Makin v. Colorado Department of Corrections

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 12 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

AKEEM ABDUL MAKIN,

Plaintiff-Appellee,

v. No. 98-1272

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

Defendants,

and

GEORGE E. SULLIVAN and
H.B. JOHNSON,

Defendants-Appellants.

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

Submitted on the briefs:

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

Ken Salazar, Attorney General, Grace A. Belsches, Special Assistant Attorney
General, Denver, Colorado, for Defendants-Appellants.
Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

PORFILIO , Circuit Judge.

Defendants George E. Sullivan and H.B. Johnson appeal from the district

court’s judgment following trial to the court in favor of plaintiff Akeem Abdul

Makin on his 42 U.S.C. § 1983 claim for violation of his First Amendment right

to exercise his religion while incarcerated in the Colorado prison system. We

agree with the district court that defendants violated Mr. Makin’s rights, but

conclude that the court improperly determined the amount of damages awarded to

him. We therefore affirm the judgment on liability, but vacate the damages award

and remand for further proceedings. 1

I

In 1993 and 1994, Mr. Makin was incarcerated under the jurisdiction of the

Colorado Department of Corrections, confined in 1993 at the Colorado Territorial

Correctional Facility and in 1994 at the Colorado State Penitentiary. He is a

follower of Islam, and in both years wanted to observe the Muslim holy month of

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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Ramadan. Critical to the observance of Ramadan is the requirement that Muslims

fast between dawn and sunset each day. Mr. Makin contended that defendants

improperly interfered with his ability to fast during Ramadan in 1993 and 1994,

and brought this § 1983 action alleging that by doing so, they violated his First

Amendment right to the free exercise of his religion. Prior to trial, the district

court dismissed all defendants except Messrs. Sullivan, Johnson and Gasko. In

1993, Mr. Sullivan was the deputy director of operations for the Department of

Corrections, and Mr. Johnson was the superintendent of the Colorado Territorial

Correctional Facility and Mr. Sullivan’s subordinate. Mr. Gasko replaced Mr.

Sullivan as deputy director in 1994. Following a trial to the court, the court held

that Mr. Makin’s rights had been violated in 1993 but not in 1994, and it found

Messrs. Sullivan and Johnson liable for the 1993 violation. Because Mr. Makin

does not cross-appeal the district court’s conclusion there was no violation in

1994, we focus only on activities relating to Ramadan in 1993.

As part of the settlement agreement resolving a lawsuit alleging that the

Department of Corrections was inattentive to the needs of its Muslim inmates, the

Department hired Imam Mohammed Kharrubi to advise it on Islamic practices. In

this position, Imam Kharrubi worked with food service and security personnel to

arrange for provision of timely and nutritional meals to Muslim inmates

participating in Ramadan--that is, meals provided between sunset and dawn that

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were nutritionally equivalent to the three meals provided each day at the regular

times. Department policy with respect to Ramadan stated that “‘[i]nmates

participating in the fast of Ramadan shall be given the opportunity to receive at

least two hot meals during the time period between sunset and dawn for each . . .

day of the fast.’” Appellants’ App. Vol. II at 247 (quoting exhibit 32). 2
A

February 19, 1993 memo to the kitchen staff at the Territorial Correctional

Facility explained meal procedures to be generally followed during Ramadan that

year:

“The observance of the Islamic month of Ramadan is
scheduled this year from February 23rd through March 24, 1993.
Muslims must fast from . . . two hours prior to sunrise until after
sunset during the entire month. Those inmates participating will be
escorted by security to the north dining hall for breakfast at 4 a.m.
Supper is scheduled for 6:30 p.m. also in the north dining hall.”

Id. Vol. I at 33 (quoting exhibit A7). By memorandum dated February 1, 1993,

Mr. Sullivan directed that the general meal procedures would not apply to inmates

in segregation. The memo stated that “[d]uring the month of Ramadan inmates in

segregation will be unable to participate in special feeding activities. Regular

meals with alternative meatless entrees will be made available through the usual

meal delivery system.” Id. at 34. Mr. Johnson implemented the directive at the

2
None of the parties submitted copies of the trial exhibits to this court with
the record on appeal. To the extent we can refer to them at all, we rely on
quotations and references contained in the trial transcript or district court orders.

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Territorial Correctional Facility. Prisoners in segregation ate their meals in their

cells, and the “usual meal delivery system” made meals available to prisoners in

segregation only during the period after dawn and prior to sunset.

During Ramadan in 1993, Mr. Makin was housed in punitive segregation

for possession of dangerous contraband. To maintain his fast, he was unable to

eat his meals when delivered. He was able to keep his meal trays in his cell until

after sundown and eat what he could then. That included his supper and food

such as dry cereal and crackers that he saved from lunch and breakfast; 3
he also

could keep cereal and crackers in his cell overnight to eat before dawn. Mr.

Makin was able to maintain his fast for the entire month, although he contended

that it was extremely difficult to do that and that, as a result, he was unable to

enjoy the full spiritual experience of Ramadan.

Applying the standards relevant to the alleged denial of a prisoner’s

fundamental constitutional rights, see Turner v. Safley , 482 U.S. 78, 89-90

(1987), O’Lone v. Estate of Shabazz , 482 U.S. 342, 348-50 (1987), the district

court concluded that defendants Sullivan and Johnson had violated Mr. Makin’s

First Amendment right to the free exercise of his religion. It computed damages

for denial of this right on a per diem basis of $300 or $9,000 for the entire month

3
Mr. Makin testified that the temperature in the segregated cells was very
high, 75 to 80 degrees, and he could not save other food items from breakfast or
lunch because they would spoil. There was no contradictory testimony.

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of Ramadan, assessed jointly and severally against defendants. On appeal,

defendants challenge the district court’s ruling on three grounds: (1) the court

erred in rejecting their defense of qualified immunity; (2) the denial of special

meal accommodations during Ramadan did not violate Mr. Makin’s First

Amendment rights; and (3) the court’s determination of damages was incorrect.

II

Even though they are incarcerated, prisoners retain fundamental

constitutional rights. See Turner , 482 U.S. at 84. These rights include the

reasonable opportunity to pursue one’s religion as guaranteed by the free exercise

clause of the First Amendment. See Shabazz , 482 U.S. at 348; Mosier v.

Maynard , 937 F.2d 1521, 1525 (10th Cir. 1991). However, because of the

inherent difficulties and concerns in running a prison, “what constitutes a

reasonable opportunity must be evaluated with reference to legitimate penological

objectives of the prison.” Id. Thus, the standard for reviewing the validity of a

prison regulation or policy affecting a prisoner’s fundamental constitutional right,

such as the free exercise of his or her religion, is this: “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” Turner , 482 U.S. at 89.

This reasonableness inquiry considers several factors: (1) whether there exists a

rational connection between the prison policy or regulation and a legitimate

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governmental interest advanced as its justification; (2) whether there are

alternative means of exercising the right notwithstanding the policy or regulation;

(3) what effect accommodating the exercise of the right would have on guards,

other prisoners, and prison resources generally; and (4) whether there are ready,

easy-to-implement alternatives that would accommodate the prisoner’s rights. See

id. at 89-91; Mosier , 937 F.2d at 1525. Like the district court, we assess the

parties’ contentions within this framework.

A. Qualified Immunity

As a preliminary matter, defendants contend that the district court erred in

denying their claim that they were qualifiedly immune from liability for any

improper infringement on Mr. Makin’s right to freely exercise his religion. “The

doctrine of qualified immunity provides that ‘[w]hen government officials are

performing discretionary functions, they will not be held liable for their conduct

unless their actions violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mitchell v. Maynard , 80 F.3d

1433, 1447 (10th Cir. 1996) (quoting Pueblo Neighborhood Health Centers, Inc.

v. Losavio , 847 F.2d 642, 645 (10th Cir.1988) (further quotation omitted)).

Defendants contend they are entitled to qualified immunity because at the time of

the relevant events, there was no clearly established law, that is, Supreme Court

or Tenth Circuit authority, “which sets forth the parameters of special feeding

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accommodation for the celebration of Ramadan in the prison setting especially for

those inmates whose own voluntary behavior landed them in segregation.”

Appellants’ Br. at 15.

Defendants first raised this issue in a motion for summary judgment that

was referred to a magistrate judge. The magistrate judge issued a report

recommending that the motion be denied:

The current record does not support the defendants’ claim of
qualified immunity. Mr. Makin’s right to reasonable access to his
religiously required diet was clearly established at the time of the
violations alleged in his complaint. The defendants’ motion for
summary judgment does not address the question of whether the
restrictions placed on Mr. Makin’s religious diet were reasonable
under the Turner standard. Therefore, summary judgment cannot be
granted on that basis.

Appellants’ App. Vol. I at 11. Defendants did not object to the recommendation,

and the district court accepted it. See id. at 16. Defendants re-raised the issue of

qualified immunity at trial. Noting that defendants had not objected to the

magistrate judge’s recommendation and that the court had earlier adopted it, the

court determined that the recommendation stood as law of the case and would not

reconsider it.

Defendants contend that the district court erred in ruling that the qualified

immunity determination was law of the case not subject to further consideration at

the time of trial. Without citing authority, they contend that the failure to file

written objections to a magistrate judge’s recommendation based on an erroneous

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determination of the law, as opposed to an erroneous determination of fact, does

not bar subsequent review by either the district court or, anticipating a potential

waiver problem on appeal, this court. They contend the error of law was the

“Magistrate’s ruling the law was clearly established requiring prison officials to

provide special feeding accommodation for the Ramadan fast on the grounds that

religious diet must be accommodated.” Appellants’ Br. at 12.

Regardless of whether defendants’ failure to object to the magistrate

judge’s recommendation made the court’s adoption of that recommendation law

of the case in a technical sense, their failure to object precludes our consideration

of their qualified immunity argument on appeal. The magistrate judge’s

recommendation effectively involved two legal determinations--that the relevant

legal issue was Mr. Makin’s “right to reasonable access to his religiously required

diet” and that that right was clearly established at the time of the violations

alleged in his complaint. See Romero v. Fay , 45 F.3d 1472, 1475 (10th Cir.1995).

But contrary to defendants’ unsupported contention, the failure to object to a

magistrate judge’s recommendation “waives appellate review of both factual and

legal questions,” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991)

(emphasis added), absent other considerations not applicable here. The fact that

the magistrate judge’s recommendation also concluded there were unresolved

factual issues precluding summary judgment does not detract from its legal

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determinations nor relieve defendants of their obligation to object to those

determinations to preserve their right to appellate review. We therefore will not

consider defendants’ qualified immunity argument. 4

B. Violation of First Amendment Rights

Defendants next challenge the district court’s determination that the denial

of special meal accommodations during Ramadan violated Mr. Makin’s First

Amendment rights. Their argument takes two tracks. First, they argue that there

was no violation because Mr. Makin was able to fast for the entire month of

Ramadan despite their failure to deliver his meals at times when he could eat.

Second, they contend that any infringement on his rights was justified by

legitimate penological interests in deterrence of improper conduct, rehabilitation,

prison security, and budgetary considerations. We review the district court’s

4
Moreover, even were we to consider this argument on the merits, we would
find it unpersuasive. They frame the inquiry into the right that must be clearly
established--“the parameters of special feeding accommodation for the celebration
of Ramadan”--much too narrowly. See LaBounty v. Coughlin , 137 F.3d 68, 73-74
(2d Cir. 1998); Melton v. City of Okla. City , 879 F.2d 706, 729 n.37 (10th Cir.
1989) (“[S]tructuring the inquiry [into what right must be clearly established] too
narrowly would render the defense [of qualified immunity] available to all public
officials except in those rare cases in which a precedential case existed which was
‘on all fours’ factually with the case at bar.”) (quotation omitted), modified in
part on other grounds on reh’g , 928 F.2d 920 (10th Cir. 1991) (en banc). The
general right to the reasonable opportunity to exercise one’s religion, clearly
established, e.g., by Turner, Shabazz , and Mosier , best encompasses the alleged
conduct. Cf. LaFevers v. Saffle , 936 F.2d 1117, 1119 (10th Cir. 1991)
(recognizing constitutional protection for dietary restrictions based on religious
beliefs).

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factual findings underlying its reasonableness determination for clear error, see,

e.g. , Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir. 1996), but our review of

the ultimate reasonableness inquiry is de novo, see Mosier , 937 F.2d at 1525.

Before addressing defendants’ specific arguments, we must note the limited

breadth of the issue presented for review. That issue, as defined by defendants , is

whether they improperly infringed on Mr. Makin’s right to exercise his right to

observe Ramadan in 1993. It is not the broader issue of whether their actions

improperly infringed on his right to exercise his belief in Islam in a more general

sense, as was the case, for example, in Shabazz . See 482 U.S. at 352. 5
By

limiting our focus to the observance of Ramadan, however, we do not mean to

diminish the significance of Ramadan as part of the Five Pillars of Islam. See,

e.g. , Appellants’ App. Vol. II at 20-21, 30, 63.

5
In Shabazz , Muslim prisoners challenged regulations restricting their ability
to attend a congregational service called Jumu’ah. In its analysis, the Court said
“we think it appropriate to see whether under these regulations [the prisoners]
retain the ability to participate in other Muslim religious ceremonies,” including
Ramadan. 482 U.S. at 352. After noting the prisoners did retain that ability, the
Court concluded that “this ability on the part of [the prisoners] to participate in
other religious observances of their faith supports the conclusion that the
restrictions at issue here were reasonable.” Id. We note that the record on appeal
in this case says little about any other Islamic observances or practices in which
Mr. Makin was able to participate.

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 The district court rejected defendants’ argument that the fact that Mr.

Makin was able to fast the entire month of Ramadan absolved them of any

liability their restrictions on meal service may have warranted:

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

Appellants’ App. Vol. I at 39-40. Although defendants’ argument could be

viewed as relating to the Turner factor regarding alternative means of exercising

the right, their argument appears to go to the more fundamental proposition that

Mr. Makin’s rights were not infringed at all. As did the district court, we address

the argument in that posture.

At trial, Imam Kharrubi explained the religious experience of Ramadan as

follows:

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

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

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 ....

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

If . . . somebody practices fasting, they would get a blessing from
God. And through the practice of that self-discipline, they would get
purification as well.

If a person was not allowed to fast or if a person was not in the
position, was not able to fast, then with still through their intention
wanted to fast but could not, would get a blessing from God, but
would miss out on the purification or the growth that would be
received through the actual practice itself.

Appellants’ App. Vol. II at 64-66. Mr. Makin further explained the beneficial

experience of Ramadan, and the negative effect of defendants’ restrictions on

meal service and his opposition to those restrictions, as follow:

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

....

. . .Within the month of Ramadan, that I supposed to be within a
peaceful state of mind. I do not supposed to engage in war,
arguments or nothing like that. When I’m placed within a position to
where I’m now must engage within this [complaints to prison

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 authorities regarding meal accommodations], all right, that my nice,
peaceful aura is now broken. . . .

....

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

Id. at 30-32.

As noted above, the district court relied on this testimony in finding an

infringement on Mr. Makin’s right to freely exercise his religion because

defendants actions substantially diminished his qualitative spiritual experience.

Defendants essentially argue that the burden they placed on Mr. Makin’s ability to

fast during Ramadan should be ignored because he overcame that burden and did

fast. We reject this argument for several reasons. First, it is founded on the

unacceptable notion that prison authorities may burden the observance of

religious practices for no legitimate reason at all. Second, it makes the question

of the legitimacy of government action dependent on the personal strength of the

individual affected.

Third, and what the district court found most important, it ignores the

religious experiential aspects of Ramadan beyond the fasting itself. There is no

question, as the district court found based on undisputed evidence, that Mr. Makin

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sincerely holds his religious beliefs. See generally Mosier , 937 F.2d at 1526-27

(discussing requirement that religious beliefs be sincerely held to be protected).

Should defendants be implicitly inviting us to question the validity or importance

of these other aspects of Ramadan as described by Mr. Makin (and Imam

Kharrubi), we heartily reject their invitation. See, e.g. , Employment Division v.

Smith , 494 U.S. 872, 887 (1990) (“Repeatedly and in many different contexts, we

have warned that courts must not presume to determine the place of a particular

belief in a religion or the plausibility of a religious claim.”); Hernandez v.

Commissioner , 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to

question the centrality of particular beliefs or practices to a faith, or the validity

of particular litigants’ interpretations of those creeds.”); United States v. Seeger ,

380 U.S. 163, 184-85 (1965) (“Religious experiences which are as real as life to

some may be incomprehensible to others. . . . [A court’s] task is to decide whether

the beliefs professed by [an individual] are sincerely held and whether they are, in

his own scheme of things, religious.”) (quotation omitted).

As the testimony by Imam Kharrubi and Mr. Makin demonstrated, and the

district court held, the burden defendants placed on Mr. Makin diminished the

spiritual experience he otherwise could gain through Ramadan. This is sufficient

to constitute an infringement on his right to freely exercise his religion. A

complete denial of the ability to observe a religious practice is not required to

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demonstrate an infringement, though the fact that a spiritual experience was only

diminished rather than denied may factor into the strength of the penological

interests necessary to justify the infringement. We thus turn to defendants’

argument that legitimate penological interests warranted their interference with

Mr. Makin’s rights.

Defendants contend that the Ramadan policy for inmates in segregation

served four governmental interests: deterrence, rehabilitation, security and

budget. Defendants argue generally that restricting a prisoner’s right to exercise

his religion while in punitive segregation “deter[s] inmates from behaving in a

manner which caused them to be placed in segregation.” Appellants’ Br. at 7.

However, they cite neither evidence indicating that the policy had any deterrent or

rehabilitative goal, nor authority supporting their implied contention that

restriction of religious freedom is a proper tool for deterring improper conduct.

Cf. Young v. Coughlin , 866 F.2d 567, 570 (2d Cir. 1989) (“It also was error to

assume that prison officials were justified in limiting appellant’s free exercise

rights simply because [he] was in disciplinary confinement.”). Moreover,

defendants ignore Mr. Sullivan’s testimony that deterrence and rehabilitation were

not considerations in promulgating the policy. As he explained:

The intent [of the policy] would not have been rehabilitation or
deterrence. The intent would have been to simply meet the
operational security needs of the prison with the limited staff we had
available. We just simply didn’t have the staff available and the

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 resources available to accommodate the program for those inmates in
segregation.

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

Appellants’ App. Vol. II at 91.

Mr. Sullivan’s testimony does support the general idea that the policy

served the related interests of security and budgetary considerations, but he did

not further elaborate on these interests, and the record does not contain other

evidence of their relevance or applicability. Based on Mr. Johnson’s testimony

that the security and budgetary impact of accommodating Mr. Makin in

segregation would have been minimal, the district court found the security and

budgetary interests to be nonexistent. 6
Defendants contend that the district court

6
The court based its finding primarily on its questioning of Mr. Johnson on
this point as follows:

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

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

THE COURT: So could you have accommodated that request
so that inmates--
(continued...)

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improperly dismissed budgetary concerns because the directive applied to all

prisons and prisoners within the Department of Corrections system, not just

6
(...continued)
THE WITNESS: Could I have accommodated it? Absolutely.

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

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

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

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

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

THE WITNESS: Yes, sir, I would have.

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

THE WITNESS: Yes, sir.

Appellants’ App. Vol. II at 183-84.

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Territorial and Mr. Makin. However, as noted above, they presented no evidence

of the budgetary or security impact of accommodating prisoners in segregation at

these other facilities. Given the evidence before the district court, its finding that

there were no legitimate budgetary and security interests behind the policy is not

clearly erroneous.

We thus agree with the district court that the directive infringed on Mr.

Makin’s right to exercise his religion and that defendants did not put forth any

legitimate penological interests to justify that infringement. Defendants therefore

denied Mr. Makin a reasonable opportunity to pursue his religion, and are liable

for damages under § 1983.

C. Damages

Defendants contend that should we agree with the district court that they

violated Mr. Makin’s constitutional rights, we should vacate the district court’s

compensatory damages award of $9,000 because Mr. Makin did not suffer any

actual injury. They contend that only an award of $1 in nominal damages is

appropriate. While we agree the district court improperly determined the amount

of damages, we do not agree that Mr. Makin is entitled only to nominal damages.

Damages are available for violations of § 1983 “to compensate persons for

injuries caused by the deprivation of constitutional rights.” Carey v. Piphus , 435

U.S. 247, 254 (1978). A damages award must be based on actual injuries; id. at

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264; “the abstract value of a constitutional right may not form the basis for

§ 1983 damages.” Memphis Community Sch. Dist. v. Stachura , 477 U.S. 299, 308

(1986).

The district court concluded that “[t]he best way that the Court can quantify

a damage figure is on a per diem basis, i.e. , that a certain amount per day be

awarded which represents what this Court believes to be a reasonable damage

award to this Plaintiff who was unconstitutionally denied his ability to freely

exercise his religion for the month of Ramadan in 1993.” Appellants’ App. Vol. I

at 42-43 (emphasis added). In doing so, the court incorrectly based its award on

the abstract value of the constitutional right rather than on the actual injuries Mr.

Makin suffered from the denial of that right, and we must vacate its award. We

disagree with defendants, however, that there was no evidence of actual damages

and that we must therefore impose nominal damages of only $1. Mr. Makin’s

testimony provides some evidence that he suffered mental or emotional distress as

a result of defendants’ actions for which he may recover. See Carey , 435 U.S. at

264. We leave for the district court’s determination on remand the amount of

damages, if any, the evidence supports.

III

In sum, we conclude that the district court correctly held that defendants’

failure to accommodate Mr. Makin’s meal requirements during Ramadan in 1993

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violated his First Amendment right to freely exercise his religion, but that the

district court improperly determined the amount of damages. The judgment of the

district court in favor of Mr. Makin is therefore AFFIRMED in part, the award of

damages is VACATED, and the case is remanded to the district court for

proceedings consistent with this opinion.

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