Kuperman v . NH Dept. of Corrections CV-06-420-JD 04/18/07 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Albert Kuperman
v. Civil N o . 06-cv-420-JD Opinion N o . 2007 NH 059
New Hampshire Department of Corrections, et a l .
REPORT AND RECOMMENDATION
Plaintiff Albert Kuperman is an inmate at the New Hampshire
State Prison (“NHSP”). Kuperman seeks an injunction from this
Court preventing the NHSP authorities from denying Kuperman a
kosher diet in line with his religion as a penalty for occasions
where they allege that he has failed to eat only the kosher foods
provided by the prison. A hearing on Kuperman’s motion was held
before me on April 1 8 , 2007. Upon consideration of the evidence
adduced at the hearing, and the arguments before the Court, I
recommend that the motion for a preliminary injunction be granted
and Kuperman’s religious kosher diet be immediately restored.
Standard of Review
Preliminary injunctive relief is available to protect the
moving party from irreparable harm, so that he may obtain a
meaningful resolution of the dispute after full adjudication of the matter. Such a situation arises when some harm from the
challenged conduct could not be adequately redressed with
traditional legal or equitable remedies following a trial. See
Ross-Simons of Warwick, Inc. v . Baccarat, Inc., 102 F.3d 1 2 , 18
(1st Cir. 1996) (finding irreparable harm where legal remedies
are inadequate); see also Acierno v . New Castle County, 40 F.3d
645, 653 (3rd Cir. 1994) (explaining irreparable harm and its
effect on the contours of preliminary injunctive relief).
Absent irreparable harm, there is no need for a preliminary
injunction.
The need to prevent irreparable harm, however, exists only
to enable the court to render a meaningful disposition on the
underlying dispute. See CMM Cable Rep., Inc. v . Ocean Coast
Props., Inc., 48 F.3d 6 1 8 , 620-21 (1st Cir. 1995) (explaining the
purpose of enjoining certain conduct as being to “preserve the
‘status quo’ . . . to permit the court more effectively to remedy
discerned wrongs”); see also Becton v . Thomas, 48 F. Supp. 2d
747, 753 (W.D. Tenn. 1999) (“‘The purpose of a preliminary
injunction is always to prevent irreparable injury so as to
preserve the court’s ability to render a meaningful decision on
the merits.’” (quoting Stenberg v . Cheker Oil Co., 573 F.2d 9 2 1 ,
2 925 (6th Cir. 1978)). The court’s focus, therefore, must always
be on the underlying merits of the case, and what needs to be
done to ensure that the dispute can be meaningfully resolved.
A preliminary injunction cannot issue unless the moving
party satisfies four factors which establish its need for such
relief. See Esso Standard Oil C o . v . Monroig-Zavas, 445 F.3d 1 3 ,
17-18 (1st Cir. 2006) (discussing the requisite showing to obtain
a preliminary injunction); see also Ross-Simons, 102 F.3d at 18-
19 (explaining the burden of proof for a preliminary injunction).
Those factors are: “(1) the likelihood of success on the merits;
(2) the potential for irreparable harm [to the movant] if the
injunction is denied; (3) the balance of relevant impositions,
i.e., the hardship to the nonmovant if enjoined as contrasted
with the hardship to the movant if no injunction issues; and (4)
the effect (if any) of the court’s ruling on the public
interest.” Esso Standard Oil, 445 F.3d at 1 8 . If the plaintiff
is not able to show a likelihood of success on the merits, the
remaining factors “become matters of idle curiosity,” id.,
insufficient to carry the weight of this extraordinary relief on
their own. See id. (the “sine qua non of the four-part inquiry
is likelihood of success on the merits”).
3 Background
Albert Kuperman is an observant orthodox jew. He has been
incarcerated by the New Hampshire Department of Corrections, in
the Northern New Hampshire Correctional Facility and the NHSP
since April of 2004. Upon Kuperman’s arrival in prison, he
requested and was granted a kosher diet, based on his sincere
belief in and practice of Judaism and the dietary requirements of
that faith. Pursuant to the kosher meal program at the prison,
Kuperman receives three pre-packaged meals per day. Kuperman is
permitted to supplement his food intake with kosher items from
the prison canteen.
At the hearing, Kuperman testified that he has been a
lifelong practitioner of orthodox Judaism, and has attempted at
all times to practice that faith while in prison. As part of
that practice, Kuperman follows a kosher diet to the extent
possible. Although Kuperman alleges that the pre-packaged kosher
meals are not strictly compliant with Jewish dietary law, he
acknowledges that they are better than the ordinary prison diet
for maintaining his religious practice.
Prior to being granted a kosher diet, Kuperman was required
to sign a form acknowledging his awareness that the penalty for
4 voluntarily eating food not included in the kosher diet was to be
removed from the diet for six months. Kuperman also acknowledged
at the hearing that he was aware that prison policies required
the same result for an infraction based on eating non-kosher
food. On three occasions since his incarceration began, Kuperman
has had his kosher diet privileges revoked for six months for
either purchasing or eating food not provided to him by the
prison and therefore known to be in compliance with the kosher
restrictions.
On the first occasion that his kosher diet was suspended,
Kuperman had purchased products containing meat from the canteen.
Kuperman testified at the hearing that while he did purchase
those products, he did so for another inmate who was “strong-
arming” him to obtain items from the canteen, and that the items
were not for his own consumption. On the other two occasions,
Kuperman is alleged to have been caught eating chicken that came
from the prison kitchen and not from a pre-packaged kosher meal.
Testimony at the hearing from both plaintiff and Rabbi
Krinsky, plaintiff’s rabbi and spiritual consultant, demonstrated
that a chicken is a kosher animal, and produces kosher food as
long as it is slaughtered and prepared according to Jewish law.
5 While the defendant argued that the prison kitchen and
preparation methods are not likely to comply with Jewish dietary
law, no proof was offered as to how the chicken was prepared and
whether it was, in fact, prepared and slaughtered pursuant to
kosher law. In any event, Kuperman was twice suspended from his
kosher diet for six months for eating chicken in the prison chow
hall.
While Kuperman’s kosher diet was suspended, however, the
prison chaplain made an effort to accommodate Kuperman’s
religious beliefs by arranging for Kuperman to receive a
vegetarian diet so that he wouldn’t have to eat the non-kosher
meat at the prison, and for arranging for certain kosher packaged
foods to be brought in to the prison both to supplement
Kuperman’s vegetarian diet and to allow Kuperman to observe
Jewish holidays.
Discussion
I. The Four Preliminary Injunction Factors
A. Likelihood of Success on the Merits
The action filed by Kuperman relevant to this injunction is
a claim that the prison has violated both his First Amendment
right to freely exercise his religion, and his right to practice
6 his religion as guaranteed by the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.
(“RLUIPA”). Kuperman alleges that the regulation that has
mandated a six month suspension of his kosher diet violates his
First Amendment and federal statutory rights by improperly
impinging on his religious practice.
Convicted prisoners do not forfeit all of the protections of
the Constitution upon incarceration. See Bell v . Wolfish, 441
U.S. 5 2 0 , 545 (1979). “In the First Amendment context . . . a
prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system,” Pell v .
Procunier, 417 U.S. 8 1 7 , 822 (1974), including the right to free
exercise of religion, see O’Lone v . Estate of Shabazz, 482 U.S.
342, 348 (1987) (citing Cruz v . Beto, 405 U.S. 319, 322 (1972)).
Prisons must provide all inmates reasonable opportunities to
exercise their religious freedom. See Cruz, 405 U.S. at 322 n.2.
A prisoner’s sincerely held religious beliefs must yield if
contrary to prison regulations that are “reasonably related to
legitimate penological interests.” Turner v . Safley, 482 U.S.
7 8 , 89 (1987). This Court must accord prison administrators
7 significant deference in defining legitimate goals for the
corrections system, and for determining the best means of
accomplishing those goals. See Overton v . Bazzetta, 539 U.S.
126, 132 (2003); Pell, 417 U.S. at 826-27.
A court, in evaluating whether or not a particular prison
regulation is constitutional, considers four factors: (1) whether
the regulation has a “valid, rational connection” to a legitimate
penological objective, (2) “whether any alternative means are
open to inmates to exercise the asserted right,” (3) “what impact
an accommodation of the right would have on guards and inmates
and prison resources,” and (4) “whether there are ready
alternatives to the regulation.” Overton, 539 U.S. at 132
(citing Turner, 482 U.S. at 89-91). Applying the evidence
introduced at the hearing on this matter to the four Turner
factors set out above, I find as follows.
First, the regulation in question, as set forth in the
prison’s Policy and Procedure Directive (“PPD”) 7.17, which
governs religious programming and diets, imposes a penalty, to be
imposed by an inmate’s Unit Manager, of suspension of a religious
diet for a period of six months “[w]hen there is a belief that an
inmate receiving a religious diet has consumed or been in
8 possession of food items that violate their approved religious
diet” and the Unit Manager determines that the “inmate knowingly
violated the religious diet” and “believes the act was
intentional.” PPD 7.17 G.2.d. The defendant asserts a valid
penological objective in this regulation in that it supports
providing religious meals only to inmates with sincerely held
religious beliefs, rather than to inmates who are feigning
religious belief in order to get a better food plan than the
standard prison fare. This is a valid penological objective, as
the provision of special meals does require a financial
expenditure, albeit a small one, on the part of the prison, as
well as causing the prison to go to the trouble of obtaining the
meals, making sure they reach the inmates, and heating them. Of
course, the purchase of prepackaged meals also saves the prison
from having to prepare meals for those individuals who receive
Kosher meals, but, the Court recognizes that the prison has a
valid interest in maintaining the integrity of its intention to
provide religious meals to sincere practitioners.
I find that, under the first prong of the Turner analysis,
that this regulation does not have a valid and rational
connection to the legitimate penological objective asserted by
9 the defendants. The prison has asserted a policy of maximizing
an inmate’s access to his spiritual practice. See PPD 7.17.IV.E.
(“The institution shall extend to all inmates the greatest amount
of freedom and opportunity for pursuing any recognized religious
belief or practice. This shall be accomplished within the
boundaries of security, safety, discipline and the orderly
operation of the institution.”). It does not rationally follow
that removing an inmate, who holds a sincere religious belief,
from the practice of his faith because on one occasion he failed
to follow his religious diet, will achieve the goals of security
and order of the institution. While a sixth month suspension
would be rationally connected to punish an inmate who has not
demonstrated a sincere religious belief, and is not, therefore,
entitled to the practice of a particular religion, that is not
the situation presented here.
The testimony at the hearing was undisputed that Kuperman is
a practicing orthodox jew who holds a very sincere belief in
Judaism. It appears that even the prison’s non-testifying
Chaplain ascribes to that belief, as he has taken significant
steps to support Kuperman’s ability to practice his religion.
Further, the evidence at the hearing clearly established that
10 following a kosher diet is an essential part of the practice of
an observant orthodox jew. Removing an orthodox jew from a
kosher diet serves, religiously speaking, to distance an inmate
from his own spirituality and religious practice. It is not, in
other words, a neutral act. Such a move has a direct negative
impact on the inmate’s ability to better himself or maintain
himself spiritually, as actual harm is done to both the physical
being and the spirituality of the inmate.
If a diabetic inmate were placed on a medically appropriate
diet, and was then caught purchasing a candy bar from the
canteen, the prison would not be justified in removing the inmate
from his medical diet and forcing him to eat a high sugar diet
for six months for the violation. Similarly, an inmate eating an
extra helping or unauthorized item isn’t restricted to bread and
water for six months. These inmates may be legitimately punished
for violating prison rules, but they are not removed from the
diet that the inmate must try to maintain. Similarly, a
regulation that imposed punishment, such as a lack of canteen
privileges, or the necessity of eating in one’s cell, or even a
period of time in segregation, for violating a kosher diet, would
serve to deter the insincere from getting a kosher diet, but
11 would also allow those with a sincerely held religious belief to
be punished for their mistakes without disallowing their
religious practice.
The second Turner factor is “whether any alternative means
are open to inmates to exercise the asserted right.” I find,
based on the uncontroverted testimony of both Kuperman and Rabbi
Krinsky, that there is no alternative means of achieving what the
laws of kosher are designed to achieve. The Rabbi testified that
the practice of keeping kosher is essential to the Jewish way of
life. Kuperman also testified that the practice of keeping
kosher is necessary to maintaining the physical state necessary
to pursue his spiritual and religious practice. Kuperman
acknowledged that a violation of kosher diet will hinder that
practice, but that if the violation is isolated, it can be atoned
for and remedied religiously, but that if the kosher diet is
withheld altogether, such atonement is very difficult or
impossible. The defendant did not offer any alternative means by
which Kuperman could exercise this part of his religious
practice, except to rely on other aspects of Jewish practice in
the absence of a kosher diet. Accordingly, I find that there has
12 been no demonstration of any sufficient alternative means open to
Kuperman to exercise his right to practice orthodox Judaism.
Third, I consider the impact an accommodation of Kuperman’s
right to a kosher diet would have on the prison. I find that the
only evidence at the hearing was that accommodating Kuperman’s
kosher diet needs would cost the prison a small amount of money,
as a kosher diet costs more than a nonkosher diet, although it
appears the total cost to the prison of keeping Kuperman on a
kosher diet is minimal. Because systems are already in place to
provide inmates who have sincerely held religious beliefs with
kosher meals, I find that there will be no disruption in prison
security or order in providing Kuperman with kosher meals. To
the extent the defendant is concerned that other inmates may be
tempted to claim that they are Jewish in order to obtain a kosher
meal, my ruling applies only to Kuperman as someone who has a
demonstrated sincere belief that has been accepted by the prison
Chaplain and by Kuperman’s own rabbi.
Fourth, I examine whether there are ready alternatives to
the regulation. As stated above, there are any number of ways
that prisons punish inmates who do not stick to their prescribed
meal plans that do not involve taking them off of an essential
13 diet. These punishments would serve to keep inmates without
sincere religious beliefs off of religious diets and would also
enforce the prison’s interest in maintaining a religious diet
program in an orderly and cost-effective fashion. Therefore, I
find there are ready alternatives to the current regulation.
Under the Turner factors, I find that this particular prison
regulation, PPD 7.17.V.G.2.d., is not constitutional when applied
in such a way as to suspend an inmate with sincerely held
religious beliefs from his religious diet for limited incidents
of violations of the diet. Because I find that this regulation
has been applied to Kuperman in such a way that his First
Amendment right to free exercise has been abridged, I find that
Kuperman is likely to succeed on the merits of his First
Amendment and RLUIPA claims.
B. The Potential for Irreparable Harm To Kuperman if the Injunction is Denied
As discussed above, Kuperman and Rabbi Krinsky both
testified that keeping a kosher diet is essential to the practice
of orthodox Judaism. In particular, Kuperman testified that some
Talmudic scholars teach that failure to maintain kosher laws can
permanently damage a spiritual practice. I find that because the
evidence at the hearing demonstrated that a kosher diet is
14 essential to an orthodox Jewish practice, that a significant
suspension from access to that diet, such as the six months
suspensions imposed here, does hold the potential for irreparable
harm.
C. The Balance of Relevant Impositions
Again, I have discussed in my Turner analysis that there is
a minimal financial cost to the prison in providing Kuperman with
six months of Kosher meals. Beyond that, however, there is no
indication that the prison would have to reallocate any personnel
or retool the operations of the institution to accommodate
Kuperman’s dietary needs. The imposition on Kuperman and his
religious practice, however, is significant. I find that the
balance of relevant impositions weighs in favor of granting the
D. The Effect of the Court’s Ruling on the Public Interest
While the public certainly has an interest in governmental
operations, expenses, and the treatment of prisoners, as well as
the ability of the citizenry to freely exercise their religious
practices, I find that in this case, the effect of my ruling will
be minimal. As stated above, no disruption to the prison’s
operation need occur, and it is hard to fathom that any member of
15 the public aside from Kuperman himself is personally affected by
the granting or denial of this injunction. Accordingly, I find
that this factor does not weigh on my recommendation in either
direction.
Conclusion
For the reasons stated herein, I recommend that the
injunction requested issue, and that Kuperman be restored to a
kosher diet immediately. Further, I recommend the prison be
enjoined from suspending Kuperman’s kosher diet altogether based
on isolated dietary infractions, and instead find alternative
means of punishment that do not lack a valid connection to the
policy of supporting Kuperman’s religious practice pursuant to
his sincerely held religious beliefs.
Any objections to this report and recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
16 Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992);
United States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).
_________________
Date: April 1 8 , 2007
cc: Nancy Sue Tierney, Esq. Andrew Livernois, Esq.