Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

[Thanks to Howard Bashman for the lead.]