7th Circuit Upholds RLUIPA Claim; Concurrence Criticizes RLUIPA

Last week, the U.S. Seventh Circuit Court of Appeals ruled in favor of a former prisoner in a RLUIPA case that is most interesting for the concurring opinion it generated. In Koger v. Bryan, (7th Cir., April 24, 2008), the court held that a former prisoner's claim based on the denial of his request for a vegetarian diet substantially burdened the prisoner's religious exercise. In particular the court found inappropriate the prison's requirement that the religious practice be required by the inmate's religion and that this be verified by a member of the clergy.

Judge Evans concurred, but included in his opinion an interesting attack on RLUIPA:

Clearly, without RLUIPA, this case would have been dead in the water when it was filed because declining Koger’s request for a nonmeat diet would not have violated the United States Constitution....

Because Mr. Koger is out of prison... his request for injunctive relief is moot. And because he was in prison when the case arose, he must proceed under the Prisoner Litigation Reform Act, which takes compensatory and punitive damages off the table as he suffered no “physical injury” but only, at best, a “mental or emotional injury.” And that limits his recovery to nominal damages.

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L.Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”