Williams v. Annucci 1 In the

15‐1018
Williams v. Annucci
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2017 7
8
A RGUED: O CTOBER 11, 2017 9
D ECIDED: JULY 10, 2018 10
11
No. 15‐1018 12
13
D E A NDRE WILLIAMS, A/ K/ A D AVID W ILLIAMS, 14
Plaintiff‐Appellant, 15
16
v. 17
18
A NTHONY J. A NNUCCI, Commissioner of NYS Department of 19
Corrections and Community Supervision, C HERYL V. MORRIS, 20
Director, Ministerial, Family and Volunteer Services, NYS 21
Department of Corrections and Community Supervision, OMEGA 22
A LSTON, Assistant Director, Ministerial, Family and Volunteer 23
Services, Department of Corrections and Community 24
Supervision, D. R OCK, Superintendent, Upstate Correctional Facility, 25
M. L IRA, Deputy Superintendent, Upstate Correctional Facility, 26
TIMOTHY C. H AWK, Chaplain, Upstate Correctional Facility, a/k/a J. 27
H AWK, D ON H AUG , Food Administrator, Upstate 28
Correctional Facility, K AREN B ELLAMY, Director, Inmate Grievance 29
Program, NYS Department of Corrections and Community 30
Supervision, K ENNETH S. PERLMAN, Deputy Commissioner, Program 31
Services, NYS Department of Correctional Services, A LEC 32
F RIEDMANN, Jewish Chaplain, Upstate Correctional Facility, 33

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2 No. 15‐1018
Defendants‐Appellees.1 1
________ 2
3
Appeal from the United States District Court 4
for the Northern District of New York. 5
No. 11 Civ. 379 – Norman A. Mordue, Judge, Therese Wiley Dancks, 6
Magistrate Judge. 7
________ 8
9
Before: WALKER , POOLER , Circuit Judges, and CRAWFORD, District 10
Judge.2 11
________ 12
13
Plaintiff‐Appellant DeAndre Williams appeals from a 14
memorandum and order of the United States District Court for the 15
Northern District of New York (Mordue, J.). The district court, 16
adopting the recommendation of the magistrate judge (Dancks, M.J.), 17
granted summary judgment to the defendants, various officials of the 18
New York State Department of Corrections and Community 19
Supervision (“DOC”), on Williams’s claim that the DOC’s policy of 20
not accommodating the dietary restrictions imposed by his Nazarite 21
Jewish faith violated the Religious Land Use and Institutionalized 22
Persons Act of 2000 (RLUIPA). The district court, adopting the 23
reasoning of the magistrate judge, denied Williams’s request for a 24
1 The Clerk of the Court is directed to amend the caption as set forth
above.
2 Judge Geoffrey W. Crawford, of the United States District Court for the
District of Vermont, sitting by designation.

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3 No. 15‐1018
permanent injunction because it found that, assuming Williams’s 1
beliefs were “sincerely held” and “substantially burdened” by the 2
DOC’s policy, the DOC’s refusal to modify the menu for Williams 3
furthered a compelling state interest in minimizing costs and 4
administrative burdens, and the DOC’s policy constituted the least 5
restrictive means of furthering those interests. Special App’x 45–47. 6
We conclude that the district court erred in granting summary 7
judgment to the DOC because, in the wake of the Supreme Court’s 8
decision in Holt v. Hobbs, 135 S. Ct. 853 (2015), it failed to appreciate 9
the substantial showing that the government must make to justify 10
burdening an individual plaintiff’s practice of a sincerely held 11
religious belief. We therefore VACATE the district court’s grant of 12
summary judgment on Williams’s claim for injunctive relief under 13
RLUIPA, and REMAND for further proceedings consistent with this 14
opinion. The DOC’s motion to vacate the judgment and remand is 15
DENIED as moot. 16
________ 17
18
R AJEEV MUTTREJA, (Meir Feder, Lauren Pardee 19
Ruben, on the brief), Jones Day, New York, NY, for 20
Plaintiff‐Appellant. 21
Z AINAB A. C HAUDHRY (Andrew D. Bing, Barbara 22
D. Underwood, on the brief), for Barbara D. 23
Underwood, Attorney General of the State of New 24
York, New York, NY, for Defendants‐Appellees. 25

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4 No. 15‐1018
________ 1
2
JOHN M. WALKER , JR ., Circuit Judge: 3
Plaintiff‐Appellant DeAndre Williams appeals from a 4
memorandum and order of the United States District Court for the 5
Northern District of New York (Mordue, J.). The district court, 6
adopting the recommendation of the magistrate judge (Dancks, M.J.), 7
granted summary judgment to the defendants, various officials of the 8
New York State Department of Corrections (“DOC”), on Williams’s 9
claim that the DOC’s policy of not accommodating the dietary 10
restrictions imposed by his Nazarite Jewish faith violated the 11
Religious Land Use and Institutionalized Persons Act of 2000 12
(RLUIPA). The district court, adopting the reasoning of the magistrate 13
judge, denied Williams’s request for a permanent injunction because 14
it found that, assuming Williams’s beliefs were “sincerely held” and 15
“substantially burdened” by the DOC’s policy, the DOC’s refusal to 16
modify the menu for Williams furthered a compelling state interest in 17
minimizing costs and administrative burdens, and the DOC’s policy 18
constituted the least restrictive means of furthering those interests. 19
Special App’x 45–47. 20
We conclude that the district court erred in granting summary 21
judgment to the DOC because it failed to appreciate, in the wake of 22
the Supreme Court’s decision in Holt v. Hobbs, 135 S. Ct. 853 (2015), 23

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5 No. 15‐1018
the substantial showing that the government must make to justify 1
burdening an individual plaintiff’s practice of a sincerely held 2
religious belief. We therefore VACATE the district court’s grant of 3
summary judgment on Williams’s claim for injunctive relief under 4
RLUIPA, and REMAND for further proceedings consistent with this 5
opinion. The DOC’s motion to vacate the judgment and remand is 6
DENIED as moot. 7
BACKGROUND 8
Plaintiff‐Appellant DeAndre Williams is a practicing Nazarite 9
Jew and a prisoner of the New York State DOC. As part of his faith, 10
Williams believes he must consume a grape‐free, egg‐free, vegetarian 11
diet that is also kosher. Williams also has a dairy intolerance. 12
At the time this appeal was filed, the DOC prepared meals for 13
inmates in two steps: first, it processed food at a central production 14
center; then, it shipped that food to each prison facility where meals 15
were prepared and served to inmates. The DOC makes two different 16
menus available to prisoners: the general confinement menu 17
(“GCM”), and the Cold Alternative Diet (“CAD”). The GCM meals, 18
which are not certified kosher, include an entrée, side dishes, and a 19
beverage. Many items on this menu include meat, dairy, or grapes. 20
The DOC also typically offers an alternative entrée that does not 21
contain meat, but that may contain dairy or grape products. The CAD 22

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6 No. 15‐1018
menu, on the other hand, provides kosher food, but it includes meat, 1
dairy, and grapes. 2
The DOC allows inmates to submit requests to substitute food 3
for medical reasons, which the DOC then reviews on a case‐by‐case 4
basis. The DOC generally does not permit substitutions for religious 5
reasons. Instead, the DOC’s policy is to advise inmates to “refrain 6
from eating those food items which are contrary to [their] religious 7
beliefs.” App’x 250. 8
The DOC accommodates Williams’s dairy allergy, but often in 9
ways that conflict with his religion’s requirements. For example, the 10
DOC frequently replaces Williams’s cream cheese with grape jelly or 11
his cheese with meat. As a result, Williams cannot eat much of the 12
food the DOC offers him. His diet is largely confined to hot cereal, 13
bread, fruit, vegetables, soup, and peanut butter. Sometimes he tries 14
to trade the food he cannot eat with other inmates, even though 15
trading food is discouraged. 16
Since 2002, Williams has filed multiple grievances based on the 17
DOC’s refusal to accommodate his religiously required diet. Over the 18
years, he has asked for a variety of accommodations, including 19
transferring him to a facility that serves full kosher meals, providing 20
him with a kosher vegetarian meal that does not include grapes, 21
replacing the items he cannot eat with other items on the CAD, or 22

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7 No. 15‐1018
removing the items he cannot eat from his tray.3 These requests were 1
denied in accordance with the DOC’s policy regarding religious diets. 2
In April 2011, Williams, acting pro se, brought this action. 3
Williams alleged that the DOC violated his rights under the First 4
Amendment and RLUIPA by refusing to accommodate his religious 5
dietary restrictions, and he sought an injunction ordering the DOC to 6
provide him with the meals his religion required. The district court 7
denied Williams’s motion for a preliminary injunction in March 2012, 8
but denied the DOC’s motion to dismiss the following February. 9
In May 2014, the DOC moved for summary judgment, arguing 10
that it had a compelling interest in controlling costs and avoiding 11
administrative burdens. By way of support, the DOC proffered a 12
sworn declaration from Robert Schattinger, the DOC’s Director of 13
Correctional Food and Nutritional Services. Schattinger claimed that 14
the DOC’s experience with a kosher food line at its Green Haven 15
facility had taught it that running such a program is “extremely 16
expensive and administratively burdensome” and that such a service 17
“[could] not be provided” statewide. App’x 392. The declaration 18
stated that “maintaining the integrity of kosher [food] at the facility 19
level is problematic.” Id. To make kosher meals available to inmates 20
3 To Williams, it is important that an item he cannot eat be removed from
his tray because if it seeps onto other acceptable items it contaminates them.

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8 No. 15‐1018
statewide, Schattinger anticipated that the DOC would have to 1
prepare meals at a kosher site, seal them, and ship them to each 2
facility, which would require purchasing new equipment and hiring 3
more staff. Additionally, Schattinger anticipated that extra time and 4
energy would be required to figure out how to provide inmates 5
adequate nutrition in a menu without meat. Due to these “fiscal and 6
practical considerations,” Schattinger declared, “the Department has 7
determined that a [kosher vegetarian] menu will not be provided,” 8
since doing so is “not financially or administratively feasible.” App’x 9
392–93. 10
The district court assigned the motion for summary judgment 11
to a magistrate judge. The magistrate judge determined that there was 12
no dispute that Williams’s religious beliefs were “sincerely held” and 13
that those beliefs were “substantially burdened” by the DOC’s policy. 14
Special App’x 45–47. Nevertheless, the magistrate judge found that 15
the DOC’s refusal to modify the menu for Williams furthered a 16
compelling state interest in minimizing costs and administrative 17
burdens and was the least restrictive way of furthering those interests. 18
The magistrate judge thus recommended that the district court grant 19
summary judgment to the DOC. Shortly before the district court 20
decided the motion, the Supreme Court handed down Holt v. Hobbs, 21
135 S. Ct. 853 (2015), clarifying the standard applicable to RLUIPA 22
claims. The district court adopted the magistrate’s recommendation 23

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9 No. 15‐1018
and entered summary judgment for the DOC without considering 1
Holt. Williams timely appealed. 2
After the district court granted summary judgment, the DOC 3
reported that it had made significant changes to its kosher meal 4
program. In fact, the day after the DOC’s brief was due in this appeal, 5
the facility where Williams was then housed adopted a new kosher 6
menu. The new menu is a largely vegetarian diet, with meat served 7
twice per week and eggs once per week. The new meals are prepared 8
at a kosher facility and prepackaged with a clear plastic lid and 9
double‐wrapping. That packaging gives the DOC greater capability 10
to make kosher‐compliant substitutions on a case‐by‐case basis. 11
Williams, however, was transferred to a facility that does not 12
participate in the new menu program. Regardless, even this new 13
menu includes items he cannot eat, and he has said that he will not 14
elect to adopt it. 15
In November 2015, we appointed pro bono counsel for Williams 16
to brief the issue of “whether summary judgment was warranted on 17
Appellant’s claim for injunctive relief (a nutritionally adequate diet 18
compliant with his religious beliefs) under the Religious Land Use 19
and Institutionalized Persons Act.” Mot. Order, Williams v. Fischer, 20
No. 15‐1018 (2d Cir. Nov. 4, 2015), ECF No. 55. 21

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10 No. 15‐1018
DISCUSSION 1
Williams argues on appeal that the district court erred in 2
granting summary judgment to the DOC because the district court 3
misunderstood, post‐Holt, the extent to which the DOC’s evidence of 4
a compelling interest and least restrictive alternatives must be 5
particularized to adequately respond to Williams’s specific request 6
for accommodations. 7
“We review a grant of summary judgment de novo, examining 8
the evidence in the light most favorable to, and drawing all inferences 9
in favor of, the non‐movant.” Sheppard v. Beerman, 317 F.3d 351, 354 10
(2d Cir. 2003). Summary judgment is appropriate where “there is no 11
genuine dispute as to any material fact and the movant is entitled to 12
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he submissions 13
of a pro se litigant must be construed liberally and interpreted to raise 14
the strongest arguments that they suggest.” Triestman v. Fed. Bureau of 15
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal 16
quotation marks and emphasis omitted). 17
I. Availability of a Permanent Injunction 18
The district court construed Williams’s complaint as seeking a 19
permanent mandatory injunction, but concluded that there was no 20
defendant against whom effective injunctive relief could be awarded 21
under RLUIPA. As the DOC concedes, this was an error. 22

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11 No. 15‐1018
Williams sued Brian Fischer, the Commissioner of the DOC, in 1
his official capacity. Before the district court ruled on Williams’s 2
motion for summary judgment, Fischer retired, and Williams did not 3
separately sue his successor. 4
Fischer’s retirement had no effect on Williams’s ability to obtain 5
injunctive relief. It is settled that “suits against officers in their official 6
capacity . . . are directed at the office itself.” Tanvir v. Tanzin, No. 16‐ 7
1176, 2018 WL 3096962, at *7 n.7 (2d Cir. June 25, 2018) (as amended) 8
(citing Fed. R. Civ. P. 17(d)). So, when a “defendant in an official 9
capacity suit leaves office, the successor to the office replaces the 10
originally named defendant.” Id.; see also Fed. R. Civ. P. 25(d) (“An 11
action does not abate when a public officer who is a party in an official 12
capacity . . . ceases to hold office while the action is pending. The 13
officer’s successor is automatically substituted as a party.”). 14
Once Fischer retired, his successor, Acting Commissioner 15
Anthony Annucci, was “automatically substituted” as a defendant. 16
Fed. R. Civ. P. 25(d). And it is Annucci who has the power to order 17
that Williams be accommodated. See N.Y. Correct. Law § 112(1). 18
II. The Effect of Changes in DOC Policy 19
Next, we must decide what effect, if any, the recent changes to 20
the DOC’s dietary policy have on Williams’s appeal. The DOC 21
suggests that in light of these changes this case might be moot under 22
RLUIPA’s safe harbor provision or otherwise. 23

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12 No. 15‐1018
“In order for a federal court to retain jurisdiction over a case, 1
an actual controversy must exist at all stages of review, not merely at 2
the time the complaint is filed.” Prins v. Coughlin, 76 F.3d 504, 506 (2d 3
Cir. 1996) (per curiam) (internal quotation marks omitted). “A case is 4
deemed moot where the problem sought to be remedied has ceased, 5
and where there is no reasonable expectation that the wrong will be 6
repeated.” Id. (internal quotation marks omitted). “[A] case becomes 7
moot only when it is impossible for a court to grant any effectual relief 8
whatever to the prevailing party.” Chevron Corp. v. Donziger, 833 F.3d 9
74, 124 (2d Cir. 2016) (internal quotation marks and emphasis 10
omitted). RLUIPA encourages institutions to accommodate inmate 11
requests by exempting from liability institutions that change 12
challenged policies, exempt substantially burdened inmates, or take 13
“any other means that eliminates the substantial burden.” 42 U.S.C. § 14
2000cc‐3(e). 15
First, the DOC argues that the mootness point is better resolved 16
by the district court. The DOC relies on Lumbermens Mutual Casualty 17
Co. v. RGIS Inventory Specialists, LLC, 356 F. App’x 452, 453–54 (2d Cir. 18
2009), a case in which we remanded to the district court to determine 19
whether the action was mooted by a settlement in another case 20
because “the question of mootness is, at least in part, factual” and 21
“dependent . . . on the terms and circumstances of the settlement.” Id. 22
at 454. That case is distinguishable. Here, the facts pertaining to 23

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13 No. 15‐1018
mootness are uncontested: the DOC has not agreed to provide 1
Williams with his requested diet; the new menu, like the old menu, 2
includes items that Williams cannot eat; and the new kosher menu is 3
not available where Williams is currently incarcerated. No additional 4
factfinding is required. 5
In a variation of its mootness argument, the DOC argues that 6
we should remand without addressing the merits so the district court 7
can consider the new record in the first instance. The DOC’s reliance 8
on Farmer v. Brennan, 511 U.S. 825, 846–48 (1994), for this point is 9
misplaced, however, because there the Supreme Court clarified the 10
Eighth Amendment standard before remanding for the district court 11
to apply it. See id. In the “interest[] of judicial economy,” we opt to do 12
the same with regard to Williams’s RLUIPA claim. Florez v. Cent. 13
Intelligence Agency, 829 F.3d 178, 189 (2d Cir. 2016).4 14
15
4 The DOC has also asked us to invoke our inherent authority to “vacate,
set aside or reverse any judgment, decree, or order of a court” under 28
U.S.C. § 2106 and employ our so‐called Jacobson remand procedure by
remanding the case to the district court to “consider arguments” and
“weigh relevant evidence . . . in the first instance” while keeping the appeal.
Florez, 829 F.3d at 189; see also United States v. Jacobson, 15 F.3d 19, 21–22 (2d
Cir. 1994). Because we conclude that there are independent reasons for
remanding to the district court, we do not separately address this issue. On
remand, as discussed further in Section III, infra, the district court should
consider the DOC’s ability to accommodate Williams in light of the recent
changes to DOC policy. See Farmer, 511 U.S. at 846–48 (clarifying applicable
standard before remanding for the district court to apply it with reference
to the updated factual record).

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14 No. 15‐1018
III. RLUIPA Claim 1
RLUIPA states that “[n]o government shall impose a 2
substantial burden on the religious exercise of a person residing in or 3
confined to an institution . . . unless the government demonstrates 4
that imposition of the burden on that person—(1) is in furtherance of 5
a compelling governmental interest; and (2) is the least restrictive 6
means of furthering that compelling governmental interest.” 42 7
U.S.C. § 2000cc‐1(a). In practice, RLUIPA claims are evaluated under 8
a burden‐shifting framework whereby a plaintiff must first 9
demonstrate that the state has imposed a substantial burden on the 10
exercise of her religion; the burden then shifts to the state to 11
demonstrate “that the challenged policy or action furthered a 12
compelling governmental interest and was the least restrictive means 13
of furthering that interest.” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 14
2010). 15
The district court agreed with Williams that his religious 16
exercise had been substantially burdened by the DOC’s policy of not 17
providing him with religious dietary accommodations, but 18
determined that the DOC had “met the burden of showing that for 19
financial and administrative reasons” the DOC had a compelling state 20
interest in limiting menu options. Special App’x 56. Williams argues 21
that the DOC’s compelling interest showing was inadequate 22
particularly in the wake of Holt. 23

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15 No. 15‐1018
In Holt, the Supreme Court considered a Muslim inmate’s 1
RLUIPA challenge to an Arkansas Department of Correction policy 2
that prohibited him from growing a half‐inch beard. See 135 S. Ct. at 3
859. The department justified its policy by asserting compelling 4
interests in (1) stopping the flow of contraband, and (2) facilitating 5
prisoner identification. See id. The department’s staff testified to these 6
concerns, but was unable to point to any actual problems that beards 7
had caused. See id. at 861. One official acknowledged that prisoners 8
could also hide contraband in clothing or the hair on their heads and 9
could not explain why taking photos of inmates without a beard 10
would not address the identification concern. See id. That official also 11
testified that keeping track of exempt inmates’ beard length would be 12
difficult, but he could not offer any reason why doing so would be 13
any more difficult than tracking the beard length of those with 14
medical exemptions, something the department already did. See id. 15
Even so, the district court held that the department had sufficiently 16
shown that banning half‐inch beards was the least restrictive means 17
of furthering its compelling interest in security. See id. The Eighth 18
Circuit affirmed. Id. 19
The Supreme Court reversed, holding that the department’s 20
evidence did not discharge its burden to show that it had a compelling 21
interest in burdening Holt. Id. at 863–67. The Court’s reasoning is 22
helpful guidance in applying RLUIPA to Williams’s case. 23

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16 No. 15‐1018
First, Holt made it plain that courts need not accept the 1
government’s claim that its interest is compelling on its face. See id. at 2
864, 866. The Court held that the district court erred in thinking that 3
it was required to defer to the government’s assertion that inmates 4
could hide contraband in their beards, a claim that even the 5
magistrate judge had remarked was “almost preposterous.” Id. at 861, 6
863–64. The Court acknowledged that courts should respect prison 7
officials’ expertise in “evaluating the likely effects of altering prison 8
rules.” Id. at 864. But because Congress passed RLUIPA “to provide 9
very broad protection for religious liberty,” courts abdicate their 10
responsibility to “apply RLUIPA’s rigorous standard” by deferring to 11
the government’s “mere say‐so” without question. Id. at 859, 864, 866. 12
Second, evidence of a policy’s underinclusiveness relative to 13
“analogous nonreligious conduct” may cast doubt on both whether 14
the government’s asserted interest is compelling and whether that 15
policy actually is the least restrictive means of furthering that interest. 16
See id. at 866 (internal quotation marks omitted). In Holt, the Court 17
observed that the department insisted that it needed inmates to shave 18
their beards to stop the spread of contraband and to quickly identify 19
prisoners, but did not require them to go “bald, barefoot, or naked,” 20
which suggested a tailoring problem—namely, that “those interests 21
could be achieved by narrower ordinances that burdened religion to 22
a far lesser degree.” Id. (internal quotation marks omitted); accord 23

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17 No. 15‐1018
United States v. Secʹy, Fla. Depʹt of Corr., 828 F.3d 1341, 1349 (11th Cir. 1
2016) (noting that the lack of explanation for why the government 2
offered special, nonreligious diets at similar costs, but not kosher 3
meals, suggested a less burdensome policy was possible). This 4
observation was consistent with previous cases in which the Court 5
had found that a policy’s underinclusiveness suggests that the 6
proffered interest is not quite as compelling as the government claims. 7
See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 8
547 (1993) (“[A] law cannot be regarded as protecting [a compelling 9
interest] when it leaves appreciable damage to that supposedly vital 10
interest unprohibited.” (internal quotation marks and alteration 11
omitted)); accord Yellowbear v. Lampert, 741 F.3d 48, 60 (10th Cir. 2014) 12
(in which then–Circuit Judge Gorsuch wrote that “[a] law’s 13
underinclusiveness—its failure to cover significant tracts of conduct 14
implicating the law’s animating and putatively compelling interest— 15
can raise with it the inference that the government’s claimed interest 16
isn’t actually so compelling after all”). 17
Third, the government’s compelling interest must be defined at 18
an appropriately reduced level of generality—that is, the government 19
must justify its conduct by demonstrating not just its general interest, 20
but its particularized interest in burdening the individual plaintiff in 21
the precise way it has chosen. See Holt, 135 S. Ct. at 863. The Court in 22
Holt rejected the government’s “broadly formulated” interest in 23

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18 No. 15‐1018
prison safety and security and insisted instead that the government 1
“demonstrate that the compelling interest test is satisfied through 2
application of the challenged law to the person—the particular 3
claimant whose sincere exercise of religion is being substantially 4
burdened.” Id. (internal quotation marks and alterations omitted). 5
While the Court agreed that the government had a compelling 6
interest in “staunching the flow of contraband into and within its 7
facilities,” the Court rejected the government’s argument that “this 8
interest would be seriously compromised by allowing an inmate to 9
grow a ½–inch beard.” Id. 10
With these principles in mind, we consider Williams’s 11
challenge to the DOC’s dietary policy. 12
A. The Government’s Interest 13
In the district court, the DOC justified its refusal to 14
accommodate Williams’s dietary requirements by citing its 15
compelling interest in controlling costs and avoiding administrative 16
burdens. Neither party disputes that the DOC generally has a 17
compelling interest in controlling costs and avoiding administrative 18
burdens—or as another circuit has put it, an interest in “cost‐efficient 19
food service.” See Curry v. Cal. Dep’t of Corr. & Rehab., 616 F. App’x 20
265, 266 (9th Cir. 2015). What the parties do dispute is the specificity 21
with which the DOC is required to make such a showing. 22
23

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19 No. 15‐1018
We first observe that the government’s interest in reducing 1
costs is less compelling in the RLUIPA context than it is elsewhere. 2
That is because RLUIPA explicitly states that complying with its 3
terms “may require a government to incur expenses in its own 4
operations to avoid imposing a substantial burden on religious 5
exercise,” codifying a congressional preference that prisons incur 6
additional costs to accommodate inmates’ free exercise rights. 42 7
U.S.C. § 2000cc‐3(c). 8
Even before Holt, our circuit insisted that the government‘s 9
proffered interests be particularized. For instance, in Salahuddin v. 10
Goord, 467 F.3d 263, 275 (2d Cir. 2006), an inmate challenged the 11
prison’s joint Ramadan services for Sunnis and Shi’ites. The prison 12
argued that the burden to the Sunni plaintiff of having to attend a 13
joint service was outweighed by the prison’s legitimate penological 14
concerns regarding “security, as well as fiscal, space, and staffing 15
limitations,” but did not point to any evidence in the record to 16
support those claims. Id. at 270, 275. We vacated the grant of summary 17
judgment to the defendants, reasoning that this court cannot 18
“manufacture facts out of thin air” and that “it is the defendants’ duty 19
on summary judgment to cite record evidence” to establish that its 20
interest is compelling. Id. at 275. In contrast, in Jova v. Smith, 582 F.3d 21
410 (2d Cir. 2009) (per curiam), we held that the government had 22
sufficiently justified certain dietary restrictions it imposed on a 23

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20 No. 15‐1018
practicing Tulukeesh inmate who required a “complex, highly 1
regimented non‐soybean‐based vegan diet” only after the 2
government submitted “voluminous affidavits and exhibits” 3
documenting the burdens of accommodation. Id. at 414–16. In doing 4
so, we made clear that “the state may not merely reference an interest 5
. . . to justify its actions”; “rather, the particular policy must further 6
this interest, and must be more than conclusory.” Id. at 415 (internal 7
citation and quotation marks omitted). 8
The DOC, citing to pre‐Holt cases, argues that the district court 9
correctly concluded that by proffering Schattinger’s declaration it met 10
its burden to show that it had a compelling interest in cost‐efficient 11
food service. We disagree. 12
At the most, the DOC’s cases and others show that courts have 13
found a compelling government interest in reducing costs where the 14
government submitted detailed affidavits that showed that adopting 15
the requested dietary restriction would significantly increase costs 16
and administrative burdens. See, e.g., Curry, 616 F. App’x at 266, aff’g 17
2013 WL 75769, at *4, *9 (N.D. Cal. Jan. 4, 2013) (affirming grant of 18
summary judgment where the record included specific evidence 19
calculating the costs of accommodating the inmate’s restrictions to be 20
thirty times more than the regular cost of feeding a prisoner and 21
showing that the closest store where appropriate food could be 22
purchased was 35 miles away). But see Moussazadeh v. Tex. Depʹt of 23

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21 No. 15‐1018
Criminal Justice, 703 F.3d 781, 795–96 (5th Cir. 2012) (remanding for 1
further factfinding as to whether there was a compelling interest in 2
cost savings in denying kosher meals where there was evidence in the 3
record that providing kosher meals to all observant prisoners would 4
cost around $88,000 a year, causing the court to be “skeptical that 5
saving less than .05% of the food budget constitutes a compelling 6
interest”). 7
The DOC has not shown on the present record that 8
accommodating Williams would significantly increase costs and 9
administrative burdens. The record, unlike the one in Jova, is not 10
replete with “voluminous affidavits and exhibits,” 582 F.3d at 414–16, 11
but instead includes only one declaration that claims, in a conclusory 12
manner, that “[d]ue to fiscal and practical considerations . . . the 13
Department has determined that a [kosher vegetarian] menu will not 14
be provided”; that “[d]esignating and providing a new kosher 15
vegetarian food line would bring . . . challenges”; and that providing 16
the food would be “exceedingly burdensome to existing staff and 17
facility resources” so it “is not financially or administratively 18
feasible.” App’x 392–93. The DOC has not said precisely how much 19
these changes would cost or the amount of that cost relative to the 20
overall cost of feeding inmates. Nor has it shown the added cost, if 21
any, of accommodating Williams’s alternative suggestions, such as 22
not placing foods he cannot eat on his tray or giving him more of 23

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22 No. 15‐1018
certain foods the DOC already prepares. The DOC’s showing of what 1
seems to be its “marginal interest” in cost‐efficiency as to Williams 2
falls short of meeting its justification burden. Holt, 135 S. Ct. at 863. 3
As was the case in Holt, the DOC’s policy is underinclusive 4
because the DOC accommodates comparable medical dietary 5
restrictions. Such unexplained disparate treatment of “analogous 6
nonreligious conduct” leads us to question whether the DOC’s 7
interest in cost‐efficiency is as compelling as it suggests given that 8
there is no evidence that these medical accommodations have 9
increased costs significantly or impaired efficiency. See Church of the 10
Lukumi Babalu Aye, 508 U.S. at 546–47. Of course, the DOC might have 11
a reasonable explanation for this evident underinclusiveness, but, to 12
date, it has not offered one. See Knight v. Thompson, 797 F.3d 934, 944– 13
45 (11th Cir. 2015). 14
Even if the DOC’s evidence were more detailed, it still might be 15
inappropriate to accept its word that Williams’s accommodations 16
would be cost inefficient. See Holt, 135 S. Ct. at 866. The fact that the 17
DOC continues to operate a kosher meal facility at Green Haven and 18
has since reformed its system by providing prepackaged kosher 19
meals casts considerable doubt on the DOC’s claim that providing 20
kosher vegetarian food to Williams is too expensive and 21
administratively burdensome. Indeed, it appears that the systems are 22
now in place that Schattinger anticipated would be too costly to 23

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23 No. 15‐1018
build—namely, systems for preparing food off site, individually 1
sealing it, and then reheating it on site. Taking the DOC at its word 2
under such circumstances would involve “a degree of deference that 3
is tantamount to unquestioning acceptance.” Id. at 864.5 4
To the extent that the DOC’s argument is that Williams’s 5
request is administratively burdensome because it would lead to 6
more requests for accommodation from inmates, it is the “classic 7
rejoinder of bureaucrats throughout history” rejected by the Supreme 8
Court in Holt. Id. at 866 (internal quotation marks omitted). In fact, 9
narrowing the pool of potential accommodations is what the sincerity 10
requirement accomplishes: it ensures that accommodations are only 11
available to the few who sincerely hold protected beliefs. Id. at 866–67 12
(noting that if prison officials suspect inmates are using 13
accommodations in bad faith “prison officials may appropriately 14
question whether a prisoner’s religiosity, asserted as the basis for a 15
requested accommodation, is authentic”); see also Fla. Depʹt of Corr., 16
5 This is not to say that we would hold against a prison the efforts that it
makes to accommodate inmates. In fact, RLUIPA provides a safe harbor for
prisons that remediate infringing policies. See 42 U.S.C. § 2000cc‐3(e). But
where a facility has demonstrated a capability to accommodate inmates but
chooses not to do so, we are well within bounds to consider that capability
when determining how burdensome accommodating the plaintiff would
actually be. See Secʹy, Fla. Depʹt of Corr., 828 F.3d at 1347–48 (considering
fact that department had previously provided kosher meals statewide
relevant to whether current policy denying kosher food furthered state’s
compelling interest in cost containment).

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24 No. 15‐1018
828 F.3d at 1349 (rejecting argument that cutting statewide kosher 1
food service furthered state’s compelling interest in cost containment 2
where record included evidence that the department was not 3
enforcing the rules of participation or screening out insincere 4
applicants). 5
In sum, we conclude that the DOC failed to meet its burden of 6
showing with particularity that it had a compelling interest in not 7
accommodating Williams. 8
B. Least Restrictive Means 9
The government has also failed to show that its policy of not 10
accommodating Williams is the least restrictive means of achieving 11
its stated goal of running a cost‐efficient food service program. 12
“The least‐restrictive‐means standard is exceptionally 13
demanding, and it requires the government to show that it lacks other 14
means of achieving its desired goal without imposing a substantial 15
burden on the exercise of religion by the objecting party.” Holt, 135 S. 16
Ct. at 864 (internal quotation marks and alterations omitted). “If a less 17
restrictive means is available for the Government to achieve its goals, 18
the Government must use it.” Id. (internal alteration omitted). 19
Whether a proffered alternative is the least restrictive means is a fact‐ 20
intensive inquiry. See Jova, 582 F.3d at 417 (remanding because further 21
factfinding was required to determine whether the chosen policy was 22

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25 No. 15‐1018
the least restrictive means); Robinson v. Superintendent Houtzdale SCI, 1
693 F. App’x 111, 117 (3d Cir. 2017). 2
To establish that its chosen policy is the least restrictive means, 3
the DOC must prove that each of the inmate’s proffered alternatives 4
is too burdensome. See Holt, 135 S. Ct. at 864–65 (holding that 5
defendants “fail[ed] to prove that [inmate’s] proposed alternatives 6
would not sufficiently serve its . . . interests”). For example, in Jova, 7
the Tulukeesh‐inmate plaintiff challenged the government’s refusal 8
to provide him specific foods, on particular days, prepared only by 9
Tulukeesh adherents. 582 F.3d at 417. Although we held that the 10
government was not required under RLUIPA to grant the defendant’s 11
full dietary request, we remanded because “there [was] no indication 12
that the Defendants discussed, let alone demonstrated, why they 13
[could not] provide an entirely vegetarian menu to inmates who 14
request it” and therefore they “did not demonstrate that the 15
religious/meatless alternative menu was the least restrictive means of 16
furthering their compelling administrative interests.” Id. 17
To show that the chosen policy is the least restrictive means of 18
furthering the government’s compelling interest, the government 19
must again account for a policy’s underinclusiveness. See Holt, 135 S. 20
Ct. at 864–66. For example, in Holt, the government failed to show that 21
its policy preventing inmates from growing a half‐inch beard was the 22
least restrictive means where it already searched the quarter‐inch 23

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26 No. 15‐1018
beards of inmates with dermatological conditions and “[i]t ha[d] 1
offered no sound reason why hair, clothing, and ¼–inch beards can 2
be searched but ½–inch beards cannot.” Id. at 864; see also Knight, 797 3
F.3d at 944–45, 947 (upholding district court’s judgment for the 4
department in case challenging department’s policy requiring only 5
male inmates to have short hair where department introduced 6
evidence of specific incidents where male, but not female, inmates 7
had used long hair to conceal contraband and infections, cut hair to 8
conceal identity, and grabbed hair during fights). 9
The DOC here has not made this difficult showing. First, the 10
policy’s underinclusiveness suggests, as it did in Holt, that a more 11
tailored policy, less burdensome to Williams, is possible. 135 S. Ct. at 12
866. Specifically, the DOC has not explained how the religious 13
exception Williams has asked for (swapping out religiously forbidden 14
foods) is any more administratively burdensome than the medical 15
exception he already receives (swapping out allergy‐producing 16
foods). Such unexplained disparate treatment of “analogous 17
nonreligious conduct” leads us to suspect that a narrower policy that 18
burdens Williams to a lesser degree is in fact possible. See id. 19
Second, the DOC has not shown that Williams’s proposed 20
alternatives are not viable. See id. at 864–65. Construing Williams’s pro 21
se district court submissions liberally, as we must, Triestman, 470 F.3d 22
at 474, he has identified three ways the DOC could accommodate him, 23

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27 No. 15‐1018
each of which is potentially less restrictive than its current policy: the 1
DOC could (1) serve Williams a kosher vegetarian meal—whether by 2
establishing a kosher vegetarian line at the facility level or shipping 3
in prepackaged kosher food; (2) provide Williams with a modified 4
version of the CAD menu, replacing items Williams cannot eat with 5
high‐protein foods or with other CAD items; or (3) refrain from 6
putting forbidden foods on Williams’s tray. Like the department in 7
Jova, the DOC here did not discuss, much less demonstrate, why it 8
could not, at least, give Williams more of the acceptable food it 9
already prepares or stop serving him foods he cannot eat. See 582 F.3d 10
at 417. Moreover, it seems that Williams’s request that he be served a 11
full kosher vegetarian meal could be no more than minimally 12
burdensome given the DOC’s new ability to make kosher‐compliant 13
substitutions. Just how restrictive these alternatives are, however, is a 14
fact question that is better left for the district court to consider in the 15
first instance. See id. 16
For these reasons, the DOC has not satisfied its burden under 17
RLUIPA, and the district court erred in granting it summary 18
judgment. Because fact questions remain as to whether the DOC’s 19
interest is compelling and its means are the least restrictive, in light of 20
Williams’s suggested alternatives, we remand for further factfinding. 21
See id. 22

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28 No. 15‐1018
We would be remiss not to express our disappointment with 1
the DOC’s approach to litigating this case. It has been seven years 2
since Williams initially filed his complaint. During that time, the 3
record indicates that every day, three meals a day, Williams has been 4
forced to cobble together sufficient food to eat while adhering to his 5
protected religious diet. Meanwhile, the DOC failed to file a brief that 6
grappled with Williams’s argument about how Holt impacted the 7
RLUIPA analysis, thereby prolonging this case. In situations like this, 8
we would have to be naïve to overlook that it is in the government’s 9
interest to wage a war of attrition that draws out judicial proceedings 10
until the plaintiff‐inmate is released and the case is mooted. Now that 11
the applicable standard has been clarified, we look forward to a 12
speedy resolution of this dispute. 13
CONCLUSION 14
We therefore VACATE the district court’s grant of summary 15
judgment on Williams’s claim for injunctive relief, and REMAND for 16
further proceedings consistent with this opinion. The DOC’s motion 17
to vacate judgment and remand is DENIED as moot. 18
19

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