Shakur v. Schriro ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMIN RAHMAN SHAKUR, 
Plaintiff-Appellant,
v.
DORA B. SCHRIRO, Director, sued
in her individual and official
capacity as Director of Arizona No. 05-16705
Department of Corrections; MIKE
LINDERMAN, sued in his individual  D.C. No.
CV-01-02470-PGR
and official capacity as Director
OPINION
Pastoral Activities; BHISHM
NARAINE, sued in his individual
and official capacity as Assistant
Deputy Warden; M. ERROL GRANT,
Esq., Senior Chaplain,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
August 14, 2007—San Francisco, California
Filed January 23, 2008
Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge O’Scannlain
1011
SHAKUR v. SCHRIRO 1015
COUNSEL
Derek L. Shaffer, Constitutional Law Center, Stanford Law
School, Stanford, California, argued the cause for the appel-
lant and was on the briefs; Kathleen M. Sullivan, Maaren A.
Choski, David J. Strandness, and Rhett O. Millsaps, II, Con-
stitutional Law Center, Stanford Law School, Stanford, Cali-
fornia, were on the briefs.
Cathy Stewart, Arizona Attorney General’s Office, Phoenix,
Arizona, argued the cause for the appellees; Attorney General
Terry Goodard, Darrin J. DeLange, and Kelley J. Morrissey,
Arizona Attorney General’s Office, Phoenix, Arizona, were
on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether prison officials violated the Reli-
gious Land Use and Institutionalized Persons Act, the Free
Exercise Clause, and the Equal Protection Clause by denying
1016 SHAKUR v. SCHRIRO
a Muslim inmate’s request for a religious dietary accommoda-
tion.
I
Amin Rahman Shakur is an inmate of the Arizona Depart-
ment of Corrections (“ADOC”) at Florence, Arizona.1 While
incarcerated, Shakur changed his inmate religious preference
designation from Catholic to Muslim. In due course, ADOC
granted Shakur’s request to adopt for religious reasons a
lacto-vegetarian diet, which includes milk but not meat or
eggs. Shakur currently receives an ovo-lacto vegetarian diet,
which includes milk and eggs, but no meat.
Shakur has contended throughout the administrative griev-
ance process and this litigation that the vegetarian diet causes
him hardship because it “gives [him] gas” and “irritates [his]
hiatal hernia.” His primary issue with the diet is that his gas-
trointestinal discomfort interferes with the state of “purity and
cleanliness” needed for Muslim prayer.
ADOC provides two kosher diets to Jewish inmates: a stan-
dard kosher diet and an Orthodox kosher diet. The standard
kosher diet consists of two vegetarian meals and a TV-style
dinner that contains meat; it costs about five dollars more per
inmate per day than the regular prisoners’ diet. The Orthodox
kosher diet costs three to five times that amount per inmate.
According to Shakur, kosher meat would be consistent with
Islamic Halal requirements2 and would provide him with an
alternative protein source that would not cause any disruptive
health problems.
1
Shakur is in the custody of ADOC serving a 21-year sentence for bur-
glary, two 21-year sentences for kidnapping, a 15-year sentence for theft
and an 8-year sentence for escape.
2
Halal meat is ritually slaughtered and prepared according to Islamic
specifications. Muslims are instructed to eat meat only if it is Halal. Meat
that is not Halal is referred to as Haram and is forbidden.
SHAKUR v. SCHRIRO 1017
A
In January 2000, Shakur submitted a request for the stan-
dard kosher diet, which was denied.3 Subsequently, in a letter
dated February 18, 2000, and addressed to Michael Linder-
man, the Pastoral Administrator at the prison, Shakur
requested a kosher meat diet, which he claimed was permitted
under the Qur’an. In a March 8, 2000 letter, Linderman
advised Shakur “that a Kosher diet is not a requirement of his
religion” and pointed out that “the Department allows Muslim
inmates the opportunity to request a vegetarian diet should
they choose so as to avoid eating meat that is not Halal.”
On March 21, 2000, Shakur filed an Inmate Grievance
complaining that his request for a kosher diet had been
denied. That grievance was referred to M. Errol Grant, the
Senior Chaplain at the jail at the time. Grant responded that
“[y]ou were given Chaplain Linderman’s response. That has
not changed.” Shakur appealed Grant’s response to Bhishm
Naraine, an Associate Deputy Warden, but Naraine denied the
appeal, stating that “the experts have given you an informed
decision on which I rest my opinion.” Finally, Shakur
appealed to Terry Stewart, the Director of ADOC at the time,
who denied the appeal, stating that Shakur had been advised
appropriately.
3
In February 2000, Shakur filed an overlapping Inmate Grievance rais-
ing other religious issues, including the lack of a religious exemption from
ADOC’s requirement that inmates remain clean shaven. Although Shakur
had received a limited medical waiver from the shaving requirement sev-
eral years earlier, the waiver did not permit him to grow a beard of more
than a quarter inch in length. Shakur contends that the limited waiver con-
flicts with his religious faith, which requires that his beard remain
unshaven. ADOC denied his grievance and his appeals, finding that a
shaving waiver was not required for the practice of his religion.
1018 SHAKUR v. SCHRIRO
B
Shakur filed a pro se civil rights complaint on December
18, 2001, and a first amended complaint on May 7, 2002.4 On
August 5, 2002, the district court dismissed the first amended
complaint with leave to amend. Shakur filed a second
amended complaint (hereinafter “the complaint”) on Septem-
ber 4, 2002, which alleged in Count I the “[v]iolation of reli-
gious liberties under First Amendment [and] (any other
applicable laws).” Count II alleged “[v]iolations of Fourteenth
Amendment and any other applicable law.” Shakur specifi-
cally noted in his filing that this count involved an Equal Pro-
tection claim in that it alleged “fail[ure] to afford the Plaintiff
who is a Muslim the right it affords other religions, i.e. Jews
. . . .”5
The district court issued a memorandum and order granting
summary judgment to the defendants on all counts on August
10, 2005. As for Shakur’s First Amendment Free Exercise
claim, the district court found that, even assuming that kosher
meat is not prohibited by Islam, Shakur did “not allege that
consuming Halal meat is required of Muslims as a central
tenet of Islam, nor d[id] he provide any evidence which would
support that contention.” Additionally, the district court deter-
mined that even if consuming Halal meat was a central tenet,
the refusal to provide him with a Halal meat diet was ratio-
nally related to legitimate penological interests, namely,
avoiding the additional cost and administrative burden. The
district court did not address whether the provision of kosher
meat meals to Jewish prisoners and denial of Halal meat
4
Dora B. Schriro has replaced Terry Stewart as Director of ADOC. The
other defendants named in the complaint who remain part of this case are
Grant, Linderman and Naraine. They are referred herein collectively as
“ADOC.”
5
In Count III, Shakur alleged a violation of his First Amendment rights
in the denial of his request for a religious exemption for shaving “due to
religious belief and practice.”
SHAKUR v. SCHRIRO 1019
meals to Muslim inmates violated the Establishment Clause.
As for Shakur’s claim under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.
(“RLUIPA”), the district court concluded that his free exer-
cise had not been substantially burdened and, even if it had
been, ADOC had established that its dietary regulations fur-
thered a compelling state interest and were the least restrictive
means of achieving that interest.
The district court also granted summary judgment to
ADOC on Shakur’s Equal Protection claim “because the
Equal Protection Clause does not require state prisons to pro-
vide each religious sect or group within a prison with identical
treatment.” The court concluded that because prisoners were
not a protected class, ADOC only needed to show a rational
basis for its regulations, which it had satisfied by showing the
extensive costs of providing Halal meat to inmates, “espe-
cially given the fact that kosher meat is not Halal meat and
Muslims are to avoid non-Halal meat.”6
Shakur timely appealed.
II
Shakur first argues that the district court erred in granting
summary judgment to ADOC on his claim that denial of a
kosher/Halal meat diet violated the Free Exercise Clause of
the First Amendment. We review the district court’s grant of
summary judgment de novo. Brown v. Lucky Stores, Inc., 246
F.3d 1182, 1187 (9th Cir. 2001).
A
[1] Prisoners “do not forfeit all constitutional protections by
6
The district court did not address Shakur’s shaving claim, ruling that
“this claim was not stated in the second amended complaint” and was thus
waived.
1020 SHAKUR v. SCHRIRO
reason of their conviction and confinement in prison.” Bell v.
Wolfish, 441 U.S. 520, 545 (1979). Inmates retain the protec-
tions afforded by the First Amendment, “including its direc-
tive that no law shall prohibit the free exercise of religion.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing
Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)). How-
ever, “ ‘[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal
system.’ ” Id. (quoting Price v. Johnston, 334 U.S. 266, 285
(1948)).
[2] “When a prison regulation impinges on inmates’ consti-
tutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.” Turner v. Safley, 482 U.S.
78, 89 (1987); see also Ward v. Walsh, 1 F.3d 873, 876-77
(9th Cir. 1993) (holding that Turner still applies to free exer-
cise claims of prisoners after Employment Division, Dep’t of
Human Resources v. Smith, 494 U.S. 872 (1990)). Turner sets
forth four factors to be balanced in determining whether a
prison regulation is reasonably related to legitimate penologi-
cal interests:
(1) Whether there is a “ ‘valid, rational connection’
between the prison regulation and the legitimate
governmental interest put forward to justify it”;
(2) Whether there are “alternative means of exercis-
ing the right that remain open to prison inmates”;
(3) Whether “accommodation of the asserted consti-
tutional right” will “impact . . . guards and other
inmates, and on the allocation of prison resources
generally”; and
(4) Whether there is an “absence of ready alterna-
tives” versus the “existence of obvious, easy alterna-
tives.”
SHAKUR v. SCHRIRO 1021
Turner, 482 U.S. at 89-90 (quoting Block v. Rutherford, 468
U.S. 576, 586 (1984)).
B
[3] As a preliminary matter, the parties dispute whether a
prisoner must objectively show that a central tenet of his faith
is burdened by a prison regulation to raise a viable claim
under the Free Exercise Clause. The district court held that
Shakur was obligated to show that ADOC had burdened “con-
duct mandated by his faith,” citing Freeman v. Arpaio, 125
F.3d 732, 736 (9th Cir. 1997), and Bryant v. Gomez, 46 F.3d
948, 949 (9th Cir. 1995). See also Graham v. C.I.R., 822 F.2d
844, 851 (9th Cir. 1987), aff’d sub nom. Hernandez v. C.I.R.,
490 U.S. 680 (1987) (holding that “the burden must be sub-
stantial and an interference with a tenet or belief that is central
to religious doctrine”). Shakur argues that it is the sincerity of
his belief rather than its centrality to his faith that is relevant
to the free exercise inquiry. See Malik v. Brown, 16 F.3d 330,
333 (9th Cir. 1994) (holding that to implicate the Free Exer-
cise Clause, a belief must be both “ ‘sincerely held’ ” and
“ ‘rooted in religious belief’ ”) (quoting Callahan v. Woods,
658 F.2d 679, 683 (9th Cir. 1981)).
Although the Supreme Court’s decision in Hernandez
affirmed Graham, the Court was careful to note that “[i]t is
not within the judicial ken to question the centrality of partic-
ular beliefs or practices to a faith, or the validity of particular
litigants’ interpretations of those creeds.” 490 U.S. at 699. In
Employment Division v. Smith, the Supreme Court reiterated
that “[i]t is no more appropriate for judges to determine the
‘centrality’ of religious beliefs before applying a ‘compelling
interest’ test in the free exercise field, than it would be for
them to determine the ‘importance’ of ideas before applying
the ‘compelling interest’ test in the free speech field.” 494
U.S. at 886-87. Nevertheless, in Freeman and Bryant, which
both followed Hernandez and Smith, we continued to adhere
to the objective centrality test.
1022 SHAKUR v. SCHRIRO
[4] Given the Supreme Court’s disapproval of the centrality
test, we are satisfied that the sincerity test set forth in Malik
and Callahan determines whether the Free Exercise Clause
applies. Accord Levitan v. Ashcroft, 281 F.3d 1313, 1319
(D.C. Cir. 2002) (“A requirement that a religious practice be
mandatory to warrant First Amendment protection finds no
support in the cases of the Supreme Court or of this court.”);
DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (en banc)
(“[O]nly those beliefs which are both sincerely held and reli-
gious in nature are entitled to constitutional protection.”).
Here the district court impermissibly focused on whether
“consuming Halal meat is required of Muslims as a central
tenet of Islam,” rather than on whether Shakur sincerely
believes eating kosher meat is consistent with his faith.
[5] Although Shakur conceded during the summary judg-
ment proceedings that he is not required as a Muslim to eat
Halal meat,7 the district court failed to consider Shakur’s
claim that the gastrointestinal distress caused by the vegetar-
ian diet substantially burdened his religious activities and
required him to find an alternative protein source consistent
with Islam. According to ADOC, “Shakur’s issues with his
vegetarian diet were not religious in nature” but were in fact
“medical issues that he should have addressed to the [ADOC]
medical staff.” However, Shakur has consistently alleged
adverse health effects from the vegetarian diet that interfered
with his religious activities. As a result of these health issues,
Shakur contends that he needs a meat-based protein source
instead, and asserts that he sincerely believes that the kosher
meat diet already provided to Jewish inmates would be con-
sistent with his religious faith. Given his sincere belief that he
is personally required to consume kosher meat to maintain his
spirituality, we are satisfied, as a threshold matter, that the
7
Shakur admitted in his statement of facts supporting his opposition to
the summary judgment motion: “Plaintiff agrees with the defendant that
a vegetarian diet would be an acceptable alternative for Muslims . . . .”
SHAKUR v. SCHRIRO 1023
prison’s refusal to provide a kosher meat diet implicates the
Free Exercise Clause.
C
[6] The district court held that ADOC’s refusal to provide
Shakur with a kosher diet satisfied the Turner test because it
was rationally related to legitimate penological interests. The
court did not actually balance the four Turner factors, noting
instead that “several federal courts have concluded that a pris-
on’s refusal to provide prisoners with a Halal diet was ratio-
nally related to legitimate penological interests.” (citing
Williams v. Morton, 343 F.3d 212, 218 (3d Cir. 2003); Hud-
son v. Maloney, 326 F. Supp. 2d 206, 211 (D. Mass. 2004)).
Given that summary judgment requires the absence of any
genuine issue of material fact, the district court’s cursory case
citations are insufficient to support its holding. Hence, we
must engage in a full Turner analysis to determine whether
any genuine issue of material fact exists with respect to
Shakur’s free exercise claim.
1
[7] The first Turner factor requires us to determine whether
there was a legitimate penological interest that is rationally
related to the disputed regulation. 482 U.S. at 89. ADOC
claims that its dietary policies were related to two legitimate
penological interests: the reduction of administrative and bud-
getary burdens. Here Shakur concedes that these are legiti-
mate penological interests but disputes whether these interests
were rationally related to ADOC’s denial of Shakur’s dietary
requests. According to Shakur, the fact that “an administrative
apparatus” for providing kosher meals already exists under-
cuts any argument that serving him these meals would create
administrative difficulties. Shakur also disputes the factual
basis for ADOC’s budgetary claims and emphasizes that
accommodating “a single inmate” would not cost ADOC
much money.
1024 SHAKUR v. SCHRIRO
[8] Although the marginal cost and administrative burden
of adding Shakur to the roster of kosher-diet inmates would
be small or even negligible, we cannot conclude that no ratio-
nal nexus exists between ADOC’s dietary policies and its
legitimate administrative and budgetary concerns. ADOC
could rationally conclude that denying Muslim prisoners
kosher meals would simplify its food service and reduce
expenditures. Hence, the first Turner factor weighs slightly in
favor of ADOC.
2
[9] Under the second Turner factor, we consider whether
Shakur has “alternative means by which he can practice his
religion” or is “denied all means of religious expression.”
Ward, 1 F.3d at 877. It is undisputed that Shakur had numer-
ous other means of practicing his religion. For example, he
could keep a copy of the Qur’an in his cell, along with a
prayer rug and up to seven religious items (provided that they
did not pose “a threat to the safe, secure and orderly operation
of the institution”). He could receive visits from an imam
upon request, and he could participate in the religious obser-
vance of Ramadan. While it is disputed whether Shakur could
meaningfully engage in personal study and prayer in his cell
as a result of his diet-induced medical issues, given the other
accommodations provided by ADOC, he “retained the ability
to participate in other significant rituals and ceremonies of
[his] faith.” Id. at 877; see also O’Lone, 482 U.S. at 352(holding that the second Turner factor is satisfied if a prison
allows prayer and discussion, access to an imam, and obser-
vance of Ramadan, even if inmates could not attend a weekly
religious service); Williams, 343 F.3d at 219 (holding that the
second Turner factor is satisfied if a prison allows daily
prayer, attendance of special weekly services, and observance
of religious holidays, even if inmates could eat vegetarian
meals but not Halal meat). Consequently, the second Turner
factor also weighs in ADOC’s favor.
SHAKUR v. SCHRIRO 1025
3
[10] Under the third prong of the Turner test, we consider
the “impact [the] accommodation . . . will have on guards and
other inmates, and on the allocation of prison resources gener-
ally.” Ward, 1 F.3d at 878 (citing Washington v. Harper, 494
U.S. 210, 225 (1990)). ADOC argues that accommodating
Shakur “could look like favoritism to other inmates and could
lead to a hostile prison environment,” and that “providing an
inmate with such a diet could also lead inmates to request
diets that their religions did not require, increasing [ADOC’s]
costs for meals by exorbitant amounts.”
In Ward, we discounted the favoritism argument, since this
effect “is present in every case that requires special accommo-
dations for adherents to particular religious practices.” Id.Moreover, while we acknowledged the potential for signifi-
cant financial and administrative burden in accommodating
the dietary requests of the inmate and all similarly situated
inmates, we noted that “the district court made no findings
regarding the financial impact of accommodation.” Id. at 879.
Although we gave “deference to the prison official’s own
assessment of the burden on prison operations,” we refused to
“accept the warden’s assertion on appeal that the disruption
would be significant” absent specific findings. Id. at 878-89.
Here ADOC, supported only by a Pastoral Administrator’s
affidavit, makes the conclusory assertion that providing all
850 of its Muslim prisoners with kosher meals would cost “an
additional $1.5 million annually,” and providing them with
Halal meat would “be in the millions of dollars annually.”
There is no evidence in the record suggesting that ADOC
actually looked into providing kosher meat to all Muslim pris-
oners, which could potentially result in economies of scale
that would reduce the overall cost of the meals. Moreover,
there is no indication that ADOC investigated suppliers of
Halal meat, solicited bids or price quotes, or in any way stud-
ied the effect that accommodation would have on operating
1026 SHAKUR v. SCHRIRO
expenses. Finally, there is no indication that other Muslim
prisoners would demand kosher meals if Shakur’s request
were granted.
[11] Without more detailed findings in the record to sup-
port ADOC’s assertions, we cannot determine whether ADOC
would prevail on the third Turner factor. Id.; see also Hunafa
v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990) (Posner, J.) (“On
this record, which consists essentially of a brief affidavit filed
by the prison’s food administrator that summarizes the pris-
on’s concerns but makes no attempt to estimate their magni-
tude in relation to the plaintiff’s religious claims, the balance
is too close for summary judgment to be proper.”).
4
[12] Finally, the fourth Turner factor requires us to con-
sider whether “there are ready alternatives to the prison’s cur-
rent policy that would accommodate [Shakur] at de minimis
cost to the prison.” Ward, 1 F.3d at 879. The “existence of
obvious, easy alternatives may be evidence that the regulation
is not reasonable, but is an ‘exaggerated response’ to prison
concerns.” Turner, 482 U.S. at 90.
[13] Shakur argues that if ADOC cannot accommodate him
with a Halal meat diet, it can simply provide him with the
standard kosher meat diet already enjoyed by Jewish inmates.
ADOC contends that procuring Halal meat would be difficult
and prohibitively expensive, and that serving kosher meat to
Muslim inmates would also be costly. Hence, ADOC main-
tains that there are no economically feasible alternatives to
Shakur’s current vegetarian diet. Again, the district court
failed to make adequate findings of fact concerning the cost
and availability of Halal meat. Furthermore, the fact that
ADOC already provides Jewish inmates with kosher meals
that cost $5 per day more than the standard meal, and ortho-
dox kosher meals that cost three to five times more, “casts
substantial doubt on [its] assertion that accommodating
SHAKUR v. SCHRIRO 1027
[Shakur’s] request would result in significant problems for the
prison community.” DeHart, 227 F.3d at 58; see also Ashel-
man v. Wawrzaszek, 111 F.3d 674, 678 (9th Cir. 1997) (“The
evidence also shows that the prison accommodates the dietary
requirements of other religious groups . . . without disruption.
Under these circumstances, it does not appear that the diffi-
culties envisioned by the prison are insurmountable.”).
5
[14] Based on the record as it currently stands, we cannot
determine whether the alternative kosher diet requested by
Shakur places more than a de minimis burden on ADOC.
Since the district court made insufficient findings with respect
to the third and fourth Turner factors, the district court’s grant
of summary judgment on the free exercise claim must be
vacated and the matter remanded to the district court so that
it can fully develop the factual record in light of the Turner
factors as to the impact of the accommodation and the avail-
ability of ready alternatives.
III
Shakur next argues that the district court erred in granting
summary judgment to ADOC on his claim that denial of a
Halal/kosher meat diet violated RLUIPA.
A
[15] Section 3 of RLUIPA provides that “[n]o government
shall impose a substantial burden on the religious exercise of
a person residing in or confined to an institution . . . even if
the burden results from a rule of general applicability,” unless
the government demonstrates that the burden is “in further-
ance of a compelling government interest” and is “the least
restrictive means of furthering that . . . interest.” RLUIPA
§ 3(a), 42 U.S.C. § 2000cc-1(a). RLUIPA, passed after the
Supreme Court’s decisions in Employment Division v. Smith,
1028 SHAKUR v. SCHRIRO
494 U.S. 872 (1990), and City of Boerne v. Flores, 521 U.S.
507 (1997), mandates a stricter standard of review for prison
regulations that burden the free exercise of religion than the
reasonableness standard under Turner. See Warsoldier v.
Woodford, 418 F.3d 989, 994 (9th Cir. 2005). The Supreme
Court upheld the constitutionality of RLUIPA in Cutter v.
Wilkinson, 544 U.S. 709, 721 (2005), noting that “RLUIPA
. . . protects institutionalized persons who are unable freely to
attend to their religious needs and are therefore dependent on
the government’s permission and accommodation for exercise
of their religion.”
B
RLUIPA defines “religious exercise” as “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” § 2000cc-5(7)(A). We have noted that a
burden is substantial under RLUIPA when the state “ ‘denies
[an important benefit] because of conduct mandated by reli-
gious belief, thereby putting substantial pressure on an adher-
ent to modify his behavior and to violate his beliefs.’ ”
Warsoldier, 418 F.3d at 995 (quoting Thomas v. Review Bd.
of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18
(1981)).
The district court emphasized that ADOC has not substan-
tially burdened Shakur’s religious exercise because it does not
“require Plaintiff to act in a way that violates his sincerely
held religious beliefs, i.e., the policy does not require or
encourage Plaintiff to eat non-Halal meat.” While it is true
that the vegetarian diet served by ADOC does not require
plaintiff to eat Haram meat in violation of his beliefs, Shakur
alleges that it exacerbates his hiatal hernia and causes exces-
sive gas that interferes with the ritual purity required for his
Islamic worship. ADOC contends that excessive gas simply
does not constitute a substantial burden.
Sefeldeen v. Alameida, No. 05-15809, 2007 WL 1585599(9th Cir. June 4, 2007), provides guidance as to whether
SHAKUR v. SCHRIRO 1029
Shakur’s medical complaints constituted a substantial burden
on his free exercise. In Sefeldeen, we affirmed a grant of sum-
mary judgment against a Muslim inmate who claimed that the
prison’s failure to serve him a Halal meat diet violated the
Free Exercise Clause and RLUIPA. Like Shakur, Sefeldeen
was provided with a vegetarian meal that was consistent with
Halal practices; however, unlike Shakur, “Petitioner’s com-
plaints to Appellees at the administrative level focused on the
perceived nutritional adequacy of the vegetarian diet,” and
“Petitioner could point to no adverse physical effects directly
resulting from the vegetarian meal plan.” Id. at *2. While our
decision in Sefeldeen is not precedential, it demonstrates that
adverse health effects from a prison diet can be relevant to the
substantial burden inquiry. However, the extent to which
Shakur’s gastrointestinal problems interfered with his reli-
gious activities is a factual issue for the district court to
resolve.
Shakur also argues that ADOC’s dietary policy constituted
a substantial burden because it “put[ ] him to a Hobson’s
choice between options that are mutually unacceptable to his
practice of his religious faith.” Namely, he must choose
among eating the vegetarian diet that is Halal but disruptive
to his religious activities, eating the regular diet that is Haram
and forbidden by his religion, or changing his religious desig-
nation to Jewish simply to obtain the desired kosher meat
meals.
[16] In Warsoldier, we observed that a prison policy that
“intentionally puts significant pressure on inmates . . . to
abandon their religious beliefs . . . imposes a substantial bur-
den on [the inmate’s] religious practice.” 418 F.3d at 996; see
also Sherbert v. Verner, 374 U.S. 398, 404 (1963). The extent
to which the prison’s policies pressured Shakur to betray his
religious beliefs is another factual dispute to be resolved by
the district court.
1030 SHAKUR v. SCHRIRO
C
Once the plaintiff establishes that the challenged state
action substantially burdens his religious exercise, the govern-
ment bears the burden of establishing that the regulation
serves a compelling government interest and is the least
restrictive means of achieving that interest.
1
[17] In Cutter, 544 U.S. at 722, the Supreme Court
acknowledged that “maintain[ing] good order, security and
discipline, consistent with consideration of costs and limited
resources,” is a compelling government interest. The district
court found that ADOC’s refusal to serve Shakur kosher meat
furthered a compelling state interest, i.e., “avoiding the pro-
hibitive expense of acquiring Halal meat for all Muslim
inmates or providing these inmates with kosher meat,” but the
court did not consider any potential effect on maintaining
order and discipline.
ADOC asserts that it would cost about $1.5 million annu-
ally to provide Halal or kosher meat to all 850 of its Muslim
inmates. However, as Shakur points out, there is a factual dis-
pute over ADOC’s cost estimate, especially given that it was
provided in an affidavit from ADOC’s Pastoral Administrator
rather than an official specializing in food service or procure-
ment. Under Federal Rule of Civil Procedure 56(e)(1), an affi-
davit supporting summary judgment “must be made on
personal knowledge, set forth such facts that would be admis-
sible in evidence, and show that the affiant is competent to
testify on the matters stated.” It is doubtful whether an
employee whose main functions are to “assist in hiring, train-
ing, and supervising the [ADOC] chaplains; secure and
administer any contracts between [ADOC] and religious pro-
viders; and represent the ADOC in legal matters that are reli-
gious in nature” is competent to testify about the cost of
procuring prison meals. Furthermore, Linderman’s affidavit
SHAKUR v. SCHRIRO 1031
states that his testimony is based not only “on [his] personal
knowledge” but also on “consultation with [ADOC] staff, and
research on the issues.” As we have noted, “[c]onclusory affi-
davits that do not affirmatively show personal knowledge of
specific facts are insufficient.” Casey v. Lewis, 4 F.3d 1516,
1527 (9th Cir. 1993). If his testimony “relied on information
from (unsworn) departmental . . . officers, and the source of
these officers’ information is unclear,” then it potentially
relied on inadmissible hearsay evidence. Block v. City of Los
Angeles, 253 F.3d 410, 419 (9th Cir. 2001)
[18] We are troubled by the district court’s reliance on this
affidavit, especially because the government bears the burden
of proving the existence of a compelling state interest. 42
U.S.C. § 2000cc-2(b). When the moving party also bears the
burden of persuasion at trial, to prevail on summary judgment
it must show that “the evidence is so powerful that no reason-
able jury would be free to disbelieve it.” 11-56 Moore’s Fed-
eral Practice - Civil § 56.13 (citing Edison v. Reliable Life Ins.
Co., 664 F.2d 1130, 1131 (9th Cir. 1981)). Based on the
record, which contains no competent evidence as to the addi-
tional cost of providing Halal or kosher meat to ADOC’s
Muslim prisoners, we cannot affirm the district court’s grant
of summary judgment.8
2
The district court also asserted that ADOC’s religious diet
regulations are “the least restrictive means” of furthering its
interest in cost containment. The record indicates that ADOC
8
It is also unclear from the record whether the $1.5 million figure pro-
vided by Linderman as the cost of providing all 850 Muslim inmates with
kosher TV dinners “(850 Muslim inmates x $5.00 per day x 365 days per
year)” accounts for whether these inmates are currently receiving regular
meals, lacto vegetarian meals, or ovo-lacto vegetarian meals, which pre-
sumably have different costs. Further, as noted above at page 1025,
ADOC has provided no evidence that all 850 Muslims would even request
a kosher TV dinner were it made available to them.
1032 SHAKUR v. SCHRIRO
refused Shakur’s request for a kosher diet for the following
reasons: he is not Jewish, Islam does not require Muslims to
consume Halal meat as a central tenet, and his current diet is
nutritionally adequate. However, ADOC did not appear to
have actually considered creating an exemption for Shakur
based on the adverse physical reaction caused by his vegetar-
ian diet, which according to Shakur substantially burdened his
religious activities.
In Warsoldier, 418 F.3d at 996, we admonished that a
prison “cannot meet its burden to prove least restrictive means
unless it demonstrates that it has actually considered and
rejected the efficacy of less restrictive measures before adopt-
ing the challenged practice.” Here the record contains only
conclusory assertions that denying Shakur the kosher diet was
the least restrictive means of furthering its interest in cost con-
tainment.
Moreover, Shakur points to a prison in Washington State
that apparently serves a Halal meat diet to Muslim inmates
that is “minimally more expensive than the standard diet” and
“significantly less expensive than Kosher diets.” Bilal v. Leh-
man, No. C04-2507, 2006 WL 3626808, at *7 (W.D. Wash.
Dec. 8, 2006). As we noted in Warsoldier, “we have found
comparisons between institutions analytically useful when
considering whether the government is employing the least
restrictive means. Indeed, the failure of a defendant to explain
why another institution with the same compelling interests
was able to accommodate the same religious practices may
constitute a failure to establish that the defendant was using
the least restrictive means.” 418 F.3d at 1000.
[19] On this record, where there is factual dispute as to the
extent of the burden on Shakur’s religious activities, the
extent of the burden that would be created by accommodating
Shakur’s request, and the existence of less restrictive alterna-
tives, we cannot conclude that summary judgment on the
SHAKUR v. SCHRIRO 1033
RLUIPA claim was appropriate. The RLUIPA claim must be
remanded.
IV
Shakur also contends that the district court erred in granting
summary judgment to ADOC on his claim that ADOC vio-
lated the Fourteenth Amendment’s Equal Protection Clause
by providing only Jewish inmates with a kosher meat diet.
A
The Equal Protection Clause requires the State to treat all
similarly situated people equally. See City of Cleburne v. Cle-
burne Living Center, 473 U.S. 432, 439 (1985). Moreover, the
Equal Protection Clause entitles each prisoner to “a reason-
able opportunity of pursuing his faith comparable to the
opportunity afforded fellow prisoners who adhere to conven-
tional religious precepts.” Cruz, 405 U.S. at 322.
The district court reasoned that because “prison inmates are
not a ‘protected class’ for purposes of equal protection analy-
sis,” ADOC needed to show only a “rational basis for its dis-
parate treatment of Jewish and Muslim inmates with regard to
providing the Muslim inmates with Kosher meat.” The court
concluded that “the extensive cost of providing this product
to Muslim inmates” supplied this rational basis, “especially
given the fact that Kosher meat is not Halal meat and Mus-
lims are to avoid non-Halal meat.”
[20] We are persuaded that the district court erred in focus-
ing on Shakur’s status as a prisoner rather than his status as
a Muslim. The district court thus applied the wrong standard
of review, substituting mere rational basis review for the four-
part balancing test required by Turner. Under the Turner test,
Shakur can succeed only “if the difference between the defen-
dants’ treatment of him and their treatment of Jewish inmates
is ‘reasonably related to legitimate penological interests.’ ”
1034 SHAKUR v. SCHRIRO
DeHart, 227 F.3d at 61 (quoting Clark v. Groose, 36 F.3d
770, 773 (8th Cir. 1994)).
B
The only penological interest mentioned by the district
court is “the extensive cost” of providing kosher meat to Mus-
lim inmates. As discussed in Part II.C.3 supra, the record is
not sufficiently developed to ascertain the precise weight that
cost should be afforded in a Turner analysis. Furthermore, it
is not at all clear that the prison’s purported cost justification
is even valid given the large expense it already undertakes to
provide its Jewish inmates with costly kosher meals (and in
some cases, even costlier orthodox kosher meals). Summary
judgment on the Equal Protection claim was therefore inap-
propriate at this stage as well.9 See Hudson, 326 F. Supp. 2d
at 213-14 (denying prison’s motion for summary judgment
9
The district court’s reliance on Williams is unavailing. In Williams,
Muslim prisoners alleged that the prison treated them differently from
Jewish prisoners by denying Muslims meat in their religious meals. 343
F.3d at 221. However, noting that “all religious meals at [the prison] are
vegetarian,” the court “reject[ed] Prisoners’ equal protection claim that the
prison treats Jewish and Muslim prisoners in a ‘disparate and unequal
manner.” Id. at 222 (emphasis added). Since it is uncontroverted that
ADOC serves specially prepared meat only to Jewish prisoners, Williams
is inapposite.
ADOC also cites Kahey v. Jones, 836 F.2d 948 (5th Cir. 1988), for the
proposition that prisons are not required to respond to inmates’ particular-
ized dietary requests. In Kahey, an inmate “averred that the Moslem reli-
gion prevents her not only from eating products containing pork, but from
eating any food cooked or served in or on utensils that have come into
contact with pork or any pork by-product.” Id. at 949. She therefore
requested “special food and individualized processing and containers in
order to completely avoid pork-contamination.” Id. at 949-50. The court
affirmed summary judgment for the prison, holding that “prisons need not
respond to particularized religious dietary requests.” Id. at 950 (citing
Udey v. Kastner, 805 F.2d 1218 (5th Cir. 1986)). In contrast to the inmate
in Kahey, Shakur is not requesting any individualized processing or con-
tainers; he simply requests the same kosher TV-style dinner already served
to many Jewish inmates.
SHAKUR v. SCHRIRO 1035
because the pleadings failed to provide information necessary
for a Turner analysis, including “material establishing in a
competent way that no ‘consistent and reliable’ source of
Halal meat is available to the Department, that the costs of
providing meals with Halal meat would in fact be two or three
times that of the existing standard and vegetarian menus, or
any analysis of the comparative costs of providing Kosher and
Halal meals”).
V
Finally, Shakur raises an Establishment Clause claim.
While ADOC argues that Shakur failed to raise this argument
in his complaint and the district court did not consider this
claim in its opinion, Shakur argues that his second amended
complaint fairly encompassed the Establishment Clause when
it referred to “vio[lation] of religious liberties under the First
Amendment” and “violation of the Fourteenth Amendment.”
We have a “duty . . . to construe pro se pleadings liberally,”
especially when filed by prisoners. Hamilton v. United States,
67 F.3d 761, 764 (9th Cir. 1995) (citing Hughes v. Rowe, 449
U.S. 5, 9 (1980)). Construed broadly, the second amended
complaint’s reference to the First and Fourteenth Amend-
ments could fairly include the First Amendment’s Establish-
ment Clause, incorporated against the States by the Due
Process Clause of the Fourteenth Amendment.
[21] However, here Shakur failed to raise the Establishment
Clause issue in his opposition to summary judgment, even
though ADOC’s motion lacked any reference to the issue.10
We have previously held that a plaintiff has “abandoned . . .
claims by not raising them in opposition to [the defendant’s]
motion for summary judgment.” Jenkins v. Cty. of Riverside,
10
ADOC also argues that Shakur waived the issue by failing to raise it
in his original opening brief. Since we authorized Shakur to file a replace-
ment opening brief, this argument lacks merit.
1036 SHAKUR v. SCHRIRO
398 F.3d 1093, 1095 n.4 (9th Cir. 2005). Therefore, despite
our liberal construction of his pleadings, Shakur has failed to
preserve this issue for appeal and the claim must be dismissed.11
VI
In conclusion, the district court’s summary disposition of
Shakur’s claims based on a sparse factual record warrants
reversal. As Ward makes clear, only a careful analysis of a
fully developed record can justify the burdening of an
inmate’s religious rights.12
REVERSED and REMANDED.
11
The district court also held that Shakur had waived his claim that
ADOC’s failure to grant him a religious waiver from its shaving policy
violated his First Amendment rights, since he did not raise it in his second
amended complaint. However, we are satisfied that the third count of the
second amended complaint adequately pleads the shaving claim. More-
over, unlike the Establishment Clause claim, ADOC addressed the
shaving-related claim in its motion for summary judgment, and Shakur
referred to the claim in his opposition to the motion. Although ADOC
asserts that the shaving-related claim is moot, since he was granted a med-
ical shaving waiver, the waiver permits growth of only 1/4 inch, whereas
Shakur contends that his religious faith does not permit shaving at all.
ADOC’s mootness argument therefore fails, and the shaving-related claim
must be remanded as well.
While Shakur’s complaint charges only a violation of the First Amend-
ment, and not of RLUIPA or any other law, ADOC itself appears to have
read a RLUIPA claim into his complaint, given that both its summary
judgment motion and answering brief on appeal argue that the shaving
policy does not violate RLUIPA. Consequently, on remand the district
court should consider whether ADOC’s refusal to grant a religious shaving
waiver violates both the First Amendment and RLUIPA.
12
Shakur’s pro se “Motion for Production of Transcript (Oral Argu-
ment); Motion to Compel,” filed on December 31, 2007, is denied as
moot.