Beerheide v. Suthers

F I L E D
United States Court of Appeals
Tenth Circuit

APR 11 2002
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

CHARLES E. BEERHEIDE, SHELDON
PERLMAN, and ALLEN ISAAC FISTELL,

Plaintiffs-Appellees,

v.

JOHN W. SUTHERS, Executive Director,
Colorado Department of Corrections;
GERALD M. GASKO, Acting Deputy
Director, Colorado Department of
Corrections; DONA ZAVISLAN, Food
Service Administration, Colorado Department No. 00-1086
of Corrections; LEE HENDRIX, Volunteer
Service Administrator, Colorado Department
of Corrections; and DOES 1 THROUGH 10,

Defendants-Appellants.

AMERICAN CIVIL LIBERTIES UNION,
ALEPH INSTITUTE, and JEWISH
PRISONER SERVICES INTERNATIONAL,

Amici Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-B-2325, 95-B-2326 & 95-B-2481)

Jennifer M. Dechtman, Assistant Attorney General, State of Colorado, Denver,
Colorado (Ken Salazar, Attorney General, State of Colorado, Denver, Colorado,
with her on the briefs), for Defendants-Appellants.

Scot M. Peterson of Koff, Corn & Berger, P.C., Denver, Colorado, for Plaintiffs-
Appellees.

Stephen E. Abrams of Perkins Coie LLP, Denver, Colorado, filed an amicus
curiae brief for American Civil Liberties Union.

Isaac M. Jaroslawicz, Director of Legal Affairs, the Aleph Institute, Surfside,
Florida, filed an amici curiae brief for The Aleph Institute and Jewish Prisoner
Services International.

Before SEYMOUR, and PORFILIO, Circuit Judges, and OWEN, * District
Judge.

SEYMOUR, Circuit Judge.

Charles Beerheide, Sheldon Perlman, and Allen Fistell brought suit under

42 U.S.C. § 1983, claiming their First Amendment right to free exercise of their

religion was violated when they were not provided kosher meals while

incarcerated in the Colorado prison system. Defendants John Suthers, Gerald

Gasko, Dona Zavislan, and Lee Hendrix, officials of the Colorado Department of

Corrections (DOC), appeal from the district court’s decision in favor of plaintiffs

*
The Honorable Richard Owen, United States District Court for the
Southern District of New York, sitting by designation.

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following trial to the court. We affirm. 1

I.

In December 1996, plaintiffs filed a motion for a preliminary injunction on

their claims that the DOC’s failure to provide a kosher diet violated their rights

under the Free Exercise Clause of the First Amendment to the Constitution and

the Religious Freedom Restoration Act. After evidentiary hearings and a

recommendation from a magistrate judge, the district court conducted a de novo

review of the facts and legal analysis in the recommendation and defendants’

objections thereto. On March 16, 1998, the court entered a preliminary injunction

directing the DOC to provide kosher food to plaintiffs free of charge and in

accordance with Orthodox Jewish law. Beerheide v. Zavaras, 997 F.Supp. 1405,

1413 (D.Colo. 1998) (Beerheide I).

While the case was pending, the Religious Freedom Restoration Act was

declared unconstitutional in Flores v. City of Boerne, 521 U.S. 507 (1997). The

district court thereafter reviewed the case under pre-RFRA standards. See

Beerheide v. Suthers, 82 F.Supp.2d 1190, 1192 (D.Colo. 2000) (Beerheide II).

1
The Amicus briefs filed in this case were vigorously opposed by the DOC,
who moved this court to strike the briefs from the record. App. Motion to Strike
(Jan. 10, 2001). As we do not rely on factual matters presented in those briefs that
were not established at trial, we deny the DOC’s motion.

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The district court held a bench trial at which the parties stipulated that “the

findings of fact and conclusions contained in Beerheide I, are adopted for

purposes of the trial of the following remaining issues in this case: 1) Plaintiff

Beerheide’s sincerity of belief in Judaism; 2) Plaintiff Fistell’s sincerity of belief

in Judaism; and 3) the constitutionality of [defendants’] proposed kosher diet

cost-sharing program.” Id. at 1192.

After considering the evidence, the district court found the following facts:

Plaintiffs are inmates at Fremont Correctional Facility, one of
twenty-one adult correctional facilities in the State of Colorado Department
of Corrections housing approximately 10,000 to 12,000 inmates. Mr.
Beerheide, whose father is Jewish, was not raised Jewish and did not
practice Judaism before he was incarcerated. After Mr. Beerheide was sent
to prison, he became interested in Judaism, studied Judaism, and has
followed the tenets of orthodox Judaism since 1994. Mr. Fistell, born and
raised in the Jewish faith, has not always been an observant Jew. At some
time after his commitment to the DOC, Mr. Fistell resumed practicing
orthodox Judaism. Mr. Perlman, born in 1933, was raised in an orthodox
Jewish family. Until approximately 10 years before he was incarcerated in
1989, Mr. Perlman kept a kosher home. After his incarceration, Mr.
Perlman resumed his practice of orthodox Judaism. Plaintiffs testified that
they wish to observe the practices of orthodox Judaism including eating
only kosher food.

Rabbi Yisroel Engle, qualified by the Court as an expert
witness on Jewish law and Jewish dietary law, testified that "keeping
kosher" is a central tenet of orthodox Judaism. Rabbi Steven Foster,
an expert witness on Jewish law and Jewish conversion, agreed. As
outlined in Beerheide I, "keeping kosher" includes adherence to
specific rules concerning which foods may be eaten and which are
forbidden. Foods that may be eaten include all non-animal products
such as fruits and vegetables, meat from animals without cloven
hooves including cows and sheep, and fish which have fins and
scales. "Kosher" also dictates specific methods by which allowable

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 foods are prepared for consumption. For example, kosher food is no
longer "kosher" if it is prepared in containers which have held
non-kosher food. To keep kosher foods untainted, containers, pots
and pans, utensils, and all other implements used in their preparation
must not come into contact with any item that is or has had contact
with nonkosher food. Also, to keep kosher food "kosher," it must be
served on plates and bowls and eaten with utensils which have not
had nonkosher contact. See Beerheide I, 997 F.Supp. at 1408-09.

It is undisputed that after the issuance of the preliminary
injunction in this case, the DOC Food Services department began
serving Plaintiffs a kosher diet. To assist in the implementation of
the program, DOC set up a modified kosher kitchen within the
regular prison kitchen. Mr. Beerheide began working in the kitchen
in a special locked and caged area set aside for the preparation of the
kosher food trays for himself, and his co-Plaintiffs. In addition,
DOC has provided a microwave oven, preparation table, two cutting
boards, two non- disposable knives, one pot, one pan, plastic tubs,
plastic storage drawers, plastic wear and trays, butcher paper, and
aluminum foil for exclusive use in the preparation of the kosher
meals. Beerheide Testimony, October 12, 1999. The parties agree
that the cost of providing a kosher diet to Plaintiffs is higher than the
cost of the general fare.

Beerheide II, 82 F.Supp.2d at 1192-93. Applying the standards relevant to the

alleged denial of a prisoner’s constitutional rights, see Turner v. Safley, 482 U.S.

78, 89-91 (1987), the district court concluded that the DOC had violated

plaintiffs’ First Amendment right to the free exercise of their religion by failing

to provide them with a kosher diet. The court entered a permanent injunction

requiring DOC to provide plaintiffs with a “diet that complies with the kosher

dietary requirements of orthodox Judaism at no cost to Plaintiffs.” Beerheide II,

82 F.Supp.2d at 1200.

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 On appeal, the DOC asserts the district court wrongly applied Turner v.

Safley in holding not only that the DOC must make a kosher diet available, it

must also provide the diet with no contribution from the inmates. Specifically,

the DOC also maintains the court erred in rejecting its proposal that it be allowed

to charge prisoners a co-payment of 25% of the extra cost of kosher meals.

II.

In a long line of cases, the Supreme Court has recognized that prisoners

retain constitutional rights when incarcerated. The Court has reiterated that

“‘convicted prisoners do not forfeit all constitutional protections by reason of

their conviction and confinement in prison.’” O’Lone v. Estate of Shabazz, 482

U.S. 342, 348 (1987) (quoting Bell v. Wolfish, 441 U.S. 520, 545 (1979)); see also

Turner, 482 U.S. at 84 (“Prison walls do not form a barrier separating prison

inmates from the protections of the Constitution.”). In some instances, however,

constitutional rights must be curtailed due to the very fact of incarceration or for

valid penological reasons. O’Lone, 482 U.S. at 348. “[W]hen 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.

The Turner decision marked a confirmation of the Supreme Court’s

deferential approach in matters of prison administration and the constitutional

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rights of prisoners. In a series of cases throughout the 1970s, the Court held that

regulations promulgated by prison officials should be upheld by courts unless the

regulations are shown to be unreasonable or an exaggerated response to

administrative and security concerns. See Pell v. Procunier, 417 U.S. 817, 827

(1974) (regulation upheld unless substantial evidence that it constitutes

exaggerated response to security and administrative concerns); Jones v. North

Carolina Prisoners’ Union, 433 U.S. 119, 128 (1977) (If security concerns

unreasonable, corrections officials required to show further justification for

regulations); Bell v. Wolfish, 441 U.S. 520, 550 (1979) (inmates’ rights not

violated if rule rational response to an obvious problem).

One case, Procunier v. Martinez, 416 U.S. 396 (1974), required that prison

officials meet a “least restrictive” means test if their regulations infringed on the

constitutionally-protected rights of non-prisoners. Because some circuits adopted

the Martinez test as the standard for all prisoner rights cases, the Supreme Court

in Turner clarified its standard. Turner reiterated the view that “[C]ourts are ill

equipped to deal with the increasingly urgent problems of prison administration

and reform.” Turner, 482 U.S. at 84 (quoting Martinez, 416 U.S. at 405). The

Court plainly stated that its decision was driven by a concern that courts had

become unnecessarily involved in the day-to-day affairs of prison administration.

Id. at 89.

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 Turner recognized the institutional capabilities possessed by prison

officials. “[J]udgments regarding prison security ‘are particularly within the

province and professional expertise of corrections officials, and in the absence of

substantial evidence in the record to indicate that the officials have exaggerated

their response to these considerations, courts should ordinarily defer to their

expert judgment in such matters.” Id. at 86 (quoting Jones v. North Carolina

Prisoners’ Union, 433 U.S. 119 (1977). Thus, if a regulation is reasonably

related to legitimate penological interests (a determination made by applying the

four-pronged test discussed below), the regulation is valid. Id. at 89. “[S]uch a

standard is necessary if ‘prison administrators. . ., and not the courts, [are] to

make the difficult judgments concerning institutional operations.” Id. at 89

(quoting Martinez, 416 U.S. at 407).

Turner constituted a corrective to decisions that granted prison officials

next to no deference in how they accommodated the rights of prisoners. At the

same time, it did not take from the courts all power to interpret and apply the

Constitution within the prison context. As discussed below, Turner itself found a

prison system’s regulation banning inmate marriages to be unreasonable and thus

struck it down. See Turner, 482 U.S. at 97-99; see also Lile v. McKune, 224 F.3d

1175 (10th Cir. 2000), cert. granted, 532 U.S. 1018 (2001); Makin v. Colo. Dep’t

of Corr., 183 F.3d 1205 (10th Cir. 1999).

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 In order to balance the guarantees of the Constitution with the legitimate

concerns of prison administrators, Turner requires a court to determine: (1)

whether a rational connection exists between the prison policy regulation and a

legitimate governmental interest advanced as its justification; (2) whether

alternative means of exercising the right are available 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 ready,

easy-to-implement alternatives exist that would accommodate the prisoner’s

rights. See Turner, 482 U.S. 89-91; see also Makin, 183 F.3d at 1209. Turner

thus requires courts, on a case-by-case basis, to look closely at the facts of a

particular case and the specific regulations and interests of the prison system in

determining whether prisoners’ constitutional rights may be curtailed. The DOC

contends that under the Turner analysis it is not constitutionally required to

provide a kosher diet to prisoners, and that if it is so required, it should be

allowed to charge a co-payment to those prisoners who participate in the kosher

meal program.

This circuit recognizes that prisoners have a constitutional right to a diet

conforming to their religious beliefs. LaFevers v. Saffle, 936 F. 2d 1117, 1119-20

(10th Cir. 1991); see also Makin, 183 F.3d at 1214 (failure to accommodate

Muslim fasting requirements during Ramadan infringed on inmate’s First

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Amendment rights). In Makin we were presented with a narrow question of law:

whether defendants improperly infringed on the plaintiff’s right to observe

Ramadan. Makin, 183 F.3d at 1211. Similarly, we must determine here whether

defendants have improperly infringed upon plaintiffs’ right to observe the dietary

laws of Judaism. In assessing whether the district court properly applied Turner,

we review its underlying factual findings for clear error but we review its legal

determinations de novo. See id. at 1211.

A.

Under the Turner analysis, the first determination is whether a rational

connection exists between the prison policy and a legitimate governmental

interest advanced as its justification. Turner, 482 U.S. at 89. At trial, the DOC

proffered two penological interests to justify its policy against providing Kosher

diets: budgetary concerns, and other prisoners’ responses to the provision of such

a diet. Beerheide II, 82 F.Supp.2d at 1197. 2 The district court found both these

2
At the preliminary injunction phase, the DOC argued that its policy of not
providing religious diets was also justified by a concern that so providing would
lead to the proliferation of other lawsuits. Beerheide I, 997 F.Supp. at 1412. The
district court rejected this justification outright using compelling reasoning:
The concern of proliferation of lawsuits seeking various accommodations is
speculative at best. Moreover, to deny these plaintiffs their right to observe
a central tenet of their religion on the ground that it might lead to other
lawsuits is specious. The DOC's logic would effectively preclude provision
(continued...)

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concerns were legitimate DOC interests, and held that this factor weighs in favor

of defendants. Id. We agree. To satisfy this prong of the test, the prison

administration is required to make a minimal showing that a rational relationship

exists between its policy and stated goals. Without doubt, prison administrators

have a legitimate interest in working within a fixed budget. Moreover, there is a

legitimate concern that other inmates’ might react negatively to providing some

prisoners with a kosher diet. 3

2
(...continued)
of any accommodations for religious practices in prison. Prisoners retain
the right to the protections of the First Amendment, including the free
exercise of religion. To deny plaintiffs their right to free exercise of their
sincerely held religious beliefs because it might lead to other inmates filing
lawsuits is unreasonable.
Beerheide I, 997 F.Supp. at 1412 (citation omitted). Denying protection of a
constitutional right in order to prevent other inmates from seeking recognition and
enforcement of their constitutional rights is contrary to the most basic principles
of our system of government. As the Supreme Court declared in Turner, 482 U.S.
at 84, because prisoners retain constitutional rights, when “a prison regulation or
practice offends a fundamental constitutional guarantee, federal courts will
discharge their duty to protect constitutional rights.” See also Procunier v.
Martinez, 416 U.S. 396, 405-406 (1974).
3
In its brief, the DOC contends the district court erred in applying this
first prong. Aplt. Br. at 21-22. The DOC’s argument appears premised upon a
misreading of the district court’s application of the Turner factors. The court
ruled in favor of the DOC on the first factor. The court’s discussion to which the
DOC objects was in fact directed not to the first factor but to the third factor, i.e.,
the impact of the co-payment program on inmates, guards and prison resources.
See Beerheide II, 82 F. Supp.2d at 1197-98.

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 B.

The second determination is whether plaintiffs have alternative means by

which to exercise the right to maintain a kosher diet. The district court rejected

two alternatives proffered by the DOC. The DOC argued that plaintiffs could

purchase kosher meals in the prison canteen. The evidence showed, however, that

plaintiffs were financially unable to exercise this option due to the high cost of

canteen meals. The DOC also asserted that the Jewish community could provide

kosher food to prisoners. The district court found that daily provision of kosher

food by the community is not feasible. Moreover, the court cannot order

community groups to provide food. The court thus concluded that plaintiffs have

no “viable alternative to observing the essential tenet of Judaism of eating a

kosher diet.” Id.

On appeal, the DOC contends the district court failed to address testimony

that inmates could obtain an “alternative religious diet” free of charge through the

prison’s “common fare” program. Aplt. Br. at 23. Meals in this program are

prepared with no pork or pork by-products, or are vegetarian. In its brief, the

state claims that while the diet does not meet the “strictest orthodox standards,” it

“meets the basic tenants [sic] of a kosher diet.” Id.

Testimony showed kosher laws do not deal simply with whether a food item

does or does not contain pork or other non-kosher animal products. Kosher laws

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govern not only the ingredients (both animal and vegetable), but the source,

storage, and preparation of those ingredients, and the service of meals. A

vegetarian meal prepared in a non-kosher kitchen is not kosher. 4 See Ashelman v.

Wawrzaszek, 111 F.3d 674, 675 & n.2 (9th Cir. 1997); see also Gerald F.

Masoudi, Kosher Food Regulation & The Religion Clauses of the First

Amendment, 60 U. Chi. L. Rev. 667, 669 (1993). The DOC’s alleged

“alternative,” then, is not an alternative at all. The district court did not commit

clear error in failing to find facts favorable to the DOC.

The district court also correctly applied the law. In upholding a restriction

on inmate-to-inmate correspondence, the Supreme Court in Turner found that

4
Even the DOC’s own expert witness, Rabbi Steven A. Foster,
acknowledged on cross-examination that a vegetarian kitchen is not necessarily a
kosher kitchen.
Q If I have a kosher kitchen that’s isolated from all other kitchens,
that’s a kosher kitchen and that can maintain itself as a kosher
kitchen, correct?
A Yes.
Q And it doesn’t matter whether that kitchen serves vegetables, or
whatever, as long as the food that goes in is kosher, the product goes
out is kosher, and it’s isolated, then that’s a kosher kitchen, correct?
A Yes.
Q And you can maintain that kitchen as a vegetarian kitchen if you
want to, correct?
A Yes.
Q And it doesn’t lose its character as a kosher kitchen?
A It doesn’t lose its character as a vegetarian kitchen that has not been
abused by non-kosher foods.
Aplt. App. vol. III at 968-969 (emphasis added).

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while prison regulations barred communication with a limited class of people

about whom officials had particular cause for concern, there remained many

people with whom prisoners could still communicate. Turner, 482 U.S. at 92.

Plaintiffs in this case are not presented with an alternative means of following

Jewish dietary laws. 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. Nor is participation in the “common

fare program” an alternative means of keeping kosher. The term “strict kosher”

as used by the DOC is a misnomer. Under Orthodox kashruth law, a person either

keeps kosher or he does not. Ashelman, 111 F.3d at 675 & n.2. In short, these

suggestions are not sufficient alternatives to providing plaintiffs with a kosher

diet.

That the plaintiffs are entitled to a kosher diet does not resolve whether the

DOC can charge prisoners a co-payment for the added cost of kosher meals. Prior

to the hearing on the injunction, the DOC proposed that any prisoner wishing to

take part in the kosher meal program be required to make a co-payment of no

more than 25% of the additional cost of providing the meals. The DOC proffered

evidence (which the district court ultimately found unreliable) that the cost of a

kosher diet is between $2.50 and $4.50 per meal. Beerheide II, 82 F.Supp.2d at

1196. The district court found that under the DOC’s proposed co-payment plan, a

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prisoner maintaining a kosher diet would be expected to pay $90 per month and

would incur a debt to his or her inmate account if unable to pay. 5 The court

expressed serious concerns about the implications of expecting prisoners to fall

into debt in order to maintain their religious beliefs, questioning whether the

proposed co-payment program would in fact run counter to penological goals.

I have serious concerns that if Plaintiffs do not have sufficient funds to pay
the 25% co-pay, their inmate accounts would maintain a negative balance to
be turned over to DOC collections upon the inmate's discharge from prison.
A major goal of parole is rehabilitation. See Griffin v. Wisconsin, 483 U.S.
868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); Latta v. Fitzharris, 521 F.2d
246, 249 (9th Cir.1975) ("The overriding goal of the parole system is to
give the parolee a chance to further and to demonstrate his rehabilitation
while serving a part of his sentence outside the prison walls."). To begin
parole with a financial debt to DOC runs counter to this laudatory goal.
Moreover, it sets the questionable precedent of encouraging the inmate to
spend money he does not have.

Beerheide II, 89 F.Supp.2d at 1198.

While $90 dollars a month may seem like a pittance, it must be assessed in

5
To further support its position that it should be allowed to charge
prisoners a co-payment for the provision of kosher meals, the DOC points to the
fact that it uses a co-payment program as a means of preventing inmate abuse of
the medical services program. The district court was not persuaded by this
argument as the medical co-pay program (as amended following litigation)
requires a co-payment only if inmates see a physician without a referral from a
nurse or physician’s assistant. Moreover, inmates are not charged a co-payment
for medical services received as treatment for an ongoing or preexisting
condition. The medical co-payment thus serves a gate-keeping function, but does
not punish prisoners for requiring regular legitimate medical care. Consequently,
the medical co-payment program is far less burdensome than the proposed kosher
meal co-payment requiring a monthly fee for provision of religiously-mandated
alimentation. See Beerheide II, 89 F.Supp.2d at 1199.

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the prison context where inmates make between $1.00 and $1.87 per day for a

maximum of $56.58 per month. App. vol. IV at 1236. Thus, a prisoner living

solely on earnings from prison work would incur a debt of more than $30.00 per

month in order to maintain his religious beliefs. One prison official testified that

although prisoners may go into debt under the proposal, he had yet to see the state

pursue a debt after a prisoner is released. App. vol. III at 917-18. Such an

admission underscores the unreasonable nature of the 25% co-payment program.

It would force prisoners into debt far beyond what they might earn, thus failing to

teach prisoners about responsible spending, while doing little to curb costs per

prisoner since the state does not regularly collect such debts upon release. In

short, while contradicting other penological goals, it does little to further the

stated goals of the prison system that could not be accomplished through a less

onerous co-payment program.

Of course, prisoners sometimes receive money from family, friends, and

other outside sources. DOC points to evidence that Mr. Fistell’s inmate account

averages over $100.00 per month and Mr. Perlman’s account totaled nearly

$100.00 per month in one year. Aplt. Br. at 9 (App. at 1216). 6 While Messrs.

6
According to testimony at trial, Mr. Beerheide’s monthly earnings were
only $30.00. App. vol. IV at 1238. At the time of trial all, three plaintiffs carried
much lower balances in their inmate accounts. Mr. Beerheide had $19.86
available, Mr. Perlman had $87.50, and Mr. Fistell had only eight cents ($00.08).
(continued...)

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Fistell and Perlman are fortunate to have more than the minimal income prisoners

earn from their work, the co-payment would require even them to sacrifice nearly

all of that income to maintain their religious duties, leaving little or no money for

other essentials such as stationary, telephone calls, medication, medical visits, and

clothing. App. vol III at 869. Forcing 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.

Thus, while meeting the proposed co-payment of 25% of additional cost

might not be impossible for some prisoners, we cannot say the district court erred

in concluding on this record that the DOC proposal was not a reasonable

alternative, particularly when, as discussed below, there are alternative means of

accommodating the plaintiffs’ right to kosher meals at a minimal cost to the

prison.

C.

Third, the district court was required to determine what effect

accommodating the exercise of the right would have on guards, other prisoners,

(...continued)
6

App. vol. IV at 1215.

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and prison resources generally. Turner, 482 U.S. at 90. Turner makes clear that

our task is to determine whether the prison regulations are reasonably related to

the penological goals and concerns laid out by the prison administration. Id. In

Turner, the prison officials identified both security and rehabilitation concerns to

support a regulation that permitted an inmate to marry only with the permission of

the superintendent of the prison and provided that such permission should be

given only if there were compelling reasons to do so. Id. at 97, 82. Officials

testified that female prisoners were often overly dependent on male figures and

subject to abuse in marriage, and that such abuse was connected to the crimes

they committed. Id. at 97. The prison superintendent testified that the policy was

also driven by the rehabilitative goal of developing skills of self-reliance. Id.

The policy was presented as the result of the prison Superintendent’s experience

in operating the prison. Id. The policy furthered prison security concerns by

avoiding the creation of “love triangles” within the prison. Id. at 98.

The Court rejected the evidence presented by prison officials and held that

the regulation was not reasonably related to the prison’s stated concerns and

goals. Referring to the rehabilitative goals, the Court found the regulation

“sweeps much more broadly” than necessary to achieve those goals. Id. As to the

security objectives, the Court relied on its own “common sense,” id., to summarily

reject the evidence presented by the prison, concluding that obvious, easy

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alternatives to the regulation existed that imposed a de minimis burden on the

pursuit of the prison’s objectives. Id. Thus, while Turner requires us to defer to

the expertise of prison officials, that deference is not absolute. In order to

warrant deference, prison officials must present credible evidence to support their

stated penological goals. See Lile, 224 F.3d at 1191; Makin, 183 F.3d at 1213-

1214.

On appeal, the DOC argues that providing kosher meals in prison would

impact the prison’s financial resources, “people resources,” and administration.

Aplt. Br. at 24. In applying Turner’s third prong, the district court considered

two factors: cost and program abuse. The court recognized that the cost of

providing kosher meals is greater than the cost of providing non-kosher meals.

Nevertheless, evidence of the actual cost of kosher meals was elusive. One

witness’ testimony differed each of three times she testified, leading the district

court to find, “Further testimony revealed that DOC’s cost estimate is fluid at best

and appears unreliable.” Beerheide II, 82 F.Supp.2d at 1197-1198. The

reliability of cost reports was further undermined by testimony revealing that the

kosher meals budget was charged for case lots of kosher fruits and vegetables that

were far too large for plaintiffs to consume in a timely fashion. Rather than use

the excess amounts to feed the general prison population, as one would logically

expect, the food was left to rot, resulting in significant waste. Based on this

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evidence, the district court found that “DOC’s cost estimates are unreliable and

cannot serve as a valid basis of an assessment of the cost of the kosher diets.” Id.

at 1198.

The DOC contends on appeal that it is “indisputable” kosher meals will

cost the prison more than regular meals. We agree, but we cannot say the district

court was clearly erroneous in finding that it could not evaluate the impact on the

DOC budget on this record. The DOC failed to present reliable evidence that the

cost impact would be more than de minimis.

The DOC also challenges the district court’s determinations relating to the

impact on guards and other inmates. See Turner, 482 U.S. at 90. “When

accommodation of an asserted right will have a significant ‘ripple effect’ on

fellow inmates or on prison staff, courts should be particularly deferential to the

informed discretion of corrections officials.” Id. However, the Supreme Court

also recognizes that “few changes will have no ramifications on the liberty of

others or on the use of the prison’s limited resources for preserving institutional

order.” Id. In other words, prison officials cannot simply point to any impact to

win their case.

On the record before us, the DOC’s evidence to support the alleged impacts

that implementation of the kosher meal program without a co-payment would

have on the guards implementing the program is tenuous, at best. The DOC

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points to only two pieces of testimony to support its claim. First, it relies on the

food service supervisor for the Fremont Correctional Facility who testified that

the program has put those inmates who prepare the meals in a position of power

vis-à-vis guards due to the guards’ unfamiliarity with the provisions of kosher

laws and the prison’s policy regarding their provision. Such difficulties,

however, stem from the difficulties inherent in implementing any new policy. As

guards quickly become familiar with the DOC-promulgated kosher regulations,

such tensions will likely ease. Moreover, such testimony simply isn’t relevant to

whether a co-payment should be charged for provision of kosher meals. There

will be friction between guards and prisoners as the kosher policy is implemented

independent of the co-payment.

Second, the DOC points to testimony regarding difficulties the Oregon

prison system had in implementing its kosher meal program. However, the

Oregon program was a model of illogic because, when it was introduced, it placed

no restrictions whatsoever on who could participate in the program. 7 After

7
The DOC relies on the testimony of Chaplain Gary Friedman of Jewish
Prisoner Services International, who worked with the Oregon prison system to
implement its kosher diet plan.
Q. How many people take advantage of the kosher plan?
A. Initially, we had 500 who applied when we opened it to
everybody. At present, we whittled it down to a couple of
dozen that are approved.
Aplt. App. vol. IV at 1311 (emphasis added). Chaplain Friedman admitted that
(continued...)

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hundreds of prisoners enrolled as participants, state prison officials were forced

to undertake a lengthy administrative process after the fact in order to screen each

applicant and keep in the program only those prisoners whose religious beliefs

required them to keep kosher. All the evidence here shows the DOC has no

intention of implementing such a poorly-designed program. On the contrary, it

already has in place a well-established system that serves as a screen to keep out

prisoners who seek to participate in the kosher meal program without a legitimate

reason. The DOC regulations require an inmate to file a request for a religious

diet documenting his or her religion’s dietary laws, and allow an inmate to change

religious affiliation only once a year. The district court found “the effectiveness

of DOC’s current method of testing an inmate’s religious sincerity is

demonstrated by the fact that relatively few inmates, fourteen, have sought to

keep kosher since the preliminary injunction was issued in the case.” Beerheide

II, 82 F.Supp.2d at 1199.

The DOC also erroneously asserts the district court erred in failing to

address the impact a kosher meal program will have on other inmates. In so

doing, the DOC points to no evidence that shows how providing kosher meals to

7
(...continued)
when Oregon commenced its kosher plan it was “available to everybody or
anybody who wanted to participate.” Id. at 1267. In short, Oregon’s plan, when
established, was wholly unregulated, whereas Colorado’s is not.

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Orthodox Jewish prisoners might affect other prisoners except to influence them

to seek religious diets as well. The DOC’s argument turns on the possibility that

providing kosher meals might cause “a floodgate of litigation and equal protection

claims” from other inmates seeking religious meals. The district court addressed

this argument and rejected it in its ruling at the preliminary injunction phase of

trial. Beerheide I, 997 F.Supp at 1412. We agree that this is a specious argument

and reject it as well. See supra n.2.

In sum, while courts must defer to prison officials on such matters, Turner

and its progeny do not give prison officials absolute deference. They must still

make their case by presenting evidence, however minimal that evidence might be.

On this record, we are not convinced the district court erred in holding the DOC

simply failed to make its case that either its budget or its guards or other inmates

would be more than minimally impacted.

D.

The fourth and final prong of the Turner test required the district court to

look at the presence or absence of ready alternatives that would fully

accommodate the plaintiffs’ rights at de minimis costs to valid penological

interests of the DOC. Id. at 90. According to Turner, the existence of “obvious,

easy alternatives may be evidence that the regulation is not reasonable, but is an

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‘exaggerated response’ to prison concerns.” Id. The district court found on the

record before it that providing prisoners with kosher meals free of charge while

using a selective screening method unrelated to money was an available

alternative with a de minimis impact on DOC’s annual food service budget,

$13,000 out of $8.25 million, or .158 percent, even accepting DOC’s cost

estimate despite the fact that the district court found it unreliable, see Beerheide

II, 82 F.Supp.2d at 1200. Under these circumstances, the district court concluded

that charging a co-payment that plaintiffs couldn’t afford was not rationally

related to the stated penological goals of cost and prisoner abuse of the program.

On appeal, the DOC contends the district court erred in applying Turner’s

fourth prong, citing to evidence that the co-payment policy is reasonable. In

doing so, the DOC misinterprets Turner. In applying the fourth Turner factor,

courts are to look for obvious, easy alternatives to the prison’s asserted policy and

examine whether the impact of those alternatives on penological goals is de

minimis. As the Supreme Court held:

[I]f an inmate claimant can point to an alternative that fully accommodates
the prisoner’s rights at de minimis cost to valid penological interests, a
court may consider that as evidence that the regulation does not satisfy the
reasonable relationship standard.

Id. at 90-91 (citation omitted). We emphasize, as did the Supreme Court in

Turner, that this is not a least restrictive alternative test. Prison officials need not

demonstrate they have considered or tried all other methods of dealing with the

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issue before courts will be satisfied with the prison’s resolution. Turner, 482

U.S. at 91.

Absent convincing evidence that the cost to valid penological goals of

providing kosher meals without a co-payment is other than de minimis, a program

that provides prisoners with kosher meals free of charge fits well into the

category of “quick, easy alternatives.” We are convinced, as was the district

court, that the reasons given for the co-payment program, controlling cost and

abuse, are barely impinged upon by provision of the meals free of charge rather

than with a co-payment to the few prisoners who have met the prison’s stringent

standards for receiving a kosher diet. The district court correctly observed that

the DOC’s tested method of screening inmates for religious diet programs serves

the same goals the co-payment allegedly serves by controlling both cost and

abuse 8 without making prisoner observance of kosher laws a matter of choosing

8
As the district court noted, the DOC has strict rules for staying on a
kosher diet even after the prisoner becomes entitled to one. Once a prisoner
convinces the DOC that the sincerity of his beliefs and the dictates of his religion
entitle him to a religious diet, he may lose this privilege for any of the following
reasons:
a. An offender is observed violating religious dietary requirements.
b. An offender is observed providing all or portions of their
specially prepared meal to other offenders.
c. An offender is observed eating both their specially prepared meal
and the general diet meal offered to the general population.
d. It is determined that an offender no longer practices the
associated religion.
(continued...)

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between incurring significant debt or defiling their bodies. As the Ninth Circuit

has usefully observed, there is a distinction between

a religious practice which is a positive expression of belief and a
religious commandment which the believer may not violate at peril of
his soul. 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.

Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993).

III.

In sum, the district court held that the DOC’s proposed co-payment plan

was not rationally related to the legitimate penological concerns of cost and

abuse. Beerheide II, 82. F.Supp.2d at 1200. We easily conclude on this record

that the district court’s findings of fact are not clearly erroneous, nor are its

conclusions of law incorrect.

We AFFIRM the judgment of the district court.

(...continued)
8

Beerheide II, 82 F.Supp.2d at 1199.

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BEERHEIDE v. SUTHERS, No. 00-1086

OWEN , District Judge, concurring.

I am one with the majority holding that a prison inmate with sincerely-held

religious beliefs should, under normal circumstances, receive meals that conform

to those beliefs. Here, the three plaintiff inmates have satisfied the prison

authorities of the sincerity of their beliefs and in their facility are receiving such

meals. What compels this concurring opinion is the majority’s giving minimal

credit to the Colorado Department of Corrections’ (DOC) perception of the

problems this creates and accordingly the institutional need for its regulation

imposing a 25% co-pay on a kosher-receiving inmate for whatever is the

acknowledged extra cost 1 of the concededly better meals 2
over and above standard

1
See the District Court’s acknowledgment at 82 F. Supp.2d, 1190, 1197,
“The parties agree that the cost of providing kosher meals is greater than the cost
of the non-kosher diet served to the general population.”
2
See the District Court’s opinion id. at 1198: “If an inmate must pay for
kosher meals, there may well be fewer requests from inmates who want the kosher
diet simply because it breaks routine or seems more desirable than the general
fare.” (Emphasis supplied).

And there is specific supporting testimony of Dona Zavislan, Food Service
Director for the DOC in the record before the District Court:

Q: Are you familiar with the individual who tried to intervene in this
(continued...)
prison fare. The DOC gives a number of reasons for establishing this, but the two

major ones which I feel require addressing are: (1) serious

potentially eruptible frictions, real and subliminal between those who get and

those who can’t; (2) security concerns, some of various unpredictable and

troublesome kinds, which occasion extra expense of greater or lesser degree. 3

It hardly needs stating that one who is getting a recognizably inferior meal

is envious of one who, for whatever reason, is getting a superior meal, which may

cause an exacerbated reaction in a criminal penitentiary setting of perpetual

confinement. 4
The testimony of John Suthers, Executive Director of the DOC

(...continued)
2

case?
A: I’ve heard about that, yes, Mr. Boles or - -
Q: Mr. Boles. And he said that - - I think his phrase was he was looking
longingly at the plump, fresh vegetables and the gourmet TV
dinners?
A: Yes, I’ve heard that.
Q: Is that what you’re serving for those on the kosher diet program?
A: I wouldn’t characterize it as such myself.
Q: But at least there’s one individual who perceives it as such?
A: That’s true.

3
For example, in the plaintiffs’ facility, the DOC has built and furnished
utilities for a separate fenced-off kitchen unit in which the three kosher-receiving
inmates prepare their meals. As another example, when tuna is on their diet, the
lid of each small can of specially-purchased kosher tuna must be removed and
taken away by a guard from the said separate kitchen unit. The obvious reason
for this is that on removal, a lid could be used as a dangerous weapon.
4
It may be appropriate to keep in mind that not only are prison conditions
(continued...)

-2-
before the District Court is illustrative:

“As I indicated everything we do in DOC has ramifications
typically beyond the specific issue. This case, for example, there are
inmates in DOC waiting to see the outcome of this case, and if DOC
is required to provide a religious meal free of cost, that will open the
door to some that I can’t even fathom at this present time to seek
similar sorts of treatment. When you have a co-pay our experience is
that doesn’t happen.”
* * *
THE COURT: What’s the factual basis for your concern that
this case could lead to a proliferation of requests for religious diets?

THE WITNESS: Your Honor, the factual basis is just about
everything we do leads to - - if inmates perceive that someone else is
getting something that they’re not getting - - and you can look at this
as kosher or not. You can look at the particular food offering. Let’s
say somebody’s saying, well, they’re getting fresh vegetables, or
something like that. They will make similar demands.

It is therefore the considered view of the DOC that the existence of a co-

pay requirement for some portion of the extra cost can have the effect of

dampening this tension between the kosher receivers and the non-receivers

because the non-receivers are aware that the receivers are paying something for it.

This, it seems to me to be a reasonable and permissible 5
response within the

4
(...continued)
breeding grounds for tensions large and small, but prison officials are dealing
with those tensions affecting inmates both peaceful and those imprisoned for acts
of violence, and consequently potentially a risk to guards and other inmates if
self-control or other is lost.
5
The concept of reasonable co-pay regulations is not in serious question,
and on this record it appears that efforts to collect negative balances from
prisoners after release are never made.

-3-
teaching of Turner v. Safley , 482 U.S. 78 (1987).

. . .[J]udgments regarding prison security “are peculiarly
within the province and professional expertise of corrections
officials, and, in the absence of substantial evidence in the
record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily
defer to their expert judgment in such matters.”

Id. at 86. (Emphasis supplied).

. . .[ W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests. In our view, such a
standard is necessary if “prison administrators . . ., and not the
courts, [are] to make the difficult judgments concerning
institutional operations.”

Id. at 89. (Emphasis supplied).

Especially appropriate is Turner at 90.

. . .A third consideration is the impact accommodation of the
asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally.
In the necessarily closed environment of the correctional
institution, few changes will have no ramifications on the
liberty of others or on the use of the prison’s limited resources
for preserving institutional order. When accommodation of an
asserted right will have a significant “ripple effect” on fellow
inmates or

on prison staff, courts should be particularly deferential to the

-4-
 informed discretion of corrections officials.[ 6
]

Id. at 90.

Given the foregoing and given the DOC’s perception of the situation it is

facing, it is my view that the DOC’s response -- a co-pay regulation -- is not an

exaggerated response and is conceptually reasonable as related to its legitimate

governmental interest in dampening a potentially troublesome prison situation

6
[Footnote by the writer hereof.] The majority in its opinion mentions the
DOC calling attention to the possibility that providing kosher meals will cause a
flood of litigation from other inmates. The majority rejects this at p. 23 of its
opinion. The testimony of Ms. Zavislan in the record in this area is at least a
beginning.

Q: To your knowledge have there been any other requests by Jewish
inmates who have requested kosher meals?
A: I’ve had 14. Those are representing inmates that are still in the
department. There have been others that have left.
* * *
Q: Okay. In terms of that have you provided a diet to any of those 14
individuals?
A: A kosher diet? No.
Q: A kosher diet.
A: No.
Q: Okay. Why not?
A: For all the reasons we have been discussing, the cost, the difficulty,
the physical plant issues, trying to make sure that we keep items
kosher, not only buy them that way, concerns about having specific
groups, perhaps at least with the perception of some treated better
than others, having their own special preparation area. All of those
kinds of concerns. Concerns about many more inmates wanting
something special and different and a proliferation of requests from
that sort of thing.
* * *
Q: To your knowledge do any of these 14 individuals have lawsuits
currently pending?
A: There are four I know of.

-5-
created by the difference in the quality of meals, as well as other interests listed

above.

Only remaining is the question whether on this record evidence as to the

problems the regulation would address was sufficiently put before the court

below, to the point where, under Turner , that court should have deferred to the

DOC’s expert judgment and sustained the regulation. As to this, the majority

concludes at p. 23 that: “On this record, we are not convinced the district court

erred in holding the DOC simply failed to make its case that either its budget or

its guards or other inmates would be more than minimally impacted.” While I see

more in the DOC’s presentation, I am not prepared to say that the DOC here

crossed the line demarcating its burden although the harbingers suggest that the

DOC may need and be compellingly able to press these issues before our courts

again at some future time. Accordingly, I concur in today’s majority’s

affirmance.

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