Williams v. Annucci, No. 15-1018 (2d Cir. 2018)

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Justia Opinion Summary

The Second Circuit vacated the district court's grant of summary judgment to the DOC in an action alleging that the DOC's policy of not accommodating the dietary restrictions imposed by plaintiff's Nazarite Jewish faith violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The court held that, in the wake of the Supreme Court's decision in Holt v. Hobbs, 135 S. Ct. 853 (2015), the district court failed to appreciate the substantial showing that the government must make to justify burdening an individual plaintiff's practice of a sincerely held religious belief. In this case, fact questions remain as to whether the DOC's interest was compelling and its means were the least restrictive in light of plaintiff's suggested alternatives. Accordingly, the court remanded for further proceedings and denied the DOC's motion to vacate the judgment and remand as moot.

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15 1018 Williams v. Annucci 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 ________ AUGUST TERM, 2017 ARGUED: OCTOBER 11, 2017 DECIDED: JULY 10, 2018 No. 15 1018 DEANDRE WILLIAMS, A/K/A DAVID WILLIAMS, Plaintiff Appellant, v. ANTHONY J. ANNUCCI, Commissioner of NYS Department of Corrections and Community Supervision, CHERYL V. MORRIS, Director, Ministerial, Family and Volunteer Services, NYS Department of Corrections and Community Supervision, OMEGA ALSTON, Assistant Director, Ministerial, Family and Volunteer Services, Department of Corrections and Community Supervision, D. ROCK, Superintendent, Upstate Correctional Facility, M. LIRA, Deputy Superintendent, Upstate Correctional Facility, TIMOTHY C. HAWK, Chaplain, Upstate Correctional Facility, a/k/a J. HAWK, DON HAUG, Food Administrator, Upstate Correctional Facility, KAREN BELLAMY, Director, Inmate Grievance Program, NYS Department of Corrections and Community Supervision, KENNETH S. PERLMAN, Deputy Commissioner, Program Services, NYS Department of Correctional Services, ALEC FRIEDMANN, Jewish Chaplain, Upstate Correctional Facility, 2 1 2 3 4 5 6 7 8 9 10 11 12 13 No. 15 1018 Defendants Appellees.1 ________ Appeal from the United States District Court for the Northern District of New York. No. 11 Civ. 379 – Norman A. Mordue, Judge, Therese Wiley Dancks, Magistrate Judge. ________ Before: WALKER, POOLER, Circuit Judges, and CRAWFORD, District Judge.2 ________ 14 Plaintiff Appellant DeAndre Williams appeals from a 15 memorandum and order of the United States District Court for the 16 Northern District of New York (Mordue, J.). The district court, 17 adopting the recommendation of the magistrate judge (Dancks, M.J.), 18 granted summary judgment to the defendants, various officials of the 19 New York State Department of Corrections and Community 20 Supervision (“DOC”), on Williams’s claim that the DOC’s policy of 21 not accommodating the dietary restrictions imposed by his Nazarite 22 Jewish faith violated the Religious Land Use and Institutionalized 23 Persons Act of 2000 (RLUIPA). The district court, adopting the 24 reasoning of the magistrate judge, denied Williams’s request for a The Clerk of the Court is directed to amend the caption as set forth above. 2 Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont, sitting by designation. 1 3 No. 15 1018 1 permanent injunction because it found that, assuming Williams’s 2 beliefs were “sincerely held” and “substantially burdened” by the 3 DOC’s policy, the DOC’s refusal to modify the menu for Williams 4 furthered a compelling state interest in minimizing costs and 5 administrative burdens, and the DOC’s policy constituted the least 6 restrictive means of furthering those interests. Special App’x 45–47. 7 We conclude that the district court erred in granting summary 8 judgment to the DOC because, in the wake of the Supreme Court’s 9 decision in Holt v. Hobbs, 135 S. Ct. 853 (2015), it failed to appreciate 10 the substantial showing that the government must make to justify 11 burdening an individual plaintiff’s practice of a sincerely held 12 religious belief. We therefore VACATE the district court’s grant of 13 summary judgment on Williams’s claim for injunctive relief under 14 RLUIPA, and REMAND for further proceedings consistent with this 15 opinion. The DOC’s motion to vacate the judgment and remand is 16 DENIED as moot. 17 18 19 20 21 22 23 24 25 ________ RAJEEV MUTTREJA, (Meir Feder, Lauren Pardee Ruben, on the brief), Jones Day, New York, NY, for Plaintiff Appellant. ZAINAB A. CHAUDHRY (Andrew D. Bing, Barbara D. Underwood, on the brief), for Barbara D. Underwood, Attorney General of the State of New York, New York, NY, for Defendants Appellees. 4 No. 15 1018 ________ 1 2 3 JOHN M. WALKER, JR., Circuit Judge: 4 Plaintiff Appellant DeAndre Williams appeals from a 5 memorandum and order of the United States District Court for the 6 Northern District of New York (Mordue, J.). The district court, 7 adopting the recommendation of the magistrate judge (Dancks, M.J.), 8 granted summary judgment to the defendants, various officials of the 9 New York State Department of Corrections (“DOC”), on Williams’s 10 claim that the DOC’s policy of not accommodating the dietary 11 restrictions imposed by his Nazarite Jewish faith violated the 12 Religious Land Use and Institutionalized Persons Act of 2000 13 (RLUIPA). The district court, adopting the reasoning of the magistrate 14 judge, denied Williams’s request for a permanent injunction because 15 it found that, assuming Williams’s beliefs were “sincerely held” and 16 “substantially burdened” by the DOC’s policy, the DOC’s refusal to 17 modify the menu for Williams furthered a compelling state interest in 18 minimizing costs and administrative burdens, and the DOC’s policy 19 constituted the least restrictive means of furthering those interests. 20 Special App’x 45–47. 21 We conclude that the district court erred in granting summary 22 judgment to the DOC because it failed to appreciate, in the wake of 23 the Supreme Court’s decision in Holt v. Hobbs, 135 S. Ct. 853 (2015), 5 No. 15 1018 1 the substantial showing that the government must make to justify 2 burdening an individual plaintiff’s practice of a sincerely held 3 religious belief. We therefore VACATE the district court’s grant of 4 summary judgment on Williams’s claim for injunctive relief under 5 RLUIPA, and REMAND for further proceedings consistent with this 6 opinion. The DOC’s motion to vacate the judgment and remand is 7 DENIED as moot. 8 BACKGROUND 9 Plaintiff Appellant DeAndre Williams is a practicing Nazarite 10 Jew and a prisoner of the New York State DOC. As part of his faith, 11 Williams believes he must consume a grape free, egg free, vegetarian 12 diet that is also kosher. Williams also has a dairy intolerance. 13 At the time this appeal was filed, the DOC prepared meals for 14 inmates in two steps: first, it processed food at a central production 15 center; then, it shipped that food to each prison facility where meals 16 were prepared and served to inmates. The DOC makes two different 17 menus available to prisoners: the general confinement menu 18 (“GCM”), and the Cold Alternative Diet (“CAD”). The GCM meals, 19 which are not certified kosher, include an entrée, side dishes, and a 20 beverage. Many items on this menu include meat, dairy, or grapes. 21 The DOC also typically offers an alternative entrée that does not 22 contain meat, but that may contain dairy or grape products. The CAD 6 No. 15 1018 1 menu, on the other hand, provides kosher food, but it includes meat, 2 dairy, and grapes. 3 The DOC allows inmates to submit requests to substitute food 4 for medical reasons, which the DOC then reviews on a case by case 5 basis. The DOC generally does not permit substitutions for religious 6 reasons. Instead, the DOC’s policy is to advise inmates to “refrain 7 from eating those food items which are contrary to [their] religious 8 beliefs.” App’x 250. 9 The DOC accommodates Williams’s dairy allergy, but often in 10 ways that conflict with his religion’s requirements. For example, the 11 DOC frequently replaces Williams’s cream cheese with grape jelly or 12 his cheese with meat. As a result, Williams cannot eat much of the 13 food the DOC offers him. His diet is largely confined to hot cereal, 14 bread, fruit, vegetables, soup, and peanut butter. Sometimes he tries 15 to trade the food he cannot eat with other inmates, even though 16 trading food is discouraged. 17 Since 2002, Williams has filed multiple grievances based on the 18 DOC’s refusal to accommodate his religiously required diet. Over the 19 years, he has asked for a variety of accommodations, including 20 transferring him to a facility that serves full kosher meals, providing 21 him with a kosher vegetarian meal that does not include grapes, 22 replacing the items he cannot eat with other items on the CAD, or 7 No. 15 1018 1 removing the items he cannot eat from his tray.3 These requests were 2 denied in accordance with the DOC’s policy regarding religious diets. 3 In April 2011, Williams, acting pro se, brought this action. 4 Williams alleged that the DOC violated his rights under the First 5 Amendment and RLUIPA by refusing to accommodate his religious 6 dietary restrictions, and he sought an injunction ordering the DOC to 7 provide him with the meals his religion required. The district court 8 denied Williams’s motion for a preliminary injunction in March 2012, 9 but denied the DOC’s motion to dismiss the following February. 10 In May 2014, the DOC moved for summary judgment, arguing 11 that it had a compelling interest in controlling costs and avoiding 12 administrative burdens. By way of support, the DOC proffered a 13 sworn declaration from Robert Schattinger, the DOC’s Director of 14 Correctional Food and Nutritional Services. Schattinger claimed that 15 the DOC’s experience with a kosher food line at its Green Haven 16 facility had taught it that running such a program is “extremely 17 expensive and administratively burdensome” and that such a service 18 “[could] not be provided” statewide. App’x 392. The declaration 19 stated that “maintaining the integrity of kosher [food] at the facility 20 level is problematic.” Id. To make kosher meals available to inmates To Williams, it is important that an item he cannot eat be removed from his tray because if it seeps onto other acceptable items it contaminates them. 3 8 No. 15 1018 1 statewide, Schattinger anticipated that the DOC would have to 2 prepare meals at a kosher site, seal them, and ship them to each 3 facility, which would require purchasing new equipment and hiring 4 more staff. Additionally, Schattinger anticipated that extra time and 5 energy would be required to figure out how to provide inmates 6 adequate nutrition in a menu without meat. Due to these “fiscal and 7 practical considerations,” Schattinger declared, “the Department has 8 determined that a [kosher vegetarian] menu will not be provided,” 9 since doing so is “not financially or administratively feasible.” App’x 10 392–93. 11 The district court assigned the motion for summary judgment 12 to a magistrate judge. The magistrate judge determined that there was 13 no dispute that Williams’s religious beliefs were “sincerely held” and 14 that those beliefs were “substantially burdened” by the DOC’s policy. 15 Special App’x 45–47. Nevertheless, the magistrate judge found that 16 the DOC’s refusal to modify the menu for Williams furthered a 17 compelling state interest in minimizing costs and administrative 18 burdens and was the least restrictive way of furthering those interests. 19 The magistrate judge thus recommended that the district court grant 20 summary judgment to the DOC. Shortly before the district court 21 decided the motion, the Supreme Court handed down Holt v. Hobbs, 22 135 S. Ct. 853 (2015), clarifying the standard applicable to RLUIPA 23 claims. The district court adopted the magistrate’s recommendation 9 No. 15 1018 1 and entered summary judgment for the DOC without considering 2 Holt. Williams timely appealed. 3 4 reported that it had made significant changes to its kosher meal 5 program. In fact, the day after the DOC’s brief was due in this appeal, 6 the facility where Williams was then housed adopted a new kosher 7 menu. The new menu is a largely vegetarian diet, with meat served 8 twice per week and eggs once per week. The new meals are prepared 9 at a kosher facility and prepackaged with a clear plastic lid and 10 double wrapping. That packaging gives the DOC greater capability 11 to make kosher compliant substitutions on a case by case basis. 12 Williams, however, was transferred to a facility that does not 13 participate in the new menu program. Regardless, even this new 14 menu includes items he cannot eat, and he has said that he will not 15 elect to adopt it. 16 17 to brief the issue of “whether summary judgment was warranted on 18 Appellant’s claim for injunctive relief (a nutritionally adequate diet 19 compliant with his religious beliefs) under the Religious Land Use 20 and Institutionalized Persons Act.” Mot. Order, Williams v. Fischer, 21 No. 15 1018 (2d Cir. Nov. 4, 2015), ECF No. 55. After the district court granted summary judgment, the DOC In November 2015, we appointed pro bono counsel for Williams 10 No. 15 1018 DISCUSSION 1 2 Williams argues on appeal that the district court erred in 3 granting summary judgment to the DOC because the district court 4 misunderstood, post Holt, the extent to which the DOC’s evidence of 5 a compelling interest and least restrictive alternatives must be 6 particularized to adequately respond to Williams’s specific request 7 for accommodations. 8 “We review a grant of summary judgment de novo, examining 9 the evidence in the light most favorable to, and drawing all inferences 10 in favor of, the non movant.” Sheppard v. Beerman, 317 F.3d 351, 354 11 (2d Cir. 2003). Summary judgment is appropriate where “there is no 12 genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he submissions 14 of a pro se litigant must be construed liberally and interpreted to raise 15 the strongest arguments that they suggest.” Triestman v. Fed. Bureau of 16 Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal 17 quotation marks and emphasis omitted). 18 I. Availability of a Permanent Injunction 19 The district court construed Williams’s complaint as seeking a 20 permanent mandatory injunction, but concluded that there was no 21 defendant against whom effective injunctive relief could be awarded 22 under RLUIPA. As the DOC concedes, this was an error. 11 No. 15 1018 1 Williams sued Brian Fischer, the Commissioner of the DOC, in 2 his official capacity. Before the district court ruled on Williams’s 3 motion for summary judgment, Fischer retired, and Williams did not 4 separately sue his successor. 5 Fischer’s retirement had no effect on Williams’s ability to obtain 6 injunctive relief. It is settled that “suits against officers in their official 7 capacity . . . are directed at the office itself.” Tanvir v. Tanzin, No. 16 8 1176, 2018 WL 3096962, at *7 n.7 (2d Cir. June 25, 2018) (as amended) 9 (citing Fed. R. Civ. P. 17(d)). So, when a “defendant in an official 10 capacity suit leaves office, the successor to the office replaces the 11 originally named defendant.” Id.; see also Fed. R. Civ. P. 25(d) (“An 12 action does not abate when a public officer who is a party in an official 13 capacity . . . ceases to hold office while the action is pending. The 14 officer’s successor is automatically substituted as a party.”). 15 Once Fischer retired, his successor, Acting Commissioner 16 Anthony Annucci, was “automatically substituted” as a defendant. 17 Fed. R. Civ. P. 25(d). And it is Annucci who has the power to order 18 that Williams be accommodated. See N.Y. Correct. Law § 112(1). 19 II. The Effect of Changes in DOC Policy 20 Next, we must decide what effect, if any, the recent changes to 21 the DOC’s dietary policy have on Williams’s appeal. The DOC 22 suggests that in light of these changes this case might be moot under 23 RLUIPA’s safe harbor provision or otherwise. 12 No. 15 1018 1 “In order for a federal court to retain jurisdiction over a case, 2 an actual controversy must exist at all stages of review, not merely at 3 the time the complaint is filed.” Prins v. Coughlin, 76 F.3d 504, 506 (2d 4 Cir. 1996) (per curiam) (internal quotation marks omitted). “A case is 5 deemed moot where the problem sought to be remedied has ceased, 6 and where there is no reasonable expectation that the wrong will be 7 repeated.” Id. (internal quotation marks omitted). “[A] case becomes 8 moot only when it is impossible for a court to grant any effectual relief 9 whatever to the prevailing party.” Chevron Corp. v. Donziger, 833 F.3d 10 74, 124 (2d Cir. 2016) (internal quotation marks and emphasis 11 omitted). RLUIPA encourages institutions to accommodate inmate 12 requests by exempting from liability institutions that change 13 challenged policies, exempt substantially burdened inmates, or take 14 “any other means that eliminates the substantial burden.” 42 U.S.C. § 15 2000cc 3(e). 16 First, the DOC argues that the mootness point is better resolved 17 by the district court. The DOC relies on Lumbermens Mutual Casualty 18 Co. v. RGIS Inventory Specialists, LLC, 356 F. App’x 452, 453–54 (2d Cir. 19 2009), a case in which we remanded to the district court to determine 20 whether the action was mooted by a settlement in another case 21 because “the question of mootness is, at least in part, factual” and 22 “dependent . . . on the terms and circumstances of the settlement.” Id. 23 at 454. That case is distinguishable. Here, the facts pertaining to 13 No. 15 1018 1 mootness are uncontested: the DOC has not agreed to provide 2 Williams with his requested diet; the new menu, like the old menu, 3 includes items that Williams cannot eat; and the new kosher menu is 4 not available where Williams is currently incarcerated. No additional 5 factfinding is required. 6 7 we should remand without addressing the merits so the district court 8 can consider the new record in the first instance. The DOC’s reliance 9 on Farmer v. Brennan, 511 U.S. 825, 846–48 (1994), for this point is 10 misplaced, however, because there the Supreme Court clarified the 11 Eighth Amendment standard before remanding for the district court 12 to apply it. See id. In the “interest[] of judicial economy,” we opt to do 13 the same with regard to Williams’s RLUIPA claim. Florez v. Cent. 14 Intelligence Agency, 829 F.3d 178, 189 (2d Cir. 2016).4 15 In a variation of its mootness argument, the DOC argues that The DOC has also asked us to invoke our inherent authority to “vacate, set aside or reverse any judgment, decree, or order of a court” under 28 U.S.C. § 2106 and employ our so called Jacobson remand procedure by remanding the case to the district court to “consider arguments” and “weigh relevant evidence . . . in the first instance” while keeping the appeal. Florez, 829 F.3d at 189; see also United States v. Jacobson, 15 F.3d 19, 21–22 (2d Cir. 1994). Because we conclude that there are independent reasons for remanding to the district court, we do not separately address this issue. On remand, as discussed further in Section III, infra, the district court should consider the DOC’s ability to accommodate Williams in light of the recent changes to DOC policy. See Farmer, 511 U.S. at 846–48 (clarifying applicable standard before remanding for the district court to apply it with reference to the updated factual record). 4 14 1 III. No. 15 1018 RLUIPA Claim 2 RLUIPA states that “[n]o government shall impose a 3 substantial burden on the religious exercise of a person residing in or 4 confined to an institution . . . unless the government demonstrates 5 that imposition of the burden on that person—(1) is in furtherance of 6 a compelling governmental interest; and (2) is the least restrictive 7 means of furthering that compelling governmental interest.” 42 8 U.S.C. § 2000cc 1(a). In practice, RLUIPA claims are evaluated under 9 a burden shifting framework whereby a plaintiff must first 10 demonstrate that the state has imposed a substantial burden on the 11 exercise of her religion; the burden then shifts to the state to 12 demonstrate “that the challenged policy or action furthered a 13 compelling governmental interest and was the least restrictive means 14 of furthering that interest.” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 15 2010). 16 The district court agreed with Williams that his religious 17 exercise had been substantially burdened by the DOC’s policy of not 18 providing him with religious dietary accommodations, but 19 determined that the DOC had “met the burden of showing that for 20 financial and administrative reasons” the DOC had a compelling state 21 interest in limiting menu options. Special App’x 56. Williams argues 22 that the DOC’s compelling interest showing was inadequate 23 particularly in the wake of Holt. 15 No. 15 1018 1 In Holt, the Supreme Court considered a Muslim inmate’s 2 RLUIPA challenge to an Arkansas Department of Correction policy 3 that prohibited him from growing a half inch beard. See 135 S. Ct. at 4 859. The department justified its policy by asserting compelling 5 interests in (1) stopping the flow of contraband, and (2) facilitating 6 prisoner identification. See id. The department’s staff testified to these 7 concerns, but was unable to point to any actual problems that beards 8 had caused. See id. at 861. One official acknowledged that prisoners 9 could also hide contraband in clothing or the hair on their heads and 10 could not explain why taking photos of inmates without a beard 11 would not address the identification concern. See id. That official also 12 testified that keeping track of exempt inmates’ beard length would be 13 difficult, but he could not offer any reason why doing so would be 14 any more difficult than tracking the beard length of those with 15 medical exemptions, something the department already did. See id. 16 Even so, the district court held that the department had sufficiently 17 shown that banning half inch beards was the least restrictive means 18 of furthering its compelling interest in security. See id. The Eighth 19 Circuit affirmed. Id. 20 The Supreme Court reversed, holding that the department’s 21 evidence did not discharge its burden to show that it had a compelling 22 interest in burdening Holt. Id. at 863–67. The Court’s reasoning is 23 helpful guidance in applying RLUIPA to Williams’s case. 16 No. 15 1018 1 First, Holt made it plain that courts need not accept the 2 government’s claim that its interest is compelling on its face. See id. at 3 864, 866. The Court held that the district court erred in thinking that 4 it was required to defer to the government’s assertion that inmates 5 could hide contraband in their beards, a claim that even the 6 magistrate judge had remarked was “almost preposterous.” Id. at 861, 7 863–64. The Court acknowledged that courts should respect prison 8 officials’ expertise in “evaluating the likely effects of altering prison 9 rules.” Id. at 864. But because Congress passed RLUIPA “to provide 10 very broad protection for religious liberty,” courts abdicate their 11 responsibility to “apply RLUIPA’s rigorous standard” by deferring to 12 the government’s “mere say so” without question. Id. at 859, 864, 866. 13 Second, evidence of a policy’s underinclusiveness relative to 14 “analogous nonreligious conduct” may cast doubt on both whether 15 the government’s asserted interest is compelling and whether that 16 policy actually is the least restrictive means of furthering that interest. 17 See id. at 866 (internal quotation marks omitted). In Holt, the Court 18 observed that the department insisted that it needed inmates to shave 19 their beards to stop the spread of contraband and to quickly identify 20 prisoners, but did not require them to go “bald, barefoot, or naked,” 21 which suggested a tailoring problem—namely, that “those interests 22 could be achieved by narrower ordinances that burdened religion to 23 a far lesser degree.” Id. (internal quotation marks omitted); accord 17 No. 15 1018 1 United States v. Sec y, Fla. Dep t of Corr., 828 F.3d 1341, 1349 (11th Cir. 2 2016) (noting that the lack of explanation for why the government 3 offered special, nonreligious diets at similar costs, but not kosher 4 meals, suggested a less burdensome policy was possible). This 5 observation was consistent with previous cases in which the Court 6 had found that a policy’s underinclusiveness suggests that the 7 proffered interest is not quite as compelling as the government claims. 8 See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 9 547 (1993) (“[A] law cannot be regarded as protecting [a compelling 10 interest] when it leaves appreciable damage to that supposedly vital 11 interest unprohibited.” (internal quotation marks and alteration 12 omitted)); accord Yellowbear v. Lampert, 741 F.3d 48, 60 (10th Cir. 2014) 13 (in which then–Circuit Judge Gorsuch wrote that “[a] law’s 14 underinclusiveness—its failure to cover significant tracts of conduct 15 implicating the law’s animating and putatively compelling interest— 16 can raise with it the inference that the government’s claimed interest 17 isn’t actually so compelling after all”). 18 Third, the government’s compelling interest must be defined at 19 an appropriately reduced level of generality—that is, the government 20 must justify its conduct by demonstrating not just its general interest, 21 but its particularized interest in burdening the individual plaintiff in 22 the precise way it has chosen. See Holt, 135 S. Ct. at 863. The Court in 23 Holt rejected the government’s “broadly formulated” interest in 18 No. 15 1018 1 prison safety and security and insisted instead that the government 2 “demonstrate that the compelling interest test is satisfied through 3 application of the challenged law to the person—the particular 4 claimant whose sincere exercise of religion is being substantially 5 burdened.” Id. (internal quotation marks and alterations omitted). 6 While the Court agreed that the government had a compelling 7 interest in “staunching the flow of contraband into and within its 8 facilities,” the Court rejected the government’s argument that “this 9 interest would be seriously compromised by allowing an inmate to 10 11 12 grow a ½–inch beard.” Id. With these principles in mind, we consider Williams’s challenge to the DOC’s dietary policy. 13 A. The Government’s Interest 14 In the district court, the DOC justified its refusal to 15 accommodate Williams’s dietary requirements by citing its 16 compelling interest in controlling costs and avoiding administrative 17 burdens. Neither party disputes that the DOC generally has a 18 compelling interest in controlling costs and avoiding administrative 19 burdens—or as another circuit has put it, an interest in “cost efficient 20 food service.” See Curry v. Cal. Dep’t of Corr. & Rehab., 616 F. App’x 21 265, 266 (9th Cir. 2015). What the parties do dispute is the specificity 22 with which the DOC is required to make such a showing. 23 19 No. 15 1018 1 We first observe that the government’s interest in reducing 2 costs is less compelling in the RLUIPA context than it is elsewhere. 3 That is because RLUIPA explicitly states that complying with its 4 terms “may require a government to incur expenses in its own 5 operations to avoid imposing a substantial burden on religious 6 exercise,” codifying a congressional preference that prisons incur 7 additional costs to accommodate inmates’ free exercise rights. 42 8 U.S.C. § 2000cc 3(c). 9 Even before Holt, our circuit insisted that the government‘s 10 proffered interests be particularized. For instance, in Salahuddin v. 11 Goord, 467 F.3d 263, 275 (2d Cir. 2006), an inmate challenged the 12 prison’s joint Ramadan services for Sunnis and Shi’ites. The prison 13 argued that the burden to the Sunni plaintiff of having to attend a 14 joint service was outweighed by the prison’s legitimate penological 15 concerns regarding “security, as well as fiscal, space, and staffing 16 limitations,” but did not point to any evidence in the record to 17 support those claims. Id. at 270, 275. We vacated the grant of summary 18 judgment to the defendants, reasoning that this court cannot 19 “manufacture facts out of thin air” and that “it is the defendants’ duty 20 on summary judgment to cite record evidence” to establish that its 21 interest is compelling. Id. at 275. In contrast, in Jova v. Smith, 582 F.3d 22 410 (2d Cir. 2009) (per curiam), we held that the government had 23 sufficiently justified certain dietary restrictions it imposed on a 20 No. 15 1018 1 practicing Tulukeesh inmate who required a “complex, highly 2 regimented non soybean based vegan diet” only after the 3 government submitted “voluminous affidavits and exhibits” 4 documenting the burdens of accommodation. Id. at 414–16. In doing 5 so, we made clear that “the state may not merely reference an interest 6 . . . to justify its actions”; “rather, the particular policy must further 7 this interest, and must be more than conclusory.” Id. at 415 (internal 8 citation and quotation marks omitted). 9 The DOC, citing to pre Holt cases, argues that the district court 10 correctly concluded that by proffering Schattinger’s declaration it met 11 its burden to show that it had a compelling interest in cost efficient 12 food service. We disagree. 13 At the most, the DOC’s cases and others show that courts have 14 found a compelling government interest in reducing costs where the 15 government submitted detailed affidavits that showed that adopting 16 the requested dietary restriction would significantly increase costs 17 and administrative burdens. See, e.g., Curry, 616 F. App’x at 266, aff’g 18 2013 WL 75769, at *4, *9 (N.D. Cal. Jan. 4, 2013) (affirming grant of 19 summary judgment where the record included specific evidence 20 calculating the costs of accommodating the inmate’s restrictions to be 21 thirty times more than the regular cost of feeding a prisoner and 22 showing that the closest store where appropriate food could be 23 purchased was 35 miles away). But see Moussazadeh v. Tex. Dep t of 21 No. 15 1018 1 Criminal Justice, 703 F.3d 781, 795–96 (5th Cir. 2012) (remanding for 2 further factfinding as to whether there was a compelling interest in 3 cost savings in denying kosher meals where there was evidence in the 4 record that providing kosher meals to all observant prisoners would 5 cost around $88,000 a year, causing the court to be “skeptical that 6 saving less than .05% of the food budget constitutes a compelling 7 interest”). 8 The DOC has not shown on the present record that 9 accommodating Williams would significantly increase costs and 10 administrative burdens. The record, unlike the one in Jova, is not 11 replete with “voluminous affidavits and exhibits,” 582 F.3d at 414–16, 12 but instead includes only one declaration that claims, in a conclusory 13 manner, that “[d]ue to fiscal and practical considerations . . . the 14 Department has determined that a [kosher vegetarian] menu will not 15 be provided”; that “[d]esignating and providing a new kosher 16 vegetarian food line would bring . . . challenges”; and that providing 17 the food would be “exceedingly burdensome to existing staff and 18 facility resources” so it “is not financially or administratively 19 feasible.” App’x 392–93. The DOC has not said precisely how much 20 these changes would cost or the amount of that cost relative to the 21 overall cost of feeding inmates. Nor has it shown the added cost, if 22 any, of accommodating Williams’s alternative suggestions, such as 23 not placing foods he cannot eat on his tray or giving him more of 22 No. 15 1018 1 certain foods the DOC already prepares. The DOC’s showing of what 2 seems to be its “marginal interest” in cost efficiency as to Williams 3 falls short of meeting its justification burden. Holt, 135 S. Ct. at 863. 4 As was the case in Holt, the DOC’s policy is underinclusive 5 because the DOC accommodates comparable medical dietary 6 restrictions. Such unexplained disparate treatment of “analogous 7 nonreligious conduct” leads us to question whether the DOC’s 8 interest in cost efficiency is as compelling as it suggests given that 9 there is no evidence that these medical accommodations have 10 increased costs significantly or impaired efficiency. See Church of the 11 Lukumi Babalu Aye, 508 U.S. at 546–47. Of course, the DOC might have 12 a reasonable explanation for this evident underinclusiveness, but, to 13 date, it has not offered one. See Knight v. Thompson, 797 F.3d 934, 944– 14 45 (11th Cir. 2015). 15 Even if the DOC’s evidence were more detailed, it still might be 16 inappropriate to accept its word that Williams’s accommodations 17 would be cost inefficient. See Holt, 135 S. Ct. at 866. The fact that the 18 DOC continues to operate a kosher meal facility at Green Haven and 19 has since reformed its system by providing prepackaged kosher 20 meals casts considerable doubt on the DOC’s claim that providing 21 kosher vegetarian food to Williams is too expensive and 22 administratively burdensome. Indeed, it appears that the systems are 23 now in place that Schattinger anticipated would be too costly to 23 No. 15 1018 1 build—namely, systems for preparing food off site, individually 2 sealing it, and then reheating it on site. Taking the DOC at its word 3 under such circumstances would involve “a degree of deference that 4 is tantamount to unquestioning acceptance.” Id. at 864.5 5 To the extent that the DOC’s argument is that Williams’s 6 request is administratively burdensome because it would lead to 7 more requests for accommodation from inmates, it is the “classic 8 rejoinder of bureaucrats throughout history” rejected by the Supreme 9 Court in Holt. Id. at 866 (internal quotation marks omitted). In fact, 10 narrowing the pool of potential accommodations is what the sincerity 11 requirement accomplishes: it ensures that accommodations are only 12 available to the few who sincerely hold protected beliefs. Id. at 866–67 13 (noting that if prison officials suspect inmates are using 14 accommodations in bad faith “prison officials may appropriately 15 question whether a prisoner’s religiosity, asserted as the basis for a 16 requested accommodation, is authentic”); see also Fla. Dep t of Corr., This is not to say that we would hold against a prison the efforts that it makes to accommodate inmates. In fact, RLUIPA provides a safe harbor for prisons that remediate infringing policies. See 42 U.S.C. § 2000cc 3(e). But where a facility has demonstrated a capability to accommodate inmates but chooses not to do so, we are well within bounds to consider that capability when determining how burdensome accommodating the plaintiff would actually be. See Sec y, Fla. Dep t of Corr., 828 F.3d at 1347–48 (considering fact that department had previously provided kosher meals statewide relevant to whether current policy denying kosher food furthered state’s compelling interest in cost containment). 5 24 No. 15 1018 1 828 F.3d at 1349 (rejecting argument that cutting statewide kosher 2 food service furthered state’s compelling interest in cost containment 3 where record included evidence that the department was not 4 enforcing the rules of participation or screening out insincere 5 applicants). 6 In sum, we conclude that the DOC failed to meet its burden of 7 showing with particularity that it had a compelling interest in not 8 accommodating Williams. 9 B. Least Restrictive Means 10 The government has also failed to show that its policy of not 11 accommodating Williams is the least restrictive means of achieving 12 its stated goal of running a cost efficient food service program. 13 “The least restrictive means standard is exceptionally 14 demanding, and it requires the government to show that it lacks other 15 means of achieving its desired goal without imposing a substantial 16 burden on the exercise of religion by the objecting party.” Holt, 135 S. 17 Ct. at 864 (internal quotation marks and alterations omitted). “If a less 18 restrictive means is available for the Government to achieve its goals, 19 the Government must use it.” Id. (internal alteration omitted). 20 Whether a proffered alternative is the least restrictive means is a fact 21 intensive inquiry. See Jova, 582 F.3d at 417 (remanding because further 22 factfinding was required to determine whether the chosen policy was 25 No. 15 1018 1 the least restrictive means); Robinson v. Superintendent Houtzdale SCI, 2 693 F. App’x 111, 117 (3d Cir. 2017). 3 To establish that its chosen policy is the least restrictive means, 4 the DOC must prove that each of the inmate’s proffered alternatives 5 is too burdensome. See Holt, 135 S. Ct. at 864–65 (holding that 6 defendants “fail[ed] to prove that [inmate’s] proposed alternatives 7 would not sufficiently serve its . . . interests”). For example, in Jova, 8 the Tulukeesh inmate plaintiff challenged the government’s refusal 9 to provide him specific foods, on particular days, prepared only by 10 Tulukeesh adherents. 582 F.3d at 417. Although we held that the 11 government was not required under RLUIPA to grant the defendant’s 12 full dietary request, we remanded because “there [was] no indication 13 that the Defendants discussed, let alone demonstrated, why they 14 [could not] provide an entirely vegetarian menu to inmates who 15 request it” and therefore they “did not demonstrate that the 16 religious/meatless alternative menu was the least restrictive means of 17 furthering their compelling administrative interests.” Id. 18 To show that the chosen policy is the least restrictive means of 19 furthering the government’s compelling interest, the government 20 must again account for a policy’s underinclusiveness. See Holt, 135 S. 21 Ct. at 864–66. For example, in Holt, the government failed to show that 22 its policy preventing inmates from growing a half inch beard was the 23 least restrictive means where it already searched the quarter inch 26 No. 15 1018 1 beards of inmates with dermatological conditions and “[i]t ha[d] 2 offered no sound reason why hair, clothing, and ¼–inch beards can 3 be searched but ½–inch beards cannot.” Id. at 864; see also Knight, 797 4 F.3d at 944–45, 947 (upholding district court’s judgment for the 5 department in case challenging department’s policy requiring only 6 male inmates to have short hair where department introduced 7 evidence of specific incidents where male, but not female, inmates 8 had used long hair to conceal contraband and infections, cut hair to 9 conceal identity, and grabbed hair during fights). 10 The DOC here has not made this difficult showing. First, the 11 policy’s underinclusiveness suggests, as it did in Holt, that a more 12 tailored policy, less burdensome to Williams, is possible. 135 S. Ct. at 13 866. Specifically, the DOC has not explained how the religious 14 exception Williams has asked for (swapping out religiously forbidden 15 foods) is any more administratively burdensome than the medical 16 exception he already receives (swapping out allergy producing 17 foods). Such unexplained disparate treatment of “analogous 18 nonreligious conduct” leads us to suspect that a narrower policy that 19 burdens Williams to a lesser degree is in fact possible. See id. 20 Second, the DOC has not shown that Williams’s proposed 21 alternatives are not viable. See id. at 864–65. Construing Williams’s pro 22 se district court submissions liberally, as we must, Triestman, 470 F.3d 23 at 474, he has identified three ways the DOC could accommodate him, 27 No. 15 1018 1 each of which is potentially less restrictive than its current policy: the 2 DOC could (1) serve Williams a kosher vegetarian meal—whether by 3 establishing a kosher vegetarian line at the facility level or shipping 4 in prepackaged kosher food; (2) provide Williams with a modified 5 version of the CAD menu, replacing items Williams cannot eat with 6 high protein foods or with other CAD items; or (3) refrain from 7 putting forbidden foods on Williams’s tray. Like the department in 8 Jova, the DOC here did not discuss, much less demonstrate, why it 9 could not, at least, give Williams more of the acceptable food it 10 already prepares or stop serving him foods he cannot eat. See 582 F.3d 11 at 417. Moreover, it seems that Williams’s request that he be served a 12 full kosher vegetarian meal could be no more than minimally 13 burdensome given the DOC’s new ability to make kosher compliant 14 substitutions. Just how restrictive these alternatives are, however, is a 15 fact question that is better left for the district court to consider in the 16 first instance. See id. 17 For these reasons, the DOC has not satisfied its burden under 18 RLUIPA, and the district court erred in granting it summary 19 judgment. Because fact questions remain as to whether the DOC’s 20 interest is compelling and its means are the least restrictive, in light of 21 Williams’s suggested alternatives, we remand for further factfinding. 22 See id. 28 No. 15 1018 1 We would be remiss not to express our disappointment with 2 the DOC’s approach to litigating this case. It has been seven years 3 since Williams initially filed his complaint. During that time, the 4 record indicates that every day, three meals a day, Williams has been 5 forced to cobble together sufficient food to eat while adhering to his 6 protected religious diet. Meanwhile, the DOC failed to file a brief that 7 grappled with Williams’s argument about how Holt impacted the 8 RLUIPA analysis, thereby prolonging this case. In situations like this, 9 we would have to be naïve to overlook that it is in the government’s 10 interest to wage a war of attrition that draws out judicial proceedings 11 until the plaintiff inmate is released and the case is mooted. Now that 12 the applicable standard has been clarified, we look forward to a 13 speedy resolution of this dispute. CONCLUSION 14 15 We therefore VACATE the district court’s grant of summary 16 judgment on Williams’s claim for injunctive relief, and REMAND for 17 further proceedings consistent with this opinion. The DOC’s motion 18 to vacate judgment and remand is DENIED as moot. 19