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In Re Margarito Jesus Garcia

January 11, 2012


ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. (Super. Ct. No. 10HC1280)

The opinion of the court was delivered by: Hull , J.


Petition granted.

Petitioner Margarito Jesus Garcia, a prison inmate subject to the custody and control of the California Department of Corrections and Rehabilitation (CDCR), filed a petition for writ of habeas corpus challenging the denial of his request to participate in an existing kosher meals program. Petitioner contends his religion, Messianic Judaism, requires that he maintain a kosher diet, and the denial of his request violates his First and Fourteenth Amendment rights as well as the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). (42 U.S.C. § 2000cc et seq.)

We conclude that, under the circumstances presented, prison officials are in violation of petitioner's statutory rights under RLUIPA. Prison officials have not disputed either the sincerity of petitioner's religious beliefs or the requirement that he maintain a kosher diet. Nor have they demonstrated the burden imposed on petitioner's religious beliefs by virtue of his exclusion from the kosher meals program furthers a compelling governmental interest and is the least restrictive means of furthering that interest, as required by RLUIPA. In light of the foregoing conclusion, it is unnecessary to address petitioner's constitutional claims.


Petitioner is an inmate of the CDCR who, at the time of the petition herein, was housed at Mule Creek State Prison in Ione, California (Mule Creek). On July 27, 2009, petitioner submitted a CDCR form requesting to participate in Mule Creek's Jewish Kosher Diet Program (JKDP). On the form, petitioner identified his religion as Messianic Judaism and indicated he has been practicing the religion for the prior two years. He also identified the following dietary law to which he must adhere: "According to the Torah, I am not allowed to eat meat with blood in it, and I am not allowed to eat foods that are mixed with unclean food."

Petitioner's request was denied by Mule Creek's Jewish Chaplain, Rabbi Korik. As the basis for the denial, Korik explained: "Inmate Garcia has confirmed during the interview that he does not practice Judaism, rather the messianic belief. Per JKDP regulations only inmates practicing Judaism as their sincerely held belief may be approved for the JKDP."

Petitioner filed an administrative appeal, which was denied. He thereafter exhausted his administrative remedies and, at each step, the denial was upheld. At no time during this process did prison officials question the sincerity of petitioner's beliefs or the requirement that he adhere to a kosher diet.

Petitioner filed a petition for writ of habeas corpus in the superior court, which was denied. He then filed a petition for writ of habeas corpus in this court. We issued an order to show cause returnable in the superior court. (In re Garcia (May 3, 2010, C064186) [order to show cause issued].)

Petitioner presented a declaration in the superior court affirming his commitment to Messianic Judaism. Petitioner stated: "One tenet of the Messianic Jewish faith pertains to diet, and while not all Messianic Jews keep kosher, I have embraced this tenet and sincerely wish to follow a kosher diet." Petitioner explained Mule Creek does not currently have a Messianic rabbi, but he averred that he met weekly with other Messianic inmates to study and pray. Petitioner also noted: "I do wish to convert formally to the Messianic Jewish faith, but I currently consider myself to be a Messianic Jew, and this belief is sincere."

Petitioner also submitted correspondence concerning the Messianic Jewish faith and other documentation, including a publication from the State of Washington, Department of Corrections. (State of Washington Dept. of Corrections, Handbook of Religious Beliefs and Practices (rev. 2d ed. 2004) (Washington Handbook).) The Washington Handbook explains: "Messianic Judaism (MJ) is the religion of the followers of Yeshua (Jesus) who desire to recover the Hebrew roots of their faith, worshipping and living in accordance with the Torah (Law) of Moses as taught by Yeshua and His disciples. In the 1st Century CE (AD), MJ was one of the many sects of Judaism. As such, it adheres to many of the tenants [sic] and practices of ancient Judaism." (Id. at p. 35.)

With regard to diet, the handbook explains: "MJ groups observe various degrees of kosher eating. The more strict groups follow a traditional rabbinic kosher diet . . . . Where strict kosher diet is being observed, the highest kosher symbols (those of the Orthodox) should be used since these are the most consistent and reliable." (Washington Handbook, at p. 44.) The Washington Handbook describes some of the specific kosher rules in more detail, noting: "The kosher food laws are given in Leviticus and Deuteronomy. Only meat from kosher animals is permitted. These are those that chew the cud and have divided hooves (e.g., cows, goats, sheep, etc.). Kosher fowl are primarily those which are not birds of prey (e.g., chickens, ducks, geese, turkeys). Kosher meat must be slaughtered in such a way as to allow the blood to be entirely drained off. Meat which contains blood is not kosher. Kosher seafood are from fish that have scales and fins. All other seafood is non-kosher (e.g., lobster, crab, and all shellfish). All vegetables and fruit are kosher." (Ibid.)

The superior court denied the petition.

Petitioner then filed the current petition in this court. On January 28, 2011, we issued an order to show cause returnable before this court to respondent Michael Martel, Warden of Mule Creek. Respondent filed a return on February 28, 2011, and petitioner filed a traverse on March 30, 2011.

After respondent filed its return, petitioner was transferred to Ironwood State Prison in Blythe, California. Petitioner advised this court of the transfer. Respondent filed a motion to dismiss the petition as moot in light of the transfer. We denied the motion. Petitioner provided this court with documentation, of which we took judicial notice, indicating the rabbi at his current institution denied a request by petitioner to participate in the JKDP there because petitioner "is not compliant with traditional Judaism for which the Kosher Program was established."

Respondent submitted three declarations with its return. The first is from L. Maurino, the Departmental Food Administrator of the CDCR. Maurino is familiar with the dietary programs at the adult institutions of the CDCR, has personal knowledge of the construction, development, and administration of the meal programs and policies, and is a registered dietician. Maurino identifies the following CDCR food programs: (1) a Pork-Free Meal Program; (2) a Vegetarian Meal Program, (3) a Religious Meat Alternate Program, and (4) the JKDP. The JKDP requires certification by a rabbi, separate utensils, dishes, and storage to ensure no contact between meat and dairy foods, and assembly in a separate kitchen area by trained staff.

According to Maurino, 684 inmates participate in the JKDP throughout the 33 California prisons. Maurino states: "The current budgeted food cost per inmate is $2.90 a day for the regular meals, $2.62 for the Vegetarian Meal Program, and $3.20 for the Religious Meat Alternate Program. The cost of the [JKDP] is approximately $7.97 per inmate per day. Because of the smaller number of participants in the [JKDP], the higher cost of this food program can be absorbed in the food budget." Maurino opines: "A prospective increase in the numbers of inmates participating in the kosher meal program would require more preparation space, more storage areas, increased training and supervision of cooks, and more equipment, labor, and time devoted for food preparation. As such, the department's food budget would be significantly burdened if even a small percentage of other non-Jewish religious groups were allowed to receive kosher meals." Maurino also asserts there are approximately 5,000 inmates who self-identify as Muslim in state prison and 1,200 ...

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