                                                                                [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                               No. 11-10272         ELEVENTH CIRCUIT
                                           Non-Argument Calendar    SEPTEMBER   22, 2011
                                         ________________________        JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 3:09-cv-00482-TJC-MCR

SAMUEL JOSEPH GARDNER,

llllllllllllllllllllllllllllllllllllll       l                                    Plaintiff-Appellant,

                                                      versus

G RISKA,
in his individual and official capacity,
TONI BOWDEN,
in her individual and official capacity,
SECRETARY DEPARTMENT OF CORRECTIONS,
in his individual and official capacity,
FLORIDA DEPARTMENT OF CORRECTIONS,

                                    llllllllllllllllllllllllllllllllllllllll   Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                            (September 22, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      Samuel Gardner, a prisoner proceeding pro se, brought 42 U.S.C. § 1983

claims against the Florida Department of Corrections (“DOC”), the Secretary of

the DOC, Walter A. McNeil, and DOC employees G. Riska and Toni Bowden

alleging that the defendants violated his rights under the First Amendment and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by denying

him a Kosher diet. The district court granted summary judgment in favor of

McNeil, Riska, and Bowden on the ground that Gardner failed to demonstrate that

he sincerely believed that a Kosher diet is important to his free exercise of

religion. The district court also dismissed the claim against the DOC as frivolous

pursuant to 28 U.S.C. 1915A(b) on the ground that the DOC is not a “person”

within the meaning of 42 U.S.C. § 1983. Gardner appeals these rulings.

                                          I.

      We review de novo the district court’s grant of summary judgment in favor

of McNeil, Riska, and Bowden, applying the same standard as the district court

and viewing all evidence and factual inferences reasonably drawn from the

evidence in the light most favorable to the non-moving party. Miccosukee Tribe

of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008).

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Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed.R.Civ.P. 56(a). Once the moving party has carried its burden, the

burden shifts to the nonmoving party to come forward with specific facts showing

that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).

      Section 3(a) of RLUIPA “protects institutionalized persons who are unable

freely to attend to their religious needs and are therefore dependent on the

government’s permission and accommodation for exercise of their religion.”

Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). More expansive than prisoners’

rights under the First Amendment, RLUIPA “affords to prison inmates a

heightened protection from government-imposed burdens, by requiring that the

government demonstrate that the substantial burden on the prisoner’s religious

exercise is justified by a compelling, rather than merely a legitimate, governmental

interest.” Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) (internal quotation

marks omitted), abrogated on other grounds by Sossamon v. Texas, __ U.S. __,

131 S.Ct. 1651 (2011). Thus, if Gardner’s RLUIPA rights were not violated,

neither were his First Amendment rights.




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      “To establish a prima facie case under section 3 of RLUIPA, a plaintiff must

demonstrate 1) that he engaged in a religious exercise; and 2) that the religious

exercise was substantially burdened.” Smith, 502 F.3d at 1276. “The practice

burdened need not be central to the adherent's belief system, but the adherent must

have an honest belief that the practice is important to his free exercise of religion.”

Sossamon v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir. 2009).

“Although RLUIPA bars inquiry into whether a particular belief or practice is

‘central’ to a prisoner’s religion, . . . the Act does not preclude inquiry into the

sincerity of a prisoner’s professed religiosity.” Cutter, 544 U.S. at 725 n.13.

      Here, Gardner failed to demonstrate that he sincerely believes that a Kosher

diet is important to the free exercise of his religion. The defendants submitted

affidavits from two canteen operators who stated that they had sold Gardner

numerous non-Kosher items, heated many of these non-Kosher items for Gardner,

and witnessed him consume many of these items, despite the fact that the canteen

menu included items designated as Kosher. The defendants also submitted records

demonstrating that Gardner purchased numerous non-Kosher items from the

prison canteen. In response, Gardner only submitted his own affidavit, which

neither refuted the defendants’ evidence, nor stated that he sincerely believed that

a Kosher diet is important to the free exercise of his religion. As Gardner failed to

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come forward with specific facts demonstrating that he had a sincere belief that a

Kosher diet is important to the free exercise of his religion, he failed to carry his

burden at summary judgment of establishing a prima facie case under section 3 of

RLUIPA. Accordingly, defendants McNeil, Riska, and Bowden are entitled to

judgment as a matter of law.

                                           II.

      We review the district court’s sua sponte dismissal of Gardner’s claim

against DOC pursuant to 28 U.S.C. § 1915A for an abuse of discretion. Miller v.

Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). A civil complaint filed by a

prisoner seeking redress from a governmental entity or an employee or officer of a

governmental entity must be dismissed if the complaint is “frivolous, malicious, or

fails to state a claim upon which relief can be granted.” 28 U.S.C. § 1915A(b)(1).

“A claim is frivolous if and only if it ‘lacks an arguable basis either in law or in

fact.’” Miller, 541 F.3d at 1100 (quoting Neitzke v. Williams, 490 U.S. 319, 327

(1989)).

      To establish a claim under § 1983, a plaintiff must show that he “was

deprived of a federal right by a person acting under color of state law.” Griffin v.

City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001) (emphasis added). “A

state, a state agency, and a state official sued in his official capacity are not

                                            5
‘persons’ within the meaning of § 1983, thus damages are unavailable.” Edwards

v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995). As the DOC is a

state agency, and thus not a person within the meaning of § 1983, Gardner’s §

1983 claim for damages against the DOC is frivolous.

      However, Gardner’s claim for injunctive relief against the DOC is not

frivolous because RLUIPA creates an express private cause of action for

injunctive and declaratory relief against the government, which includes “States,

counties, municipalities, their instrumentalities and officers, and persons acting

under color of state law.” Sossamon v. Texas, __ U.S. __, 131 S.Ct. 1651, 1656

(2011). Nonetheless, because Gardner failed to establish a prima facie claim

under RLUIPA, the DOC is still entitled to judgment as a matter of law.

      AFFIRMED.




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