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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stavenjord v. Schmidt (3/20/2015) sp-6989

Stavenjord v. Schmidt (3/20/2015) sp-6989

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                       

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



PAUL T. STAVENJORD,                                    )  

                                                       )         Supreme Court No. S-14917  

                            Appellant,                 )  

                                                       )         Superior Court No. 3AN-10-11932 CI  

         v.                                            )  

                                                       )         O P I N I O N  

JOSEPH SCHMIDT,                                        )  

CRAIG TURNBULL, and                                    )         No. 6989 - March 20, 2015  

MIKE ENSCH,                                             )  

                                                        )  

                            Appellees.                  )  

                                                        )  



                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                

                   Judicial District, Anchorage, Mark Rindner, Judge.  



                   Appearances:  Paul T. Stavenjord, pro se, Wasilla, Appellant.  

                                                                        

                   John K. Bodick, Assistant Attorney General, Anchorage, and  

                                           

                   Michael       C.   Geraghty,        Attorney       General,      Juneau,       for  

                                      

                   Appellees.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                

                   Bolger, Justices.  



                   BOLGER, Justice.  



I.       INTRODUCTION  



                   Paul Stavenjord, a Buddhist inmate, asked to receive a Kosher diet and to  

                                              



be permitted to purchase a prayer shawl.  Prison officials at the Alaska Department of  



Corrections (the Department) denied his requests. Stavenjord filed a complaint alleging  

                                                                       


----------------------- Page 2-----------------------

violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and  



various  constitutional  provisions.    But  the  superior  court  granted  the  Department's  



                                             

motion for summary judgment, concluding that Stavenjord had failed to demonstrate (1)  



that a Kosher diet and prayer shawl were necessary for the practice of his religion; (2)  



that  he  was  sincere  in  his  requests  for  religious  accommodation;  and  (3)  that  the  



Department's lack of accommodations substantially burdened the practice of his religion.  



                                                                             

Under our summary judgment standard, however, the initial burden falls on the moving  



                                                                                               

party - the Department.  Furthermore, religious necessity is not an element of RLUIPA.  



Because summary judgment was granted by placing the initial burden on the non-moving  



party  and  by  focusing  on  Stavenjord's  failure  to  make  an  evidentiary  showing  not  



required under RLUIPA, we reverse and remand.  



II.      FACTS  



                   Paul  Stavenjord  is  an  inmate  currently  residing  at  the  Goose  Creek  



Correctional Center in Wasilla.  In his verified complaint, Stavenjord asserted that he is  



                                                                                                           

a Buddhist monk  ordained  by  the Tenshin  Ryushin-Ji Buddhist Temple, a  qualified  



                                                          

teacher of Buddhism with thirty years of experience studying the Hinayana, Mahayana,  



                                                          

Vajrayana, and Zen sects, and a "Prison Ministries Advisor" of the Tenshin Ryushin-Ji  



Temple.  



               

         A.        The Kosher Diet  



                                                                                                                  

                   In August 2010 Stavenjord submitted a request for a vegan  diet to the  



kitchen manager at Spring Creek Correctional Center (Spring Creek) in Seward, where  



                                                                         

he was then incarcerated. The request was granted, and Stavenjord remained on a vegan  



diet for two months.  In October he asked that this diet be discontinued, writing:  



                                                                   

                   Please remove my name from the vegan diet list.  Try tasting  

                                                                                           

                   the food once in a while.  I can't believe you allow such poor  

                   quality in your kitchen.  



                                                           -2-                                                     6989
  


----------------------- Page 3-----------------------

                  Three months later, in January 2011, Stavenjord submitted a request "to be  



                                                                                                

placed on a Kosher diet, for religious reasons."  Chaplain Mike Ensch, the Chaplaincy  



Coordinator  for  the  Department,  reviewed  this  request  and  recommended  that  it  be  



denied:  



                  The Department of Corrections will only authorize vegetarian  

                  or vegan for [Stavenjord's] religious diet.  This is a fairly  

                               

                  standard practice in many Correctional systems in the USA  

                  and is adequate for his religion.  



                            

The superintendent of Spring Creek, Craig Turnbull, adopted Ensch's recommendation,  



writing,  "No  reason  to   approve  this  preference.    Not  related  to  Buddhist  faith."  



Stavenjord appealed Turnbull's decision, arguing:  



                  It  is  a  substantial  burden  on  my  religious  practice  to  be  

                  denied a religious (kosher) diet.  Both Ensch and Turnbull are  

                  acting as "arbiters-of-orthodoxy concerning what Buddhist[s]  

                  require" when neither are Buddhist or are knowledg[e]able in  

                                                                         

                  Stavenjord's practice of Madhyamaka Buddhism.  



Timothy Lyden, the Standards Administrator for the Department, responded in a letter  



dated May 27, 2011, writing:  



                  I have carefully reviewed documentation in relation to your  

                  request.  However, you have not provided any information  

                  indicating   that   the   practice   of   Madhyamaka   Buddhism  

                  prescribes a kosher diet.  In addition, I have not been able to  

                                                                       

                  find  any  evidence  of  this  claim  after  extensive  review  of  

                  resources  on  Madhyamaka  Buddhism.    Based  upon  this  

                  information, I do not find that your desire for a kosher diet  

                  [can]   be   established   to   be   any   more   than   a   personal  

                  preference.    As  a  result,  I  uphold  the  previous  decisions  

                  rendered on this grievance.  



This was the Department's final action concerning Stavenjord's request for a Kosher  



diet.  



                                                        -3-                                                  6989
  


----------------------- Page 4-----------------------

         B.       The Prayer Shawl  



                  Sometime  before  August  2010,  Stavenjord  requested  authorization  to  



purchase a prayer shawl.  This request was denied.  



                  Stavenjord  appealed  to  Lyden,  arguing  that,  because  the  Department's  



policies and procedures expressly permit the use of "prayer shawls during religious  



                                                                   

activity," it was unreasonable to refuse to allow Stavenjord to purchase a shawl. Lyden  



affirmed the denial of his request, writing:  



                                                                                             

                  Although policy specifically references the allowable use of  

                  prayer shawls, policy also extends discretionary authority to  

                                                                      

                  the superintendent [of the prison] to restrict their use along  

                  with other religious activities.  As a result, no violation is  

                  found.  



This was the Department's final action concerning Stavenjord's request for a prayer  



shawl.  



III.      PROCEEDINGS  



                                       

                  In  June  2011  Stavenjord  filed  suit  in  the  Anchorage  Superior  Court,  



                                                                                            

alleging that prison officials at Spring Creek violated RLUIPA, as well as the First and  



                                                                                       

Fourteenth Amendments to the U.S. Constitution, by denying his requests to receive a  



Kosher diet and purchase a prayer shawl.  



                       

                  In April 2012 Stavenjord filed a motion for summary judgment on these  



claims.  He submitted an affidavit stating, "It is my sincerely held religious belief that  



these two requests will benefit my exercise of religion," and referring to his verified  



complaint. The verified complaint contained a number of relevant statements:  



                                                                             

                           (1)      "The  request  submitted  by  Stavenjord  for  a  

                  Kosher   (religious)   diet,   was   Stavenjord's   firmly   held  

                  religious belief that a Kosher diet would benefit him as an  

                  important religious practice."  



                                                         -4-                                                   6989
  


----------------------- Page 5-----------------------

                             (2)       "The request for religious diet was Stavenjord's  

                                                                                    

                    firmly held religious belief that this diet would benefit his  

                    religious exercise."  



                             (3)       "It is Stavenjord's firmly held religious belief  

                    that  a  Kosher  diet  is  the  closest  to  Buddhist  requirements  

                                          

                   possible for a Buddhist that eats meat."  



                             (4)       "Stavenjord's  inability  to  possess  and  use  a  

                                                                                                    

                   prayer  shawl,  and  inability  to  partake  in  a  religious  diet,  

                    forced him to refrain from religiously motivated conduct and  

                    imposed substantial burden on his exercise of religion."  



                    The Department opposed Stavenjord's motion and filed a cross-motion for  

                                                                             



summary judgment.   The Department submitted no affidavit with its opposition and  

                                                                                                         



cross-motion,  but  (1)  attached  copies  of  grievance-related  documents  regarding  

                                                                   



Stavenjord's original request for a vegan diet, his later request to get off the vegan diet,  

                                                                                                                



and his subsequent request for a Kosher diet, and (2) referred generally to evidence from  

                                                           



a preliminary injunction hearing "regarding what items are necessary for the practice of  



Buddhism."  The preliminary injunction hearing involved separate RLUIPA claims that  

                           



Stavenjord had brought against the Department, and neither party introduced evidence  

                                                                        



at the hearing regarding the two claims at issue here.   Nevertheless, the Department  

                                                                                   



argued that because there had been no evidence at the hearing that a prayer shawl or  

                   



Kosher diet was necessary for the practice of Buddhism, Stavenjord's claims must be  



dismissed.  



                    The superior court ruled as follows:  



                              [Stavenjord] contends that his requests for a Kosher  

                    diet  and  a  prayer  shawl  were  denied  and  that  this  denial  

                                  

                    violates   his   rights   under   the   RLUIPA   and   the   First  

                    Amendment.  The court previously conducted an evidentiary  

                                                        

                    hearing  and  issued  a  decision  relevant  to  this  matter  in  

                    conjunction  with  the  Motion  for  Preliminary  Injunction.  

                    There is no evidence that a prayer shawl or a Kosher diet [is]  

                                                                                



                                                             -5-                                                        6989
  


----------------------- Page 6-----------------------

                   necessary   for   the   practice   of   Buddhism.      [Stavenjord]  

                   previously  requested  and  was  allowed  a  vegan  diet  in  

                   conformance  with  his  Buddhist  practice,  which  he  then  

                   rejected because he did not like the food.  This suggests that  

                                                            

                   the request for a Kosher diet is related to food preference and  

                                                                

                   not  to  religious  requirements.    Likewise,  based  on  the  

                   evidentiary hearing previously conducted[,] the court finds  

                   that    the    denial      of    a   prayer      shawl      does      not    violate  

                                                                                        

                    [Stavenjord's] rights under either the First Amendment or the  

                                                            

                   RLUIPA.  [Stavenjord's] Motion for Summary Judgment is  

                   denied.  The State's Cross-motion for Summary Judgment is  

                                                 

                   granted.  



                   Stavenjord   moved   for   reconsideration,   asserting,   as   he   asserted   in  



connection with the denial of his preliminary injunction motion, that the superior court  

                                                                                  



erred in applying RLUIPA by judging his personal religious beliefs based on those of  

             



Buddhism in general and by concluding that RLUIPA protects only religious practices  



that are "necessary" for the exercise of a claimant's religion.  He further asserted that the  

                                                         



court erred by relying on the evidence at the preliminary injunction hearing when that  

                       



hearing addressed neither the prayer shawl nor the religious diet.  And he noted the  



court's suggestion that his religious beliefs were insincere was an issue that rarely can  



be decided on summary judgment.  



                   In its court-ordered response to the reconsideration motion, the Department  



conceded that Stavenjord's legal analysis was correct in part and that "the focus should  



have been on Stavenjord's practice of religion and the sincerity of that practice as it  

                                                          

relates  to  his  demand  for  a  prayer  shawl  and  [K]osher  diet."1  

                                                                                                 But  the  Department  



nonetheless urged the court to affirm its decision on other grounds:  



          1  

                                                                            

                   The Department failed to mention that in the earlier preliminary injunction  

proceeding,  it  had  successfully  persuaded  the  superior  court  to  use  the  erroneous  

"religious necessity" analysis in its ruling.  



                                                             -6-                                                         6989  


----------------------- Page 7-----------------------

                    Since Stavenjord has failed to sustain his burden of proof that  

                    the prayer shawl [and] [K]osher diet are necessary to practice  

                                                      

                    his religion, that he is sincere in his request for these religious  

                                                     

                    accommodations, or that the lack of these accommodations  

                    substantially  burden[s]  his  practice  of  his  religion[,]  the  

                    court's order granting summary judgment must stand.  



                    The  superior  court  then  modified  its  ruling  in  two  respects.    Trying  to  



remedy its legal error of evaluating religious beliefs of Buddhists in general rather than  

                          



Stavenjord's personal religious beliefs, it changed the third sentence, and then included  

                                                                                                       



additional comments at the end of the order (before the denial and grant of summary of  

                                                                              



judgment):  



                              [Stavenjord] contends that his requests for a Kosher  

                    diet  and  a  prayer  shawl  were  denied  and  that  this  denial  

                                                                                      

                    violates   his   rights   under   the   RLUIPA                    and   the   First  

                                                                                      

                    Amendment.  The court previously conducted an evidentiary  

                                                         

                    hearing  and  issued  a  decision  relevant  to  this  matter  in  

                    conjunction  with  the  Motion  for  Preliminary  Injunction.  

                    There is no evidence that a prayer shawl or a Kosher diet [is]  

                                                                       

                    necessary         for    Stavenjord's          practice       of    his     religion.  

                    [Stavenjord] previously requested and was allowed a vegan  

                    diet in conformance with his Buddhist practice, which he then  

                                                                             

                    rejected because he did not like the food.  This suggests that  

                                                              

                    the request for a Kosher diet is related to food preference and  

                                                               

                    not  to  religious  requirements.    Likewise,  based  on  the  

                    evidentiary hearing previously conducted[,] the court finds  

                                       

                    that    the     denial     of    a    prayer      shawl      does      not    violate  

                    [Stavenjord's] rights under either the First Amendment or the  

                                                                      

                    RLUIPA.  Stavenjord previously did not assert that a prayer  

                    shawl was necessary for the practice of his religion.  The  

                               

                    assertion that he needs a prayer shawl is a recent one.  Given  

                                                                    

                    his history, Stavenjord has failed to meet his burden that the  

                    prayer shawl or  [K ]osher diet [is] necessary to practice his  

                                

                    religion,   that   he   is   sincere   in   his   request   for   these  

                    accommodations[,]  or  that  the  lack  of  accommodations  



                                                              -7-                                                        6989
  


----------------------- Page 8-----------------------

                  substantially        burden [s]      his    practice      of   his    religion .  

                   (Emphasis added.)  



                   Stavenjord appeals the grant of summary judgment against him.  



IV.      STANDARD OF REVIEW  

       



                   Summary judgment is appropriate where, "view[ing] the facts in the light  

                                                                                             



most  favorable  to  the  non-moving  party,"  "the  record  presents  no  genuine  issue  of  



                                                                                                   2 

                                                                                                      The moving  

material fact and . . . the movant is entitled to judgment as a matter of law." 



party  has  the  initial  burden  of  proving,  through  admissible  evidence,  that  summary  



                                3                                                                      4  

judgment is warranted.    We review a grant of summary judgment de novo.  



V.       DISCUSSION  



                  RLUIPA provides, in relevant part:  



                  No  government  shall  impose  a  substantial  burden  on  the  

                  religious exercise of a person residing in or confined to an  

                                                             

                  institution  .  .  .  even  if  the  burden  results  from  a  rule  of  

                  general  applicability,  unless  the  government  demonstrates  

                  that imposition of the burden on that person  



                                     (1)    is   in    furtherance        of    a    compelling  

                            government interest; and  



                                     (2) is the least restrictive means of furthering  

                                                                              [5] 

                           that compelling government interest.  



         2         Olson v. City of Hooper Bay, 251 P.3d 1024, 1030 (Alaska 2011) (internal  



quotation marks omitted).  



         3        Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760 n.25 (Alaska  



2008); Alaska R. Civ. P. 56(c) ("There must . . . be served and filed with each motion  

                                    

 [for summary judgment] a memorandum showing that there is no genuine issue as to any  

                                                                                                    

material fact and that the moving party is entitled to judgment as a matter of law.").  



         4         Olson, 251 P.3d at 1030.  



         5        42 U.S.C.  2000cc-1(a) (2012).  



                                                         -8-                                                   6989
  


----------------------- Page 9-----------------------

The  Act  defines  "religious  exercise"  as  "any  exercise  of  religion,  whether  or  not  

compelled by, or central to, a system of religious belief."6  



                      Stavenjord argued before the superior court that the Department's denial  



                                              

of his requests for a Kosher diet and a prayer shawl imposed a substantial burden on his  



                                                                                    

religious exercise.  On appeal, he maintains that the superior court misapplied RLUIPA  



                               

by  requiring  him  to  show  that  "the  prayer  shawl  or  [K]osher  diet  [is]  necessary  to  



practice his religion."  He also argues that the sincerity of his professed beliefs is a  



                                                                                                        

material question of fact that should not have been determined at the summary judgment  



         7  

stage. 



                      The  superior  court  concluded  that  summary  judgment  was  warranted  



                                                                                        

because "Stavenjord has failed to meet his burden that the prayer shawl or [K]osher diet  



[is]  necessary  to  practice  his  religion,  that  he  is  sincere  in  his  request  for  these  



                                              

accommodations[,]  or  that  the  lack  of  accommodations  substantially  burden[s]  his  



practice of religion."  But this analysis makes several false steps.  



                                                                                                                  

                      First, the superior court order suggests that Stavenjord was required to  



                                                                                                                            

prove the elements of his RLUIPA claim in order to defeat the Department's motion for  



                                                                             

summary judgment.  But the initial burden was on the Department, as the moving party,  



to  show  that  it  was  entitled  to  summary  judgment;  "[o]nly  when  the  moving  party  



                                                                                       

establishes a prima facie case for summary judgment is the non-moving party required  



           6         Id.  2000cc-5(7)(A).  



           7          In addition to his RLUIPA claim, Stavenjord argued before the superior   



court that the Department violated the First and Fourteenth Amendments of the U.S.   

Constitution  by  denying  his  requests.     However,  his  briefing  to  this  court  focuses  

exclusively on the RLUIPA claim.  We therefore will not address the constitutional  

claim.  Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) ("[I]ssues not briefed or  

                                                                                                                            

only cursorily briefed are considered waived . . . .").  



                                                                    -9-                                                             6989
  


----------------------- Page 10-----------------------

                                                                         8  

to come forward with contradictory evidence."    It was error to address Stavenjord's  



burden without first determining whether the Department had met its burden.  



                     Second, Stavenjord is correct that the sincerity of a claimant's religious  



                                                                                      9  

                                                                                                               

beliefs is not normally amenable to summary disposition.                                 Although the Department did  



                                                                            

point to evidence suggesting that Stavenjord had ulterior, non-religious motives for his  



                                                           10  

                                                                                                   

requests for religious accommodation,                         Stavenjord's claims of sincerity in his verified  



complaint were sufficient to create a triable question of fact on this issue.  



                                

                     Third, as Stavenjord argues, RLUIPA protects "any exercise of religion,  



                                                                                                                11  

whether or not compelled by, or central to, a system of religious belief."                                           Therefore,  



                                

Stavenjord was not required to show that his personal religious beliefs were consistent  



with  the  beliefs  of  other  Buddhists,  as  the  Department  suggested  in  its  motion  for  



                               12  

                                                                                                        

summary judgment.                  Nor was Stavenjord required to show that a prayer shawl and  



          8         Mitchell , 193 P.3d at 760 n.25.  



          9         See  Kay v. Bemis , 500 F.3d 1214, 1219 (10th Cir. 2007) ("The inquiry into  



the  sincerity   of  a  free-exercise  plaintiff's  religious  beliefs  is  almost  exclusively  a  

credibility assessment, and therefore the issue of sincerity can rarely be determined on     

summary judgment." (alteration and internal quotation marks omitted)).  



          10  

                                                   

                    See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) ("[O]f course, a prisoner's  

                                                            

request for an accommodation must be sincerely based on a religious belief and not some  

other motivation." (citing Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751, 2774  

n.28 (2014))).  



          11         42 U.S.C.  2000cc-5(7); Krieger v. Brown , 496 F. App'x 322, 325 (4th  



                                                                                                             

Cir. 2012) ("A plaintiff is not required . . . to prove that the exercise at issue is required  

by or essential to his religion.").   



          12        See  Holt,  135  S.  Ct.  at  862-63  ("[E]ven  if  [prisoner's  beliefs  were  



                                                                 

idiosyncratic], the protection of RLUIPA, no less than the guarantee of the Free Exercise  

                                                                                             

Clause, is 'not limited to beliefs which are shared by all of the members of a religious  

                                                                                                                (continued...)  



                                                               -10-                                                          6989
  


----------------------- Page 11-----------------------

Kosher diet were necessary for the practice of his religion, as the superior court appears  

to have concluded.13  



                                                                                

                    On appeal, the Department argues that it was entitled to summary judgment  



                 

under  the  correct  RLUIPA  standard.    We  disagree.    The  prima  facie  elements  of  a  



                                    

RLUIPA claim are the "wish[] to engage in (1) a religious exercise (2) motivated by a  



sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the  



                     14                                                                                                       15  

                                                 

government."            Therefore, to be entitled to summary judgment regarding this showing, 



the  Department  as  the  moving  party  was  required  to  demonstrate  that  the  record  



          12        (...continued)  



sect.' " (quoting Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 715-16  

                                                                                                       

(1981)));  see  also  Abdulhaseeb  v.  Calbone,  600  F.3d  1301,  1314  (10th  Cir.  2012)  

("[T]he issue is not whether the [prison's practice] substantially burdens the religious  

exercises  of  any  Muslim  practitioner,  but  whether  it  substantially  burdens  Mr.  

Abdulhaseeb 's  own  exercises  of  his  sincerely  held  religious  beliefs."  (emphasis  in  

original)).  



          13        See Nelson v. Miller , 570 F.3d 868, 879 (7th Cir. 2009) (prison's refusal to  

                                                                                                      

provide a Roman Catholic plaintiff with a diet free from the meat of four-legged animals  

                                                                                        

and  free  from  all  meat  on  Fridays  and  during  Lent  violated  RLUIPA  even  though  

                                     

Catholicism does not require such a diet); Koger v. Bryan , 523 F.3d 789, 797 (7th Cir.  

                                                                                                              

2008) (plaintiff's adherence to a vegetarian diet was a "religious exercise" for purposes  

of RLUIPA even though a vegetarian diet was not required to practice Thelema).  



          14        Abdulhaseeb , 600 F.3d at 1312 (citing Kikumura v. Hurley , 242 F.3d 950,  



                                                

960 (10th Cir. 2001)); see also Holt , 135 S. Ct. at 862.  



          15  

                                          

                    Alternatively, the Department could meet its summary judgment burden by  

showing that there is no genuine issue of material fact regarding its RLUIPA burden -  

                                   

that is, demonstrating that the burden on Stavenjord's religious exercise is the "least  

                            

restrictive means  of furthering [a] compelling government interest" - and that it is  

                                                                     

entitled to judgment as a matter of law.  See 42 U.S.C.  2000cc-1(a); see also Holt,  135  

S. Ct. at 863-67 (analyzing whether a prison's policy prohibiting beards was the least  

restrictive means of preventing prisoners from hiding contraband or concealing their  

identities).  



                                                             -11-                                                        6989
  


----------------------- Page 12-----------------------

                                               

contained "no genuine issue as to any material fact" regarding at least one of these three  

elements and that it was entitled to judgment as a matter of law.16  



                                                                                  

                    But the Department's summary judgment motion - like the superior court  



                          

order - focused primarily on whether a Kosher diet or a prayer shawl was necessary for  



                                                                                          

the general practice of Buddhism. Although the Department stated on several occasions  



that it had not substantially burdened Stavenjord's personal religious exercise, these  



statements were conclusory and without evidentiary support.  



                    Assuming Stavenjord's practice of following a Kosher diet is motivated by  



                                                                     17  

                                                                         The denial of Stavenjord's request for  

a sincerely held belief, it is a religious exercise. 



                                                      

that diet, absent any evidence of a reasonable alternative accommodation, imposes a  



substantial burden on that religious exercise by "prevent[ing] participation in conduct  



                                                                      18  

motivated by a sincerely held religious belief."                           



                    The Tenth Circuit confronted a similar case in Abdulhaseeb v. Calbone ,  



           

where a prisoner claimed that the government's refusal to provide a Halal meal that  



                                                  19  

included meat violated RLUIPA.     The court accepted the prisoner's assertions that  



                                                   

eating a Halal meal with meat was a religious exercise and that the request was motivated  



          16        Alaska R. Civ. P. 56(c).  



          17        See Abdulhaseeb , 600 F.3d at 1312-13.  



          18        Id. at 1315; see also  Hartmann v. Cal. Dep't of Corr. & Rehab.                              , 707 F.3d  



1114, 1124-25 (9th Cir. 2013) (" '[A] substantial burden . . . impose[s] a significantly  

great restriction or onus upon [a religious] exercise.' " (quoting San Jose Christian Coll.  

                                                                              

v.  City  of  Morgan  Hill,  360  F.3d  1024,  1034  (9th  Cir.  2004)));  Derek  L.  Gaubatz,  

RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA's Prisoner  

                                              

Provisions , 28 HARV .  J.L.  &  PUB .  POL 'Y  501, 558 (2005) ("There has been little dispute         

in   these  cases   that  refusing   to   provide  a  diet  that  accords  with   the  teachings  of  a  

prisoner's faith is a substantial burden.").  



          19        600 F.3d at 1305-06.  



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----------------------- Page 13-----------------------

                                                     20  

      

by a sincerely held religious belief.                     Based on the prisoner's verified complaint and  



                                                                      

supporting affidavit, the court concluded that the government's refusal to provide the  



                                                                                                                 

requested diet was a substantial burden because it prevented "participation in conduct  

motivated by a sincerely held religious belief."21  



                    Similarly,  assuming  Stavenjord's  use  of  the  shawl  is  motivated  by  a  



                               22  

                                  it also is a personal religious exercise.  As with the Kosher diet,  

sincerely held belief,                             



the denial of Stavenjord's shawl request, absent any evidence of a reasonable alternative  

                                                                       



                                                                                                                    23  

accommodation,  prevents  him  from  participating  in  that  religious  exercise.                                        That  



Stavenjord is being denied access to a prayer shawl is sufficient to defeat summary  



                                                                                                            

judgment on his prima facie claim; Stavenjord is being "pressured to  abandon [his]  

religious belief[]" regarding the religious use of a shawl.24  



                           

                    We  note that the State did present evidence that Stavenjord previously  



              

rejected  a  vegan  diet  out  of  culinary  preference  -  not  religious  belief.    But  in  the  



                                                                                                  

absence  of  evidence  showing  that  a  vegan  diet  continues  to  be  compatible  with  



Stavenjord's religious beliefs and that the Department remains willing to provide this  



          20        Id. at 1313-15.
  



          21        Id. at 1315-17.
  



          22        See id. at 1312-13.
  



          23        See id. at 1315;  cf. Grumbley v. Michigan, No. 2:11-cv-185, 2011 WL  



3418245, at *6 (W.D. Mich. Aug. 4, 2011) (holding inmate's religious practice not  

                    

substantially burdened because prison made prayer shawls available).  



          24        Hartmann v. Cal. Dep't of Corr. & Rehab. , 707 F.3d 1114, 1125 (9th Cir.  

                                                                      

2013).  



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----------------------- Page 14-----------------------

                                                                                                               

accommodation, this evidence goes only to Stavenjord's sincerity, where a genuine issue  

of material fact exists.25  



                    For these reasons, we cannot affirm the summary judgment grant under  



either the superior court's analysis or the Department's proposed alternative grounds.  



VI.       CONCLUSION  



                                                                    

                    We  REVERSE  the  judgment  of  the  superior  court  and  REMAND  for  



further proceedings.  



          25        To be clear, this narrow holding does not preclude the superior court from         



concluding  that  the  vegan  diet  was  a  sufficient  accommodation  under  RLUIPA's  

substantial burden element, if the Department provides evidentiary support for such a  

                                                                                                                           

conclusion.  Cf. Ciempa v. Jones, 745 F. Supp. 2d 1171, 1197-98 (N.D. Okla. 2010),  

                                                                                                       

aff'd, 511 F. App'x 781 (10th Cir. 2013) ("To the extent that Ciempa seeks to bring a  

                 

claim based on the failure to provide him with a Halal diet, he has failed to establish that  

                                                                                          

such failure imposes a substantial burden on his religious exercise.  Ciempa himself  

         

stated that his religious needs could be satisfied by the provision of a Kosher diet."  

(citation omitted)); Shoemaker v. Williams, No. CV 10-0826-JO, 2013 WL 528306, at  

                                                                    

*2  (D.  Or.  Feb.  11,  2013)  ("[Plaintiff]  conceded  that  the  vegetarian  and  fish  meals  

                                                                                      

provided by [the prison] are halal and comply with the dietary restrictions of his religion.  

                                                                                                                   

Thus, there is no basis from which to conclude that his consumption of these meals  

infringed his religious exercise.").  



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