
hold that RLUIPA does indeed apply in these circumstances. Whether and to

what extent the statute goes further is a question for another day.

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