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Daniel Lute v. Michael Johnson and John Hardison

March 16, 2012


The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge


Pending before the Court are Plaintiff's Motion for Summary Judgment, and Defendants' Motion for Partial Summary Judgment. (Dkts. 34, 32.) Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter will be decided on the record before this Court without oral argument. D. Idaho L. R. 7.1(b).

For the reasons that follow, the Court will deny Plaintiff's Motion for Summary Judgment and grant Defendants' Motion for Partial Summary Judgment. Further, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, the Court notifies the parties that it intends to grant summary judgment to Defendants on Plaintiff's remaining claims. Plaintiff shall have ten (10) days from the date of this Order to submit evidence raising a genuine issue of material fact as to the sincerity of his belief that he must adhere to a strict kosher diet. If Plaintiff does not do so, the Court will enter judgment in favor of Defendants.


The Court has authorized Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC), to proceed on his Amended Complaint. (Dkt. 6.) He asserts four claims: (1) a claim that Defendants violated the Free Exercise Clause of the U.S. Constitution by failing to provide Plaintiff with a kosher diet; (2) a claim that this failure also violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.; (3) a claim that in July 2006, Defendants placed Plaintiff in administrative segregation in retaliation for his request for a kosher diet; and (4) a similar retaliation claim arising from his placement in administrative segregation in October 2008. Defendants filed a Motion to Dismiss Plaintiff's retaliation claims, which the Court granted in part and denied in part on January 26, 2011. Plaintiff's October 2008 retaliation claim was dismissed for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995. (Memorandum Decision and Order, Dkt. 31.)*fn1 Plaintiff was allowed to proceed on his claim arising from his July 2006 placement in administrative segregation. (Id.)

Both parties now move for summary judgment. Plaintiff moves for summary judgment on all remaining claims. Defendants move for summary judgment only on Plaintiff's July 2006 retaliation claim.


This section includes facts that are undisputed and material to the resolution of the issues in this case. Where material facts are in dispute, the Court has included Plaintiff's version of facts, insofar as that version is not contradicted by clear documentary evidence in the record.

On July 11, 2006, Plaintiff was transferred from the Idaho State Correctional Institution (ISCI) to the Idaho Maximum Security Institution (IMSI). On July 12, 2006, Plaintiff was moved to a medical cell on suicide watch. On an unknown date, Deputy Warden Michael Johnson came to Plaintiff in the medical unit and asked why Plaintiff was on a hunger strike. Plaintiff told Johnson that he would eat only kosher food and that he was not on a hunger strike. (Plaintiff's Statement of Material Facts, Dkt. 34-1 at 1-2.) Plaintiff describes himself as an observant member of the Jewish faith. On July 18, 2006, Plaintiff filed a formal notice, in writing, demanding a kosher diet. (Plaintiff's Affidavit, Dkt. 34-4, Ex. C.)

The request was denied because the IDOC does not offer a kosher diet. According to Katie Hall, the IDOC's Dietary Services Manager, inmates can choose to receive the mainline diet or one of five specialized diets. IDOC policy defines the diets as follows:

* Mainline: The menu for the general offender population that provides an average daily caloric content of 2200 calories for female offenders and 2900 calories for male offenders.

* Healthy Choice Diet: A diet reduced in calories, fat, cholesterol, sodium and sugar.

* Modified Consistency Diet: A mainline diet with ground meats, soft fruits and vegetables.

* Non-pork diet: A diet provision for a pork-free alternative for food items containing pork.

* Ovo-Lacto Vegetarian Diet: A vegetarian diet with milk, cheese, other ...

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