No UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. Aaron Carter, Plaintiff-Appellant, L. J. Fleming, et al., Defendants-Appellees.

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 1 of 34 No. 17-6461 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Aaron Carter, Plaintiff-Appellant, v. L. J. Fleming, et al., Defendants-Appellees. Appeal from the United States District Court For the Western District of Virginia at Roanoke Case No. 7:16-cv-00123-EKD-RSB The Honorable Judge Elizabeth K. Dillon OPENING BRIEF OF PLAINTIFF-APPELLANT AARON CARTER David M. Shapiro Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E. Chicago Avenue Chicago, Illinois 60611 Tel.: (312) 503-0711 david.shapiro@law.northwestern.edu Attorney for Plaintiff-Appellant Aaron Carter

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 2 of 34 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. No. 17-6461 Caption: Aaron Carter v. L.J. Fleming, et al. Pursuant to FRAP 26.1 and Local Rule 26.1, Aaron Carter (name of party/amicus) who is, appellant makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) 1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO 2. Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners: 09/29/2016 SCC - 1 -

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 3 of 34 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? YES NO If yes, identify any trustee and the members of any creditors committee: Signature: s/david M. Shapiro Date: 05/22/17 Counsel for: Appellant Aaron Carter CERTIFICATE OF SERVICE ************************** I certify that on 05/22/17 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: s/david M. Shapiro 05/22/17 (signature) (date) - 2 -

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 4 of 34 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii JURISDICTIONAL STATEMENT... 1 STATEMENT OF ISSUES... 2 STATEMENT OF THE CASE... 3 ARGUMENT... 11 I. STANDARD OF REVIEW... 11 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON MR. CARTER S SUSPENSION POLICY CLAIM... 12 A. Mr. Carter s Isolated Departures from the Common Fare Diet Do Not Establish Religious Insincerity as a Matter of Law.... 12 B. The Suspension Policy Substantially Burdens Mr. Carter s Religious Exercise.... 16 C. The Virginia Department of Corrections Does Not Have a Compelling, or Even Legitimate, Interest in Policing Compliance With the Dietary Laws of the Nation of Islam and Other Religions Through the Suspension Policy.... 20 III. THE DISTRICT COURT ERRED IN REJECTING THE CLAIM THAT THE COMMON FARE DIET INCLUDED FOODS THAT VIOLATED THE COMMANDS OF MR. CARTER S FAITH AND SUBSTANTIALLY BURDENED HIS RELIGIOUS PRACTICE.... 23 IV. THE DISTRICT COURT INCORRECTLY STATED THAT MR. CARTER DID NOT ALLEGE INVOLVEMENT BY THREE OF THE FOUR DEFENDANTS.... 24 CONCLUSION... 25 i

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 5 of 34 Cases TABLE OF AUTHORITIES Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010)... 18, 19 Al-Amin v. Shear, 325 Fed. Appx. 190, 194, 2009 WL 971454 (4th Cir. 2009)... 10, 11, 17, 18 Beard v. Banks, 548 U.S. 521 (2006)... 21 Colvin v Caruso, 605 F.3d 282 (6th Cir. 2001)... 14, 15 Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003)... 20 Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014)... 19 Holt v. Hobbs, 135 S. Ct. 853 (2015)...passim Kuperman v. Warden, N.H. State Prison, No. CIV. 06-CV-420-JL, 2009 WL 4042760 (D.N.H. Nov. 20, 2009)... 15 Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006)...passim Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001)... 9, 13 Mosier v. Maynard, 937 F.2d 1521 (10th Cir. 1991)... 15 Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)... 18 Nguyen v. CNA Corp., 44 F.3d 234 (4th Cir. 1995)... 11 O Lone v. Estate of Shabazz, 482 U.S. 342 (1987)... 9, 20 ii

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 6 of 34 Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988)... 8, 12, 15 Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015)... 19 Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008)... 18 Turner v. Safley, 482 U.S. 78 (1987)... 20, 21 United States v. Sec y, Fla. Dep t of Corr., No. 12-22958-CIV, 2015 WL 1977795 (S.D. Fla. Apr. 30, 2015)... 15, 18 Wall v. Wade, 741 F.3d 492 (4th Cir. 2014)... 9, 11, 13, 18 Statutes 28 U.S.C. 1291... 1 28 U.S.C. 1331... 1 42 U.S.C. 1983... 1 42 U.S.C. 2000cc-1... 9 42 U.S.C. 2000cc-1(a)(2)... 20 Other Authorities Fed. R. Civ. P. 56(c)... 11 iii

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 7 of 34 JURISDICTIONAL STATEMENT Plaintiff-Appellant Aaron Carter brought this action pursuant to 42 U.S.C. 1983, the Religious Land Use and Institutionalized Persons Act, and the Free Exercise Clause of the First Amendment, alleging a violation of his constitutional and statutory right to freely exercise his religion. The United States District Court for the Western District of Virginia had jurisdiction over this action pursuant to 28 U.S.C. 1331. On May 15, 2017, the district court entered an order granting the defendants motion for summary judgment. The notice of appeal was timely filed on April 6, 2017. This Court has jurisdiction pursuant to 28 U.S.C. 1291. 1

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 8 of 34 STATEMENT OF ISSUES 1. Mr. Carter adhered to the diet commanded by his religion for years. Then the government deprived him of that diet for a full year because he deviated from it on an isolated occasion. Did that year-long deprivation substantially burden Mr. Carter s religious exercise? 2. The government altered a meal program designed to comport with religious requirements, rendering the meals non-compliant with the mandates of Mr. Carter s faith. Did those alterations substantially burden Mr. Carter s religious exercise? 2

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 9 of 34 STATEMENT OF THE CASE Plaintiff Aaron Carter is a sincere member of his faith the Nation of Islam. JA 008, 117. He has been practicing the religion since 2006. JA 113. In Mr. Carter s words, [i]t is required under Islam by Allah that I eat kosher (Halal) permissible foods in accordance with the Quran. Id. In addition to keeping halal, Nation of Islam practitioners also adhere to other dietary mandates. JA 152. Among these additional requirements is the exhortation from Nation of Islam spiritual leader Elijah Muhammad to [s]tay away from eating fried foods. Id. The Virginia Department of Corrections has established two dietary plans relevant to this case. The first, the Master Menu, is for prisoners without particular dietary restrictions. The second, the Common Fare Diet, is designed, at least in theory, as a single meal plan that comports with the dietary requirements of various faiths. JA 038, 082-83. Mr. Carter signed up for the Common Fare Diet in 2013. JA 113. In October 2015, the prison switched to a Common Fare Diet with hot entrees, which included many fried items. JA 130. While frying a food does not necessarily render it non-halal for Muslims generally, fried foods do violate the Nation of Islam s dietary restrictions. JA 152. Several affidavits in the record show that at this time, the prison began to serve fried foods on the Common Fare Diet, in violation of Nation of Islam dietary laws. JA 139, 141, 143-44; see also JA 008 (alleging that 3

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 10 of 34 Defendants began serving fried foods in violation of the [Nation of Islam] diet under the teaching of Honorable Elijah Muhammad ); JA 127. In some respects, changes in the Common Fare Diet not only departed from the Nation of Islam s requirements, but from the general halal requirements. JA 141, 140 (non-kosher/halal juices served on Common Fare Diet); JA 120; JA 129; JA 151 (juice bag labeled without kosher or halal certification). Thus, while the Common Fare Diet continued to contain more religiously permissible foods than the Master Menu, even the Common Fare Diet departed substantially from the mandates of Mr. Carter s religion. With the rarest of exceptions, Mr. Carter only accepted meals from the Common Fare Diet, in keeping with an agreement he signed when he began to participate in the Common Fare Diet. See JA 106-07, 109-110. On Thanksgiving of 2015, however, Mr. Carter accepted a Thanksgiving meal from the Master Menu. JA 118. He saw this isolated transgression as a peccadillo at worst after all, changes in the Common Fare Diet had rendered it less compliant with his dietary mandates anyway, so he saw little difference in accepting a Thanksgiving meal from the Master Menu on a single day. JA 013, 015, 119. When Mr. Carter accepted the Thanksgiving dinner, a correctional officer sprang into action. JA 105. He positively identified [Mr. Carter] by using his 4

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 11 of 34 identification card and memorialized the occurrence in an Internal Incident Report. Id. This report set in motion a procedure referred to in this litigation as the Suspension Policy. The Suspension Policy, which is a portion of Virginia s statewide Operating Procedure on Offender Religious Programs, states that a prisoner receiving the Common Fare Diet will be removed from that Diet, and returned to the Master Menu, if he or she is detected or observed eating, trading, or possessing unauthorized food items from the main line. JA 096. The minimum period of suspension is six months for a first offense, a year for a second, and four years for a third. Id. Once these minimum periods pass, a prisoner may apply to the warden for reinstatement to the Common Fare Diet. JA 096-97. The policy is silent as to how the warden should decide whether to grant a request for reinstatement. Id. Following the officer s Thanksgiving dinner report, the Institutional Classification Authority determined that Mr. Carter accepted a Regular Tray. JA 105, 109. Because Mr. Carter had been suspended from the Common Fare for six months once before (that time over a packet of ramen from the prison commissary), he now received a suspension for a minimum period of one year. JA 106-07. With the exception of these two isolated infractions, there is no evidence that Mr. Carter ever deviated from the Common Fare Diet in the several years since he signed up for it in 2013. See JA 106-07, 109-10. 5

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 12 of 34 Mr. Carter set about exhausting the prison s administrative remedy process. First, on December 17, Mr. Carter submitted a written request for a copy of the Institutional Classification Authority s decision. JA 146. He sent a second request for that form on December 30. JA 147. Mr. Carter then submitted an Informal Complaint regarding his removal from the Common Fare Diet pursuant to the Suspension Policy, as well as the changes in the Common Fare Diet that rendered it noncompliant with his faith. JA 012. Defendant Broyles rejected the claim, noting that Mr. Carter was removed from the Common Fare Diet because of the Suspension Policy. Id. Mr. Carter then filed a Regular Grievance. JA 013. On January 11, 2016, Ms. Ravizee responded to the Regular Grievance by demanding that Mr. Carter provide a copy of the Institutional Classification Authority decision that stripped him of the Common Fare Diet. JA 014. Mr. Carter could not provide the form because he did not have a copy. JA 150; 123-24; 143-44. Indeed, this was the very form he had twice requested, on December 17 and 30, but never received. JA 146-47; 143-44. Ms. Ravizee instructed Mr. Carter to provide the form within 5 days. JA 014; 150; 123-24; 143-44. Ms. Ravizee s response created a Catch-22 Mr. Carter had five days to provide a form to the prison that he could not obtain in five days from the prison. JA 123-24; 143-44. Ms. Ravizee s response further stated that if Mr. Carter wanted to 6

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 13 of 34 appeal her decision, he also had to submit that appeal within five days. JA 014; 143-44. Mr. Carter did exactly that, appealing by letter to the Regional Director. JA 015; JA 123-24. Mr. Carter also wrote a letter to Ms. Ravizee stating that he could not obtain the form in five days and explaining his decision to appeal to the Regional Director. JA 150; JA 123-24. The Regional Director affirmed Ms. Ravizee s decision because Mr. Carter did not provide the form. JA 051. Mr. Carter then filed suit in the United States District Court for the Western District of Virginia, alleging violations of the First Amendment and the Religious Land Use and Institutionalized Persons Act ( RLUIPA ), in addition to other claims that he does not press on appeal. JA 005. He sought both damages and injunctive relief, naming as defendants the officials responsible for the meals served at the prison and for the operation of the Suspension Policy. JA 006, 010-11. The district court granted summary judgment to the defendants over Mr. Carter s opposition. JA 157. The court held that the inclusion of foods prohibited by Mr. Carter s religion on the Common Fare Diet did not substantially burden his religious exercise. JA 163. The district court also upheld the Suspension Policy. Id. The court rejected defendants argument that Mr. Carter failed to exhaust administrative remedies as to these claims. JA 160-61. 1 Finally, the district court 1 The district court held that Mr. Carter did not exhaust administrative remedies as to a nutritional adequacy claim. JA 161-62. He does not press that claim on appeal. 7

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 14 of 34 stated in a footnote that Mr. Carter did not allege that any defendant other than Gregg was involved in the relevant events, an argument defendants had not raised. JA 164. During the pendency of the litigation, Mr. Carter was transferred from Wallins Ridge State Penitentiary to River North Correctional Center, where he presently lives. JA 151. Mr. Carter litigated the case to judgment pro se. JA 157. He then retained appellate counsel, who filed a timely notice of appeal. JA 166. SUMMARY OF ARGUMENT It would be bizarre, Judge Richard Posner has written, if prison guards assumed the role of religious police by revoking the free exercise rights of any inmate observed backsliding. Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988). That unseemly specter prison officials deputized as the Religion Police haunts this case. With isolated exceptions, Mr. Carter adhered to the strict requirements of his faith. It was not for the government to decide, based on a draconian and inflexible policy, that a single transgression justified separating Mr. Carter from the practices of his religion. While prison officials need not blindly accept every prisoner s claim to religious sincerity, see Holt v. Hobbs, 135 S. Ct. 853, 867 (2015), the Suspension Policy crosses the line between permissible skepticism and religious policing. The Suspension Policy rigidly treats single incidents as conclusive evidence of 8

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 15 of 34 insincerity, regardless of countervailing evidence of sincerity, and relies on such isolated occurrences to cancel prisoners observance of religious dietary laws. This Court s precedent forbids prison authorities from assessing sincerity in such an inflexible manner. Prison officials, this Court has held, cannot discount a prisoner s sincerity with blanket assumptions, Lovelace v. Lee, 472 F.3d 174, 188 (4th Cir. 2006), or based on a narrow set of parameters. Wall v. Wade, 741 F.3d 492, 501 (4th Cir. 2014). Restraint is required because government officials, like courts, are not arbiters of scriptural interpretation. Morrison v. Garraghty, 239 F.3d 648, 659 (4th Cir. 2001) (quoting Thomas v. Review Board, 450 U.S. 707, 716 (1981)). More specifically, the Suspension Policy, and its application to Mr. Carter, cannot withstand scrutiny under RLUIPA or the Free Exercise Clause, especially in a summary judgment posture. Under RLUIPA, prison authorities cannot impose a substantial burden on a sincerely held religious belief unless they can demonstrate that the burden is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. 2000cc-1; Holt, 135 S. Ct. at 860, 862. This is an exceptionally demanding standard. Id. at 864. The Free Exercise Clause is more deferential, but the government must still demonstrate a logical connection to legitimate governmental interests when it imposes a substantial burden on a prisoner's religious exercise. O Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987). 9

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 16 of 34 First, a genuine issue of material fact exists as to the sincerity of Mr. Carter's faith, an element common to both the First Amendment and RLUIPA claim. In Lovelace, this Court held that a single instance in which a prisoner broke the Ramadan fast did not establish insincerity as a matter of law. Lovelace, 472 F.3d at 183, 188 (4th Cir. 2006). The same is true here an isolated Thanksgiving meal after long periods of religious observance is not conclusive evidence of insincerity. In fact, the Thanksgiving dinner is especially weak evidence of insincerity in this case because the Common Fare Diet, the only alternative Mr. Carter had to the Thanksgiving dinner, had itself fallen out of compliance with Nation of Islam dietary laws. Second, as to the substantial-burden prong (an element common to both the First Amendment and RLUIPA), the law is clear that denying a prisoner a religious diet constitutes a substantial burden on religious exercise. This Court has said so repeatedly. Lovelace, 472 F.3d at 182-83; Wall, 741 F.3d at 498; Al-Amin v. Shear, 325 Fed. Appx. 190, 194, 2009 WL 971454, at *3 (4th Cir. 2009). The Court has also stated that this substantial burden exists even when the authorities rescind the religious diet as punishment for a violation of the rules. Lovelace, 472 F.3d at 188. Third, policing religious orthodoxy is neither a compelling government interest under RLUIPA nor a legitimate one under the Free Exercise Clause. The defendants in this case have not put forth any interest furthered by the Suspension 10

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 17 of 34 Policy, and they have not offered a shred of evidence connecting the Suspension Policy to such an interest. Aside from the Suspension Policy, changes in the Common Fare Diet also violated the First Amendment and RLUIPA. Again, depriving prisoners of a diet mandated by their faith for prolonged periods of time constitutes a substantial burden under RLUIPA and the First Amendment. Lovelace, 472 F.3d at 182-83; Wall, 741 F.3d at 498; Al-Amin, 325 Fed. Appx. at 194. The defendants have not offered any basis for changing the Common Fare Diet in a manner that deviated from Nation of Islam dietary laws. ARGUMENT I. STANDARD OF REVIEW The district court s grant of summary judgment is reviewed de novo. Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995). In conducting this review, this Court applies the same standard as the district court, and should affirm a grant of summary judgment only where there is no dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 236-37; see also Fed. R. Civ. P. 56(c). Inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Nguyen, 44 F.3d at 237. 11

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 18 of 34 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON MR. CARTER S SUSPENSION POLICY CLAIM A. Mr. Carter s Isolated Departures from the Common Fare Diet Do Not Establish Religious Insincerity as a Matter of Law. The Suspension Policy and the extreme penalties it imposes for isolated deviations from the Common Fare Diet violates the principle that the government cannot assess religious sincerity in a narrow and rigid manner. Mr. Carter scrupulously hewed to the Common Fare Diet for many years, save for two isolated departures. Occasional departures from religious doctrine whether by Mr. Carter or anyone else do not conclusively establish religious insincerity. Many Christians occasionally miss church on Sunday. Many Jews who keep Kosher occasionally violate the strict requirements of Kashrut. As Judge Posner has stated, the fact that a person does not adhere steadfastly to every tenet of his faith does not mark him as insincere. Some religions place unrealistic demands on their adherents; others cater especially to the weak of will. Reed, 842 F.2d at 963. For that reason, [i]t would be bizarre for prisons to undertake in effect to promote strict orthodoxy, by forfeiting the religious rights of any inmate observed backsliding, thus placing guards and fellow inmates in the role of religious police. Id. Yet that is precisely what occurred here the defendants decided Mr. Carter did not sincerely hold his religious beliefs under a one strike and you re out policy. 12

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 19 of 34 Although prison authorities may appropriately question whether a prisoner s religiosity, asserted as the basis for a requested accommodation, is authentic[,] Holt, 135 S. Ct. at 867 (citation omitted), they must not employ overly rigid tests founded upon blanket assumptions about a prisoner s religious sincerity. Lovelace, 472 F.3d at 188. They must not magnify isolated transgressions into conclusive evidence of religious insincerity, see id., and they must not assess sincerity with a myopic focus on a narrow set of parameters. Wall, 741 F.3d at 501. The Suspension policy violates the principle that government agents must not police religious orthodoxy. In Wall, this Court refused to allow a Virginia prison to assess prisoners eligibility for religious programming by investigating whether they kept devotional items associated with their religions in their cells. Id. at 499. This government s litmus test for sincerity was not an appropriate gauge of faith. Id.; see also Morrison, 239 F.3d at 658 (striking down a Virginia Department of Corrections policy founded on the proposition that an inmate s sincerity of religious beliefs in Native American spirituality can be defined solely by his race or heritage. ). Prison officials, like courts, are not arbiters of scriptural interpretation. Morrison, 239 F.3d at 659 (quoting Thomas v. Review Bd., 450 U.S. 707, 716 (1981)). 13

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 20 of 34 The Suspension Policy cannot be squared with this Court s decision in Lovelace, 472 F.3d 174. In Lovelace, a Muslim prisoner participating in the Ramadan fast program at a Virginia prison allegedly broke the fast by taking a meal during daylight hours. Id. at 183. As a result, he was expelled from the program, which would have allowed him to continue fasting and participating in accompanying ceremonies. Id. This Court held that RLUIPA forbade prison officials from concluding that Lovelace was insincere merely because he broke the fast on an isolated occasion, stating an inmate s right to religious exercise is substantially burdened by a policy, like the one here, that automatically assumes that lack of sincerity (or religiosity) with respect to one practice means lack of sincerity with respect to others. RLUIPA does not permit either prison administrators or courts to make such a blanket assumption. Id. at 188. The same principles apply here one may waiver from time to time without renouncing the faith as a whole, and prison authorities must not make a blanket assumption, id., to the contrary. Mr. Carter adhered to the Common Fare Diet for years on end and deviated from it only on two occasions. Other courts have refused to sanction rules very similar to Virginia s Suspension Policy. The Sixth Circuit has recognized that a policy of removing a prisoner from the kosher-meal program for mere possession of a non-kosher food item may be overly restrictive of inmates religious rights. Colvin v Caruso, 605 14

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 21 of 34 F.3d 282, 296 (6th Cir. 2001). A New Hampshire district court reasoned that [s]uspending an inmate s religious diet is a rather restrictive measure and could be viewed as overbroad, potentially affecting sincere and insincere inmates alike (again, notwithstanding the prison s avowed intent to limit suspensions to inmates whose sincerity it questions). Kuperman v. Warden, N.H. State Prison, No. CIV. 06-CV- 420-JL, 2009 WL 4042760, at *6 (D.N.H. Nov. 20, 2009). Likewise, a Florida district court considered a zero tolerance policy that, unlike the VDOC policy, at least allowed a prisoner to explain his actions to a chaplain before any suspension or removal [could] occur. United States v. Sec y, Fla. Dep t of Corr., No. 12-22958- CIV, 2015 WL 1977795, at *3 (S.D. Fla. Apr. 30, 2015), aff d 828 F.3d 1341 (11th Cir. 2016). Even with the added layer of protection, the court enjoined the policy as an inappropriately restrictive measure of prisoners religious sincerity. Id. at *11-12. Mr. Carter s departures from the Common Fare Diet may be relevant to sincerity, but they are not conclusive evidence of insincerity which is what the defendants must provide to obtain summary judgment. See Mosier v. Maynard, 937 F.2d 1521, 1523 (10th Cir. 1991) ( [W]hile practice or nonpractice of a particular tenet of a religion may be relevant to sincerity, it is not conclusive. ); Reed, 842 F.2d at 963 (departure from religious practice is evidence of insincerity but not conclusive evidence of insincerity ). 15

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 22 of 34 The particular facts of this case also cut against any finding of insincerity as a matter of law. The Common Fare Diet provided to Mr. Carter did not fully comply with his dietary requirements in the first place. On Thanksgiving, he would be forced to violate his faith whether he took a Master Menu meal or a Common Fare meal. That reality further diminished the significance of accepting the Master Menu meal on this one occasion. At best, Mr. Carter s choice to take the Master Menu meal on a single day may suggest religious imperfection. It does not demonstrate religious insincerity. B. The Suspension Policy Substantially Burdens Mr. Carter s Religious Exercise. Pursuant to the Suspension Policy, defendants banned Mr. Carter from a diet consistent with his faith for a minimum period of one year. After one year, the Warden had the discretion to reinstate or not to reinstate the Common Fare Diet. The district court held that the Suspension Policy, and the consequent long-term removal of Mr. Carter from the Common Fare diet, did not substantially burden his religious exercise. The district court did not provide a reason for this conclusion. JA 163-64. Contrary to the district court s holding, denying Mr. Carter a diet consistent with the mandates of his faith for a year (or more) substantially burdened his religious exercise. The Hobson s choice he faced consume food in violation of his faith, or starve constitutes a substantial burden. [A] substantial burden on 16

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 23 of 34 religious exercise occurs when a state or local government, through act or omission, put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs. Lovelace, 472 F.3d at 187 (internal quotation omitted). In a religious diet case, authorities apply substantial pressure to violate the requirements of one s faith and thus impose a substantial burden by putting the prisoner to the choice of violating a religious tenet or going without food. Al-Amin, 325 Fed. Appx. at 194. That is precisely what happened here. The proper outcome of this case is governed by this Court s decision in Lovelace and Al-Amin, decisions the district court did not acknowledge in its opinion. In Lovelace, Virginia prison officials prevented a Muslim prisoner from participating in the Ramadan fast because he allegedly broke the fast by accepting a meal during daylight hours. 472 F.3d at 182-83. This Court found a clearly established right, under both RLUIPA and the First Amendment, to a diet consonant with the requirements of one s religion: Under both the Free Exercise Clause and RLUIPA in its most elemental form, a prisoner has a clearly established... right to a diet consistent with his... religious scruples, including proper food during Ramadan. A prison official violates this clearly established right if he intentionally and without sufficient justification denies an inmate his religiously mandated diet. Thus, under both the First Amendment and any straightforward interpretation of RLUIPA, the unlawfulness of intentional and unjustified deprivations of Ramadan meals was apparent at the time of the incident. Id. at 198-199 (citations omitted). 17

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 24 of 34 In Al-Amin, this Court held that a Muslim prisoner s removal from the Common Fare Diet for one month constituted a substantial burden: [T]he question becomes whether removal from Common Fare constituted a substantial burden on Al-Amin's exercise of his religion. Assuming that Al-Amin s religion requires him to eat Kosher food, the denial of such food for a month would constitute a substantial burden. Al-Amin, 325 Fed. Appx. at 194. If a month-long removal from the Common Fare diet imposed a substantial burden in Al-Amin, then surely removing Mr. Carter from the Common Fare Diet for a year or more also constitutes a substantial burden. This Court and many others have reiterated the principle that prison authorities impose a substantial burden on a prisoners religious exercise when they refuse to provide kosher or halal food for anything but short periods of time. See Wall, 741 F.3d at 498 ( [A] prisoner has a clearly established... right to a diet consistent with his... religious scruples (internal quotation omitted)); see also Sec y, Fla. Dep t of Corr., 828 F.3d at 1346 47 (denying access to a religious diet is a substantial burden); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010) (same); Nelson v. Miller, 570 F.3d 868, 878-79 (7th Cir. 2009) (same); Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (same). Other circuits have even found that a substantial burden may exist for denial of ceremonial foods on a single 18

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 25 of 34 occasion. See Schlemm v. Wall, 784 F.3d 362, 365 (7th Cir. 2015); Haight v. Thompson, 763 F.3d 554, 564 (6th Cir. 2014); Abdulhaseeb, 600 F.3d at 1319. The defendants reason for banning Mr. Carter from the Common Fare Diet punishment for taking a regular Thanksgiving meal is irrelevant to the substantial burden inquiry. The question of whether the government imposed a substantial burden is separate from the question of whether that burden was justified. Lovelace makes this point clear. The prison discontinued Lovelace s participation in Ramadan ceremonies when he allegedly broke the Ramadan fast. 472 F.3d at 181. The Court found the reason for the burden punishment for an infraction wholly irrelevant to the substantial burden inquiry: [I]t makes no difference to [the substantial burden] analysis that the burden on [a prisoner s] religious exercise resulted from discipline (punishment for his alleged infraction), rather than from the prison s failure to accommodate his religious needs in the first instance. Id. at 188. Here too, the defendants substantially burdened Mr. Carter s religious exercise, and their asserted disciplinary reasons do not change that reality. While Mr. Carter clearly meets the substantial burden requirement, he also preserves for further review the argument that the Free Exercise claim (as 19

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 26 of 34 distinguished from the RLUIPA claim) does not require a showing of a substantial burden in the first place. 2 C. The Virginia Department of Corrections Does Not Have a Compelling, or Even Legitimate, Interest in Policing Compliance With the Dietary Laws of the Nation of Islam and Other Religions Through the Suspension Policy. The defendants are not entitled to summary judgment on Mr. Carter s RLUIPA claim because they cannot demonstrate that the Suspension Policy is the least restrictive means of furthering [a] compelling governmental interest. 42 U.S.C. 2000cc-1(a)(2). This is an exceptionally demanding standard that requires Defendants to show that they lacked other means of achieving their desired goal without imposing a substantial burden on detainees exercise of religion. Holt, 135 S. Ct. at 864 (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014)). The legal test for Mr. Carter s Free Exercise claim affords prison officials greater deference than the RLUIPA standard, but [p]rison walls do not form a 2 While a substantial burden requirement in Free Exercise cases is consistent with this Court s precedent, in O Lone v. Estate of Shabazz, the Supreme Court reviewed a prisoner s Free Exercise claim without making any mention of a substantial-burden requirement. 482 U.S. 342, 353 (1987). Following O Lone, the circuits have split on whether the substantial-burden standard is applicable to prisoners Free Exercise claims. See Ford v. McGinnis, 352 F.3d 582, 591-92 (2d Cir. 2003) (summarizing Free Exercise history and recognizing circuit split on substantial-burden requirement for prisoners). 20

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 27 of 34 barrier separating prison inmates from the protections of the Constitution. Turner v. Safley, 482 U.S. 78, 84 (1987). A prison regulation that impinges on prisoners religious exercise is invalid unless it is reasonably related to legitimate penological interests. Id. at 89. In Turner, the United States Supreme Court set out a four-factor analysis to evaluate if a prison regulation is reasonable and therefore constitutionally valid. Those factors are: (1) whether there is a valid rational connection between the prison regulation and the legitimate governmental interest that is said to justify it; (2) whether there are alternative means of exercising the right; (3) the impact of accommodating the right on guards, other inmates, and prison resources generally; and (4) whether there are obvious, easy alternatives that suggest the prison response is exaggerated. Id. at 89-90 (citations omitted). The test requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective. Beard v. Banks, 548 U.S. 521, 535 (2006). In moving for summary judgment, the defendants did not identify any interest served by the Suspension Policy. Their summary judgment brief stated only that they removed Mr. Carter from the Common Fare Diet because he accepted a Master Menu Thanksgiving meal. JA 040, 045. The district court stated, without elaboration, that Mr. Carter fail[ed] to disprove the reasonableness of the suspension policy. JA 163. Assuming that statement constitutes a holding that the Suspension Policy satisfies the Turner valid, 21

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 28 of 34 rational connection to a legitimate governmental interest test, the district court, like the defendants in their summary judgment brief, did not identify any governmental interest. Nor did the district court consider whether the governmental interest, whatever it might have been, satisfied the exceedingly demanding standard that governs the RLUIPA claim. Holt, 135 S. Ct. at 864. The State of Virginia does not have a compelling interest under RLUIPA, or even a legitimate one under the First Amendment, in policing compliance with religious dietary laws and deciding who is and is not a true believer in the Nation of Islam faith. And even if banishing the unfaithful from religious practice were a governmental interest, the nexus between that interest and the Suspension Policy does not satisfy Turner s rational connection test, much less RLUIPA s exceedingly demanding standard. Lovelace governs the outcome here. In that case, the Virginia Department of Corrections asserted a legitimate interest in removing inmates from religious dietary programs where the inmate flouts prison rules reasonably established in order to accommodate the program. 472 F.3d at 190. This Court rejected Virginia s invitation to conclude that the asserted interest is compelling as a matter of law. Id. The defendants [did] not present any evidence with respect to the policy s security or budget implications. Id. Virginia fares no better here, and has failed to 22

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 29 of 34 demonstrate the requisite connection between the Suspension Policy and any governmental interest, as required by RLUIPA and the First Amendment. III. THE DISTRICT COURT ERRED IN REJECTING THE CLAIM THAT THE COMMON FARE DIET INCLUDED FOODS THAT VIOLATED THE COMMANDS OF MR. CARTER S FAITH AND SUBSTANTIALLY BURDENED HIS RELIGIOUS PRACTICE. The district court erred in rejecting the claim that the October 2015 Common Fare Diet changes, which introduced food prohibited by the Nation of Islam into the Common Fare Diet, violated the First Amendment and RLUIPA. While the court correctly noted that no substantial burden would occur if a religiously acceptable item appeared on both the Master Menu and the Common Fare Diet, it ignored the more important point a genuine issue of material fact exists as to whether the items on the Common Fare Diet violate Nation of Islam dietary laws. JA 163-164. Defendants do not dispute the claim, supported by several affidavits, that a host of fried foods adulterated the Common Fare Diet due to the October 2015 changes. JA 139, 141, 143-44. Mr. Carter submitted convincing evidence an excerpt from a book by the leader of the Nation of Islam that adherents must not consume fried foods. JA 152. Thus, a rational juror could conclude that the Common Fare Diet violated the requirements of Mr. Carter s religion. The cases cited above, see supra at 17-18, demonstrate that prisoners suffer a substantial burden on their religious exercise when officials deny them a religiously permissible diet for long periods of time. The defendants did not offer any rationale 23

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 30 of 34 for failing to provide such a diet, or any evidence connecting that rationale to the denial of religiously-compliant foods to Mr. Carter. The district court therefore erred in granting summary judgment as to this claim. IV. THE DISTRICT COURT INCORRECTLY STATED THAT MR. CARTER DID NOT ALLEGE INVOLVEMENT BY THREE OF THE FOUR DEFENDANTS. In moving for summary judgment, none of the defendants denied involvement in the events giving rise to the lawsuit. The district court nonetheless stated: Carter fails to allege any personal act or omission by a defendant other than Gregg. JA 164. That statement reflects a misreading of the complaint, which stated: 4. Defendant L.J. Fleming is the Warden of [the prison], he is legally responsible for the operation of [the prison] and for the welfare of all the inmates of that prison. 5. Defendant M. Broyles, is the Food Service Manager, he is legally responsible for managing the foods of [the prison] and servings of all inmates of that prison. 6. Defendant S. Stellal, she is the Food Service Supervisor, who is legally responsible for all foods and food service officials of [the prison 7. Defendant Gregg, she is the state dietician for the [Virginia Department of Corrections] who is legally responsible for the menu s [sic] and the changing of the policy of all [Virginia Department of Corrections] institutions.. 9. On approximately or after November 26, 2015, defendants M. Bryles and S. Stellal, suspended my religious diet called Common-Fare ( C/F ) because I chose to eat a Thanksgiving dinner tray that was served on Thanksgiving Day. 24

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 31 of 34 JA 006-07. The record also shows that Defendant Broyles refused Mr. Carter s request to resume the Common Fare Diet and to receive meals consonant with the demands of his faith. JA 012. In light of these allegations, the district court was simply mistaken when it asserted that Mr. Carter alleged involvement only by Defendant Gregg. Moreover, if any of the defendants had contested their involvement, Mr. Carter could have included more evidence on that issue in his response to the motion for summary judgment. As things stand, Mr. Carter had no reason to provide such evidence because the personal involvement of the defendants was undisputed on summary judgment. To the extent the district court relied upon non-involvement as a basis for summary judgment in favor of some of the defendants, Mr. Carter was unfairly blindsided by an issue he rightly considered undisputed. In this posture, the personal involvement requirement does not provide a proper basis for summary judgment. CONCLUSION For the foregoing reasons, Mr. Carter respectfully requests that this Court reverse the district court s grant of summary judgment on the RLUIPA and Free Exercise claims and REMAND for further proceedings. 25

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 32 of 34 Respectfully Submitted, s/david M. Shapiro David M. Shapiro* Northwestern Pritzker School of Law Roderick and Solange MacArthur Justice Center 375 E. Chicago Avenue Chicago, IL 60611 Phone: (312) 503-0711 david.shapiro@law.northwestern.edu Attorney for Plaintiff-Appellant Aaron Carter *Northwestern Pritzker School of Law students David Lurie, Eric Schanowski, Eva Derzic, and Rosalind Dillon contributed substantially to the preparation of this brief. 26

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 33 of 34 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT I hereby certify that: 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,645 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman typeface. s/david M. Shapiro David M. Shapiro

Appeal: 17-6461 Doc: 17 Filed: 05/22/2017 Pg: 34 of 34 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2017, I electronically filed the foregoing Opening Brief of Plaintiff-Appellant Aaron Carter with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/david M. Shapiro David M. Shapiro