Kosher Meals Lawsuit Against Nevada DOC Dismissed

by Matt Clarke

On August 12, 2012, a Nevada federal district court approved a notice of proposed settlement in a class-action civil rights suit brought by a Jewish prisoner over the announced intent of the Nevada Department of Corrections (DOC) to stop providing kosher meals. However, 45 of the 300 Nevada prisoners who were already receiving kosher meals objected to the proposed settlement, the class was later decertified and the case, which was dismissed in August 2014, is now on appeal to the Ninth Circuit.

As a result of a settlement in prior federal litigation, Jewish prisoners held in DOC facilities were provided kosher meals at an annual cost of about $1.5 million. The meals came from an outside catering service and were individually wrapped in disposable trays. In 2011, the DOC announced its intention to cease providing kosher meals and require Jewish prisoners to eat a non-kosher “common fare” diet.

Howard Ackerman, 52, an Orthodox Jew incarcerated at the Lovelock Correctional Center, filed a federal class-action suit pursuant to 42 U.S.C. § 1983, alleging that the change in the DOC’s kosher diet policy violated his First Amendment rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc. The district court approved a class that included three subclasses: 1) DOC prisoners who are practicing Orthodox Jews and receive the current kosher diet; 2) DOC prisoners whose sincerely-held religious beliefs require a kosher diet, and who submitted an affidavit of inclusion to class counsel; and 3) DOC prisoners currently receiving the kosher diet by court order in the prior litigation. Ackerman later amended his complaint to include a claim of being transferred to another prison and denied the then-still-available kosher meals in retaliation for filing his lawsuit.

The district court entered an injunction to prevent the DOC from serving non-kosher meals to Ackerman or any of the other Jewish prisoners receiving kosher meals who were affected by the DOC’s policy change.

The parties then agreed to settle the case. The settlement would require the DOC to receive kosher certification of prison kitchen facilities by the non-profit organization Scroll K / Vaad Hakashrus. Kosher meals would have to be made available to class members, be certified by a rabbi as being kosher and certified by a DOC-hired nutritionist as providing “proper nutritional values for the dietary requirements of an adult male between the ages of 21-55 years with moderate physical activity (30 minutes or more).” The settlement further required the DOC to maintain the certifications and to make the kosher meal plan available to class members in minimum-security facilities and conservation camps as well as higher-security prisons.

In preparation for the proposed settlement, the district court approved a notice to be distributed to DOC prisoners that included information on how to file objections. Many Jewish prisoners did just that.

Nearly 300 DOC prisoners were receiving kosher meals under the prior federal litigation. Forty-five objected to the new kosher meal plan on the grounds that the food, which would be prepared in kosher-certified prison kitchens, was not up to the standards of meals served to the rest of the DOC population and lacked nutritional value. The court held a fairness hearing on October 11, 2012 and took the matter under advisement.

The Nevada Board of Examiners had approved contracts to provide kosher prison kitchens and rabbinical supervision of kosher food preparation; however, on May 3, 2013 the district court rejected the proposed settlement agreement and dissolved the preliminary injunction. The court also decertified the class.

Ackerman filed emergency objections seeking reconsideration, stating the court had “stripped the Plaintiffs of their guarantee to receive kosher food, a protected First Amendment right, dissolved a class which this Court had already certified, and rejected a settlement agreement based on concerns raised by certain class members about issues that are not even relevant or a part of the instant action.” The motion for reconsideration was denied in December 2013.

The defendants filed a motion to dismiss or for summary judgment on April 28, 2014, which was granted by the district court in August 2014 because plaintiffs’ counsel had failed to file a response to the motion. Under a local court rule, “[t]he failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion.”

Ackerman has since appealed the dismissal to the Ninth Circuit, and his appeal remains pending. See: Ackerman v. State of Nevada Department of Corrections, U.S.D.C. (D. Nev.), Case No. 2:11-cv-00883-GWN-PAL.

Additional source: www.jta.org

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