Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317 (10th Cir. 2010); see also Warren v. Wyant, 563 Fed. App'x 576, 577-78 (9th Cir. 2014) (reversing grant of summary judgment to defendant on RLUIPA claim where plaintiff “allege[d] in his amended complaint that he has no money to purchase a replacement copy of the [religious] book through the prison canteen” and genuine dispute remained on that issue); Tatum v. Meisner, No. 13-cv-44-wmc, 2016 WL 323682, at *7 (W.D. Wis. Jan. 26, 2016) (possibility that plaintiff could supplement his diet with food from canteen was “not established as a realistic option under RLUIPA” where prison did not offer “funding for purchases . . . for those who cannot otherwise afford it”); Muhammad v. Wheeler, 171 F.Supp.3d 847, 855 (E.D. Ark. 2016) (denying summary judgment to defendants on RLUIPA claim in light of a “dispute over whether [plaintiff] has sufficient financial resources to purchase halal fish from the commissary”); Caruso v. Zenon, No. 95-MK-1578 (BNB), 2005 WL 5957978, at *12 (D. Colo. July 25, 2005) (availability of halal food from prison canteen “is not a sufficient alternative for an inmate of limited means”); cf. Beerheide, 286 F.3d at 1188 (expressing “serious concerns about the implications of expecting prisoners to fall into debt in order to maintain their religious beliefs”). Viewing the evide
On this record then, the court has substantial doubts the plaintiff has created a genuine issue of material fact concerning whether plaintiff's self-selection from the general fare menu would have resulted in an inadequate diet nutritionally or otherwise substantially burdened him. Cf. Tatum v. Meisner, No. 13-cv-44-wmc, 2016 WL 323682, at *2 (W.D. Wis. Jan. 26, 2016) (at the time of plaintiff's dietary request, the standard DOC diet provided more calories than the daily value requirements, “allowing inmates to obtain sufficient calories even while declining to consume some items”). Defendant also notes that plaintiff purchased non-kosher canteen foods, which he could have used to supplement his general fare diet with, while plaintiff responds that he used those items purely as currency and gifts, rather than consume them.
Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000) (where the prisoner was indigent and generally unable to buy such food, the option was essentially unavailable.); Tatum v. Meisner, No. 13-cv-44-wmc, 2016 U.S. Dist. LEXIS 8642, at *23 (W.D. Wis. Jan. 26, 2016) ("defendants have not established as a realistic option under RLUIPA unless (1) funding for purchases is offered by the institution for those who cannot otherwise afford it; and (2) the canteen contains appropriate food options."); see Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317 (10th Cir. 2010) ("any ability to purchase is chimerical where a plaintiff is indigent"). 79. Other courts have held that a denial of religiously sufficient food, where food is a generally available benefit, constitutes a substantial burden on the exercise of religion indigent or not. Moussazadeh v. Texas Dept. of Criminal Justice, 703 F.3d 781, 793 (5th Cir. 2013); see, Johns v. Lemmon, 980 F. Supp. 2d 1055, 1059 (N.D. Ind. 2013) ("requiring [plaintiff] to pay for his Sabbath food, thereby denying him an essential benefit that is provided to all prisoners, in order to practice his faith, is a substantial burden on his religious exercise.
Whole Foods argues that Jones' claims fail at the outset because nuts are a common staple of a vegan diet and, therefore, having nuts in a vegan pizza does not make it defective or unreasonably dangerous. It quotes Ingram v. Hall, 2009 WL 1971456, at *1 n.1 (M.D. Tenn. July 7, 2009) for the proposition that a vegan is ‘a vegetarian who omits all animal products from the diet" and does not eat any "meat, fish, or fowl," and Keesh v. Smith, 2011 WL 1135931, at *6 (N.D.N.Y. Feb. 2, 2011) for the proposition that "[b]ecause vegans do not eat dairy products, including eggs and cheese, they rely upon legumes such as peas, beans, lentils, and soy for protein." Whole Foods also cites cases which basically state that vegan diets commonly include nuts, see e.g., Tatum v. Meisner, 2016 WL 323682, at *7 (W.D. Wisc. Jan. 26, 2016) ; Cotton v. Cate, 2011 WL 3877074, at *3 (N.D. Cal. Sept. 1, 2011), and points to a Department of Agricultural website (www.choosemyplate.gov/protein-foods) that discusses protein options for vegetarians and vegans, including "beans and peas, processed soy products, and nuts and seeds[.
Id. at 365 (citing Haight v. Thompson , 763 F.3d 554, 564–67 (6th Cir.2014) (bar on certain traditional Native American foods), and Abdulhaseeb v. Calbone , 600 F.3d 1301, 1319–20 (10th Cir.2010) (denial of halal meat for Islamic feast)).Plaintiffs' facts are also distinguishable from those recently addressed by this court in Tatum v. Meisner , No. 13–cv–44–wmc, 2016 WL 323682 (W.D.Wis. Jan. 26, 2016). Tatum was denied a diet that aligned with the Nation of Islam ("NOI") diet.