FOR PUBLICATION



APPELLANT PRO SE:                            ATTORNEYS FOR APPELLEES:

JEFFREY ALLEN ROWE                           GREGORY F. ZOELLER
Pendleton, Indiana                           Attorney General of Indiana

                                             KATHY BRADLEY
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                              FILED
                                                                           Oct 09 2012, 9:19 am

                            IN THE                                                 CLERK
                  COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




JEFFREY ALLEN ROWE,                          )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )       No. 49A02-1204-PL-344
                                             )
BRUCE LEMON, et al,                          )
                                             )
     Appellees-Defendants,                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Timothy Oakes, Judge
                          Cause No. 49D13-1107-PL-27692



                                   October 9, 2012

                             OPINION - FOR PUBLICATION


BARNES, Judge
                                        Case Summary

       Jeffrey Rowe appeals the trial court’s grant of summary judgment in favor of

Bruce Lemmon, L.A. VanNatta, Mark Dodd, Stephen Hall, and Wayne Scaife

(collectively “the Defendants”). We affirm in part, reverse in part, and remand.

                                             Issues

       We restate the dispositive issues before us as:

               I.     whether Rowe is entitled to pursue monetary damages
                      against the Defendants under either 42 U.S.C. § 1983
                      or the Religious Land Use and Institutionalized
                      Persons Act (“RLUIPA”); and

               II.    whether there is a genuine issue of material fact
                      precluding summary judgment on Rowe’s claims
                      under RLUIPA.1

                                              Facts

       On December 8, 2010, Judge Magnus-Stinson of the United States District Court

for the Southern District of Indiana entered a permanent injunction, to be effective within

forty-five days, requiring the Indiana Department of Correction (“DOC”) to provide

meals certified as kosher to “all inmates who, for sincerely held religious reasons, request

them in writing.” App. p. 148. The injunction was not limited only to Jewish inmates,

and it resulted from a class action lawsuit brought by DOC inmates under RLUIPA, a

federal statute, after the DOC stopped offering certified kosher meals to inmates. In

place of the kosher meals, the DOC had been offering a vegan diet option to those

1
  Because of our ultimate holding, it is unnecessary for us to address Rowe’s argument regarding
designation of evidence. Also, the State on appeal does not rely upon res judicata, and we need not
address Rowe’s argument on that point.
                                                2
inmates instead. As stated by Judge Magnus-Stinson, the DOC had previously provided

kosher meals not only to Jewish inmates, but also to non-Jewish inmates who had “a

sincerely held religious reason” for requesting them. Id. at 121. Judge Magnus-Stinson

also noted, as the DOC essentially conceded, that the vegan diet option was not kosher.

In other words,

              despite the fact that the ingredients used in vegan meals are
              themselves kosher, the parties agree that a meal made from
              these ingredients is not necessarily kosher: The problem lies
              in the preparation, for if, at any point, non-kosher ingredients,
              water, or plates/utensils that have touched non-kosher food
              contaminates the vegan food, the meal is no longer kosher.

Id. at 125-26. The kosher meals that the DOC had been serving were prepackaged

offsite, so as to avoid any possible contamination with prohibited foods.

       On January 19, 2011, Rowe, an inmate at the Pendleton Correctional Facility

(“Pendleton”), filed an “Offender Request for Religious Accommodation” asking that he

be provided kosher meals. Id. at 110. Rowe is not Jewish. Instead, he professes belief in

“Identity Christianity,” also known as “The Church of Jesus Christ Christian, Aryan

Nations.” Id. at 108. “Identity Christians” believe that members of the white race are the

actual physical descendants of the Twelve Ancient Tribes of Israel. Id. Rowe’s request

for kosher meals stated in part:

              I follow the Biblical Food Laws in Leviticus 11 and
              Deuteronomy 14. This requires that I only eat animals that
              part the hoof and chew the cud (i.e., cattle, sheep, antelope,
              buffalo/bison, caribou, deer/venison, elk, goat, moose etc.),
              certain birds (i.e. chicken, dove, goose, pheasant, pigeon etc.),
              and clean “creeping things” (i.e., locusts, crickets and

                                             3
                grasshoppers). . . . In addition, the Bible prohibits me from
                eating two (or more) different types of meat products at once
                (for instance, a chicken patty cannot be made from batter that
                has milk in it). In addition, genetically engineered meat and
                grain products are prohibited from consumption. Lastly, I am
                prohibited from eating fat and blood. (Processed food has a
                lot of by-products in them (which I am prohibited from
                eating)). Kosher diets follow all the biblical food laws I have
                listed above and has special requirements for food preparation
                and distribution to ensure these laws are followed.

Id. at 110. Rowe further stated that God commanded “my people” to follow the Biblical

food laws “because our bodies are His temple—where He dwells in us in the person of

the Holy Spirit.” Id. at 111. Rowe clarified that a Jewish rabbi did not need to bless his

food, “but I do require that my food is biblically ‘clean,’ is prepared right and is served

right.” Id.     There apparently is not an official “Identity Christianity” doctrine that

requires the eating of kosher food; rather, Rowe and a fellow inmate decided that it was

required based on their own study of the Bible.2

        On February 23, 2011, Mark Dodd, the Pendleton Chaplain, wrote Rowe

informing him that his request for a kosher diet had been denied by a DOC Central Office

committee because his food requirements could be “met by current diet options.” Id. at

14. This letter did not specify what the other option would be, but apparently was

referring to the vegan option. One of the members of the DOC Central Office committee

that denied Rowe’s request was Chaplain Stephen Hall. In March 2011, Rowe filed a

grievance with Wayne Scaife, a “grievance executive assistant” at Pendleton, which

2
  There are different types of kosher food certifications, depending for example on the extent to which a
rabbi has verified that the food is kosher. Rowe asserts that he would be satisfied with kosher meals
bearing a “K” designation, which means that a rabbi has not verified that the food is kosher.
                                                   4
Scaife denied. Id. at 114. Rowe then filed a grievance appeal, which was denied by

DOC employee L.A. VanNatta for the stated reason that “your religious preference if

[sic] Christian.” Id. at 202.

       On July 20, 2011, Rowe filed a complaint against Dodd, Hall, Scaife, VanNatta,

and Bruce Lemmon, the DOC Commissioner. The complaint specified that Rowe was

suing Dodd, Hall, Scaife, and VanNatta in both their official and individual capacities

and Lemmon in his official capacity only. Rowe sought compensatory, punitive, and

nominal damages against the Defendants, as well as a declaratory judgment and

injunction requiring that he be served kosher meals. The complaint invoked RLUIPA

and 42 U.S.C. § 1983 for alleged violations of Rowe’s constitutional rights under the

Free Exercise and Establishment Clauses of the First Amendment to the United States

Constitution and the Equal Protection Clause of the Fourteenth Amendment.

       On November 28, 2011, Rowe filed a motion for partial summary judgment. The

Defendants filed a cross-motion for summary judgment. On April 4, 2012, the trial court

denied Rowe’s motion for partial summary judgment and granted the Defendants’ cross-

motion for summary judgment, resulting in dismissal of Rowe’s complaint. Rowe now

appeals.

                                         Analysis

       Our standard of review for the grant or denial of a motion for summary judgment

is the same as it is for the trial court originally ruling on the motion: whether there is a

genuine issue of material fact, and whether the moving party is entitled to judgment as a

                                             5
matter of law. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010). Summary judgment

should be granted only if the designated evidence shows that there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Id. at 5.

“All factual inferences must be construed in favor of the non-moving party, and all

doubts as to the existence of a material issue must be resolved against the moving party.”

Id. “The fact that cross-motions for summary judgment are filed does not alter this

standard of review.” Keckler v. Meridian Sec. Ins. Co., 967 N.E.2d 18, 22 (Ind. Ct. App.

2012), trans. denied.

              I. Scope of Available Remedies under RLUIPA and § 1983

       Rowe sued the Defendants under RLUIPA and 42 U.S.C. § 1983. Before turning

to the particulars of Rowe’s claims against the Defendants, we address the type of relief

to which he might be entitled if he was successful in proving his claims and what he

would not be entitled to. First, even if Rowe successfully proved a violation of RLUIPA

by not being provided a kosher diet, he would not be entitled to recover any money

damages on that basis against any of the Defendants. For purposes of federal litigation,

suits against state employees acting in their official capacity are treated as suits against

the state itself. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct.

2304, 2312 (1989). It is clear that money damages cannot be imposed against a state or

state employees acting in their official capacity in lawsuits alleging violations of

RLUIPA. Sossamon v. Texas, -- U.S. --, 131 S. Ct. 1651 (2011). It also is well-settled

that “RLUIPA does not authorize any kind of relief against public employees, as opposed

                                             6
to governmental bodies that receive federal funds and accept the conditions attached by

the statute.” Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011). Thus, regardless of

whether Rowe’s claims against the Defendants are stated in terms of their official or

individual capacities, he cannot recover monetary damages against them even if he

proves a violation of RLUIPA. See id. The Defendants concede, however, that Rowe is

not precluded from seeking injunctive relief against them under RLUIPA if he proves a

violation of that law.

       Turning to Section 1983, that statute provides a civil remedy against any “person”

who, acting under color of state law, subjects an American citizen to a deprivation of any

rights, privileges, or immunities secured by the United States Constitution or federal

laws. 42 U.S.C. § 1983. The statute does not provide any remedy against states, state

entities, or state officials sued in their official capacity. Lake County Juvenile Court v.

Swanson, 671 N.E.2d 429, 433 (Ind. Ct. App. 1996), trans. denied. Rowe, therefore,

cannot recover any damages against any of the Defendants under Section 1983 based on

any “official capacity” claims.

       A government employee acting in his or her individual capacity, however, is a

“person” who may be sued under Section 1983. To establish a government employee’s

liability under Section 1983, a plaintiff must prove:             (1) the existence of a

constitutionally-protected right; (2) that he or she was deprived of that right; (3) that the

defendant intentionally caused the deprivation; and (4) that the defendant acted under the

color of state law. McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.

                                             7
1993). Vicarious liability cannot be imposed under Section 1983 to hold government

employees liable for the actions of their subordinates. Ashcroft v. Iqbal, 556 U.S. 662,

676, 129 S. Ct. 1937, 1948 (2009). Additionally, the Seventh Circuit has specifically

held that as a general rule, a prison employee who denies a prisoner’s grievance

complaining about the conduct of another employee faces no Section 1983 liability for

that act. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). The grievance

examiner has no duty to “rescue” the prisoner from unconstitutional conduct of others.

See id. at 596. In other words, a prison employee’s denial of a prisoner grievance

generally does not make that employee liable for the conduct that led to the grievance in

the first place.

       Here, the conduct that Dodd engaged in was communicating to Rowe a decision

made by others—including Hall—that he would not receive kosher meals. The full

extent of Scaife’s and VanNatta’s involvement in Rowe’s case was to deny his first level

grievance and his grievance appeal. As a matter of law, none of this conduct is sufficient

to support a basis of liability under Section 1983 as none of those three persons were

alleged to have personally engaged in any deprivation of Rowe’s rights. The only person

who might conceivably be subject to damages for a violation of Section 1983 would be

Hall, who is the only defendant sued who participated in the original decision not to

provide Rowe with kosher meals.3



3
 The Seventh Circuit recognized that there could be certain circumstances in which a grievance examiner
could face Section 1983 liability; for example, for routinely shredding all grievances without reading
                                                  8
       We further note that Rowe’s lawsuit alleging violations of the United States

Constitution and federal statutes would be governed by the Prisoner Litigation Reform

Act (“PLRA”), 42 U.S.C. § 1997e(e). See Koger v. Bryan, 523 F.3d 789, 804 (7th Cir.

2008). Under the PLRA, a prisoner cannot recover compensatory or punitive damages

for mental or emotional injury caused by constitutional torts or violations of federal

statutes by prison officials, unless there has been a showing of prior physical injury. Id.

There is no evidence here that Rowe has suffered any physical injury from Hall’s actions.

Thus, to the extent there is the possibility that Rowe could recover damages against Hall,

those damages could only be nominal. See id.

       Having delineated the relief to which Rowe could be entitled if he was successful

on all of his claims, we conclude that it is unnecessary to address the substance of his

constitutional claims. RLUIPA provides greater protection for the exercise of religious

practice than exists under traditional First Amendment jurisprudence. Greene v. Solano

County Jail, 513 F.3d 982, 986 (9th Cir. 2008). Because the remedies to which Rowe

would be entitled are virtually identical under either RLUIPA, or Section 1983 for his

constitutional claims, and because courts generally seek to avoid adjudicating

constitutional issues if at all possible, we will not review Rowe’s Section 1983

constitutional claims.       See Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006)

(addressing prisoner’s claim of infringement of religious liberty solely under RLUIPA

and refusing to address his First Amendment claims); see also Koger, 523 F.3d at 801

them, or intervening in the conduct of others. Burks, 555 F.3d at 595. There is no evidence of any such
conduct by the grievance examiners in Rowe’s case.
                                                  9
(same). Not allowing Rowe to proceed on his Section 1983 constitutional claims will

preclude him from recovering nominal monetary damages against Hall, but such

preclusion is not a reason for reversing the grant of summary judgment on those claims.

See Gewartowski v. Tomal, 125 Ind. App. 481, 486, 123 N.E.2d 580, 582 (1955)

(holding that even if there is error in failing to award nominal damages to a plaintiff, such

error is not a basis for reversal). Thus, we affirm the grant of summary judgment against

Rowe on his constitutional claims under Section 1983.

                                        II. RLUIPA

       RLUIPA prohibits prison systems that receive federal funding, including the DOC,

from substantially burdening an inmate’s religious exercise unless the step in question is

the least restrictive way to advance a compelling state interest. See 42 U.S.C. § 2000cc-

1(a); see also Borzych, 439 F.3d at 390. RLUIPA allows the filing of a cause of action

to enforce the rights it grants. 42 U.S.C. § 2000cc-2(a). To succeed on a claim under

RLUIPA, a prisoner must demonstrate that “he wishes 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 government.” Abdulhaseeb v. Calbone, 600 F.3d

1301, 1312-1313 (10th Cir. 2010), cert. denied.

       Questions concerning diets for prisoners allegedly mandated by their religious

beliefs have generated a voluminous amount of federal litigation. The federal courts of

appeal have held that “a prisoner’s religious dietary practice is substantially burdened

when the prison forces him to choose between his religious practice and adequate

                                             10
nutrition.” Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (citing Love v. Reed, 216

F.3d 682, 689-90 (8th Cir. 2000) & McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.

1987)). The key question in this case, therefore, is whether Rowe’s desire for a kosher

meal plan was motivated by a sincerely held religious belief, “rather than a preference for

the way a given diet tastes, a belief that the preferred diet is less painful for [some]

animals, or a prisoner’s desire to make a pest of himself and cause trouble for his

captors.” Vinning-El, 657 F.3d at 594. If Rowe is so motivated, then the DOC is

required to provide him with kosher meals, particularly given that the Defendants make

no argument that there is a compelling state interest in not providing them.

       The sincerity of a person’s religious beliefs for purposes of RLUIPA is a question

of fact. Beebe v. Birkett, 749 F. Supp. 2d 580, 594 (E.D. Mich. 2010) (citing United

States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 863-64 (1965) (addressing standard of

proof for conscientious objector draft status)); see also United States v. Meyers, 95 F.3d

1475, 1482 (10th Cir. 1996) (addressing sincerity standard for predecessor to RLUIPA,

the Religious Freedom Restoration Act), cert. denied). Additionally, the question of

sincerity is related to a plaintiff’s state of mind, and summary judgment is rarely

appropriate on such issues. Beebe, 749 F. Supp. 2d at 594-95. To be valid and sincere, a

religious belief or practice need not be “compelled by, or central to, a system of religious

belief.” 42 U.S.C. § 2000cc-5(7)(A). “A personal religious faith is entitled to as much

protection as one espoused by an organized group.” Vinning-El, 657 F.3d at 593. Also,

a particular belief or practice need not be “orthodox” within a person’s chosen faith in

                                            11
order to be “sincere,” although orthodoxy of a belief or practice (or lack thereof) may be

relevant to an inquiry into a prisoner’s sincerity. Id. at 593-94. We emphasize, for

example, that a prison or court would not be required to agree with a prisoner’s asserted

“sincere” religious belief that he must regularly eat T-bone steaks, where no such

recognized religion required such a diet.

          Here, Rowe asserted to the DOC that the kosher meal plan was necessary to

comply with his personal religious belief regarding foods prohibited and allowed by the

Bible. The DOC already had to provide such meals to persons requesting them for

sincere religious beliefs pursuant to Judge Magnus-Stinson’s order.4 Although Rowe,

obviously, is not Jewish, Judge Magnus-Stinson’s order quite clearly does not apply

solely to persons of the Jewish faith. And, as the case law makes abundantly clear, there

is no requirement that Rowe be Jewish in order to be entitled to kosher meals, nor does

Rowe’s belief that he is required to eat such meals have to be orthodox within his chosen

religion.5

          The Defendants do not argue that Rowe is insincere in his belief regarding the

necessity of complying with the food laws found in Leviticus and Deuteronomy.

However, they contend that the vegan meal option is sufficient to permit Rowe to comply
4
    This order was designated as summary judgment evidence by the Defendants.
5
  The Defendants cite Ran-Dav’s County Kosher, Inc. v. State, 608 A.2d 1353 (N.J. 1992), for a definition
of kosher that focuses primarily on its Jewish origins. As that opinion recognizes, however, “Adherents
to certain other faiths, especially those forbidding the consumption of pork, purchase kosher food to
comply with their own religious requirements.” Id. at 1356. In any event, it is Rowe’s understanding and
belief as to what kosher means that is dispositive, not what the traditional or “orthodox” definition of that
word is.

                                                    12
with those laws. They submitted an affidavit from a representative of the contractor

providing vegan meals to the DOC, which established that those meals provide all of a

person’s necessary nutrition while containing none of the food items Rowe claimed he

was forbidden from eating. Regardless, the affidavit does not establish that the vegan

meal plan is kosher. In fact, Judge Magnus-Stinson addressed precisely that dilemma in

her order. The vegan meal plan, while by itself not including ingredients prohibited by

the Biblical food laws, does not guarantee against contamination by prohibited

ingredients.6

       The Defendants essentially contend that Rowe failed to prove that his concept of

“kosher” food included the prohibition against any possible contamination of his food by

Biblically-prohibited foods. Rowe stated in his application for kosher meals, however,

that a kosher diet “has special requirements for food preparation and distribution to

ensure these laws are followed,” and that he is required to eat food that “is biblically

‘clean,’ is prepared right and is served right.” App. pp. 110-11. At least for purposes of

summary judgment, these statements create a genuine issue of material fact as to whether

Rowe sincerely believed, for religious reasons, that it was not only the ingredients of his

diet that was important but also the manner of its preparation, so as to avoid

contamination.

       The Defendants have not established as a matter of law that Rowe lacked sincere

religious reasons for requesting a kosher diet.              Although the sincerity of Rowe’s
6
  The Defendants do not argue or direct us to any evidence that this contamination possibility has been
eliminated since the time of Judge Magnus-Stinson’s order.
                                                  13
adherence to “Identity Christianity” and his need for a kosher diet arguably could be

eyebrow-raising, such sincerity, or lack thereof, is a question of fact. See Beebe, 749

F.Supp.2d at 594-95.      The Defendants also make no argument that they have a

compelling governmental interest in refusing to provide a kosher diet to Rowe. As such,

the Defendants were not entitled to summary judgment on Rowe’s RLUIPA claims.

       For similar reasons, we decline to direct that summary judgment be entered in

Rowe’s favor on this point, as he requests. We decline to rule, as a matter of law and

based on a paper record, that he is definitely sincere in his beliefs. In other words, there

is a genuine issue of material fact regarding the sincerity of Rowe’s religious belief that

he is required to eat only kosher meals that are certified as uncontaminated by

“forbidden” foods. We reverse the grant of summary judgment against Rowe on his

claims under RLUIPA and remand for further proceedings on those claims.

                                       Conclusion

       We affirm the grant of summary judgment against Rowe on his claims seeking

recovery under Section 1983 for alleged constitutional violations committed by the

Defendants. We reverse the grant of summary judgment against Rowe on his RLUIPA

claims and remand for further proceedings on those claims, with the understanding that

he is entitled only to declaratory and injunctive relief against the Defendants, i.e.

requiring that he be provided with kosher meals, if he is successful in proving those

claims.

       Affirmed in part, reversed in part, and remanded.

                                            14
VAIDIK, J., and MATHIAS, J., concur.




                                       15
