JOHN C. PORFILIO, Circuit Judge.
Defendants George E. Sullivan and H.B. Johnson appeal from the district court's judgment following trial to the court in favor of plaintiff Akeem Abdul Makin on his 42 U.S.C. § 1983 claim for violation of his First Amendment right to exercise his religion while incarcerated in the Colorado prison system. We agree with the district court that defendants violated Mr. Makin's rights, but conclude that the court improperly determined the amount of damages awarded to him. We therefore affirm the judgment on liability, but vacate the damages award and remand for further proceedings.
In 1993 and 1994, Mr. Makin was incarcerated under the jurisdiction of the Colorado Department of Corrections, confined in 1993 at the Colorado Territorial Correctional Facility and in 1994 at the Colorado State Penitentiary. He is a follower of Islam, and in both years wanted to observe the Muslim holy month of Ramadan. Critical to the observance of Ramadan is the requirement that Muslims fast between dawn and sunset each day. Mr. Makin contended that defendants improperly interfered with his ability to fast during Ramadan in 1993 and 1994, and brought this § 1983 action alleging that by doing so, they violated his First Amendment right to the free exercise of his religion. Prior to trial, the district court dismissed all defendants except Messrs. Sullivan, Johnson and Gasko. In 1993, Mr. Sullivan was the deputy director of operations for the Department of Corrections, and Mr. Johnson was the superintendent of the Colorado Territorial Correctional Facility and Mr. Sullivan's subordinate. Mr. Gasko replaced Mr. Sullivan as deputy director in 1994. Following a trial to the court, the court held that Mr. Makin's rights had been violated in 1993 but not in 1994, and it found Messrs. Sullivan and Johnson liable for the 1993 violation. Because Mr. Makin does not cross-appeal the district court's conclusion there was no violation in 1994, we focus only on activities relating to Ramadan in 1993.
As part of the settlement agreement resolving a lawsuit alleging that the Department of Corrections was inattentive to the needs of its Muslim inmates, the Department hired Imam Mohammed Kharrubi to advise it on Islamic practices. In this position, Imam Kharrubi worked with food service and security personnel to arrange for provision of timely and nutritional meals to Muslim inmates participating in Ramadan — that is, meals provided between sunset and dawn that were nutritionally equivalent to the three meals provided each day at the regular times. Department policy with respect to Ramadan stated that "`[i]nmates participating in the fast of Ramadan shall be given the opportunity to receive at least two hot meals during the time period between sunset and dawn for each ... day of the fast.'" Appellants' App. Vol. II at 247 (quoting exhibit 32).
Id. Vol. I at 33 (quoting exhibit A7). By memorandum dated February 1, 1993, Mr. Sullivan directed that the general meal procedures would not apply to inmates in segregation. The memo stated that "[d]uring the month of Ramadan inmates in segregation will be unable to participate in special feeding activities. Regular meals with alternative meatless entrees will be made available through the usual meal delivery system." Id. at 34. Mr. Johnson implemented the directive at the Territorial Correctional Facility. Prisoners in segregation ate their meals in their cells, and the "usual meal delivery system" made meals available to prisoners in segregation only during the period after dawn and prior to sunset.
During Ramadan in 1993, Mr. Makin was housed in punitive segregation for possession of dangerous contraband. To maintain his fast, he was unable to eat his meals when delivered. He was able to
Applying the standards relevant to the alleged denial of a prisoner's fundamental constitutional rights, see Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-50, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the district court concluded that defendants Sullivan and Johnson had violated Mr. Makin's First Amendment right to the free exercise of his religion. It computed damages for denial of this right on a per diem basis of $300 or $9,000 for the entire month of Ramadan, assessed jointly and severally against defendants. On appeal, defendants challenge the district court's ruling on three grounds: (1) the court erred in rejecting their defense of qualified immunity; (2) the denial of special meal accommodations during Ramadan did not violate Mr. Makin's First Amendment rights; and (3) the court's determination of damages was incorrect.
Even though they are incarcerated, prisoners retain fundamental constitutional rights. See Turner, 482 U.S. at 84, 107 S.Ct. 2254. These rights include the reasonable opportunity to pursue one's religion as guaranteed by the free exercise clause of the First Amendment. See Shabazz, 482 U.S. at 348, 107 S.Ct. 2400; Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir.1991). However, because of the inherent difficulties and concerns in running a prison, "what constitutes a reasonable opportunity must be evaluated with reference to legitimate penological objectives of the prison." Id. Thus, the standard for reviewing the validity of a prison regulation or policy affecting a prisoner's fundamental constitutional right, such as the free exercise of his or her religion, is this: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89, 107 S.Ct. 2254. This reasonableness inquiry considers several factors: (1) whether there exists a rational connection between the prison policy or regulation and a legitimate governmental interest advanced as its justification; (2) whether there are alternative means of exercising the right notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether there are ready, easy-to-implement alternatives that would accommodate the prisoner's rights. See id. at 89-91, 107 S.Ct. 2254; Mosier, 937 F.2d at 1525. Like the district court, we assess the parties' contentions within this framework.
A. Qualified Immunity
As a preliminary matter, defendants contend that the district court erred in denying their claim that they were qualifiedly immune from liability for any improper infringement on Mr. Makin's right to freely exercise his religion. "The doctrine of qualified immunity provides that `[w]hen government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Mitchell v. Maynard, 80 F.3d 1433, 1447 (10th Cir.1996) (quoting Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988) (further quotation
Defendants first raised this issue in a motion for summary judgment that was referred to a magistrate judge. The magistrate judge issued a report recommending that the motion be denied:
Appellants' App. Vol. I at 11. Defendants did not object to the recommendation, and the district court accepted it. See id. at 16. Defendants re-raised the issue of qualified immunity at trial. Noting that defendants had not objected to the magistrate judge's recommendation and that the court had earlier adopted it, the court determined that the recommendation stood as law of the case and would not reconsider it.
Defendants contend that the district court erred in ruling that the qualified immunity determination was law of the case not subject to further consideration at the time of trial. Without citing authority, they contend that the failure to file written objections to a magistrate judge's recommendation based on an erroneous determination of the law, as opposed to an erroneous determination of fact, does not bar subsequent review by either the district court or, anticipating a potential waiver problem on appeal, this court. They contend the error of law was the "Magistrate's ruling the law was clearly established requiring prison officials to provide special feeding accommodation for the Ramadan fast on the grounds that religious diet must be accommodated." Appellants' Br. at 12.
Regardless of whether defendants' failure to object to the magistrate judge's recommendation made the court's adoption of that recommendation law of the case in a technical sense, their failure to object precludes our consideration of their qualified immunity argument on appeal. The magistrate judge's recommendation effectively involved two legal determinations — that the relevant legal issue was Mr. Makin's "right to reasonable access to his religiously required diet" and that that right was clearly established at the time of the violations alleged in his complaint. See Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). But contrary to defendants' unsupported contention, the failure to object to a magistrate judge's recommendation "waives appellate review of both factual and legal questions," Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) (emphasis added), absent other considerations not applicable here. The fact that the magistrate judge's recommendation also concluded there were unresolved factual issues precluding summary judgment does not detract from its legal determinations nor relieve defendants of their obligation to object to those determinations to preserve their right to appellate review. We therefore will not consider defendants' qualified immunity argument.
B. Violation of First Amendment Rights
Defendants next challenge the district court's determination that the denial of special meal accommodations during Ramadan violated Mr. Makin's First Amendment rights. Their argument takes two tracks. First, they argue that there was no violation because Mr. Makin was able to fast for the entire month of Ramadan despite their failure to deliver his meals at times when he could eat. Second, they contend that any infringement on his rights was justified by legitimate penological interests in deterrence of improper conduct, rehabilitation, prison security, and budgetary considerations. We review the district court's factual findings underlying its reasonableness determination for clear error, see, e.g., Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996), but our review of the ultimate reasonableness inquiry is de novo, see Mosier, 937 F.2d at 1525.
Before addressing defendants' specific arguments, we must note the limited breadth of the issue presented for review. That issue, as defined by defendants, is whether they improperly infringed on Mr. Makin's right to exercise his right to observe Ramadan in 1993. It is not the broader issue of whether their actions improperly infringed on his right to exercise his belief in Islam in a more general sense, as was the case, for example, in Shabazz. See 482 U.S. at 352, 107 S.Ct. 2400.
The district court rejected defendants' argument that the fact that Mr. Makin was able to fast the entire month of Ramadan absolved them of any liability their restrictions on meal service may have warranted:
Appellants' App. Vol. I at 39-40. Although defendants' argument could be viewed as relating to the Turner factor regarding alternative means of exercising the right, their argument appears to go to the more fundamental proposition that Mr. Makin's rights were not infringed at all. As did the district court, we address the argument in that posture.
At trial, Imam Kharrubi explained the religious experience of Ramadan as follows:
Appellants' App. Vol. II at 64-66. Mr. Makin further explained the beneficial experience of Ramadan, and the negative effect of defendants' restrictions on meal service and his opposition to those restrictions, as follow:
Id. at 30-32.
As noted above, the district court relied on this testimony in finding an infringement on Mr. Makin's right to freely exercise his religion because defendants' actions substantially diminished his qualitative spiritual experience. Defendants essentially argue that the burden they placed on Mr. Makin's ability to fast during Ramadan should be ignored because he overcame that burden and did fast. We reject this argument for several reasons. First, it is founded on the unacceptable notion that prison authorities may burden the observance of religious practices for no legitimate reason at all. Second, it makes the question of the legitimacy of government action dependent on the personal strength of the individual affected.
Third, and what the district court found most important, it ignores the religious experiential aspects of Ramadan beyond
As the testimony by Imam Kharrubi and Mr. Makin demonstrated, and the district court held, the burden defendants placed on Mr. Makin diminished the spiritual experience he otherwise could gain through Ramadan. This is sufficient to constitute an infringement on his right to freely exercise his religion. A complete denial of the ability to observe a religious practice is not required to demonstrate an infringement, though the fact that a spiritual experience was only diminished rather than denied may factor into the strength of the penological interests necessary to justify the infringement. We thus turn to defendants' argument that legitimate penological interests warranted their interference with Mr. Makin's rights.
Defendants contend that the Ramadan policy for inmates in segregation served four governmental interests: deterrence, rehabilitation, security and budget. Defendants argue generally that restricting a prisoner's right to exercise his religion while in punitive segregation "deter[s] inmates from behaving in a manner which caused them to be placed in segregation." Appellants' Br. at 7. However, they cite neither evidence indicating that the policy had any deterrent or rehabilitative goal, nor authority supporting their implied contention that restriction of religious freedom is a proper tool for deterring improper conduct. Cf. Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.1989) ("It also was error to assume that prison officials were justified in limiting appellant's free exercise rights simply because [he] was in disciplinary confinement."). Moreover, defendants ignore Mr. Sullivan's testimony that deterrence and rehabilitation were not considerations in promulgating the policy. As he explained:
Appellants' App. Vol. II at 91.
Mr. Sullivan's testimony does support the general idea that the policy served the related interests of security and budgetary considerations, but he did not further elaborate on these interests, and the record does not contain other evidence of their relevance or applicability. Based on Mr. Johnson's testimony that the security and budgetary impact of accommodating Mr. Makin in segregation would have been
We thus agree with the district court that the directive infringed on Mr. Makin's right to exercise his religion and that defendants did not put forth any legitimate penological interests to justify that infringement. Defendants therefore denied Mr. Makin a reasonable opportunity to pursue his religion, and are liable for damages under § 1983.
Defendants contend that should we agree with the district court that they violated Mr. Makin's constitutional rights, we should vacate the district court's compensatory damages award of $9,000 because Mr. Makin did not suffer any actual injury. They contend that only an award of $1 in nominal damages is appropriate. While we agree the district court improperly determined the amount of damages, we do not agree that Mr. Makin is entitled only to nominal damages.
Damages are available for violations of § 1983 "to compensate persons for injuries caused by the deprivation of constitutional rights." Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). A damages award must be based on actual injuries; id. at 264, 98 S.Ct. 1042; "the abstract value of a constitutional right may not form the basis for § 1983 damages." Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986).
The district court concluded that "[t]he best way that the Court can quantify a damage figure is on a per diem basis, i.e., that a certain amount per day be awarded which represents what this Court believes to be a reasonable damage award
In sum, we conclude that the district court correctly held that defendants' failure to accommodate Mr. Makin's meal requirements during Ramadan in 1993 violated his First Amendment right to freely exercise his religion, but that the district court improperly determined the amount of damages. The judgment of the district court in favor of Mr. Makin is therefore AFFIRMED in part, the award of damages is VACATED, and the case is remanded to the district court for proceedings consistent with this opinion.
Appellants' App. Vol. II at 183-84.