                                                                    NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 13-4081
                                         ___________

                                      RONALD BANKS,
                                                Appellant

                                               v.

         SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
              REV. ULLI KLEMM, ADMINISTRATOR OF RELIGION;
                   JAMES J. MCGRADY, SUPERINTENDENT;
          MICHAEL HOOVER, DEPUTY SUPT.- CENTRALIZED SERVICES;
       REV. JOHN RITCHEY, FACILITY CHAPLAINCY PROGRAM DIRECTOR
                    ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 3:10-cv-01480)
                        District Judge: Honorable James M. Munley
                        ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    January 2, 2015
           Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

                               (Opinion filed: February 9, 2015 )
                                         ___________

                                          OPINION*
                                         ___________

PER CURIAM


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       After his transfer to SCI – Somerset, Ronald Banks, a Pennsylvania inmate, filed

an amended complaint against the Secretary of the Pennsylvania Department of

Corrections (“DOC”); the Religion, Volunteer, and Recreational Services Program

Administrator for the DOC (Ulli Klemm); and three prison officials at SCI – Retreat,

where he had resided previously. As we write primarily for the parties, we will refer to

the details only to the extent they are necessary to the analysis.

       Essentially, Banks alleged that while he was incarcerated in the Secure Special

Needs Unit at SCI – Retreat, his rights under the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”), the First Amendment, and the Equal

Protection Clause were violated by prison policies relating to participation in the Islamic

feasts of Eid al-Fitr and Eid al-Adha and to the use of prayer oils during religious

services. He also alleged that a DOC memorandum issued by defendant Klemm to all

DOC Chaplaincy Program Directors limiting indigent Muslims in high security and

general population units from participation in the Islamic feasts was not promulgated in

compliance with Pennsylvania’s Commonwealth Documents Law.

       Banks sought declaratory judgments that the defendants’ actions violated his rights

under the First Amendment, the Equal Protection Clause, and RLUIPA. He also sought

several injunctions against all the defendants, including a general injunction to “put an

end” to the acts and policies described in his complaint, and more specific injunctions to



constitute binding precedent.
                                              2
modify DOC Policy DC-ADM 819 (to allow indigent Muslim prisoners to be placed in

debt to participate in the feasts of Eid al-Fitr and Eid al-Adha) and DOC Policy Statement

#3.1.1. (to utilize the Inmate General Welfare Fund (“IGWF”) to purchase food for the

two feasts for indigent Muslims in the high security units and general population). He

also requested damages from each defendant.

       The defendants moved for summary judgment, which the District Court granted.

The District Court first concluded that Banks could not recover compensatory and

punitive damages under RLUIPA, and that his claims for injunctive and declaratory relief

were moot because he had been transferred to SCI – Somerset. The District Court also

stated that even if other damages were available or if his case were not moot, Banks

would not be entitled to relief because Islam did not compel participation in the feast

meals or the use of prayer oils. Applying Turner v. Safley, 482 U.S. 78 (1987), the

District Court rejected the First Amendment claims. The District Court also considered

and rejected the Equal Protection challenge. Banks appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. The Court exercises plenary

review over the District Court’s grant of summary judgment in favor of the defendants.

Abramson v. William Patterson Coll., 260 F.3d 265, 276 (3d Cir. 2001). We may affirm

on any basis supported by the record. See Erie Telecomms., Inc. v. City of Erie, 853 F.2d

1084, 1089 n.10 (3d Cir. 1988).




                                             3
       Banks’ case, in large part, is moot. RLUIPA does not allow for the recovery of

money damages. See Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir. 2012) (“RLUIPA

does not permit an action against Defendants in their individual capacities . . . [t]hus,

RLUIPA cannot impose direct liability on Defendants.”); see also Laskaris v.

Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981) (explaining that the Eleventh Amendment

bars a suit for damages against state officials acting in their official capacities). The only

relief potentially available to Banks for his RLUIPA claims is injunctive or declaratory,

but to the extent that Banks seeks that relief against defendants at SCI – Retreat, his

claims are moot because he was transferred to SCI – Somerset. He no longer presents a

live case or controversy for injunctive relief regarding the policies or practices at SCI –

Retreat because an injunction where he is no longer imprisoned would not provide him

meaningful relief. See Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993). On

this record, any future incarceration of Banks at SCI – Retreat is speculative, so his case

not does not present an issue capable of repetition, yet evading review regarding the relief

against the SCI – Retreat defendants. See id. Although “[t]he mootness of a . . . claim

for injunctive relief is not necessarily dispositive regarding the mootness of . . . [a] claim

for a declaratory judgment,” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011),

Banks’ claims for declarations the SCI – Retreat defendants are similarly moot, see id. at

1027-28 (10th Cir. 2011) (explaining that prison-specific claims are moot on transfer

because a declaration that a prisoner was wronged at institution where he no longer

                                               4
resides has no effect on a defendant’s behavior toward him). Furthermore, Banks

specifically noted in his complaint that the use of prayer oil, at least at Friday services,

was not an issue at SCI – Somerset. Similarly, Banks’ First Amendment and Equal

Protection claims for other injunctive and declaratory relief against the defendants at SCI

– Retreat are moot.

       Remaining are his RLUIPA claims against Superintendent Beard and defendant

Klemm for declarative and injunctive relief relating to the terms of the DOC-wide

policies DC-ADM 819 and Policy Statement #3.1.1, his claims for damages for purported

violations of the First Amendment and the Equal Protection Clause, and his claims of a

violation of the Pennsylvania Commonwealth Documents Law.1

       We conclude that summary judgment was properly granted on the Equal

Protection claims. The District Court’s analysis of how Christmas is treated as a cultural

phenomenon or nationally recognized holiday (on pages 23-25 of the District Court’s

memorandum) and why the use of IGWF funds for it is different from the use of those

funds for meals for some inmates on Eid al-Fitr and Eid al-Adha is sound. As the District

Court explained, indigency is not a suspect class. There is a rational reason (cost-

containment) for treating indigent versus non-indigent prisoners differently. Also as the

District Court concluded, the ban on prayer oil stems from a distinct documented problem


1
 We agree with the defendants that Banks did not raise a due process claim in his
amended complaint.

                                               5
at that institution.2 And Banks did not controvert the evidence that RARs submitted by

inmates of different faiths are treated the same.

       Also, although the District Court did not explicitly address it, the defendants were

entitled to judgment in their favor on the Commonwealth Documents Law claim. The

Documents law sets forth procedures to be followed when a state agency issues binding

regulations. See Small v. Horn, 722 A.2d 664, 668-69 (Pa. 1998). However, Banks

could not succeed on his Commonwealth Documents Law claim because the

memorandum written by defendant Klemm that Banks cited was not a regulation under

the terms of the statute. A regulation is a rule promulgated through the statutory

authority of an agency to administer a statute or to prescribe a practice or procedure

before the agency. 45 P.S. § 1102(12). DOC bulletins and policy statements are not

regulations; instead they are “agency decisions inherently committed to the agency’s

sound discretion.” See Small v. Horn, 722 A.2d 664, 669-70 (Pa. 1998) (noting the

DOC’s need to be able to modify reasonable rules of internal prison management as

conditions require); Bundy v. Beard, 924 A.2d 723, 727-28 (Pa. Commw. Ct. 2007).


2
 To the extent that Banks raises a challenge to an order denying his motion to compel
disciplinary records relating to theft or abuse of prayer oils, we conclude that he has not
shown that the District Court abused its discretion in denying his request as irrelevant
(given that neither the identity of those who took prayer oils nor whether they were
punished could controvert the prison officials’ documentation of the theft problem) and
unduly burdensome (as the prison did not maintain misconduct records in a way that they
could be searched for the issue of problems with prayer oil). See United States v. Al
Hedaithy, 392 F.3d 580, 605 (3d Cir. 2004) (setting forth the standard of review for
discovery rulings).
                                              6
       Banks also pursues RLUIPA claims against Beard and Klemm with respect to DC-

ADM 819 and Policy Statement #3.1.1. DC-ADM 819 is the DOC’s policy statement on

religious activities. Among the religious accommodations it lists is that “special foods

and diets may be provided as required for the celebration of major religious holidays

consistent with established [DOC] policy.” DC-ADM 819(G)(1). Banks seeks a

modification of the policy to allow indigent Muslim prisoners to be placed in debt to

participate in the feasts of Eid al-Fitr and Eid al-Adha. In effect, he wants a policy in

which special foods (including optional items) must be provided for the celebration of

Eid al-Fitr and Eid al-Adha. In relevant part, Policy Statement #3.1.1, the Fiscal

Administration policy, states that IGWF funds may be expended only on approved

categories, which include “gifts to inmate packages” at “major holidays” and “non

specific religious items” for the chapel and other items “used for various religious and

secular activities” in the chapel. Banks argues that to comply with RLUIPA, it should be

modified to allow the use of IGWF funds to purchase food for the two feasts for indigent

Muslims in the high security units and general population.

       In addition to mootness grounds, the defendants argued, and the District Court

alternatively noted, that Banks had not established that any sincerely held religious belief

had been burdened. The conclusion was based on the premise that Islam did not require

participation in a feast or meal on Eid al-Fitr and Eid al-Adha. In relevant part, RLUIPA

provides:

                                              7
       No government shall impose a substantial burden on the religious exercise
       of a person residing in or confined to an institution, . . . even if the burden
       results from a rule of general applicability, unless the government
       demonstrates that imposition of the burden on that person[] (1) is in
       furtherance of a compelling governmental interest; and (2) is the least
       restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). A substantial burden exists for the purposes of RLUIPA if

“1) a follower is forced to choose between following the precepts of his religion and

forfeiting benefits otherwise generally available to other inmates versus abandoning one

of the precepts of his religion in order to receive a benefit; OR 2) the government puts

substantial pressure on an adherent to substantially modify his behavior and to violate his

beliefs.” Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007).

       If a litigant presents prima facie evidence that his free exercise rights were

substantially burdened, the government must show that the burden is in furtherance of a

compelling governmental interest and is “the least restrictive means of furthering that . . .

interest.” Washington, 497 F.3d at 277 (citing RLUIPA, 42 U.S.C. § 2000cc-1(a)). The

application of the compelling interest standard is context-specific and deferential to the

prison authorities’ choices about how to run their institution. Id. at 283 (citing Cutter v.

Wilkinson, 544 U.S. 709, 722-23 (2005)). “We do not read RLUIPA to elevate

accommodation of religious observances over an institution’s need to maintain order and

safety.” Cutter, 544 U.S. at 722. A prison policy that “is related to maintaining good

order and controlling costs” serves a compelling government interest. See Baranowski v.

Hart, 486 F.3d 112, 125 (5th Cir. 2007).
                                              8
          The District Court erred in rejecting Banks’ RLUIPA claim on the basis that Islam

did not require participation in a feast meal. The religious exercise protected under

RLUIPA includes any exercise of religion, whether or not compelled by, or central to, a

system of religious belief. Cutter, 544 U.S. at 715 (citing § 2000cc-5(7)(A)) (quotation

marks omitted); Washington, 497 F.3d at 276 (explaining that a court does not inquire

into whether a belief is compelled by, or central to, a religion). Banks professed his

belief that full participation in a communal feast is central to the practice of his religion

and essential to the receipt of blessings. Although the defendants countered that it was

“undisputed” that Islam did not require participation in a feast or meal on Eid al-Fitr and

Eid al-Adha, their evidence does not make the issue undisputed. Cf. Ford v. McGinnis,

352 F.3d 582, 590-91 (2d Cir. 2003) (considering a prisoner’s belief about the feast of

Eid al-Fitr and noting that religious authorities employed by the DOC cannot trump a

plaintiff’s sincere and religious belief in the evaluation of a First Amendment claim).

Banks made assertions about the critical importance of full participation in the feasts.

Taking all inferences in his favor, we conclude that he could also maintain a genuine

issue of material fact regarding whether the government put substantial pressure on him

to substantially modify his behavior and to violate his beliefs at the time of the Muslim

feasts.

          However, even assuming that Banks’ religious exercise was substantially

burdened, the defendants offered a financial rationale that serves as a compelling interest

                                               9
to disallow the DOC’s purchase of optional items for all or an account deficiency

(although the District Court did not reach this step). Although Banks presented the

alternative of allowing non-indigent inmates to pay for optional items or other feast costs

for indigent inmates, the defendants provided evidence that they did not let inmates

purchase items for each other on the basis of security concerns. The rationale they

provided was that an inmate who buys things for another inmate could coerce that inmate

to perform illicit or illegal acts, engage in blackmail, or otherwise jeopardize the security

of the institution. On the record before us, it does not appear that the security and

budgetary interests the defendants describe could be achieved by a different or lesser

means.3 See Baranowski, 486 F.3d at 125-26 (citing Cutter).

          Similarly, in the First Amendment context, we do not evaluate whether a particular

belief is true; we consider only whether the litigant sincerely holds a particular belief and

whether that belief is religious in nature. See Ford, 352 F.3d at 590-91; cf. DeHart v.

Horn, 227 F.3d 47, 51 (3d Cir. 2000) (explaining that a belief that is both sincerely held

and religious in nature is entitled to constitutional protection). It is at least genuinely

disputed whether the feasts and prayer oils are Banks’ sincere beliefs that are religious in

nature.



3
 Similarly, to the extent that Banks’ claim was based on being deprived of the communal
nature of the feast more than specific food items because of his assignment to segregated
housing, the prison’s interest in segregating certain inmates from the general population
could not be differently achieved. See Cooper v. Tard, 855 F.2d 125, 130 (3d Cir. 1988).
                                              10
       To evaluate Banks’ First Amendment claim, we must apply the four-factor test set

forth in Turner v. Safley, 482 U.S. 78 (1987), to determine whether the policy challenged

as impinging on rights is “reasonably related to penological interests.” DeHart v. Horn,

227 F.3d 47, 51 (3d Cir. 2000) (citing Turner, 482 U.S. at 89). As we have explained:

              [Turner] directs courts to assess the overall reasonableness of
              such regulations by weighing four factors. “First, there must
              be a ‘valid, rational connection’ between the prison regulation
              and the legitimate governmental interest put forward to justify
              it,” and this connection must not be “so remote as to render
              the policy arbitrary or irrational.” Second, a court must
              consider whether inmates retain alternative means of
              exercising the circumscribed right. Third, a court must take
              into account the costs that accommodating the right would
              impose on other inmates, guards, and prison resources
              generally. And fourth, a court must consider whether there are
              alternatives to the regulation that “fully accommodate[ ] the
              prisoner’s rights at de minimis cost to valid penological
              interests.”

Id. (citing Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999) (internal citations

omitted)).

       Although the District Court’s analysis of the First Amendment question focused

too much on the dictates of Islam, its conclusion that the prison policy was reasonably

related to penological objectives is sound. Also, the District Court noted alternatives

ways to participate in the feasts. The cost-containment rationale serves as a valid reason

for rejecting some of Banks’ proposed alternatives. And while the District Court did not

explicitly consider the use of IGWF funds or Banks’ proposal that non-indigent inmates

could purchase meals for indigent ones, as we noted above, the prison provided a
                                            11
rationale for rejecting those alternatives. Also, there were security concerns regarding the

prayer oils (there was an institution-specific record of a problem with theft of prayer oil).

       For these reasons, we will affirm the District Court’s judgment.




                                             12
