                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2650
                                       ___________

                                   RICHARD POTTS,
                                               Appellant

                                             v.

                           RONNIE HOLT; WAYNE RYAN;
                             A.F.S.A. DESHAWN CHINA
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-12-cv-01441)
                      District Judge: Honorable A. Richard Caputo
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 8, 2015
               Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

                              (Opinion filed June 24, 2015)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Richard Potts appeals pro se from the District Court’s order entering summary

judgment in favor of the defendants. We will affirm in part, vacate in part, and remand


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for further proceedings.

                                             I.

       In reciting the factual background of this case, we accept as true the factual

allegations in Potts’s amended complaint and draw all reasonable inferences from the

record in his favor. Potts is a federal prisoner who was incarcerated at the United States

Penitentiary, Canaan (“USP-Canaan”) but who has since been transferred. Potts also is a

practicing Muslim and has participated in the Bureau of Prisons’ certified religious meal

program for over ten years. On June 26, 2011, USP-Canaan was placed on lockdown for

approximately two weeks when numerous inmates became ill after eating meals

contaminated with salmonella. During that time, prison officials relocated food

preparation to an adjacent facility, approved modified diets, and suspended the certified

religious meals program.

       Potts filed suit pro se under Bivens v. Six Unknown Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), alleging that the defendant prison officials1 violated the

Religious Freedom Restoration Act (“RFRA”) and his First and Eighth Amendment

rights. In his amended complaint and a subsequent sworn declaration, Potts alleged that

defendants unnecessarily suspended the certified religious meal program without notice

on June 27, 2011, did not resume it until July 13, 2011, and denied him thirty-six or more


1
  Because the alleged conduct of particular defendants is not relevant to our disposition of
this appeal, we refer to them collectively as “defendants” without suggesting that any
particular defendant was responsible for any of the particular conduct discussed herein.

                                             2
certified meals during that time. He further alleged that none of the certified meal

program participants had fallen ill because the certified meals were not tainted by

salmonella and that defendants should have known that fact when suspending the

program, or at least by July 1 when they had an exact count of the inmates who had fallen

ill and when they approved a modified menu.2 Thus, he asserted, defendants violated his

rights by suspending the program in the first place and by not reinstating it sooner than

they did. Finally, Potts alleged that the alternative meals defendants provided during the

lockdown were not religiously acceptable, that no one notified him that the certified

meals program had been suspended, and that he thus ate “very little and most of the time

nothing” for two weeks out of fear of being removed from the certified meal program for

failing to comply with it. Potts requested both monetary damages and an injunction

requiring defendants to serve certified religious meals during lockdowns in the future.

       Defendants filed a pre-discovery motion to dismiss Potts’s amended complaint or

for summary judgment, and a Magistrate Judge recommended granting it on various

grounds, including qualified immunity. The District Court sustained several of Potts’s

objections, but it ultimately agreed that defendants are entitled to qualified immunity and

entered summary judgment solely on that basis. Potts appeals pro se.3


2
 In other filings, Potts suggested that defendants could have resumed the certified meals
program on July 7, when food preparations at USP-Canaan resumed, or July 9, when
USP-Canaan reinstated the pre-lockdown menu.
3
 We have jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review of the
District Court’s grant of summary judgment and the legal issues underpinning a claim of
                                           3
                                             II.

       We apply “a two-part analysis” to claims of qualified immunity and ask “(1)

whether the official’s conduct violated a constitutional or federal right; and (2) whether

the right at issue was clearly established.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.

2012) (quotation marks omitted). The District Court concluded that whether defendants

violated Potts’s rights under the First Amendment and RFRA was materially in dispute

but that defendants are entitled to qualified immunity because those rights were not

clearly established. Although defendants have not challenged the District Court’s ruling

that Potts adequately showed a violation of his rights at this stage, our consideration of

whether those rights were clearly established will benefit from some preliminary

discussion of our agreement on that point.

       Potts alleges that defendants violated his rights under the First Amendment and

RFRA by suspending the certified religious meals program for two weeks without

sufficient justification. We have long held that prisoners generally are entitled to

religiously acceptable meals while in prison. See Williams v. Bitner, 455 F.3d 186, 192


qualified immunity.” Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). In doing so,
we “view the evidence in the light most favorable to the non-moving party and give that
party the benefit of all reasonable inferences” therefrom. Id. Defendants bear the burden
of establishing qualified immunity at the summary judgment stage. See id. at 288. The
parties dispute whether the defense of qualified immunity applies to RFRA claims, which
we have not decided, but we need not address that issue because we conclude that
defendants have not shown entitlement to qualified immunity on Potts’s RFRA claim.
We also do not address Potts’s Eighth Amendment claim because he has not challenged
the District Court’s entry of judgment on that claim, but we note that we would affirm as
to that claim for the reasons explained by the District Court.
                                              4
(3d Cir. 2006); Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003); DeHart v. Horn,

227 F.3d 47, 52, 59 & n.8 (3d Cir. 2000) (en banc). Thus, Potts’s First Amendment claim

turns on whether defendants’ suspension of the certified religious meals program during

the salmonella outbreak and resultant lockdown was reasonable under the four factors set

forth in Turner v. Safley, 482 U.S. 78 (1987). See Williams, 343 F.3d at 216-17; DeHart,

227 F.3d at 50-51, 59 & n.8.4 Potts’s RFRA claim turns on whether defendants’

suspension of the certified meals program was (1) the “least restrictive means” of (2)

furthering “a compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).

       The District Court determined that defendants had not adduced evidence sufficient

to show that their suspension of the certified meals program was reasonable under Turner

or that it satisfied the RFRA standard. We agree with these determinations because, inter

alia, defendants did not establish the nature or even the existence of any nexus between

the salmonella outbreak/lockdown and their suspension of certified religious meals.5


4
  The Turner factors are: (1) whether there is “a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to justify it”; (2)
“whether there are alternative means of exercising the right that remain open to prison
inmates”; (3) “the impact accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources generally”; and (4)
whether there is an “absence of ready alternatives” to the regulation. Williams, 343 F.3d
at 217 (quoting Turner, 482 U.S. at 89-90).
5
  Defendants relied on Bureau of Prisons Program Statement 4700.05, which provides
that an “alternate menu” may be offered “[i]n emergency situations such as an institution
lockdown.” (ECF No. 43-1 at 59.) Defendants, however, presented no evidence or
argument showing how (or even that) this particular emergency required suspension of
the certified meals program. Defendants also presented no evidence or argument on
whether it was possible to provide certified religious meals during some or all of that
                                              5
       The District Court concluded, however, that Potts’s rights were not clearly

established at the time of defendants’ alleged conduct. “In determining whether a right

has been clearly established, the court must define the right allegedly violated at the

appropriate level of specificity.” Sharp, 669 F.3d at 159. The District Court defined the

right at issue in this case as the right to “religious meals during a prison-wide lockdown

that resulted after an outbreak of food poisoning (or disease generally) in the inmate

population.” (ECF No. 54 at 23.) The District Court further concluded that such a right

was not clearly established because there is no case law addressing an inmate’s right to

religious meals in a similar factual scenario.

       There does indeed appear to be a dearth of such case law. Cf. Eason v. Thaler, 14

F.3d 8, 9-10 (5th Cir. 1994) (holding only that a similar claim was not frivolous for

purposes of the in forma pauperis statute). “Even though there may be no previous

precedent directly on point,” however, “an action can still violate a clearly established


time, how burdensome it would have been to do so, or whether they even considered that
possibility. Nor have they provided any evidence regarding operation of the certified
meals program itself, such as whether the certified meals served at USP-Canaan are
prepared at USP-Canaan or whether, as Potts asserted in one of his briefs, USP-Canaan
receives them prepackaged from an outside vendor. Defendants also presented no
evidence or argument rebutting Potts’s allegations that they could have resumed the
certified meals program sooner than they did and need not have suspended it at all. To
the contrary, as the District Court concluded, “the evidence in the record when viewed in
the light most favorable to Potts suggests that religious diet meals could have been
prepared during the lockdown.” (ECF No. 54 at 15.) In sum, none of defendants’
evidence explains why they withheld thirty-six or more certified meals from Potts over a
period of two weeks. See Koger v. Bryan, 523 F.3d 789, 800 (7th Cir. 2008) (“We can
only give deference to the positions of prison officials . . . when the officials have set
forth those positions and entered them into the record.”).
                                              6
right where a general constitutional rule already identified in the decisional law applies

with obvious clarity.” Sharp, 669 F.3d at 159.

       Such is the case here. At the time of defendants’ alleged conduct, it was clearly

established in this Circuit that prisoners’ general right to freely exercise their religion

gives them the more specific right to be served religiously acceptable meals while in

prison. See, e.g., Williams, 455 F.3d at 192. It also had long been established that prison

officials may constitutionally infringe that specific First Amendment right when prison

administration so requires, but only when the infringement is reasonable under the Turner

factors. See Williams, 343 F.3d at 216-17; DeHart, 227 F.3d at 50-51, 59 & n.8. And

RFRA clearly establishes that defendants may not substantially burden an inmate’s

exercise of religion without satisfying the standard set forth in 42 U.S.C. § 2000bb-1(b).

       Thus, at the time of defendants’ alleged conduct, it was clearly established both

that Potts had a right to religiously acceptable meals and that defendants could not

infringe on that right without sufficient justification under Turner and RFRA. See Wall

v. Wade, 741 F.3d 492, 502-03 (4th Cir. 2014); Lovelace v. Lee, 472 F.3d 174, 198-99

(4th Cir. 2006); Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). In light of our

precedent addressing prisoners’ religious diets, no reasonable prison official could have

believed that he or she could simply withhold Potts’s religious meals for two weeks in the

absence of some justification. And in light of Turner and RFRA, no reasonable prison

official could have believed that the salmonella outbreak and lockdown provided such


                                               7
justification in the absence of some nexus between the outbreak/lockdown and

defendants’ ability to provide religious meals, which the current record does not reveal.

       The District Court’s definition of the right in question does not account for Turner

and RFRA, which already anticipate that prison officials are called upon to act in a

variety of factual scenarios and that the lawfulness of their actions will be judged in the

context of those specific scenarios. See, e.g., DeHart, 227 F.3d at 59 n.8 (collecting cases

addressing religious diets and noting that Turner requires “a contextual, record-sensitive

analysis”). The District Court’s application of its definition also runs afoul of the

summary judgment standard because it effectively inferred in defendants’ favor the

existence of a nexus between the outbreak/lockdown and defendants’ suspension of

religious meals that the record does not reveal. Cf. Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014) (per curiam) (“[C]ourts must take care not to define a case’s ‘context’ [in

defining a right for qualified immunity purposes] in a manner that imports genuinely

disputed factual propositions.”). We have no doubt that the outbreak and lockdown

posed significant challenges, and a more developed record might ultimately reveal that

those challenges warranted a two-week suspension of the certified religious meals

program. The mere fact that defendants acted against that backdrop, however, is not

dispositive for qualified immunity purposes.

       The District Court relied on one other factor in concluding that Potts’s right to

religiously acceptable meals was not clearly established in this context. The District

Court wrote that it reached its conclusion “especially in view of the fact that inmates
                                               8
were provided with nutritionally adequate meals containing non-meat, religiously

acceptable food choices.” (ECF No. 54 at 25.) The District Court did not cite any record

support for that conclusion, defendants cite no such support on appeal, and this point

appears to be disputed.

       Potts alleged in his amended complaint that the meals offered to him during the

lockdown “were cooked in animal bases that were unKosher/Halaal.” (ECF No. 36 at 4.)

The only evidence in defendants’ submissions that they may have offered him religiously

acceptable alternatives appears to be an e-mail dated July 8, 2011, from defendant

DeShawn China to the Food Service Department. That e-mail reads in relevant part:

“Also, remember to prepare no flesh alternatives as well. My suggestion is to utilize the

Religious Diet Meals (Vegan) to accomplish this.” (ECF No. 43-1 at 16.) Even drawing

the inference against Potts that defendants actually began offering these meals to him on

July 8 (which we will not do at this stage), China did not send this e-mail until twelve

days into the lockdown. This e-mail thus does not account for Potts’s allegations (which

defendants thus far have not disputed) that defendants could have resumed serving

certified religious meals at least by July 1 and need not have suspended the certified meal

program at all.6


6
  Potts also expressly asserts in his brief in opposition to defendants’ motion that all of
the food he was offered during the lockdown was non-kosher/halaal and that defendants
never offered him a “no-flesh” meal. (ECF No. 47 at 7.) These allegations are neither
sworn nor contained in a pleading, but the District Court did not discredit them for those
reasons or otherwise address them.

                                             9
       In sum, the District Court erred in concluding on this record that defendants are

entitled to qualified immunity on Potts’s First Amendment and RFRA claims. We

express no opinion on the merits of those claims or on whether, at some later stage,

defendants might show that they are entitled to qualified immunity. We also express no

opinion on the arguments in defendants’ motion to dismiss or for summary judgment that

the District Court did not reach and that defendants have not raised on appeal. Finally,

we express no opinion on Potts’s claim for injunctive relief, which the District Court did

not address.7

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court as to

Potts’s Eighth Amendment claim, vacate it as to his claims under the First Amendment

and RFRA, and remand for further proceedings




7
  Qualified immunity provides a defense to claims for monetary damages but not for
injunctive relief. See Montanez v. Sec’y, Pa. Dep’t of Corr., 773 F.3d 472, 488 (3d Cir.
2014). It appears that Potts’s claim for injunctive relief may have become moot because
he has been transferred to a different facility, see Allah v. Seiverling, 229 F.3d 220, 222
n.2 (3d Cir. 2000), but the District Court can address that issue as appropriate on remand.
                                               10
