Mondrea Vinning-El v. JOHN EVANS and RICK SUTTON

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1681
MONDREA VINNING-EL,
Plaintiff-Appellee,
v.
JOHN EVANS and RICK SUTTON,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-cv-570-DRH-CJP—David R. Herndon, Chief Judge.
ARGUED FEBRUARY 25, 2011—DECIDED SEPTEMBER 16, 2011
Before EASTERBROOK, Chief Judge, and FLAUM and
ROVNER, Circuit Judges.
EASTERBROOK, Chief Judge. While he was confined at
Pinckneyville Correctional Center, Mondrea Vinning-El
asked for a vegan diet. He told the prison’s
chaplain, Rick Sutton, that he adheres to the Moorish
Science Temple of America. Sutton turned Vinning-El
down, observing that the tenets of Moorish Science
require a non-pork diet, which can include dairy

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2 No. 10-1681
products and many kinds of meat and fish. Vinning-El,
who contends that his religious beliefs require a vegan
diet no matter what other members of his sect believe,
then filed this suit against Sutton and John Evans, the
warden, under both 42 U.S.C. §1983 and the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C.
§§ 2000cc to 2000cc–5. Both defendants moved for sum-
mary judgment, which the district court granted on the
RLUIPA claim and denied on the §1983 claim. 694
F. Supp. 2d 1009 (S.D. Ill. 2010). Defendants have taken
an interlocutory appeal, contending that they are
entitled to the benefit of qualified immunity.
Vinning-El is no longer at Pinckneyville and is receiving
a vegan diet at his current prison, so damages would be
the only potential relief. The Supreme Court held in
Sossamon v. Texas, 131 S. Ct. 1651 (2011), that money
damages are not available in suits against states under
the RLUIPA—and suits against state employees in their
official capacity are treated as suits against the states
themselves. See Will v. Michigan Department of State
Police, 491 U.S. 58 (1989). To the extent that Vinning-El
has sued Evans and Sutton in their personal capacities
he fares no better, given our holding in Nelson v.
Miller, 570 F.3d 868 (7th Cir. 2009), that RLUIPA does not
authorize any kind of relief against public employees, as
opposed to governmental bodies that receive federal
funds and accept the conditions attached by the statute.
So both defendants prevail against the RLUIPA claim,
as the district court held.
Warden Evans is entitled to prevail on the §1983 claim
without any need to consider immunity. Section 1983

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No. 10-1681 3
does not authorize “supervisory liability.” See Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1947–49 (2009). Section 1983
creates liability only for a defendant’s personal acts or
decisions. Vinning-El does not contend that Evans made
or ratified the decision about his diet. The district court
therefore should have granted Evans’s motion for sum-
mary judgment.
The remaining subject is whether chaplain Sutton has
qualified immunity, which comprises two questions: first
whether the plaintiff has a good constitutional claim,
and second whether the right in question was “clearly
established” before the contested events. Pearson v.
Callahan, 555 U.S. 223, 233–42 (2009), holds that the
court has discretion to resolve either or both of these
questions. We need to consider the first in order to facili-
tate discussion of the second, though it turns out to
be unnecessary to give a definitive answer to either.
Although prisoners enjoy rights under the free-exercise
clause of the first amendment (applied to the states by
the due process clause of the fourteenth amendment),
many decisions hold that these rights are subject to
limits appropriate to the nature of prison life. Restric-
tions are permissible if they are reasonably related to
legitimate penological objectives. Turner v. Safley, 482
U.S. 78, 89–91 (1987); see also, e.g., O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348–49 (1987).
Pinckneyville did not limit Vinning-El’s right to wor-
ship. Instead it turned down a request for an accommoda-
tion of his demand for a diet that is unavailable to non-
believers. Employment Division v. Smith, 494 U.S. 872

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4 No. 10-1681
(1990), holds that the free-exercise clause does not
require accommodation of religious practices, and that
identical treatment of believers and non-believers
satisfies the first amendment. The Supreme Court has
never considered how Smith applies to prisons and
whether it supersedes Turner when a prisoner seeks
an accommodation. Several courts of appeals have
noticed the tension between Smith and Turner and
declined to decide which applies, to the extent that they
differ. See, e.g., Boles v. Neet, 486 F.3d 1177, 1181–82 (10th
Cir. 2007) (collecting authority). We likewise can post-
pone resolution of this question, for two reasons.
First, defendants briefed this appeal on the basis of
Turner and even after the issue was raised at oral
argument did not argue that we should apply Smith.
Second, Illinois has not declined to accommodate pris-
oners’ religious dietary requests. Vinning-El complains
not so much about a lack of accommodation as he
does about discrimination against particular religious
beliefs. As Vinning-El characterizes chaplain Sutton’s
policy, the dietary rules of organized faiths will be ac-
commodated, and the dietary rules of personal faiths
will not be. Smith does not apply to such a policy; it
did not change the norm forbidding materially different
treatment of different religious faiths. See, e.g., Al-Alamin
v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991).
A personal religious faith is entitled to as much pro-
tection as one espoused by an organized group. Frazee
v. Illinois Department of Employment Security, 489 U.S. 829,
834 (1989); see also Hernandez v. CIR, 490 U.S. 680, 699

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No. 10-1681 5
(1989). Hierarchical religions, such as the Roman Catholic
Church, believe that only the group’s leaders can
establish and articulate the group’s tenets on central
issues of faith. But non-hierarchical religions, such as
most Protestant and Islamic sects, believe that every
worshipper has a direct connection to God. This doc-
trine of the “priesthood of believers” was one of the
major reasons for the Protestant schism from the
Catholic Church. No state is entitled to insist that
the Catholic Church is right and that adherents to every
faith therefore must espouse all, and only, those beliefs
that have the support of a sect’s leadership. If chaplain
Sutton refused to approve religious diets for inmates
who differ on dietary questions from their church’s
leaders, he violated clearly established rules of constitu-
tional law—for Frazee was decided long before Vinning-El
sought a vegan diet.
But is this what Sutton did? Dean Lauren Robel, who
briefed and argued this appeal as amicus curiae on Vinning-
El’s behalf, acknowledges that a special diet need not
be provided on demand. Sincere religious beliefs must be
accommodated (at least when failure to accommodate
a particular belief would amount to discrimination
against one sect, or a personal faith), but non-religious
beliefs need not be. See, e.g., Thomas v. Review Board, 450
U.S. 707, 713 (1981); United States v. Seeger, 380 U.S. 163,
185 (1965); Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th
Cir. 2005); Fifth Avenue Presbyterian Church v. New York
City, 293 F.3d 570, 574 (2d Cir. 2002). A prison is entitled
to ensure that a given claim reflects a sincere religious
belief, rather than a preference for the way a given diet

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6 No. 10-1681
tastes, a belief that the preferred diet is less painful
for animals, or a prisoner’s desire to make a pest of
himself and cause trouble for his captors. And although
sincerity rather than orthodoxy is the touchstone, a
prison still is entitled to give some consideration to an
organization’s tenets. For the more a given person’s
professed beliefs differ from the orthodox beliefs of
his faith, the less likely they are to be sincerely held.
Very few people who identify themselves as Baptists
sincerely believe that a halal or vegan diet is obligatory
on religious grounds. Such a belief isn’t impossible, but
it is sufficiently rare that a prison’s chaplain could be
skeptical and conduct an inquiry to determine whether
the claim was nonetheless sincere.
So what did chaplain Sutton do? If he turned Vinning-El
down for the sole reason that Moorish Science does not
make a vegan diet a tenet of religious faith, then he vio-
lated Vinning-El’s clearly established rights and is not
entitled to immunity. But if Sutton thought Vinning-El
insincere—thought, in other words, that he wanted a
vegan diet for a non-religious reason—then Sutton is
entitled to immunity, even if a judge or jury disagrees
with the chaplain’s conclusion. Immunity protects public
employees who make reasonable errors in applying
even clearly established law. See, e.g., Malley v. Briggs,
475 U.S. 335, 341 (1986) (qualified immunity protects “all
but the plainly incompetent or those who knowingly
violate the law”); Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2085 (2011) (reiterating this conclusion).
Unfortunately, the district judge never addressed this
question. Instead of asking whether chaplain Sutton

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No. 10-1681 7
had evaluated Vinning-El’s sincerity (as opposed to his
orthodoxy), the judge framed as the controlling question
whether denying Vinning-El’s request for a vegan diet
“was the least restrictive means of furthering a com-
pelling governmental interest”. 694 F. Supp. 2d at 1013.
That’s the standard of RLUIPA, see §2000cc–1(a), not the
standard of the first amendment. It is also the standard
advocated by the Justices who dissented in Smith.
After the Supreme Court decided Smith, Congress
enacted the Religious Freedom Restoration Act, 42 U.S.C.
§§ 2000bb to 2000bb–4, in an effort to adopt a least-
restrictive-means approach for public actors generally.
The Supreme Court replied in Boerne v. Flores, 521 U.S.
507 (1997), that the RFRA cannot be applied to states
through §5 of the fourteenth amendment, precisely
because it departs drastically from the holding of Smith
and therefore does not “enforce” the fourteenth amend-
ment, which is the extent of legislative power under §5.
The RLUIPA, which came next, relies on the national
commerce and spending powers. See 42 U.S.C.
§§ 2000cc(a)(2), 2000cc–1(b). Sossamon recounts this
history and emphasizes that both RFRA and RLUIPA
establish standards that differ from the free-exercise
clause of the first amendment.
The district court believed that our opinion in Nelson
had superseded the Supreme Court’s decisions and
made RLUIPA’s test the constitutional norm too. 694
F. Supp. 2d at 1013. Yet Congress cannot amend the
Constitution by ordinary legislation (RLUIPA was not
adopted through the means specified by Article V), and

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8 No. 10-1681
a court of appeals cannot overrule the Supreme Court. It
is true that some passages in Nelson, 570 F.3d at 880,
889, refer to §1983 and RLUIPA in the same breath, but
judicial opinions are not statutes—let alone constitu-
tional amendments. It is always important to under-
stand opinions in light of their holdings and not take
ambiguous statements for all they might be worth. None
of the litigants in Nelson had asked us to hold that
RLUIPA establishes a new constitutional standard,
and we did not purport to do any such thing. Any lan-
guage that could be misunderstood in this fashion is
not compatible with Boerne or Sossamon. It is the
opinions of the Supreme Court, not language of
§2000cc–1(a) or this court, that must be applied when
a question arises about the meaning of the first amend-
ment’s free-exercise clause.
For the reasons we have explained, to decide whether
chaplain Sutton has qualified immunity, the district judge
must determine whether he reasonably attempted to
determine whether Vinning-El has a sincere belief that
his religion requires a vegan diet. To put this slightly
differently, the judge needs to know whether Sutton
used the tenets of Moorish Science to disqualify Vinning-
El, or only as a reason to suspect that Vinning-El may
have been seeking a vegan diet for personal rather than
religious reasons. Qualified immunity poses a question
for the court, not a jury. See Hunter v. Bryant, 502 U.S. 224,
228 (1991). The district judge must hold a hearing and
make whatever findings are required to resolve the
qualified-immunity defense. If the judge concludes that
Sutton based his decision on the tenets of Moorish

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No. 10-1681 9
Science, rather than his understanding of Vinning-El’s
own religious beliefs, then Sutton is not entitled to im-
munity, and it will be necessary to hold a jury trial
to determine whether Vinning-El actually had a
sincere religious belief in the necessity of a vegan diet.
(Even if Sutton acted for the wrong reason, and thus
lacks immunity, Vinning-El cannot prevail unless he
establishes that his sincere religious beliefs require
a vegan diet.)
The decision with respect to Evans is reversed, and
the case is remanded with directions to enter judgment
in his favor. The decision with respect to Sutton is
vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
9-16-11

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