F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
KAMAL K. PATEL,
Plaintiff-Appellant,
v. No. 97-1083 (D.C. No. 96-M-286) UNITED STATES OF AMERICA; (D. Colo.) BUREAU OF PRISONS; TOM (I) WOOTEN, Ex-Warden, FCI Florence; LOU ROCKVAN, Food Service Administrator; JENNY ROPER, Ex- Food Service Administrator; FNU BELL, Assistant Food Service Administrator; FNU FISHMAN, Food Service Employee; GIL LYDE, Unit Manager; FNU PELTIER, Counselor; KEN LINCOLN, Counselor; FNU McNAMARA, Food Service Employee; N. WAYNE SMITH, Associate Warden and One John Doe, Food Service Employees; J. ARMIJO,
Defendants-Appellees.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff, a federal inmate appearing pro se, appeals from the district
court’s grant of summary judgment to defendants in his action brought pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). We have
jurisdiction under 28 U.S.C. § 1291.
Plaintiff, a Hindu, was incarcerated at the Federal Correctional Institution,
Florence, Colorado (FCI Florence) from March 25, 1993 until January 26, 1997.
He maintains that as a Hindu, he may not eat meat or foods prepared with utensils
that have been contaminated by meat. He participated in the prison’s “common
fare” religious diet program from September 9, 1994 until January 15, 1995, in an
attempt to receive food satisfying his religious restrictions. For the rest of his
time at FCI Florence, plaintiff took food off the main cafeteria line. In his
complaint, he asserted that defendants denied him food conforming to his
religious beliefs while he was housed at FCI Florence, in contrast to their practice
** The Honorable J. Thomas Marten, District Judge, United States District Court for the District of Kansas, sitting by designation.
-2- of accommodating the dietary needs of Jewish and Muslim inmates, and in
violation of the United States Constitution, the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and their own regulations. He
also alleged that defendants seized his copy of the Bhagvad Gita, the Hindu
equivalent of the Christian Bible, in violation of his constitutional rights. He
sought damages and declaratory and injunctive relief. Defendants filed a motion
to dismiss or, in the alternative, for summary judgment. They asserted, among
other defenses, their entitlement to qualified immunity on plaintiff’s claims
concerning his diet. They denied that any of them had seized plaintiff’s holy
book, and argued that plaintiff had not exhausted his administrative remedies on
his claim that his holy book was unlawfully seized.
The magistrate judge recommended that defendants’ motion be granted in
part and denied in part. 1 The district court reviewed the case de novo and granted
1 Plaintiff requested that his claims for injunctive relief regarding the alleged seizure of his Bhagvad Gita and his claims for damages against defendants in their official capacities be dismissed; the magistrate judge therefore included these requests in his recommendations. The magistrate judge further recommended that summary judgment be granted in favor of defendant Smith, as plaintiff had not shown that Smith personally participated in the claims related to his diet. The magistrate judge also recommended that summary judgment be granted in favor of the United States and the Bureau of Prisons on the basis of their sovereign immunity. Plaintiff has waived any arguments to these adverse recommendations because he did not object to the magistrate judge’s findings and recommendation. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992). They are also supported by the record and the law.
-3- the motion in it entirety. It held that plaintiff’s claims for injunctive relief were
moot because plaintiff had been transferred away from FCI Florence. It held,
further, that plaintiff did not have a clearly established constitutional right to a
diet conforming to his religious beliefs, and that defendants were entitled to
qualified immunity on plaintiff’s claims related to his diet as a result. The court
held that plaintiff had not shown that defendants acted with the intention to
deprive him of his holy book, and that his claims that it was unlawfully seized
were therefore inadequate. The court also held that plaintiff had failed to exhaust
his administrative remedies on claims related to his book.
On appeal, plaintiff argues that the district court erred: (1) in dismissing
his claims that defendants failed to provide him with a diet conforming to his
religious practice in violation of the First, Fifth, and Eighth Amendments, the
Religious Freedom Restoration Act, and their own regulations; (2) in dismissing
his claim that some of the defendants seized his Bhagvad Gita in violation of the
First Amendment; and (3) in holding that defendants were entitled to qualified
immunity.
We note at the outset that the district court correctly dismissed plaintiff’s
claims for injunctive relief. Plaintiff’s claims for declaratory relief are likewise
moot. He has been transferred away from FCI Florence and there is no indication
-4- that he will be transferred back. Only plaintiff’s claims for money damages
remain.
In addition, the Supreme Court has recently held the Religious Freedom
Restoration Act unconstitutional. See City of Boerne v. Flores, 117 S. Ct. 2157,
2172 (1997). We therefore need not consider the merits of plaintiff’s RFRA
claim.
We review the grant of summary judgment de novo, applying the same
standard as that applied by the district court. See Clemmons v. Bohannon,
956 F.2d 1523, 1525 (10th Cir. 1992). “Summary judgment is appropriate ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(c)).
We also review de novo defendants’ claim that they are entitled to qualified
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 4 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
KAMAL K. PATEL,
Plaintiff-Appellant,
v. No. 97-1083 (D.C. No. 96-M-286) UNITED STATES OF AMERICA; (D. Colo.) BUREAU OF PRISONS; TOM (I) WOOTEN, Ex-Warden, FCI Florence; LOU ROCKVAN, Food Service Administrator; JENNY ROPER, Ex- Food Service Administrator; FNU BELL, Assistant Food Service Administrator; FNU FISHMAN, Food Service Employee; GIL LYDE, Unit Manager; FNU PELTIER, Counselor; KEN LINCOLN, Counselor; FNU McNAMARA, Food Service Employee; N. WAYNE SMITH, Associate Warden and One John Doe, Food Service Employees; J. ARMIJO,
Defendants-Appellees.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff, a federal inmate appearing pro se, appeals from the district
court’s grant of summary judgment to defendants in his action brought pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). We have
jurisdiction under 28 U.S.C. § 1291.
Plaintiff, a Hindu, was incarcerated at the Federal Correctional Institution,
Florence, Colorado (FCI Florence) from March 25, 1993 until January 26, 1997.
He maintains that as a Hindu, he may not eat meat or foods prepared with utensils
that have been contaminated by meat. He participated in the prison’s “common
fare” religious diet program from September 9, 1994 until January 15, 1995, in an
attempt to receive food satisfying his religious restrictions. For the rest of his
time at FCI Florence, plaintiff took food off the main cafeteria line. In his
complaint, he asserted that defendants denied him food conforming to his
religious beliefs while he was housed at FCI Florence, in contrast to their practice
** The Honorable J. Thomas Marten, District Judge, United States District Court for the District of Kansas, sitting by designation.
-2- of accommodating the dietary needs of Jewish and Muslim inmates, and in
violation of the United States Constitution, the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and their own regulations. He
also alleged that defendants seized his copy of the Bhagvad Gita, the Hindu
equivalent of the Christian Bible, in violation of his constitutional rights. He
sought damages and declaratory and injunctive relief. Defendants filed a motion
to dismiss or, in the alternative, for summary judgment. They asserted, among
other defenses, their entitlement to qualified immunity on plaintiff’s claims
concerning his diet. They denied that any of them had seized plaintiff’s holy
book, and argued that plaintiff had not exhausted his administrative remedies on
his claim that his holy book was unlawfully seized.
The magistrate judge recommended that defendants’ motion be granted in
part and denied in part. 1 The district court reviewed the case de novo and granted
1 Plaintiff requested that his claims for injunctive relief regarding the alleged seizure of his Bhagvad Gita and his claims for damages against defendants in their official capacities be dismissed; the magistrate judge therefore included these requests in his recommendations. The magistrate judge further recommended that summary judgment be granted in favor of defendant Smith, as plaintiff had not shown that Smith personally participated in the claims related to his diet. The magistrate judge also recommended that summary judgment be granted in favor of the United States and the Bureau of Prisons on the basis of their sovereign immunity. Plaintiff has waived any arguments to these adverse recommendations because he did not object to the magistrate judge’s findings and recommendation. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992). They are also supported by the record and the law.
-3- the motion in it entirety. It held that plaintiff’s claims for injunctive relief were
moot because plaintiff had been transferred away from FCI Florence. It held,
further, that plaintiff did not have a clearly established constitutional right to a
diet conforming to his religious beliefs, and that defendants were entitled to
qualified immunity on plaintiff’s claims related to his diet as a result. The court
held that plaintiff had not shown that defendants acted with the intention to
deprive him of his holy book, and that his claims that it was unlawfully seized
were therefore inadequate. The court also held that plaintiff had failed to exhaust
his administrative remedies on claims related to his book.
On appeal, plaintiff argues that the district court erred: (1) in dismissing
his claims that defendants failed to provide him with a diet conforming to his
religious practice in violation of the First, Fifth, and Eighth Amendments, the
Religious Freedom Restoration Act, and their own regulations; (2) in dismissing
his claim that some of the defendants seized his Bhagvad Gita in violation of the
First Amendment; and (3) in holding that defendants were entitled to qualified
immunity.
We note at the outset that the district court correctly dismissed plaintiff’s
claims for injunctive relief. Plaintiff’s claims for declaratory relief are likewise
moot. He has been transferred away from FCI Florence and there is no indication
-4- that he will be transferred back. Only plaintiff’s claims for money damages
remain.
In addition, the Supreme Court has recently held the Religious Freedom
Restoration Act unconstitutional. See City of Boerne v. Flores, 117 S. Ct. 2157,
2172 (1997). We therefore need not consider the merits of plaintiff’s RFRA
claim.
We review the grant of summary judgment de novo, applying the same
standard as that applied by the district court. See Clemmons v. Bohannon,
956 F.2d 1523, 1525 (10th Cir. 1992). “Summary judgment is appropriate ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(c)).
We also review de novo defendants’ claim that they are entitled to qualified
immunity. See Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Qualified
immunity is analyzed in two steps: first, we determine whether plaintiff has
alleged the violation of a constitutional right, “and then we decide whether that
right was clearly established such that a reasonable person in the defendant’s
position would have known that [his] conduct violated the right.” Id. (quoting
-5- Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siegert v.
Gilley, 500 U.S. 226, 231 (1991))).
Plaintiff adequately alleged that defendants failed to accommodate his
religious dietary needs in violation of the First and Fifth Amendments. Thus, the
first part of the qualified immunity inquiry is satisfied. As for the second step, it
was established in this circuit in 1991 that prisoners have a constitutional right to
a diet conforming to sincerely held religious beliefs, unless the regulation denying
that accommodation “is reasonably related to legitimate penological interests.”
LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). Because plaintiff’s complaint relates to events
that are alleged to have occurred in 1993 or later, defendants are not entitled to
qualified immunity on the claims related to his diet.
Plaintiff must demonstrate, however, that each remaining defendant
personally participated in the alleged deprivation of his constitutional rights. See
Kaul v. Stephan, 83 F.3d 1208, 1213 & n.3 (10th Cir. 1996) (§ 1983 case).
Evidence in the record shows that defendants Wooten, Bell, Rockvam, 2 and Roper
knew that plaintiff requested meat substitutes for religious reasons. See
R. doc. 41, ex. 16, 20; doc. 52, PE 5, 7. Plaintiff has therefore established a
2 The government informs the court that plaintiff erred, and that this defendant’s name is “Rockvam.”
-6- genuine issue of material fact as to these defendants, and his First Amendment
claim must be remanded. There is no evidence to show that defendants Fishman,
Lyde, Peltier, Lincoln, McNamara, Armijo, or One John Doe knew about
plaintiff’s religious beliefs as they related to his diet, however. These defendants
are therefore entitled to summary judgment on all of plaintiff’s claims related to
his diet.
Plaintiff’s equal protection claim must also be remanded for further
proceedings. Cf. LaFevers, 936 F.2d at 1120 (remanding state inmate’s equal
protection claim for determination whether his religious dietary requirements
were sincerely held). Plaintiff has pointed out that defendants’ regulation for the
“common fare” religious diet program purports to accommodate religious dietary
needs. See R. doc. 41, ex. 3. He alleges in his affidavit, however, that he has
observed that Muslim inmates are provided a pork substitute, while Hindu inmates
are not afforded a meat substitute. See id. doc. 52, PE 2 at 1-2. Defendants have
asserted no reason, at this point, that would justify treating Muslims and Hindus
differently with respect to diet substitutions. Plaintiff has sufficiently supported
his equal protection claim at this juncture. Cf. Abbott v. McCotter, 13 F.3d 1439,
1441 (10th Cir. 1994) (affirming dismissal of prisoner’s conclusory allegations
that failed to describe different treatment of classes of inmates).
-7- Plaintiff’s Eighth Amendment claim was properly dismissed. Plaintiff
alleged that during a three-week lockdown in late 1995, he was frequently given
two meat sandwiches in his brown bag meal instead of one meat and one meatless
sandwich, and was subjected to “severe hunger.” Appellant’s Opening Br. at 4.
The relevant exhibit shows that two meat sandwiches were served only on
Fridays, however, and indicates that there was food in each Friday’s brown bag
meal other than the meat sandwiches. See R. doc. 52, PE 11. This showing is
insufficient to demonstrate cruel and unusual punishment. Cf. LaFevers, 936 F.2d
at 1120 (holding prisoner given three meals each day does not state Eighth
Amendment claim).
Defendants are entitled to summary judgment on plaintiff’s claims that his
Bhagvad Gita was unlawfully seized during the lockdown. Although his claim for
money damages for the alleged unlawful seizure does not require exhaustion of
administrative remedies, see McCarthy v. Madigan, 503 U.S. 140, 149 (1992),
plaintiff’s evidence (as opposed to his allegations) fails to name which defendants
participated in the alleged seizure. His evidence is therefore inadequate to
establish the personal participation of any defendant in the alleged seizure of his
book. See Kaul, 83 F.3d at 1213 & n.3.
-8- The judgment of the United States District Court for the District of
Colorado is AFFIRMED in part and REVERSED in part and the case is
REMANDED for further proceedings consistent with the order and judgment.
The mandate shall issue forthwith.
Entered for the Court
J. Thomas Marten District Judge
-9-