In ruling on a prisoner’s First Amendment free exercise claim in Long v. Sugai,1 the Ninth Circuit Court of Appeals held that the delivery of a fasting Muslim prison inmate’s evening meal four hours before he could break his fast during Ramadan substantially burdened his free exercise of his religion.  The Court remanded to permit consideration of whether the burden was reasonably related to legitimate penological interests.


Hawai’i prison inmate DeWitt Lamar Long is a practicing Muslim imprisoned at Halawa Correctional Facility (“HCF”) in Aiea, Hawai’i.  He was incarcerated in HCF’s medium-security facility between December 16, 2015 and May 8, 2017, when he was transferred to HCF’s high-security facility.

Soon after he arrived at HCF in December 2015, Long requested non-pork meals consistent with his Islamic faith.  On January 6, 2016, prison officials approved Long’s request for a specialized diet.  During his time at HCF, Long filed several grievances relating to his meals at the medium-security facility, accusing Sergeant Rodney Sugai of harassment and of deliberately denying him non-pork meals, in violation of the posted meal-accommodations list.  In early February 2016, while Sgt. Sugai was overseeing the kitchen, Long received a meal containing pork remnants.  It was exchanged for a pre-wrapped substitute vegetarian meal, but the substitute meal also contained strands of pork and Long became sick from the meal.  Long later testified at trial that on at least three occasions between March 2016 and May 2017 Sgt. Sugai prevented him from getting any food at all, and that, at other times, Sugai directed inmate workers to give Long smaller portions.

On May 8, 2017, three days after he filed his last grievance against Sgt. Sugai, Long was transferred to a high-security facility at HCF.  Chief of Security Lyle Antonio testified at trial that he ordered the transfer to the high-security facility in order to create a “cooling off period” between Sgt. Sugai and Long.  In the high-security facility, Long lost access to many benefits he had enjoyed at the medium-security facility, including being able to attend Friday Jumu’ah prayer services, which were held only in the medium-security facility.2  After Long was transferred to the high-security facility, he filed a grievance against Chief Antonio complaining about the lack of access to prayer services and requesting transportation to Friday Jumu’ah services at the medium-security facility.  The request was denied.

While Long was confined in the high-security facility during Ramadan, Sergeant Wyatt Lee brought Long’s evening meal to him at about 3:30 p.m.  By the time Long could break his fast at about 7:30 p.m., the food was cold, unappetizing, and potentially unsafe to consume.  The food also exacerbated his stomach ulcers.  Long stated that he asked if Sgt. Lee could call the kitchen to request a hot meal or allow Long to use a staff microwave to reheat the food.  Sgt. Lee refused, telling Long that the kitchen was closed and that prison policy forbade staff from using a staff microwave to heat food for inmates.

Long brought a pro se complaint alleging various claims under 42 U.S.C. section 1983 against prison officials, including Sgt. Sugai, Chief of Security Antonio, and Sgt. Lee in their official and individual capacities.  Long alleged, among other things, that defendants violated his First Amendment right to free exercise of his religion and unconstitutionally retaliated against him for engaging in protected First Amendment activity.  Long requested injunctive relief and damages.

In a screening order, the District Court dismissed with prejudice Long’s claims for injunctive relief and damages against all defendants in their official capacities.  The District Court allowed Long’s Section 1983 individual-capacity claims against Sgt. Sugai, Chief Antonio, and Sgt. Lee to go forward.

In a subsequent order, the District Court granted summary judgment to Sgt. Lee on Long’s free exercise claim arising out of the early food delivery during Ramadan.  In the same order, the District Court also granted partial summary judgment to Chief Antonio on Long’s retaliation claim arising out of his transfer to the high-security facility.  The District Court found that the sequence of events leading to the transfer was insufficient to show retaliatory intent.

The remaining claims—Long’s free exercise and retaliation claims against Sgt. Sugai and his free exercise claim against Chief Antonio—went to trial.  The District Court concluded that Sgt. Sugai was not responsible for the denial of non-pork meals, finding that several of the denials occurred before Long’s religious-diet request was approved.  The District Court also found that Sgt. Sugai did not disregard the posted meal-accommodations list.  As to Long’s argument regarding the February 2016 meals, the District Court found that any cross-contamination between pork-based foods and Plaintiff’s vegetarian foods was not attributable to Sgt. Sugai.3  Crediting Sgt. Sugai’s testimony, the District Court found that Sugai had not prevented Long from getting meals and had not directed anyone to give him smaller portions, as Long had alleged.  The District Court also found that Chief Antonio credibly testified that it was not feasible to transport Long to the medium-security facility to attend the prayer services.  The District Court therefore entered judgment for Chief Antonio and Sgt. Sugai.

Long appealed from the District Court’s screening dismissal of his claims for injunctive relief; its summary judgment in favor of Sgt. Lee; its partial summary judgment in favor of Chief Antonio; and its judgment after the bench trial in favor of Sgt. Sugai and Chief Antonio.


The Ninth Circuit Court of Appeals first addressed the District Court’s dismissal, under the Prison Litigation Reform Act 4 (“PLRA”), at the screening stage of Long’s claims for injunctive relief.  The Court noted that a portion of Long’s complaint asked, among other things, that staff be properly trained and that Ramadan meals be served hot.  For claims under the PLRA, the Ninth Circuit had “held that ‘a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.’”  Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).  The Ninth Circuit here agreed with Long’s contention that he should have been allowed to amend the complaint to allege facts showing a need for injunctive relief because the Court could conceive of facts that would justify injunctive relief.  The Ninth Circuit thus reversed the District Court’s dismissal, at the screening stage, of Long’s claims for injunctive relief. 

Free Exercise Claim against Sergeant Lee

The Court of Appeals considered Long’s argument that Sgt. Lee’s delivery of Long’s evening meal at 3:30 p.m., four hours before Long could break his Ramadan fast violated the Free Exercise Clause of the First Amendment.  The Court of Appeals observed that in granting summary judgment to Sgt. Lee, the District Court relied on LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993), in which the Ninth Circuit there held that serving prisoners unappetizing but nutritious “Nutraloaf” did not constitute cruel and unusual punishment under the Eighth Amendment.  The LeMaire Court stated that food “served cold, while unpleasant, does not amount to a constitutional deprivation.” Id. (quoting Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)).  Here, the Ninth Circuit explained that LeMaire, decided under the Eighth Amendment, did not control Long’s First Amendment claim.  The Court explained that the question here was not whether serving cold, unappetizing, and possibly unsafe food was cruel and unusual punishment.  Instead, it was whether serving such food unconstitutionally burdened Long’s free exercise of his religion.

The Court explained that in ruling on a prisoner’s First Amendment free exercise claim, the Court first determines whether the challenged prison policy or practice substantially burdened the prisoner’s free exercise of his or her religion.  See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015).  If it does, the Court then applies the four factors set forth in Turner v. Safley, 482 U.S. 78 (1987), to determine whether the burden was “reasonably related to legitimate penological interests.”  Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (quoting Turner, 482 U.S. at 89).

The Court explained that a “substantial burden exists when the state places ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Jones v. Slade, 23 F.4th 1124, 1142 (9th Cir. 2022) (quoting Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)).  “[M]ore than an inconvenience on religious exercise,” a substantial burden has “a tendency to coerce individuals into acting contrary to their religious beliefs.” Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015) (quoting Ohno v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013)).  A prison practice “may impact religious exercise indirectly, by encouraging an inmate to do that which he is religiously prohibited or discouraged from doing.” Jones v. Slade, 23 F.4th at 1140; see also Warsoldier, 418 F.3d at 995 (“[C]ompulsion may be indirect. . . .” (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981))).

Viewing the evidence in the light most favorable to Long, the Ninth Circuit found that by the time Long could eat his evening meal at about 7:30 p.m., the food was often inedible and potentially unsafe, and, if eaten, exacerbated his stomach ulcers.  Citing FDA, USDA, and CDC sources, the Court took judicial notice of the fact that some food cannot safely sit at room temperature for four hours.

The Court of Appeals stated that the Ninth Circuit has consistently held that the failure to provide food consistent with a prisoner’s sincerely held religious beliefs constitutes a substantial burden on the prisoner’s free exercise.  In Shakur, 514 F.3d at 881-82, a Muslim prisoner requested a kosher meat diet consistent with Islamic Halal requirements because the vegetarian diet offered to him gave him gas and irritated his hernia.  When the prison denied his request, he brought an action under the Free Exercise Clause.  Shakur held that the prison’s refusal “implicate[d] the Free Exercise Clause” and that the District Court was therefore required to analyze the Turner factors (Id. at 885).5 

The Ninth Circuit observed that other Circuit Courts agreed that nourishment consistent with a prisoner’s religious beliefs and practices must be provided in a reasonable manner.6  The Court considered Makin v. Colorado Department of Corrections, 183 F.3d 1205, 1215 (10th Cir. 1999), directly on point.  There, a Muslim prisoner housed in punitive segregation during Ramadan was unable to eat his evening meal when it was delivered to his cell.  To maintain his fast, he saved his supper and food such as dry cereal and crackers from lunch and breakfast to eat after sundown.  Although the inmate managed to fast under these circumstances for the entire month of Ramadan, the Tenth Circuit held that the prison’s actions infringed on the inmate’s right to free exercise of his religion and that the defendants had not offered “any legitimate penological interests to justify that infringement” under Turner.  Id. at 1214.  In Williams v. Hansen, 5 F.4th 1129, 1134-35 (10th Cir. 2021), the court characterized Makin as “clearly establish[ing] a substantial burden for a partial religious deprivation” where “prison officials failed to provide meals to an inmate at appropriate times throughout the month of Ramadan.”

The Ninth Circuit concluded that its own cases as well as out-of-circuit cases thus clearly established that delivery of Long’s evening meal at 3:30 p.m. during Ramadan substantially burdened his free exercise of religion.  The Court of Appeals vacated the District Court’s summary judgment in favor of Sergeant Lee.  Because the District Court should have evaluated the four Turner factors to determine whether the burden was justified, the Ninth Circuit remanded to allow it to do so.  If the District Court were to conclude, after conducting the Turner analysis, that the burden was not justified, the remand allowed the lower court to conduct a qualified immunity analysis.

Claims against Chief Antonio and Sergeant Sugai

The Ninth Circuit affirmed the District Court’s judgment entered after the bench trial in favor of Sergeant Sugai on Long’s free exercise of religion and retaliation claims.  The Court of Appeals determined that ample evidence supported the District Court’s findings.  For example, as to the non-pork meals at the medium-security facility, Sgt. Sugai was not responsible for the denials.  Moreover, the evidence showed that, on the occasions at issue, Long was not on the meal accommodations list and that Sgt. Sugai had no role in compiling that list.

The Ninth Circuit also affirmed the District Court’s partial summary judgment in favor of Chief of Security Antonio on Long’s claim that he was transferred from a medium-security facility to a high-security facility in retaliation for filing grievances.  The Court of Appeals agreed with the District Court that the sequence of events leading to the transfer was insufficient to show retaliatory intent.  On Long’s free exercise claim against Chief Antonio, the Ninth Circuit affirmed the District Court’s judgment in favor of Chief Antonio.  The District Court did not err by concluding that (1) the substantial burden on Long’s free exercise rights caused by his transfer to a high-security facility was justified; and (2) Chief of Security Antonio was not authorized to arrange weekly transportation to a medium-security facility for religious services and therefore was not a proper defendant.


Agencies may observe that the Court of Appeals cited a host of Ninth Circuit and sister Circuit precedents in support of its conclusion that the evidence established that the 3:30 p.m. delivery of Long’s evening meal during Ramadan substantially burdened his free exercise of his religion.  However, the case was remanded for the District Court to determine, under the Turner analysis, whether the burden is reasonably related to legitimate penological interests.  If the District Court then concludes that the burden is not justified, the remand allows the District Court to conduct a qualified immunity analysis.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

1 2024 U.S. App. LEXIS 2514 (9th Cir. Feb. 5, 2024).

2 The Court of Appeals explained that Jumu’ah services are “commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer.” O’Lone v. Est. of Shabazz, 482 U.S. 342, 345 (1987) (citing Koran 62:9-10).

3 The District Court noted that Gary Kaplan, a prison “program control administrator,” attributed the cross-contamination to “the fact that the kitchen uses the same utensils for the vegetarian meal that they use to serve the pork.”

4 42 U.S.C. section 1997(e).

5 See also McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (per curiam) (“Inmates . . . have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.”); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (holding same); Ashelman v. Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997) (holding same).

6 See, e.g., Holland v. Goord, 758 F.3d 215, 218 (2d Cir. 2014) (holding that pressure “to provide a urine sample by drinking water during [inmate’s] fast . . . placed a substantial burden on [his] religious exercise.”); Lovelace v. Lee, 472 F.3d 174, 199-200 (4th Cir. 2006) (“Under . . . the Free Exercise Clause . . ., a prisoner has a ‘clearly established . . . right to a diet consistent with his . . . religious scruples,’ including proper food during Ramadan.” (last two ellipses in original) (quoting Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003))); Ford, 352 F.3d at 597 (recognizing a clearly established right to the Eid ul Fitr feast, which celebrates the successful completion of Ramadan); Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (finding that prison officials substantially burdened an inmate’s free exercise rights by refusing to provide meals in his cell at particular times to accommodate his religious practices).