Metropolitan News-Enterprise


Tuesday, August 8, 2023


Page 3


Ninth Circuit:

State Has No Duty to Make Sure Inmates’ Food Is Kosher


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held that the state has no duty to see to it that food vendors, who contract with it to sell merchandise to inmates, make available to purchasers who adhere to Kosher diets products that are actually Kosher, not falsely labeled.

A three-judge panel on Friday affirmed the dismissal with prejudice of an action brought by Bryan Damon Patterson, an inmate at Kern Valley State Prison, in Delano, California, rejecting his contention that prisoners should be permitted to procure foods directly from certified Kosher suppliers. He sued the California Department of Corrections and Rehabilitation (“CDCR”) and others under 42 U.S.C. §1983, for violation of civil rights, and the Religions Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).

Patterson said in his second amended complaint that he is enrolled in the Kosher Dietary Program (“KDP”) and that his “religious practice is based on the sincere belief that the consumption of improper food items will contaminate his spiritual being (genetic chemistry), weaken his mind and body (physical functions), and effect (sic) his communion with his higher power.”

He alleged that CDCR’s agreements with vendors result in Kosher inmates purchasing and consuming “numerous food items falsely advertised as Kosher products,” thus violating “their religious practices.”

The pro se plaintiff set forth that the “canteen and package vendors contradict each others[‘s] Kosher certification of numerous food items” and “neither vendor nor the CDCR guarantees item compliance with Kosher dietary laws.”

Equal Protection Claim

In addition to claiming a denial of his religious rights in violation of the First Amendment, he averred that his right to equal protection is being abridged. In his pleading, Patterson referred to the canteen order form supplied by the prison as well as catalogues produced quarterly by the vendors, and pointed out:

 “[W]hile these order forms offered a variety of principle (sic) food items to other religious groups (e.g., Muslims are offered Roman Noodles, Cup of Noodles, sausages and chicken/beef pouches), they fail to provide any Kosher options. Furthermore, all three package vendors offered approximately forty (40) of the same food items with contradictory information as to the other vendors Kosher item claims.”

The 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...unless the government demonstrates that imposition of the burden on that in furtherance of a compelling governmental interest...and is the least restrictive means of furthering that...interest.”Patterson contended that CDCR breaches that act because its policy “fails to protect inmates[’] First Amendment right to freely exercise religious dietary practices by failing to insure vendor compliance with Kosher standards.”

Injunctive Relief Sought

The inmate sought an injunction ordering the CDCR and others to cease “and desist in the illegal sale of falsely advertised Kosher items and/or allow inmate participants in the KDP to purchase canteen/package items directly from an independent Kosher vendor.” Patterson further sought a requirement that regulations be adopted “assuring that all state contractors fully comply with Hebrew/Jewish dietary laws when purchasing/distributing/selling any Kosher products” and that where alternative principal food items are available to other religious groups, such alternatives be made available to those in the KDP.

He sought a declaration that the CDCR violates the right of religious freedom and equal protections and seeks monetary damages from individual defendants—the secretary of the CDCR and three vendors—for denial of religious freedom, cruel and unusual punishment, and false advertising.

Other allegations are set forth in the pleading—such as the CDCR not seeing to it that vendors sell products that are not beyond the expiration dates and failing, as to KDP inmates, to meet the statutory obligation of providing two of the three meals each day that are hit—but they are not included in the relief that is sought.

Complaint Screened

On July 7, 2022 Magistrate Judge Barbara A. McAuliffe of the Eastern District of California, in screening the prisoner’s complaint pursuant to a statutory procedure, recommended a dismissal of the second amended complaint without leave to amend. The vendors, who merely contract with the state, do not act under color of state law, she said, and the state does not supervise the vendors and cannot be held liable for any deficiencies in their performance.

The jurist wrote: “Plaintiff fails to set forth sufficient facts to support his free exercise of religion claim. He alleges the need for a Kosher diet is a sincerely held belief. However…,it appears that no state official is the cause for the false advertisement of Kosher food or the provision of non-Kosher food. That an outside vendor failed to provide food Plaintiff desired is not the result of a state actor.”

She said that RLUIPA “is more protective than the First Amendment, in that the availability of alternative means of practicing religion is irrelevant to whether the Act has been violated,” but noted that “a RLUIPA claim may proceed only for declaratory or injunctive relief against defendants acting within their official capacities,” adding:

“For the same reasons as Plaintiff’s First Amendment claim, Plaintiff fails to state a cognizable claim.”

Addressing the equal-protection claim, McAuliffe wrote: “Plaintiff does not allege that CDCR acted with intentional discrimination against Plaintiff. Instead, Plaintiff complains that the approved vendors are ‘falsely’ labeling food as ‘Kosher.’ There is no allegation that CDCR was involved in this business practice or directed such practice.”

Injunctive relief was barred, the magistrate judge said, because no actual case or controversy was before the court.

On Aug. 31, 2022, District Court Judge Jennifer L. Thurston of the Eastern District of California adopted McAuliffe’s findings and recommendations and dismissed the action.

Ninth Circuit Opinion

The Ninth Circuit said in its memorandum opinion—signed by Circuit Judges Bridget Shelton Bade and Johnnie B. Rawlinson and Senior Circuit Judge Mary M. Schroeder—that Thurston “properly dismissed Patterson’s First Amendment free exercise and RLUIPA claims because Patterson failed to allege facts sufficient to establish that defendants’ actions placed a substantial burden on his religious exercise.” Such claims, the judges said, must be predicated on conduct that coerces a plaintiff into abandoning religious beliefs.

“The district court properly dismissed Patterson’s Fourteenth Amendment equal protection claim because Patterson failed to allege facts sufficient to show that any defendant intentionally discriminated against him on the basis of his religion,” the judges said.

“The district court properly dismissed Patterson’s Eighth Amendment claim because Patterson failed to allege facts sufficient to show deliberate indifference,” they added.

The case is Patterson v. California Department of Corrections and Rehabilitation, 22-16512.

Div. Three of the California’s First District Court of Appeal on July 27, 2011, affirmed Patterson’s conviction on two counts of second degree robbery and one count of assault, with a finding that he personally used a firearm in commission of the crimes.


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