Suit for Kosher Prison Food Gets Another Shot

     (CN) – The 5th Circuit remanded a Jewish prisoner’s petition for kosher prison food, ruling that his imperfect adherence to a kosher diet does not doom his case.
     Max Moussazadeh, a Jewish prisoner in Texas serving a 75 year sentence, filed a lawsuit claiming he was “forced to eat non-kosher food” in prison.
     After negotiations, the prison established a kosher kitchen – at a cost of $8,000 – and began serving kosher meals free of charge. However, Moussazadeh refused to settle the case without a guarantee that the prison would not ever deny him kosher food.
     Moussazadeh appealed to the 5th Circuit after the district court dismissed his claim, finding his religious beliefs not sufficiently sincere because he bought some nonkosher food items from the commissary.
     While his appeal was pending, Moussazadeh committed an infraction and was transferred to the Stiles unit, which does not provide kosher meals for free.
     In a 2-1 decision, the 5th Circuit reversed and remanded the lower court’s ruling, finding that the district judge “improperly weighted the evidence proffered by TDCJ [Texas Department of Criminal Justice] more heavily than it did Moussazadeh’s.”
     “A finding of sincerity does not require perfect adherence to beliefs expressed by the inmate, and even the most sincere practitioner may stray from time to time. ‘[A] sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?’ Though Moussazadeh may have erred in his food purchases and strayed from the path of perfect adherence, that alone does not eviscerate his claim of sincerity,” Judge Jerry Smith said, writing for the majority.
     Moussazadeh produced evidence that he was born and raised Jewish, that he ate kosher meals from the dining food even when he found them “distasteful” compared to the standard meals, and that he was harassed for by prison employees for making demands for kosher food.
     “The court concluded that items that were not certified as kosher were per se not kosher, but, as Moussazadeh and amicus curiae [The American Jewish Committee] relate, a certificate does not render food kosher or nonkosher. The items that Moussazadeh purchased, such as coffee and soda, do not need a certificate to be ‘kosher,'” the 31-page judgment said.
     In addition, the court ruled Moussazadeh does not need to go through the Department of Correction’s grievance process again to request kosher food in the Stiles Unit.
     “The grievance related to his ability to be fed a kosher, nutritionally adequate diet in the dining hall as a substitute for the nonkosher meals he was being served. His claim is for relief related to ongoing conduct – he is currently being denied kosher food. Even though he was granted the relief he requested for a time, it has been taken away from him,” Smith said.
     “Nothing in the record suggests that, were Moussazadeh to file an administrative grievance, TDCJ would take any action. Forcing re-exhaustion would be fruitless and would needlessly extend already prolonged litigation,” the court found.
     The 5th Circuit instructed the district court on remand to “determine whether any ‘alternative, available’ means would allow TDCJ to achieve any established compelling interest while being less restrictive of Moussazadeh’s ability to exercise his religion.”
     In his dissent, Judge Rhesa Barksdale accused the majority of “permitting this inmate to run the penitentiary.”
     “The majority ignores Moussazadeh’s fault, through his serious disciplinary violations, in bringing about the deprivation about which he complains,” the judge wrote.
     Barksdale continued: “The Texas prison system should not be required to choose between: giving up its right to transfer, for disciplinary reasons, inmates who keep kosher; or incurring financial and security hardships in order to accommodate, even more robustly than it already does, such inmates when they commit disciplinary violations.”

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