                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1101
                                       ___________

                                DONALD D. PARKELL,
                                             Appellant
                                        v.

CHRISTOPHER SENATO, Food Services Administrator, in his individual and official
capacities; MATTHEW DUTTON, Inmate Grievance Coordinator, in his individual and
   official capacities; FRANK PENNELL, Chaplain 2, in his individual and official
                                    capacities
                      ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                             (D.C. Civil No. 1-14-cv-00446)
                       District Judge: Honorable Sue L. Robinson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 7, 2017

              Before: SHWARTZ, COWEN and FUENTES, Circuit Judges


                               (Opinion filed July 11, 2017)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Donald Parkell appeals pro se from the District Court’s orders awarding summary

judgment on his claims filed under the First Amendment, the Fourteenth Amendment,

and the Religious Land Use and Institutionalized Persons Act (RLUIPA). We will affirm

in part, vacate in part, and remand for further proceedings.

                                              I.

       Parkell initiated this action in April 2014 against three officials from the James T.

Vaughn Correctional Center (VCC)—Food Services Administrator Christopher Senato,

Chaplain Frank Pennell, and Inmate Grievance Coordinator Matthew Dutton—alleging

that they denied him equal protection of the law, and violated his rights protected by the

First Amendment and RLUIPA by failing to timely provide him with a kosher diet.

       In February 2014, Chaplain Pennell approved Parkell’s change-of-religion request,

from “Roman Catholic or Wicca” to Jewish.1 About two weeks later, after Parkell had

requested a kosher diet in accordance with his change of religion, Senato sent him a

memorandum stating that “to receive the kosher meals you need to have a rabbi verify to

us that you are an Orthodox Jew.” Parkell submitted a grievance the next day, asking that

he be placed on a kosher diet immediately, because eating non-kosher food violated his

religious beliefs.2 Dutton returned this grievance as unprocessed, advising Parkell to


1
  Parkell has consistently self-identified throughout this litigation as “Jewish/Wicca.” As
he explained in his complaint: “a study in historical proofs compelled me to believe in the
Jewish interpretation of God, morality, law, nature . . . . [but] one irreconcilable belief []
will not allow a Rabbi to recognize my faith as Jewish, the belief in a dualistic deity.”
2
  As Parkell put it: “I must eat kosher and live according to kashruth law [Jewish dietary
law]. I am not of Jewish descent, nor have I gone through conversion to satisfy other
                                               2
direct his request to Pennell. About two weeks later, Parkell submitted a “Religious Diet

Participation Agreement”—later signed by security staff on April 17, 2014—indicating

that he is “Kosher Practicing.”

       Under DOC Policy Number 5.3 in effect at that time,3 it appears that Parkell

should have been permitted a kosher diet after submitting this agreement. According to

an affidavit filed in the District Court by Senato, however, the DOC at that time “required

that those inmates requesting kosher diets be Orthodox Jews,” although he did not

identify the source of the policy. He also stated that this unidentified policy changed in

April 2016, permitting non-Jewish inmates to receive a kosher diet so long as it is part of

a sincerely held religious belief.

       Meanwhile, Parkell filed this action in April 2014. He later moved to voluntarily

dismiss his request for injunctive relief in May 2016 after he was provided a kosher diet

consistent with the April 2016 policy change and counsel for Defendants represented that

they would continue to provide it. By order entered on July 27, 2016, the District Court

granted Defendants’ motion for summary judgment in part, concluding that Dutton

lacked sufficient personal involvement in this action and that Parkell’s RLUIPA claim

was moot because he voluntarily dismissed his request for injunctive relief in May 2016.


people. I simply believe that eating non-kosher food violates my soul’s purpose to
celebrate and worship God and the Goddess through rituals demanded within Hebrew
texts.”
3
  Policy Number 5.3 (effective date July 16, 2012) provides that “[t]he DOC shall provide
a religious diet to offenders who have self reported a religious affiliation and submit their
written request on the DOC Religious Diet Participation Agreement.”
                                              3
Ultimately, in a December 13, 2016 order, the District Court granted summary judgment

on Parkell’s remaining equal-protection and First Amendment claims, concluding that

Senato and Pennell were entitled to qualified immunity. This timely appeal ensued.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291. On appeal, Parkell challenges both

summary judgment orders.4 We exercise plenary review over these judgments and apply

the same test the District Court utilized—whether the record “shows that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (quoting Federal

Rule of Civil Procedure 56(a)).

       First, we agree with the Appellees that the District Court properly awarded

summary judgment in their favor on Parkell’s RLUIPA claim. RLUIPA does not allow

for the recovery of money damages, see Sharp v. Johnson, 669 F.3d 144, 154 (3d Cir.

2012); in other words, a RLUIPA plaintiff may seek only injunctive or declaratory relief.

The District Court properly concluded that Parkell’s request for injunctive relief was

moot because he had voluntarily dismissed it in May 2016.5 It also properly concluded


4
  Parkell does not contest the District Court’s dismissal of Dutton, and thus we will not
address it. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well
settled that an appellant's failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.”).
5
  Parkell argues on appeal that the “capable of repetition” exception to mootness applies
because Appellees “have shown the probability that they will return to a denial (and
evade review).” He explains that when he is moved to another building, “it takes 3 to 5
days for them to provide the diet to the new assigned unit.” But a party invoking the
                                                4
that he could not seek declaratory relief—which is “by definition prospective in nature,”

CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013), and cannot

be issued to address past wrongs.

       The District Court resolved Parkell’s First Amendment and equal-protection

claims6 on the basis of qualified immunity, which “shields federal and state officials from

money damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time

of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal

citation omitted). The District Court conceded—at least for purposes of summary

judgment7—that a constitutional violation occurred here.8 It opined that “the DOC’s


“capable of repetition” exception must show, among other things, “a reasonable
expectation that . . . [he] will be subject to the same action again.” Rendell v. Rumsfeld,
484 F.3d 236, 241 (3d Cir. 2007) (internal quotation marks and citation omitted). The
“same action” here is the outright denial of kosher meals, and thus Parkell’s citation to
temporary administrative delays is insufficient to invoke the exception, which is “narrow
and available only in exceptional situations.” Id. (internal quotation marks and citation
omitted).
6
  The District Court analyzed these claims collectively under the Turner v. Safley, 482
U.S. 78 (1987), factors, correctly observing that “Turner is equally applicable to
Prisoners' equal protection claims.” But the claims are distinct. Parkell predicated his
First Amendment claim on the denial of his kosher-diet request, while his equal-
protection claim—which he brought “as a class of one”—was predicated on “being
required to have Jewish ancestry as one of the possible two ways to be recognized as
Jewish.” His class-of-one claim fails—and could have been dismissed by the District
Court—because he did not allege that he was the only inmate without Jewish ancestry at
VCC who sought to be recognized as Jewish. See Renchenski v. Williams, 622 F.3d 315,
338 (3d Cir. 2010). Thus we will address only his First Amendment claim.
7
  Facts “accepted at the summary judgment stage of the proceedings, may not be the
actual facts of the case.” Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012)
(internal quotation marks and citation omitted).
                                                 5
religious diet policy in effect prior to April 6, 2016 (restricting kosher diets to only

Orthodox Jews), was constitutionally infirm under Turner,” but concluded that Senato

and Pennell were entitled to qualified immunity, because “given the novel issue plaintiff

presented to defendants . . . reasonable officials in their position at the relevant time

would have no reason to believe that their conduct was unlawful.”

       The District Court focused on Parkell’s particular beliefs, and essentially asked

whether a practitioner of both Judaism and Wicca,9 like Parkell, enjoyed a clearly

established right to a kosher diet, answering this question with a “no.” Senato and

Pennell frame the question similarly on appeal—they claim that Parkell “practiced a

belief that was ‘impossible’ to define,” and argue that, “in the absence [of] case law or [a]

framework with which to understand Plaintiff’s belief system, and any rights associated

with it, Defendants acted reasonably in denying Plaintiff’s request for a kosher meal.”

       We do not doubt that Parkell’s belief system—which he characterizes as

“Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741

(2002). In Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir. 2011), for instance, a prison

chaplain denied a prisoner’s request for a vegan diet, which the prisoner had requested


8
  The Court recognized that the “First Amendment violation was a continuing one for a
two-year period, from April 2014 until April 6, 2016.”
9
  The Seventh Circuit, among others, has “recognized that the Church of Wicca occupies
a place in the lives of its members parallel to that of more conventional religions.”
Knowles v. Pfister, 829 F.3d 516, 518 (7th Cir. 2016) (internal quotations marks and
citation omitted).
                                               6
because he adhered to Moorish Science, a “personal religious faith” according to the

Court of Appeals. The chaplain denied the request on the ground that the tenets of

Moorish Science required only a non-pork diet (not a strictly vegan diet), but the prisoner

argued that his “religious beliefs require[d] a vegan diet no matter what other members of

his sect believe[d].” Id. at 592. The Court of Appeals framed the First Amendment

qualified-immunity question as whether the “chaplain [] had evaluated [the prisoner’s]

sincerity (as opposed to his orthodoxy)[.]” Id. at 594. As Judge Easterbrook explained,

“to decide whether [the] chaplain [] has qualified immunity, the district judge must

determine whether he reasonably attempted to determine whether [the prisoner] has a

sincere belief that his religion requires a vegan diet,” id. at 595, and “[i]f he turned [the

prisoner] down for the sole reason that Moorish Science does not make a vegan diet a

tenet of religious faith, then he violated [the prisoner’s] clearly established rights and is

not entitled to immunity.” Id. at 594.

       Based on the record before us, it appears that Senato and Pennell did just this.

Even though Parkell advised them, in a March 2014 grievance, that his beliefs required

him to eat kosher meals—beliefs the District Court found to be both religious in nature

and sincere10—they denied his request for more than two years, and did so based on their

assessment of the tenets of his belief system (because his belief system did not comport

10
  As the Court opined, “a review of the record reflects plaintiff’s consistency in
expressing his sincere religious beliefs.” Senato conceded as much in his affidavit in
support of his motion for summary judgment—he stated that Parkell was approved for a
kosher diet in April 2016, and, to obtain such a diet, a prisoner must “demonstrate[] that
his request for a kosher diet is part of a sincerely held religious belief.”
                                                7
with Orthodox Judaism). They are not entitled to qualified immunity under these

circumstances.11

       Accordingly, we will vacate the portion of the District Court’s order affording

Senato and Pennell qualified immunity on Parkell’s First Amendment claim12 and

remand for further proceedings consistent with this opinion. We will affirm the District

Court’s decision in all other respects. To ultimately prevail on his First Amendment

claim, Parkell will still need to persuade a jury that his sincerely held religious beliefs

required him to eat a kosher diet. See Vinning-El, 657 F.3d at 595 (7th Cir. 2011); see

also Edwards, 666 F.3d at 1292 n.1 (“Our job [in reviewing a district court’s award of

qualified immunity] is to determine only whether the evidence can be read to support . . .

qualified immunity, not to predict how the jury will weigh that same evidence.”)

(emphasis in original).




11
   While we “must not define clearly established law at a high level of generality,” al-
Kidd, 563 U.S. at 742, we have clearly established a prisoner’s right to a religiously-
motivated diet so long as the views underlying the diet are “(1) sincerely held, and (2)
religious in nature, in [his] scheme of things.” DeHart v. Horn, 227 F.3d 47, 52 (3d Cir.
2000) (quoting Africa v. Pennsylvania, 662 F.2d 1025, 1029 (3d Cir. 1981). That
Parkell’s views are novel—or unorthodox—does not matter for purposes of qualified
immunity. See Vinning-El, 657 F.3d at 594 (“[S]incerity rather than orthodoxy is the
touchstone.”).
12
   We do not reach the question of whether Senato and Parkell are entitled to qualified
immunity on Parkell’s equal-protection claim because that claim fails for other reasons.
See supra, n.6.
                                              8
