                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              March 13, 2018
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT



 CRAIG C. RALSTON,

             Plaintiff - Appellee,
                                                      No. 16-1372
 v.
 CHAPLAIN HOSEA CANNON,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                   (D.C. NO. 1:14-CV-00247-CBS)


David C. Cooperstein, Assistant City Attorney, Denver City Attorney’s Office,
Denver, Colorado, for Appellant.

Katayoun A. Donnelly, Azizpour Donnelly LLC, Denver, Colorado, Court-
appointed pro bono counsel for Appellee.


Before MORITZ, KELLY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                               I. INTRODUCTION

      Craig Ralston, a Denver Detention Center (“DDC”) prisoner, brought this

42 U.S.C. § 1983 civil rights suit against Hosea Cannon. 1 Ralston alleged

Cannon, the official charged with “coordinating, directing[,] and monitoring the

religious activities” of DDC inmates, violated his First Amendment right to free

exercise by denying his request for a kosher diet. Cannon moved for summary

judgment on the basis of qualified immunity, asserting his conduct was, at most,

negligent and, thus, did not rise to the level of a First Amendment violation. The

district court denied Cannon’s request for qualified immunity. The district court

concluded it was clearly established that a kosher-meal accommodation is

necessary if Ralston has an honest belief the accommodation is important to his

free exercise of religion. Importantly, the district court further concluded the

record, read in the light most favorable to Ralston, was sufficient to allow a

reasonable juror to find Cannon consciously or intentionally interfered with

Ralston’s right to free exercise by denying the kosher-diet request.

      Cannon appeals the district court’s order denying his request for qualified

immunity. Each aspect of Cannon’s appeal, however, amounts to a challenge to

the district court’s determinations of evidentiary sufficiency. Accordingly, this


      1
        Ralston also brought claims against two other defendants, but those claims
were dismissed by the district court at the pleading stage. No issues relating to
the dismissal of the claims against the other two defendants are before the court
in this appeal.

                                         -2-
court lacks jurisdiction over this interlocutory appeal. Johnson v. Jones, 515 U.S.

304, 319-20 (1995) (holding that appellate courts lack interlocutory jurisdiction in

qualified-immunity based appeals from the denial of summary judgment to review

“whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”);

Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (“[T]he Supreme Court

[has] indicated that, at the summary judgment stage at least, it is generally the

district court’s exclusive job to determine which facts a jury could reasonably

find from the evidence presented to it by the litigants.”). Accordingly, we

dismiss Cannon’s appeal for lack of appellate jurisdiction.

                                II. BACKGROUND

A. Factual Background

      The district court noted that the following generalized factual background

was undisputed:

      Craig Ralston, a member of the Messianic Jewish faith, was arrested
      and booked into Denver Detention Center (“DDC”) on December 20,
      2013. At all relevant times to this claim, Hosea Cannon served as
      the Program Director and Chaplain for Denver Sheriff’s Department.
      Chaplain Cannon’s job responsibilities involve “coordinating,
      directing and monitoring the religious activities and services of
      inmates of all faiths represented by the inmate population,” which
      include special diet requests. During the booking process, Mr.
      Ralston completed the “Intake Pre-Classification Questionnaire” and
      apparently circled “NO” to the question “Does your religious
      affiliation require a special diet?” Soon after booking, Mr. Ralston
      filed a step one grievance requesting a kosher diet in accordance with
      his religious beliefs as a Messianic Jew. On January 2, 2014,
      Chaplain Cannon denied the request based on Mr. Ralston’s response
      to the question concerning dietary restrictions and “Chaplain

                                          -3-
      Cannon’s prior correspondence with a Messianic Jewish consultant
      who [advised] that the DDC’s standard, non-pork, non-shellfish diet
      met the dietary requirements of Messianic Jewish inmates.” On
      January 28, 2014, Mr. Ralston submitted a “Religious Special Diet
      Application,” which included information pertaining to his current
      religious affiliation as well as “some background as to his religious
      history and upbringing.” That same day, Mr. Ralston filed this
      action in the United States District Court for the District of Colorado.
      On February 4, 2014, Chaplain Cannon approved Mr. Ralston’s
      application for a kosher diet.

Dist. Ct. Order at 2 (record citations omitted).

B. Procedural Background

      Cannon filed a motion for summary judgment, claiming he was entitled to

qualified immunity. 2 He asserted that to establish a violation of the Free Exercise

Clause, Ralston “must show that his sincerely held religious beliefs were

substantially burdened by . . . Cannon’s conduct. To do so, he must prove

deliberate, conscious or intentional interference with his right to free exercise.”

Cannon’s Mot. for Summ. J., Appellant’s App’x at 65 (citing Gallagher v.

Shelton, 587 F.3d 1063, 1069-70 (10th Cir. 2009)). 3 Cannon claimed the evidence

      2
        See generally Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)
(holding that when a defendant raises the issue of qualified immunity, the burden
shifts to the plaintiff to meet a heavy two-part burden of showing: (1) the
defendant violated a constitutional right; and (2) the constitutional right was
clearly established).
      3
        Although Cannon relies on Gallagher as setting the relevant parameters of
a § 1983 free exercise claim, there is reason to doubt whether “conscious”
interference with an individual’s right to free exercise amounts to a viable § 1983
First Amendment claim for damages. Gallagher v. Shelton did cite with approval
a Fourth Circuit case holding that to state a valid First Amendment claim, a
                                                                       (continued...)

                                          -4-
      3
        (...continued)
plaintiff can prove either conscious or intentional interference with the right to
free exercise. 587 F.3d 1063, 1069-70 (10th Cir. 2009) (citing Lovelace v. Lee,
472 F.3d 174, 201 (4th Cir. 2006)); see also McKinley v. Maddox, 493 F. App’x
928, 932 (10th Cir. 2012) (citing Gallagher for this standard). In Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009), a case issued just a few months before the issuance
of Gallagher, the Supreme Court considered the validity of a complaint alleging
federal officials violated the plaintiff’s First and Fifth Amendment rights by
imposing harsh conditions of confinement because of race, religion, and national
origin. Id. at 668-69. Iqbal found it necessary to set out “the elements a plaintiff
must plead to state a claim of unconstitutional discrimination against officials
entitled to assert the defense of qualified immunity.” Id. at 675. The Court stated
as follows:

             The factors necessary to establish a [constitutional] violation
      will vary with the constitutional provision at issue. Where the claim
      is invidious discrimination in contravention of the First and Fifth
      Amendments, our decisions make clear that the plaintiff must plead
      and prove that the defendant acted with discriminatory purpose.
      Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-
      541 (1993) . . . ; Washington v. Davis, 426 U.S. 229, 240 (1976) . . . .
      Under extant precedent purposeful discrimination requires more than
      “intent as volition or intent as awareness of consequences.”
      Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279
      (1979). It instead involves a decisionmaker’s undertaking a course
      of action “‘because of,’ not merely ‘in spite of,’ [the action’s]
      adverse effects upon an identifiable group.” Ibid. It follows that, to
      state a claim based on a violation of a clearly established right,
      respondent must plead sufficient factual matter to show that
      petitioners adopted and implemented the detention policies at issue
      not for a neutral, investigative reason but for the purpose of
      discriminating on account of race, religion, or national origin.

Id. at 676-77. Because the propriety of the rule set out in Gallagher vis-a-vis the
above-quoted language from Iqbal was not raised on appeal by Cannon, and
because this court lacks jurisdiction over the issues Cannon did raise on appeal, it
is unnecessary for this court to attempt to reconcile Gallagher and Iqbal. Instead,
we leave it to the district court’s discretion, given Cannon’s reliance on the
Gallagher standard throughout this litigation, whether to take up this question on
                                                                        (continued...)

                                         -5-
adduced by Ralston failed to satisfy that rigorous standard. In particular, Cannon

argued the evidence demonstrated he did not have the necessary information

regarding Ralston’s religious background until January 28, 2014, and he approved

a kosher diet on February 4, 2014. Before that time, Cannon claimed, he

reasonably relied on two pieces of information—Ralston’s disclaimer of the need

for a kosher diet on the intake form and the advice of a religious consultant

regarding Messianic Judaism—to conclude Ralston was not entitled to kosher

meals. According to Cannon, his conduct, which was, at most, negligent, did not

amount to a constitutional violation. Relying on this same set of assumed facts,

Cannon asserted Ralston’s right to an accommodation was not clearly established

during the requisite time frame.

      The district court denied Cannon’s request for summary judgment. It noted

that, contrary to Cannon’s contentions, the record evidence, viewed in Ralston’s

favor, demonstrated a genuine issue of fact existed as to the “number and nature

of communications” between Cannon and Ralston. 4 Given this assumed set of

      3
      (...continued)
remand and revisit the propriety of summary judgment.
      4
       The district court determined a reasonable jury could believe Ralston made
numerous efforts to convey to Cannon his need for a religious accommodation, in
the nature of a kosher meal, during the time period in question:

      Unsurprisingly, [Ralston’s] account of his efforts to exhaust DDC’s
      administrative remedies differs significantly from [Cannon’s]
      position that Mr. Ralston only communicated once to DDC officials
                                                                     (continued...)

                                         -6-
facts (i.e., repeated requests for a kosher diet on the part of Ralston, coupled with

an explanation of why his particular religious belief required such a diet), the

district court rejected Cannon’s assertion that his denial of a kosher diet amounted


      4
       (...continued)
      about a kosher diet request through a grievance form submitted to
      Chaplain Cannon on December 23, 2013. The Complaint [which is
      sworn under penalty of perjury and is, thus, treated as an affidavit]
      provides a fairly detailed timeline regarding Mr. Ralston’s attempts
      to obtain a kosher diet: (1) “On December 23, 2013, the plaintiff sent
      an informal “Kite” to Chaplain Cannon explaining that the plaintiff is
      Messianic Jewish and requires a Kosher meal as he follows strict
      Kosher guidelines of the Jewish faith;” (2) “Chaplain Cannon replied
      to the kite that the non-pork, non-shellfish regular diet meets the
      standard for Messianic Jews;” (3) “The plaintiff replied via another
      kite stating the regular diet does NOT meet the stricter kosher
      standards which the plaintiff and many other Messianic Jews adhere
      to and follow,” to which Chaplain Cannon did not respond; (4) “On
      December 30, 2013, the plaintiff filed a formal Grievance reiterating
      what he had stated in the informal kites and specified the remedy he
      sought was to be placed immediately on a strict Kosher diet;”
      (5) “On January 2, 2014, Chaplain Cannon responded to the formal
      grievance with the same response he had used in the informal kites,
      that the non-pork, non-shellfish diet met the standard for Messianic
      Jews;” (6) “On January 5, 2014, plaintiff sent another kite to
      Chaplain Cannon asking for the contact information of the Messianic
      Jewish Rabbi that Chaplain Cannon had claimed to have consulted;”
      (7) “On January 6, 2014, Chaplain Cannon responded to the kite by
      forwarding an email from Prison Ministry Administrator Charmayne
      Rohde stating that a non-pork, non-shellfish diet could meet the
      standard if a person chose NOT to follow the stricter kosher
      standards;” (8) “Plaintiff sent another kite to Chaplain [Cannon] on
      or about January 10, 2014, stating that he does follow the stricter
      standards so please have the food prep. department place his [sic] on
      a strict kosher diet,” to which Chaplain Cannon never responded
      ....

Dist. Ct. Order at 5-6 (footnote and record citations omitted).

                                          -7-
to nothing more than, at most, an isolated act of negligence. 5 Instead, the district

court concluded a reasonable juror could find Cannon “consciously or

intentionally interfered with [Ralston’s] free exercise rights by denying the kosher

diet request on January 2, 2014.” Dist. Ct. Order at 10. By that date, the district

court noted, a reasonable juror could find Ralston had repeatedly and steadfastly

informed Cannon that in his practice of Messianic Judaism he was compelled to

keep a kosher diet and that the advice of the religious consultant about the

appropriateness of the regular DDC menu was not consistent with Ralston’s

particular religious practices. Id.; see also LaFevers v. Saffle, 936 F.2d 1117,

1119 (10th Cir. 1991) (“Differing beliefs and practices are not uncommon among

      5
          The district court concluded as follows:

             Viewing the facts in the light most favorable to the
      non-moving party, the court finds [Cannon’s] denial of [Ralston’s]
      request amounts to more than an isolated act of negligence.
      Gallagher, 587 F.3d at 1070 (citations omitted) (“[A]n isolated act of
      negligence would not violate an inmate’s First Amendment right to
      free exercise of religion.”). Unlike the prison officials in Gallagher,
      Chaplain Cannon did not untimely approve a request for special
      provisions needed to observe a religious holiday, he outright denied
      Mr. Ralston’s request for a kosher diet. It is undisputed that Mr.
      Ralston was not provided a kosher diet from December 20, 2013 to
      February 4, 2014. Considering that every meal Mr. Ralston received
      for more than a month was non-kosher, it is reasonable to infer that
      this denial substantially burdened his sincerely-held religious beliefs.
      See Abdulhaseeb v. Calbone, 600 F.3d [1301, 1321 (10th Cir. 2010)]
      (“[W]e assume that as the frequency of presenting unacceptable
      foods increases, at some point the situation would rise to the level of
      a substantial burden . . . [.]”).

Dist. Ct. Order at 10 (record citations omitted).

                                           -8-
followers of a particular creed. Moreover, the guarantees of the First Amendment

are not limited to beliefs shared by all members of a religious sect. Instead,

plaintiff is entitled to invoke First Amendment protection if his religious beliefs

are sincerely held.” (citations omitted)). Given all this, the district court

determined that a reasonable juror could “infer from these facts that Chaplain

Cannon was aware that denying the request would interfere with Mr. Ralston’s

free exercise of religion given his repeated, direct communication with Mr.

Ralston about the necessity of a strict kosher diet in the Messianic Jewish faith.”

Dist. Ct. Order at 11.

                                   III. ANALYSIS

      On appeal, Cannon asserts the district court erred in denying his request for

qualified immunity. According to Cannon, the evidence adduced on summary

judgment does not establish a violation of Ralston’s First Amendment right to

free exercise. To be clear, however, Cannon does not challenge the district

court’s determination that a conscious or intentional interference which amounts

to a substantial burden on a prisoner’s right to free exercise amounts to a

constitutional violation. See supra n.2. Indeed, that is the very standard Cannon

asked the district court to apply. Instead, he asserts the summary judgment record

does not establish that he acted with the requisite state of mind. 6 Cannon’s

      6
       See Cannon’s Opening Brief at 8-9 (“[B]ased on the information available
to him at the time, it was reasonable for Chaplin Cannon to believe that adherence
                                                                     (continued...)

                                          -9-
assertion that the constitutional right at issue is not clearly established also relies

upon a claim that the summary judgment record establishes nothing more than

that his conduct was reasonable, well-intentioned, or, at most, negligent. 7

      As this court has made clear, “[o]rders denying summary judgment are

ordinarily not appealable final orders for purposes of 28 U.S.C. § 1291.”

Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). We do,

however, have jurisdiction under the collateral order doctrine to review a state

official’s appeal from the denial of qualified immunity at the summary judgment

stage, but only to the extent the appeal involves abstract issues of law. Id.; see




      6
        (...continued)
to a strict kosher diet was not required by Mr. Ralston’s sincerely held religious
beliefs.”); id. at 9 (“To the extent that Chaplain Cannon was mistaken in this
determination, this amounts to, at most, an isolated act of negligence rather than a
conscious interference with Plaintiff’s First Amendment rights.”); id. at 10 (“The
record is undisputed that, at the time that Chaplain Cannon denied Mr. Ralston’s
kosher diet request on January 2, 2013, Chaplain Cannon believed that a kosher
diet was unnecessary to conform with Mr. Ralston’s sincerely held religious
beliefs.”); id. (“The fact that Chaplain Cannon consulted with a Messianic Jewish
advisor—who counseled that the DDC’s standard non-pork, non-shellfish diet was
appropriate for Messianic Jewish inmates—confirms both that Chaplain Cannon
acted in good faith and that his belief that Plaintiff did not genuinely require a
kosher diet was reasonable under the circumstances.”); id. at 11 (“Chaplain
Cannon’s initial belief that Plaintiff did not require a kosher diet was reasonable
in light of the information that he possessed at that time. Thus, the denial of
Plaintiff’s diet request cannot be said to be plainly incompetent or a conscious
interference with Plaintiff’s First Amendment rights.”).
      7
        See Cannon’s Opening Brief at 19 (arguing that in examining whether the
right at issue is clearly established, the court must recognize that “the delay here
was caused by a reasonable misapprehension of Mr. Ralston’s sincere beliefs”).

                                          -10-
also Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013); Allstate

Sweeping, LLC v. Black, 706 F.3d 1261, 1266-67 (10th Cir. 2013).

      That is, this court has jurisdiction to review (1) whether the facts that
      the district court ruled a reasonable jury could find would suffice to
      show a legal violation, or (2) whether that law was clearly
      established at the time of the alleged violation. In contrast, this court
      has no interlocutory jurisdiction to review whether or not the pretrial
      record sets forth a genuine issue of fact for trial. The Supreme Court
      has indicated that, at the summary judgment stage at least, it is
      generally the district court’s exclusive job to determine which facts a
      jury could reasonably find from the evidence presented to it by the
      litigants. So, for example, if a district court concludes that a
      reasonable jury could find certain specified facts in favor of the
      plaintiff, the Supreme Court has indicated we usually must take them
      as true—and do so even if our own de novo review of the record
      might suggest otherwise as a matter of law.

Roosevelt-Hennix, 717 F.3d at 752 (citations, quotations, and alterations omitted);

see also Johnson, 515 U.S. at 320 (establishing this jurisdictional limitation on

appeals from the denial of summary judgment in qualified immunity cases).

      It is certainly true that a mere determination on the part of a district court

that genuine issues of material fact preclude summary judgment does not

necessarily bar this court’s exercise of appellate jurisdiction in a particular case.

See Henderson v. Glanz, 813 F.3d 938, 947-48 (10th Cir. 2015). We have

jurisdiction to review such denials of qualified immunity “if our review would

[not] require second-guessing the district court’s determinations of evidence

sufficiency.” Id. at 948 (quotation omitted). This court, then, has jurisdiction

over appeals challenging the denial of a qualified-immunity-based motion for


                                          -11-
summary judgment only if a defendant-appellant does not dispute the facts a

district court determines a reasonable juror could find but, instead, “raises only

legal challenges to the denial of qualified immunity based on those facts.” Id.

      As should be clear from the background set out above, Cannon does not

assert on appeal that a conscious or intentional interference with Ralston’s right

to free exercise, whether relatively brief or not, is consistent with the First

Amendment. 8 Nor does he assert that it was not clear during the time period in

question that an intentional or conscious placement of a substantial burden on

Ralston’s right to free exercise would violate the First Amendment. Instead, he

simply asserts the district court erred in determining a reasonable juror could

conclude he acted intentionally or consciously. This court lacks jurisdiction to

      8
        It is not surprising that Cannon does not make such an assertion on appeal
because this court has not been able to locate a single authority supporting such a
rule. There are cases noting that isolated and infrequent denials of required
kosher diets do not amount to a constitutional violation. See, e.g., Gallagher, 587
F.3d at 1070. But each such case this court has been able to identify has been
based on a conclusion that the relevant record simply cannot support a
determination of intent on the part of the relevant government official. Id.
(concluding the facts set out in the complaint did not raise a viable inference of
intent but, instead, amount to an “isolated instance of negligence”). Here, on the
other hand, the district court determined a reasonable juror could conclude
Cannon acted consciously or intentionally. See McKinley, 493 F. App’x at 933
(unpublished disposition cited merely for its persuasive value) (distinguishing
Gallagher on this exact basis and holding that an allegation of “intentional”
interference with the right to attend religious services for one month stated a free
exercise claim). In particular, we note that in the Sixth Circuit’s decision in
Colvin v. Caruso, 605 F.3d 282 (6th Cir. 2010), upon which Cannon heavily
relies, the court took pains to note there was no evidence in the record indicating
the denial of the plaintiff’s kosher meals amounted to a “knowing” denial of the
plaintiff’s civil rights. Id. at 291, 293.

                                          -12-
take up such an issue in an interlocutory appeal from the denial of summary

judgment.

      In closing, this court notes that the jurisdictional limitation at issue in this

appeal has been in place since the Supreme Court’s decision in Johnson, 515 U.S.

at 319-20, more than twenty years ago. Johnson made clear that allowing appeals

from district court determinations of evidentiary sufficiency simply does not

advance the goals of the qualified-immunity doctrine in a sufficiently weighty

way to overcome the delay and expenditure of judicial resources that would

accompany such appeals. Id. at 315-17. 9 It certainly follows, then, that appeals

like the instant one that flaunt the jurisdictional limitations set out in Johnson

serve only to delay the administration of justice. See id. That being the case, this




      9
       In so concluding, the Court noted with particularity that pretrial questions
about the existence or nonexistence of intent are particularly inappropriate for
interlocutory appeal:

      [Q]uestions about whether or not a record demonstrates a “genuine”
      issue of fact for trial, if appealable, can consume inordinate amounts
      of appellate time. Many constitutional tort cases . . . involve factual
      controversies about, for example, intent—controversies that, before
      trial, may seem nebulous. To resolve those controversies—to
      determine whether there is or is not a triable issue of fact about such
      a matter—may require reading a vast pretrial record, with numerous
      conflicting affidavits, depositions, and other discovery materials.
      This fact means, compared with [interlocutory appeals involving
      abstract issues of law], greater delay.

Johnson v. Jones, 515 U.S. 304, 316 (1995).

                                          -13-
court expects practitioners will be cognizant of, and faithful to, the jurisdictional

limitation set out in Johnson.

                                 IV. CONCLUSION

      For those reasons set out above, this appeal is DISMISSED for lack of

appellate jurisdiction.




                                         -14-
