                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2000

DeHart v Horn
Precedential or Non-Precedential:

Docket 99-3072




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Filed January 3, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-3072

ROBERT PERRY DEHART
Appellant

v.

MARTIN HORN, Commissioner of Corrections;
JAMES S. PRICE, Superintendent of SCI Greene;
UNITED STATES OF AMERICA

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 95-cv-01238)
District Judge: Honorable William L. Standish

Argued July 27, 1999

BEFORE: SCIRICA and STAPLETON, Circuit Judges,
and GREEN,* District Judge

(Opinion Filed January 3, 2000)



_________________________________________________________________

* Honorable Clifford Scott Green, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
       Edward A. Olds (Argued)
       1007 Mount Royal Boulevard
       Pittsburgh, PA 15223
        Attorney for Appellant

       J. Bart DeLone (Argued)
       Office of Attorney General
        of Pennsylvania
       15th Floor, Strawberry Square
       Harrisburg, PA 17120
        and
       Rodney M. Torbic
       Office of Attorney General
        of Pennsylvania
       6th Floor, Manor Complex
       Pittsburgh, PA 15219

        Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiff-Appellant, Robert P. DeHart ("DeHart"), an
inmate at the Pennsylvania State Correctional Institute
("SCI") at Greene, commenced this civil rights action
against Martin Horn, Commissioner of the Department of
Corrections of Pennsylvania, and James Price,
Superintendent of SCI at Greene (collectively "the prison" or
"prison officials"), as a result of their failure to provide him
with a diet consistent with his Buddhist religious beliefs.
DeHart appeals the final order of the District Court,
granting the defendants' motion for summary judgment. He
insists that the defendants' failure to accommodate his
religious belief, which requires him to follow a vegetarian
diet, violates both his right to free religious expression
under the First Amendment and his right to equal
protection of the law under the Fourteenth Amendment. We
will reverse the judgment of the District Court and remand
the case for further proceedings consistent with this
opinion.

                                  2
I.

DeHart is currently serving a life sentence at SCI at
Greene. Since his incarceration, he, with the assistance of
the City of 10,000 Buddhas, a center of Buddhist teaching,
has taught himself Buddhism. Based on his own reading of
the Sutras, which are Buddhist religious texts, DeHart
became a vegetarian. DeHart testified before the District
Court that the First Precept in Buddhism prohibits the
killing of any living thing, and he has interpreted that
Precept as requiring that he follow a vegetarian diet. The
prison officials do not challenge the sincerity of DeHart's
beliefs. They do, however, challenge whether vegetarianism
is a central tenet of any recognized Buddhist sect.

A brief overview of the process by which Pennsylvania
prisons provide meals to inmates is necessary for a proper
understanding of DeHart's request. Pursuant to a master
menu, all inmates at SCI Greene receive the same meals.
The food for those meals is obtained through bulk
purchases. Those inmates whose health requires dietary
modifications or restrictions receive a therapeutic diet. In
order for an inmate to receive a therapeutic diet, however,
it must be prescribed by an institution doctor. The
therapeutic diet consists of the same foods (in different
proportions) that are served on the master menu. The
therapeutic meals are prepared individually, and all
inmates who have been prescribed a therapeutic diet eat
together in one dining hall after it has been cleared of the
other inmates.

DeHart proposes that he be served a vegetarian meal
when other inmates are served the therapeutic meals.
DeHart secured the affidavit of a dietician, who averred that
DeHart's nutritional needs could be satisfied by doubling
the portions of vegetables and grains already served and
then adding an eight-ounce cup of a soy-based milk
product at each meal.1 The cost of this supplement, which
_________________________________________________________________

1. As the affidavit of DeHart's dietician notes, his proposed diet does
not
meet the Recommended Daily Allowance ("RDA") standards for Vitamin
D, riboflavin, B-6, and zinc as set forth by the National Academy of
Sciences and adopted by the American Correctional Association. As she

                               3
is not currently purchased by the Department of
Corrections ("DOC"), would be $1.71 per day.2

On June 17, 1995, DeHart submitted a written grievance,
requesting a diet that comports with his religious beliefs.
That grievance was denied, and DeHart appealed the denial
to Superintendent Price, who concurred in the result. The
denial was again upheld on appeal by the DOC Central
Office Review Committee. DeHart then filed this suit
pursuant to 42 U.S.C. S 1983.

A preliminary injunction hearing was held before a
Magistrate Judge, who found that vegetarianism is not
mandated by Buddhism and, for that reason, recommended
that DeHart be denied preliminary relief. The District Court
adopted the Magistrate Judge's recommendation. DeHart
then appealed to this Court, and we affirmed the denial of
preliminary injunctive relief. See DeHart v. Horn, No. 97-
3048 (3d Cir. Aug. 25, 1997) (hereinafter "Memorandum
Opinion"). In the Memorandum Opinion affirming the
District Court's decision, this Court admonished the
_________________________________________________________________

explained, it did provide more than two-thirds of the RDA standard in
each instance, and these deficiencies did not cause her to qualify her
opinion that the proposed diet was sufficient to meet DeHart's
nutritional needs. The District Court made no findings regarding the
significance, if any, of these deficiencies. The Pennsylvania DOC Food
Services Administrative Directive requires that, for the master menu, a
registered dietician verify that the diet "meets or exceeds the dietary
allowances as stated in the [RDAs] . . . ." App. 652. For the therapeutic
diets, however, the regulation merely requires that the diet "be designed
and certified by a Registered Dietician as being nutritionally correct."
App. 656. The regulation also provides that it "should be interpreted to
have sufficient flexibility so as to be consistent with law . . . ." App.
657.
On remand, the District Court may find it necessary to determine how
this Administrative Directive should be interpreted in a context like
this.
If it should determine that the proposed diet is inconsistent with the
Administrative Directive, however, the issue would remain whether
under Turner v. Safley, 482 U.S. 78, 89 (1987), the prison rules and
regulations as a whole, as applied to this case, are reasonably related to
legitimate penological interests.

2. The dietician indicated that a day's supply of soy-based milk product
would cost $1.71 if purchased in a supermarket and would cost less if
purchased directly from a distributor.

                               4
District Court not to interject itself into Buddhist doctrinal
disputes: "We agree with [DeHart] that the district court
could properly determine only whether he sincerely held his
religious beliefs, not whether his beliefs are doctrinally
correct or central to a particular school of Buddhist
teaching." Memorandum Opinion at 2 (citing Employment
Division v. Smith, 494 U.S. 872, 886-87 (1990)).

On remand, the parties engaged in additional discovery,
and cross-motions for summary judgment were filed. The
Magistrate Judge recommended that summary judgment be
granted in favor of the prison officials. DeHartfiled
objections to the Magistrate Judge's Report and
Recommendation, arguing, inter alia, that the Magistrate
Judge ignored this Court's instructions and again based his
opinion on a finding that vegetarianism is not a central
tenet of the Buddhist religion. The District Court adopted
the Report and Recommendation over that objection, and
this appeal followed.

II.

The District Court had jurisdiction over this case,
pursuant to 28 U.S.C. S 1331, and this Court has
jurisdiction over the present appeal pursuant to 28 U.S.C.
S 1291. We exercise plenary review over the District Court's
decision to grant summary judgment. See Wicker v. Consol.
Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). Summary
judgment is appropriate only if there is no genuine issue of
material fact, and the moving party is entitled to a
judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).
In our review, we must view all evidence and draw all
inferences therefrom in the light most favorable to the
nonmoving party. See Wicker, 142 F.3d at 696.

III.

The First Amendment provides that "Congress shall make
no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . ." U.S. Const.
amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303
(1940), the Supreme Court held that the First Amendment
was incorporated by the Fourteenth Amendment and, thus,

                                5
applicable to the states. Although DeHart is incarcerated,
the Supreme Court has made clear that "convicted
prisoners do not forfeit all constitutional protections by
reason of their conviction and confinement in prison." Bell
v. Wolfish, 441 U.S. 520, 545 (1979). "Inmates clearly
retain protections afforded by the First Amendment, . . .
including its directive that no law shall prohibit the free
exercise of religion." O'Lone v. Shabazz, 482 U.S. 342, 348
(1987) (citations omitted). Nevertheless, the fact of
incarceration and the valid penological objectives of
deterrence of crime, rehabilitation of prisoners, and
institutional security require certain limitations on the
exercise of constitutional rights by inmates. See Pell v.
Procunier, 417 U.S. 817, 822-23 (1974).

In Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme
Court articulated the standard for reviewing a prison
regulation challenged on constitutional grounds: "[W]hen a
prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests." This test is intended to
effect an accommodation between two well-established
principles. "The first of these principles is that federal
courts must take cognizance of the valid constitutional
claims of prison inmates." Id. at 84. The"second . . . is the
recognition that `courts are ill equipped to deal with the
increasingly urgent problems of prison administration' and
[that] separation of powers concerns counsel a policy of
judicial restraint." Id. at 84-85 (quoting Procunier v.
Martinez, 416 U.S. 396, 405 (1974)). Thus, while this
standard of review requires a court to respect the security,
rehabilitation and administrative concerns underlying a
prison regulation, without requiring proof that the
regulation is the least restrictive means of addressing those
concerns, it also requires a court to give weight, in
assessing the overall reasonableness of regulations, to the
inmate's interest in engaging in constitutionally protected
activity.

Turner goes on to provide guidance on how to apply its
reasonableness standard. As we recently explained in
Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999)
(internal citations omitted):

                               6
       [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."

1. Rational Connection to Penological Interests

The prison asserts that two penological interests are
served by denying DeHart's request for a vegetarian diet: (1)
the interest in a simplified and efficient food service; and (2)
the interest in avoiding possible resentment and jealousy
on the part of other inmates. The District Court found that
the denial of DeHart's religious diet was rationally related to
those two legitimate, penological goals. Given the deference
we must show to the reasoned judgment of prison officials
and our recent decision in Johnson v. Horn, 150 F.3d 276
(3d Cir. 1998), we agree.

In Johnson, two Pennsylvania prison inmates sued prison
officials, alleging a violation of their free exercise rights. The
inmates were Jewish and were seeking a kosher diet in
conformity with their religious beliefs. In that case,
however, the prison officials conceded that the inmates
were entitled to receive a kosher diet; the only issue was
whether that diet had to consist of hot or cold meals. See
id. at 281. This Court, thus, never addressed the
fundamental issue in this case -- i.e., whether the prison is
constitutionally required to serve a diet that conforms with
DeHart's religious beliefs. Nevertheless, the Court's analysis
is helpful here.

In Johnson, the Court specifically held that "[t]he Prison
has a legitimate penological interest in keeping its food

                                7
service system as simple as possible." Id. at 282; see also
Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (same);
Kahey v. Jones, 836 F.2d 948, 949-50 (5th Cir. 1988)
(same). We further observed that the inmates' "request for
a [religious diet] creates legitimate security concerns,
including bringing additional foods from new sources into
the Prison and the possible belief by other inmates that
[plaintiffs] are receiving special treatment." Johnson, 150
F.3d at 282.

Johnson, thus, forecloses any argument as to the
legitimacy of a prison's interest in an efficient food system
or in avoiding inmate jealousy; those interests are
legitimate penological concerns under Turner. Moreover, we
agree that the prison's refusal to grant DeHart's request for
a religious diet bears some rational relation to those
concerns. The fifty-five therapeutic trays prepared at each
meal complicates the food service regimen of the prison,
and preparation of additional special meals would add
incrementally to the burden. Similarly, while the evidence
indicates that the provision of therapeutic meals has never
given rise to problems in the past, it is not irrational to
think that providing DeHart with a vegetarian diet to
accommodate his religious beliefs might involve some risk
of inmate jealousy.

This determination commences rather than concludes
our inquiry for two reasons. First, while a rational nexus
between a regulation and a legitimate penological interest is
essential to its validity, see Turner, 482 U.S. at 89-90, not
all prison regulations that are rationally related to such an
interest pass Turner's "overall reasonableness" standard.
Turner, thus, calls for more than traditional rational basis
review. As the remaining factors evidence, the Turner
standard also takes into account the extent of the burden
imposed by the regulation on an inmate's religious
expression, as well as the impact that accommodating the
inmate's constitutional claim would have on the entire
prison community and its resources.

Second, Turner teaches that the "governmental objective
must be [both] a legitimate and neutral one." Id. at 90
(emphasis added). The Court "found it important to inquire
whether prison regulations restricting inmates' First

                                8
Amendment rights operated in a neutral fashion, without
regard to the content of the expression." Id. DeHart brought
to the District Court's attention the fact that the defendants
in Johnson had urged a judge and a magistrate judge of the
same court not to order them to provide kosher meals to
Jewish inmates because the prison was voluntarily
providing such a diet. DeHart further pointed out that the
kosher diet being voluntarily provided consisted of milk,
uncut fruit and vegetables, and a nutritional supplement,
and that the cost to the prison for these kosher meals was
substantially more than the cost of the liquid supplement
diet he was requesting.3 The defendants comment on these
facts only in response to DeHart's Equal Protection
argument. Their sole response is: "In Johnson, the Court
was presented with kosher laws that are a commandment
of the Orthodox Jewish faith. . . . Here, vegetarianism while
an expression of belief, is not a commandment of
Buddhism." Appellees' Br. at 29.

While the District Court did not comment on the fact that
the defendants were providing specially prepared kosher
_________________________________________________________________

3. DeHart also called to the Court's attention the following observations
of the District Court during the initial stage of the Johnson case:

        The facts as to which there is no genuine dispute may be
        summarized as follows: 1) keeping kosher is a religious obligation
        central to the practice of Orthodox Jews, including plaintiffs; 2)
        although there are increased dollar costs associated with
        accommodating a kosher diet, those costs are not significant in
light
        of the nature of the diet which plaintiffs testified they could eat
and
       remain kosher in accordance with the advice of their religious
       leaders; 3) there are no realistic grounds for believing that
       accommodating the plaintiffs' kosher diet will have any impact on
       the defendants' legitimate goals of maintaining institutional order
       and safety, and the marginal administrative costs of separating
       genuine from false claims that a prisoner is an Orthodox Jew who
       is required to keep kosher, in light of the administrative
apparatus
       already in place in the Department of Corrections, is minimal.

       I conclude that there is a constitutional right for these
plaintiffs as
       Orthodox Jews to keep kosher as described in the evidentiary record
       of this case, i.e., to a kosher diet not requiring the
establishment of
       a separate kitchen or segregated handling procedures.

App. at 152.
9
meals with nutritional supplements to the Jewish inmates
at greater cost, we assume that it must have accepted the
distinction tendered by the defense. As we explain
hereafter, the proffered distinction is untenable. If, on
remand, the District Court can articulate no other reason
why DeHart and the Jewish inmates are not similarly
situated, it must enter judgment for DeHart. As we have
noted, neutrality in the regulation of religious expression is
a sine qua non of validity under Turner.4

2. Alternative Means of Religious Expression

This factor requires a court to focus on the burden that
the regulation imposes on an inmate's ability to engage in
constitutionally protected activity. Turner instructs that
where " `other avenues' remain available for the exercise of
the asserted right, . . . courts should be particularly
conscious of the `measure of judicial deference owed to
corrections officials . . . in gauging the validity of the
regulation.' " Turner, 482 U.S. at 90 (quoting Pell v.
Procunier, 417 U.S. at 827). Conversely, where the
regulation leaves no alternative means of exercising the
asserted right, the inmate's interest in engaging in the
prohibited activity is entitled to greater weight in the
balancing process.
_________________________________________________________________

4. We agree with the dissent that a court must examine whether the
interest asserted as a justification for the regulation is "unrelated to
the
suppression of expression." Waterman v. Farmer, 183 F.3d 208, 215 (3d
Cir. 1999) (quoting Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). The
inquiry cannot stop there, however. As we have pointed out above,
immediately after setting forth the "neutrality" requirement, the Turner
Court stressed that it was "important to inquire whether prison
regulations restricting inmates' First Amendment rights operated in a
neutral fashion, without regard to the content of the expression." Turner,
482 U.S. at 90 (emphasis added); see also Thornburgh, 490 U.S. at 420
(finding regulations facially valid under the Turner standard, but
remanding "for an examination of the validity of the regulations as
applied"). The fundamental inquiry under Turner is whether what the
prison is doing is reasonably related to legitimate penological interests,
and we are confident that the Court did not mean to suggest that such
a relationship can exist where a prison, without substantial justification
related to legitimate, penological interests, chooses to accommodate the
religious dietary needs of Jewish inmates while refusing to accommodate
an inmate of another faith.

                               10
In Johnson, we applied this teaching in the context of an
asserted right to a diet in conformity with one's religious
beliefs. There we contrasted situations involving alternative
means of religious expression with situations involving
religious commandments that the prison regulation
requires the inmate to violate. We explained:

       [T]he importance of alternative means of religious
       observance is an irrelevant consideration when the
       belief at issue is a "religious commandment," rather
       than a "positive expression of belief." [ Ward v. Walsh,
       1 F.3d 873, 878 (9th Cir. 1993)] (discussing Jewish
       kosher laws). As the United States Court of Appeals for
       the Ninth Circuit has stated: "It is one thing to curtail
       various ways of expressing belief, for which alternative
       ways of expressing belief may be found. It is another
       thing to require a believer to defile himself, according
       to the believer's conscience, by doing something that is
       completely forbidden by the believer's religion." Id. As
       in Ward, the Inmates here are "defiling" themselves
       under the laws of kosher when forced to eat non-
       kosher foods. By acknowledging this, we do not intend
       to suggest that all "religious commandments" must be
       accommodated, whatever their costs to legitimate
       penological concerns. However, in such situations the
       centrality of the religious tenet carries greater weight
       and the existence of alternative means of observance is
       of no use in the ultimate balancing which Turner
       commands.

Johnson, 150 F.3d at 282.

The District Court erroneously interpreted the distinction
we drew in Johnson as calling for an assessment of whether
vegetarianism was a "central tenet" of Buddhism or some
recognized sect thereof. In the course of its analysis, the
Court relied heavily on the testimony of Richard McKinney,
an expert in the doctrine and practices of Buddhism, at the
preliminary injunction hearing. Based on that testimony, it
made the following findings:

       Plaintiff practices Mahayana Buddhism, which is one
       of three major traditions of Buddhist practice, along
       with the Hinayana and Vajrayana traditions. . . . He

                               11
       has obtained information from the City of Ten
       Thousand Buddhists in this respect. Mr. McKinney
       spoke to two members of the Board of Directors for the
       City of Ten Thousand Buddhas immediately prior to
       the hearing in this matter, and they informed him that
       vegetarianism is a "branch, not a root of their
       particular approach to Buddhism."[5]
_________________________________________________________________

5. Mr. McKinney gave the following explanation of the "branch, not root"
concept:

        Q. What do you mean by that?

        A. By that I mean that it is not a root practice, it is a -- like a
        branch on a tree, it is a -- a practice that one can engage in.
They
        happen to engage in that practice.

        Q. Who are they?

        A. Both the monk and the nun that I was talking about.

        Q. Are they within the City of Ten Thousand Buddhists?

        A. They're part of the organization.

        * * *

        Q. With the experience that you have, do you consider the strict
        vegetarian practice as it is practiced within the City of Ten
        Thousand Buddhas to be a high form of practice within Buddhism?

        A. I'm hesitating because the idea of higher or lower practice, in
        which I just said, is -- the root practices have to do with the
        precepts. The vegetarianism is not higher, it is just a practice
which
        grows out of the precept of not harming.

        Q. Okay. Is vegetarianism mandated by Buddhism?

        A. No.

App. at 104-05.

On cross-examination, Mr. McKinney further testified:

        Q. Do some Buddhists practice vegetarianism as a matter of
        religious belief or conviction?

        A. Yes.
Q. Okay. And, in fact, isn't it the case that the-- that the monks
or some people associated with the City of Ten Thousand Buddhas
practice vegetarianism?

                        12
       While supporting plaintiff 's right to pursue Buddhism
       as plaintiff understands it, Mr. McKinney stated that
       no one practice is an absolute necessity for Buddhism,
       and that one should "practice what one is able to
       practice within the environment and conditions that
       one can." Mr. McKinney also opined that sutras are
       guidelines, and that plaintiff is interpreting them"in a
       very literalistic manner."

       What the court is faced with, then, is a situation where
       plaintiff may sincerely believe that he would defile
       himself by not following the strict vegetarian diet he
       has described. His belief, however, is clearly not shared
       by any other Buddhist identified to the court, and is
       specifically rejected as a "central" tenet by the very sect
       of Buddhists to which plaintiff has appealed for
       guidance in the past.

       * * *

       Since vegetarianism is neither a central part of
       Buddhism, nor a commandment of that religion,
       plaintiff 's wish to pursue vegetarianism must be
       considered an expression of his faith as opposed to his
       adherence to a religious commandment. This being the
       case, the existence of alternative means of expression,
       including prayer and possession of religious texts,
       makes this factor one which weighs in the prison's
       favor as well.
_________________________________________________________________

       A. Yes.

       Q. And isn't it the case that at least some of the people in the
City
       of Ten Thousand Buddhas perform the custom where they eat one
       vegetarian meal before noon or early in the day and that's the only
       meal that they eat?

       A. There are many Teravadan monks who do the same.

       Q. Okay. And that's a function of their religious conviction and
       religious belief, is that correct?

       A. It's a function of their religious practice.

App. at 106-07.

                               13
District Court Slip Op. at 16, 17 (internal citations omitted).

The District Court's reliance on the fact that DeHart's
beliefs are not shared by others in the Buddhist religion is
inconsistent with both Supreme Court caselaw and the
precedent of this Court. As the Supreme Court cautioned in
Employment Division v. Smith:

       "[I]t is not within the judicial ken to question the
       centrality of particular beliefs or practices to a faith, or
       the validity of particular litigants' interpretations of
       those creeds." Hernandez v. Commissioner, 490 U.S.
       [680,] 699 [(1989)]. Repeatedly and in many different
       contexts, we have warned that courts must not
       presume to determine the place of a particular belief in
       a religion or the plausibility of a religious claim.

494 U.S. 872, 886-87 (1990) (plurality opinion). Although
the Court was divided in Smith, the concurring and
dissenting opinions both expressly agreed with the
majority's admonition. See id. at 906 (O'Connor, J.,
concurring) ("I agree with the Court . . . [that] `[i]t is not
within the judicial ken to question the centrality of
particular beliefs or practices to a faith.' ") (quoting
Hernandez); id. at 919 (Blackmun, J., dissenting) ("I agree
. . . that courts should refrain from delving into questions
whether, as a matter of religious doctrine, a particular
practice is `central' to the religion").

Smith is not an aberration. Rather, it is part of a
consistent and resounding theme echoed throughout many
Supreme Court opinions. See Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 715-16
(1981) ("[T]he guarantee of free exercise is not limited to
beliefs which are shared by all of the members of a religious
sect. . . . [I]t is not within the judicial function and judicial
competence to inquire [who has] more correctly perceived
the commands of their common faith."); Jones v. Wolf, 443
U.S. 595, 602-06 (1979); Presbyterian Church in U.S. v.
Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393
U.S. 440, 450 (1969) ("the First Amendment forbids . . .
courts from . . . assessing the relative significance to the
religion of the tenets"); United States v. Ballard, 322 U.S.
78, 85-87 (1944).

                               14
The course to be followed in a case of this kind was
charted by this Court in Africa v. Pennsylvania, 662 F.2d
1025 (3d Cir. 1981), which also involved an inmate's
request for a special diet said to be mandated by the Free
Exercise Clause. The inmate was a member of MOVE, " `a
revolutionary' organization, `absolutely opposed to all that
is wrong.' " Id. at 1026. We there posed the issues for
decision as follows:

       The relevant case law in the free exercise area suggests
       that two threshold requirements must be met before
       particular beliefs, alleged to be religious in nature, are
       accorded first amendment protection. A court's task is
       to decide whether the beliefs avowed are (1) sincerely
       held, and (2) religious in nature, in the claimant's
       scheme of things. United States v. Seeger, 380 U.S.
       163, 185, 85 S. Ct. 850, 863, 13 L.Ed.2d 733 (1965);
       Callahan v. Woods, 658 F.2d 679 (9th Cir. Oct. 5,
       1981). If either of these two requirements is not
       satisfied, the court need not reach the question, often
       quite difficult in the penological setting, whether a
       legitimate and reasonably exercised state interest
       outweighs the proffered first amendment claim.

Africa, 662 F.2d at 1029-30. It was clear that Africa's
beliefs were sincerely held. We concluded, however, that
those beliefs were not "religious in nature" and,
accordingly, we had no occasion to reach the issue of
whether the state's legitimate interest outweighed the
proffered free exercise claim.

When we explained the necessity of finding a sincerely
held belief, we were careful in Africa to stress that the case
law did not require a finding of an orthodox belief:

       Judges are not oracles of theological verity, and the
       Founders did not intend for them to be declarants of
       religious orthodoxy. See United States v. Ballard, 322
       U.S. 78, 85-88, 64 S. Ct. 882, 885-87, 88 L.Ed. 1148
       (1944). The Supreme Court has emphasized, however,
       that "while the `truth' of a belief is not open to
       question, there remains the significant question
       whether it is `truly held.' " Seeger, supra, 380 U.S. at
       185, 85 S. Ct. at 863. Without some sort of required

                               15
       showing of sincerity on the part of the individual or
       organization seeking judicial protection of its beliefs,
       the first amendment would become "a limitless excuse
       for avoiding all unwanted legal obligations."

Id. at 1030 (internal footnotes omitted) (emphasis added).

We reiterated the same theme in the course of explaining
the necessity of a finding that Africa's sincerely held beliefs
were religious in nature:

       As was observed earlier, the judicial branch is neither
       authorized nor equipped to pronounce upon the veracity
       of a religious precept. Unless, however, every
       individual's subjective definition of a religion is to be
       controlling in first amendment litigation, "a court must,
       at least to a degree, examine the content of the
       supposed religion, not to determine its truth or falsity,
       or whether it is schismatic or orthodox, but to determine
       whether the subject matter it comprehends is
       consistent with the assertion that it is, or is not, a
       religion." Malnak, supra, 592 F.2d at 208 (concurring
       opinion).

Id. at 1034 n.18 (emphasis added).

While Africa was decided before Turner, there is nothing
in Turner, subsequent Supreme Court jurisprudence, or the
jurisprudence of our circuit that is inconsistent with the
holding in Africa. Even unorthodox beliefs are afforded
protection under the Free Exercise Clause of the First
Amendment, so long as they are sincerely held and
religious in nature. In the present case, the defendants
conceded that DeHart's beliefs are sincerely held and
religious in nature. It necessarily follows that DeHart's
beliefs were constitutionally protected. It also necessarily
follows that the District Court erred by according them less
weight because they were not shared or considered
essential by others in the Buddhist religion.6
_________________________________________________________________

6. By so concluding, we do not mean to suggest that evidence of the
tenets of established religions is irrelevant in a context like this.
Quite
the contrary, such evidence may bear on the determination of whether
a person's beliefs are sincerely held and whether they are religious in
nature.

                                16
Having established that DeHart's beliefs are entitled to
constitutional protection and that the prison is restricting
his ability to practice his religion in accordance with those
beliefs, the second prong of Turner requires us to examine
whether DeHart has alternative means of exercising the
circumscribed right. As this Court and others have noted,
whether an alternative means of expression remains
available depends on how the relevant First Amendment
right is defined. See Waterman v. Farmer, 183 F.3d 208,
218 (3d Cir. 1999); Amatel v. Reno, 156 F.3d 192, 201 (D.C.
Cir. 1998). For this reason, the Supreme Court has
instructed that " `the right' in question must be viewed
sensibly and expansively." Thornburgh v. Abbott, 490 U.S.
401, 417 (1989) (quoting Turner, 482 U.S. at 92). In Turner,
the challenged prison regulation prohibited correspondence
between an inmate and inmates at other institutions. The
Court, in applying the second factor, did not inquire
whether inmates had alternative means of communicating
with inmates at other institutions. Rather, it concluded that
because the regulation barred "communications only within
a limited class of other people," it did not deprive prisoners
of alternative means of expression. Turner, 482 U.S. at 92.
Similarly, in Thornburgh, where the challenged regulation
prevented inmates from receiving sexually explicit material
that posed a threat to security, the Court found that
alternative means of expression were available because the
regulations permitted "a broad range of publications to be
sent, received, and read." Thornburgh, 490 U.S. at 418.

The distinction in Johnson on which the District Court
seized simply recognizes that courts must consider the
nature of the right for which the inmate seeks
accommodation -- i.e., whether, in the context of the
inmate's belief system, it is a "religious commandment" or
a "positive expression of belief" -- in order sensibly to
define the relevant right. Thus, if failure to accommodate
an inmate's request forces that inmate to do something that
is proscribed by his or her religion, as he or she
understands it, we must recognize that there are no
alternative means by which he or she may engage in the
relevant religious practice. See Johnson, 150 F.3d at 282 (in
such cases "the importance of alternative means of religious
observance is an irrelevant consideration"). The present

                               17
case provides a perfect example -- by denying DeHart's
request for a vegetarian diet, the prison officials forced him
to do something forbidden by his religious beliefs. There are
simply no alternative means by which DeHart can maintain
a diet in conformity with his religious beliefs; he is either
provided a vegetarian diet, or he is not.

In contrast, where a prison regulation merely limits a
form of positive expression of one's religious faith and
beliefs -- as, for example, prayer, worship, meditation,
scripture study, etc. -- the second Turner factor requires
consideration of the alternative means of expression that
are left open.7 If, as in O'Lone v. Shabazz, 482 U.S. 342
(1987), Muslim inmates are prohibited from attending
Jumu'ah, a congregate service held only on Friday
afternoons, do they have other opportunities for congregate
worship at other times? To the extent alternative avenues of
expression are open, Johnson dictates that the weight
accorded the inmate's interest in the prohibited form of
expression is entitled to less weight.

Following our reasoning in Johnson, we find that no
alternative means of expression exist for DeHart, because
by failing to provide him with a vegetarian diet, the prison
officials have forced DeHart "to defile himself, according to
[his own] conscience, by doing something that is completely
forbidden by [his] religion." Johnson, 150 F.3d at 282
(quoting Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993)).
As we stressed in Johnson, however, the absence of
_________________________________________________________________

7. We, thus, agree with the dissent that "Johnson makes clear that the
centrality of a religious practice . . . is a valid consideration in
applying
the Turner test." The issue for decision here, however, is whether the
Court in determining the "centrality" of a particular belief must look to
the sincerely held religious beliefs of the inmate involved or to the
"orthodox" beliefs of others. As we have explained, we read Smith and
Africa together as requiring that courts not"pronounce on the veracity
of a religious precept." Africa, 662 F.2d at 1034 n.18. Provided that the
relevant precept is sincerely held and religious in nature, we must afford
it constitutional protection. Thus, in this case, because the prison has
conceded that DeHart's belief -- i.e., that his religion requires him to
follow a specific diet -- is sincerely held and religious in nature, that
belief is entitled to the full measure of constitution protection, whether
or not it is shared by others in the Buddhist religion.

                               18
alternatives for DeHart does not necessarily mean that his
interest in a vegetarian diet must be accommodated.
Nevertheless, it does mean that that interest is entitled to
substantially more weight in the "overall reasonableness"
analysis than it would be if there were adequate substitute
means of expression.

We recognize that our holding conflicts with the recent
decision of the Sixth Circuit Court of Appeals in Spies v.
Voinovich, 173 F.3d 398 (6th Cir. 1999). The facts in that
case were similar to those here: a prisoner desired a strict
vegan meal -- i.e., absolutely no food stuffs derived from
animals -- in conformity with his Buddhist religious beliefs.
In Spies, however, the prisoner conceded that, while a
vegetarian diet was required by Buddhism, a vegan diet
was not. The prison had provided the prisoner with a
vegetarian diet, but it refused to provide a vegan diet. The
prisoner brought suit, alleging infringement of his free
exercise rights. The Sixth Circuit Court of Appeals held
that, although Spies's vegan beliefs were sincerely held
religious beliefs, because they were not required by
Buddhism, the prison could continue to provide a
vegetarian meal, thereby granting Spies an "alternative
means" of exercising his religion. See id. at 407. We,
respectfully, disagree with the Spies analysis.

Under the First Amendment, citizens are not limited to
practicing an organized religion. Whether other Buddhists
agree with DeHart's beliefs is simply not relevant to the
Turner analysis. The analysis conducted by the District
Court presupposes that a person is limited to practicing a
religion according to a specific prescription and that only
those customs, which others recognize as required, will be
unassailable. Cf. United States v. Ballard, 322 U.S. 78, 87
(1944) ("[Man] was granted the right to worship as he
pleased and to answer to no man for the verity of his
religious views."). To us, that seems contrary to the very
point of the First Amendment, which was designed to
protect the free exercise of any religion, whether it be
organized, accepted, or not. See Spies v. Voinovich, 173
F.3d 398, 409 (6th Cir. 1999) (Moore, J., dissenting) ("the
First Amendment does not provide greater protection for
centralized religions with established sets of mandatory

                               19
doctrines than it provides for less established or individual-
based religions").

3. Remaining Factors and the Weighing Process

The first two Turner factors focus on the prison's decision
-- to what extent is it justified by legitimate and neutral
concerns and what options does it leave open to the inmate.
The third and fourth factors, on the other hand, focus on
the specific religious practice or expression in which the
inmate wishes to engage -- what will be the consequences
of accommodating the inmate for guards, other inmates,
and the allocation of prison resources.

As we have previously noted, DeHart desires a meal,
served along with the therapeutic meals, consisting of an
eight-ounce cup of soy milk and increased portions of the
non-meat and non-dairy items from the master menu. The
soy milk supplement is the only item DeHart requests that
is not currently purchased by the DOC. The District Court
found that the prison could provide DeHart a cup of the soy
milk at each meal for a total cost of $1.71 per day.

The District Court's analysis of the third Turner factor
was as follows:

       The third factor in the Turner test is the impact which
       providing plaintiff a strict vegetarian diet would have
       on the institution, guards and other inmates. There is
       no undisputed evidence concerning the impact this
       factor has, and it is neutral for purposes of the motion
       for summary judgment.

District Court Slip Op. at 17. With respect to the fourth
factor, the District Court concluded that "the cost factor
favors the prison, while the fact that an available
alternative exists favors plaintiff 's position. This factor is
also neutral." District Court Slip Op. at 18.

The District Court ultimately granted summary judgment
against DeHart on the following ground:

       Considering the evidence in the light most favorable to
       plaintiff, two of the four Turner factors weigh in favor of
       defendants, while the final two factors are neutral.
       Thus, the court concludes that application of the

                               20
       Turner balancing test results in the conclusion that the
       First Amendment does not require Prison Officials to
       provide plaintiff a vegetarian diet.

District Court Slip Op. at 18.

The District Court's analysis of the third factor is
unacceptable. It is true that there is "no undisputed
evidence" regarding the impact that accommodating DeHart
would have on the prison community. DeHart's evidence
regarding the service of therapeutic and kosher meals and
what it would take to meet his religious requirements would
support an inference that any impact would be minimal.
On the other hand, the defendants have tendered evidence
tending to show that, if DeHart is accommodated, others
will demand similar treatment. But the fact that there is no
undisputed evidence is not a reason for concluding that the
third factor is neutral. If there is conflicting evidence, the
conflict needs to be resolved and findings made about the
size and quality of the impact on the prison community.
Without such findings, it is not possible for the District
Court to engage in the sensitive weighing process that
Turner envisions.

This brings us to a final fundamental problem with the
District Court's analysis. Turner does not call for placing
each factor in one of two columns and tallying a numerical
result. The objective is to determine whether the regulation
is reasonable given the defendants' penological concerns
and the inmate's interest in engaging in the constitutionally
protected activity. Turner thus contemplates a weighing
process, and various factors necessarily will be entitled to
different weights depending on the circumstances. We have
already spoken about how the weight to be given to the
second factor will vary depending on the availability of
alternatives. The same is true of the first factor; direct
threats to the security of the institution will justify
infringements on First Amendment rights that speculative
efficiency concerns will not. Accordingly, the Court, while
giving due deference to the expertise of prison officials,
must take into account the character of the legitimate
penological interest advanced and the degree to which that
interest will be served by the challenged regulation.

                                 21
IV.

Finally, DeHart asserts an equal protection claim,
arguing that he is similarly situated to the Jewish inmates
in Johnson whose dietary restrictions were accommodated
by the defendants. As with his First Amendment claim,
DeHart's equal protection claim must be analyzed under
the Turner framework. See Turner, 482 U.S. at 89 ("[W]hen
a prison regulation impinges on inmates' constitutional
rights, the regulation is valid it is reasonably related to
legitimate penological interests."). Thus, in order to recover,
DeHart "must prove that the distinction between himself
and the other inmates was not reasonably related to some
legitimate penological purpose." Clark v. Groose, 36 F.3d
770, 773 (8th Cir. 1994).

As we noted earlier, the District Court did not comment
on the fact that the defendants are currently providing
specially prepared kosher diets to Jewish inmates at greater
cost. We have already rejected defendants' argument that
DeHart may be treated differently because his diet is not
required by Buddhism generally. Thus, as with the First
Amendment claim, if DeHart can demonstrate that no
legitimate penological purpose is served by treating him
differently from the inmates in Johnson, he must prevail on
his equal protection claim. Due to the absence offindings
as to whether the prison's decision to treat DeHart
differently from Jewish inmates is "reasonably related to
legitimate penological interests," Turner, 482 U.S. at 89,
however, we will remand this issue to the District Court.

V.

For the foregoing reasons, the judgment of the District
Court will be reversed, and the case will be remanded for
further proceedings consistent with this opinion.

                               22
SCIRICA, Circuit Judge, concurring in part and dissenting
in part.

I agree with the majority that this case should be
remanded for further factual assessment of the factors set
forth in Turner v. Safley, 482 U.S. 78, 89 (1987). I also
agree with the majority's admonition that those factors are
to be balanced, not tallied. I write separately because I
respectfully disagree with the majority's position as to
whether an analysis of an inmate's "alternative means of
religious expression" under Turner properly may include an
assessment of the centrality of the religious tenet on which
an inmate's requested accommodation is based.

Turner requires us to uphold a prison's regulation if it is
reasonably related to a legitimate penological interest. Once
a prison establishes a legitimate interest, the four Turner
factors gauge the regulation's overall reasonableness. I
agree that the defendants here established the necessary
legitimate penological interest, and established that the
prison's special diet regulation is rationally related to that
interest (the first Turner factor). I disagree with the
majority's analysis of the remaining Turner factors.

The second Turner factor assesses the existence of
alternative means by which an inmate can practice his
religion, not whether there are alternatives to the specific
activity at issue.1 O'Lone v. Shabazz, 482 U.S. 342, 351-52
(1987). Here, the District Court concluded that DeHart had
many alternative ways to exercise his right -- meditation,
prayer, or reading religious texts -- all of which the prison
allowed. The District Court based its analysis of this factor
on a determination that vegetarianism is not a
"commandment" of Buddhism (even of the particular sect to
which DeHart belongs), but is merely a positive expression
of DeHart's faith. The majority rejects this analysis, stating
that the court erred in making any assessment at all about
the central tenet issue, because under Employment Div.,
_________________________________________________________________

1. For this reason, I believe the majority's conclusion that "[t]here are
simply no alternative means by which DeHart can maintain a diet in
conformity with his religious beliefs" is based on too narrow a
characterization of the "right" at issue.

                               23
Dep't of Human Resources v. Smith, 494 U.S. 872 (1990),
such inquiry is forbidden.

I do not believe that Smith forbids inquiry into the central
tenet issue when assessing Turner's second factor. Smith
addressed whether a criminal law banning peyote use was
unconstitutional where the use was religious. Holding that
it was not, the Court rejected application of a"compelling
interest" test, stating that it would be improper for judges
to assess the centrality of religious beliefs in assessing
whether to apply a compelling interest test. Id. at 886. The
Court did not indicate that the centrality issue should
never be considered, and did not address the centrality
issue in the context of assessing a challenged prison
regulation.2
_________________________________________________________________

2. For the same reason, I do not believe that Africa v. Pennsylvania, 662
F.2d 1025 (3d Cir. 1981) concludes our inquiry here. The key issue there
was whether Africa's purported religion ("MOVE") was in fact a religion.
We held that it was not. As the majority acknowledges, Africa did not
reach the issue that DeHart presents: whether the state's penological
interests outweigh an inmate's free exercise claim. In this case, the
parties do not dispute that DeHart's beliefs are religious in nature, or
sincerely held. (Interestingly, the record shows that only after DeHart
filed several grievances objecting to a diet that included vegetables
cooked in butter did he raise the issue of his religious practices.) Nor
are
the parties (or the court) attempting to assess the truth or falsity of
DeHart's beliefs. Instead, as Turner requires, we assess the central tenet
issue to determine whether DeHart has alternative ways to exercise his
First Amendment rights. Similarly, in Africa we expressly acknowledged
that a court must examine the content of an asserted religion (at least
to a degree) in order to determine whether it is, in fact, a religion.
Africa,
662 F.2d at 1034 n.18. In short, to interpret Africa to preclude any
objective evidence on the centrality issue would eviscerate Turner's
second prong. On this point, I note that in Johnson we analyzed the
issue in terms of the requirements of the kosher laws, and not merely
the inmates' subjective interpretations of those laws. Similarly, the
court
in Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (a case we quoted in
Johnson) stated that on remand the district court could consider the
inmate's "challenge to the orthodoxy of the rabbi who testified on behalf
of the state." Clearly, the inquiry does not end with the inmate's claims;
the defendant is entitled to put on evidence of the centrality of the
practice at issue, and the district court is entitled to weigh that
evidence
against the inmate's testimony.

                               24
Turner, however, did address the issue of assessing a
challenged prison regulation, noting expressly the deference
to be accorded to prison officials' decisions, and the
separation of powers concerns that counsel a policy of
judicial restraint. Turner, 482 U.S. at 84-85. Turner
requires courts to consider whether an inmate has
alternative means of exercising his right to religious
freedom. That question cannot be answered withoutfirst
determining the centrality of the practice or belief at issue;
that is, whether or not it is commanded by the inmate's
religion. As we held in Johnson -- in the specific context of
evaluating the second Turner factor --"the importance of
alternative means of religious observance is an irrelevant
consideration when the belief at issue is a `religious
commandment' rather than a positive expression of belief."
Johnson, 150 F.3d at 282. The Jewish inmates in Johnson
would have been " `defiling' themselves under the laws of
kosher when forced to eat non-kosher foods . . . In such
situations, the centrality of the religious tenet carries
greater weight and the existence of alternative means of
observance is of no use in the ultimate balance which
Turner commands." Id. at 282.

It seems to me that our holding in Johnson makes clear
that the centrality of a religious practice -- in particular,
whether it is a commandment of the religion or a positive
expression of belief -- is a valid consideration in applying
the Turner test. If the practice is a commandment (as is
keeping kosher for certain Jewish inmates), then alternative
means of expression are irrelevant, and the second Turner
factor will weigh in an inmate's favor. But if the practice is
a positive expression of belief and the inmate has
alternative means of expression, then the factor may weigh
in the defendant's favor, depending on the facts.

Here, the evidence established that vegetarianism (or, by
extension, the more restrictive veganism that DeHart
wishes to practice) is not a commandment of either
Buddhism in general or of the particular branch of
Buddhism that DeHart practices. This is shown by the
testimony of the defendants' expert witness, and by the
written correspondence between DeHart and his spiritual
mentors, members of The City of Ten Thousand Buddhas.

                               25
In response to DeHart's query about vegetarianism, The
City of Ten Thousand Buddhas advised him that although
vegetarianism is preferred, it was not mandated in his
situation: "Clearly you are not in an ideal situation for
doing so. The Buddha, in giving us the Precepts,
consistently provided minor acceptions [sic] in cases where
it would be impossible to hold them to the finest detail . . .
[I]t would seem enough that you are sincere in your wish to
maintain the Buddha's precepts and that you try your very
best to follow the Buddha's instructions as closely as
possible, while practicing patience with our states and with
your environment." Thus, even the particular Buddhist
temple to which DeHart belongs does not believe that
DeHart's vegetarianism is a required practice, and does not
view his failure to keep the diet as a defiling offense. For
this reason, the situation of the Jewish inmates in Johnson
properly is distinguished from that of DeHart. In this
regard, I respectfully disagree with the majority's contrary
position (and instructions regarding entry of judgment on
remand).3

As to the third and fourth Turner factors-- the impact on
the prison of accommodating DeHart's request for special
meals, and whether there are easy alternatives by which
_________________________________________________________________

3. The majority instructs the District Court to enter judgment for DeHart
unless it can distinguish this case from Johnson on grounds other than
the central tenet issue. The majority's instruction is based on its
interpretation of Turner's requirement that in order for a regulation to
be
rationally related to a legitimate penological interest, the regulation
must
be neutral. Turner, 482 U.S. at 89-90. I do not believe Turner's
neutrality
requirement supports the majority's directive, for it asks whether the
challenged regulation operates in a neutral way, without regard to the
content of expression. Id. at 90. Moreover, we have previously explained
that Turner's neutrality requirement is met if the prison's asserted
interest giving rise to the regulation is unrelated to suppressing
expression. See Waterman v. Farmer, 183 F.3d 208, 215 (3d Cir. 1999)
(quoting Thornburgh v. Abbott, 490 U.S. 401, 415 (1989)). We held in
Waterman that New Jersey's interest in rehabilitating sex offenders was
not related to the suppression of expression, and the challenged
regulation therefore was neutral. Id. So, too, the prison's interest here
in
an efficient food service system is not related to the suppression of
religious expression. Accordingly, its special diet regulation is neutral
for
purposes of the Turner analysis.

                               26
DeHart can be accommodated at de minimus cost -- I agree
that further fact-finding is necessary. But unlike the
majority, I believe that on remand the court first must
clarify the nature of DeHart's requested accommodation.
DeHart frames the issue as a request for a vegetarian diet.
Vegetarian diets typically avoid meat, fish, and poultry.
DeHart's proposed diet is more restrictive. Not only must it
be free of meat, fish, and poultry, but also free of eggs,
dairy products, pungent root materials such as onions or
garlic, and any material derived from any animal product.
In this respect, DeHart's requested diet4 is even more
restrictive than a vegan diet (one disallowing all animal
products) because it also would prohibit any non-animal
food or material that is prepared with animal products (for
example, vitamin supplements that may include bone
derivatives or bread made with animal byproduct
preservatives, both of which DeHart has declined). On this
point, it bears noting that the Court of Appeals for the
Sixth Circuit in Spies v. Voinovich, 173 F.3d 398 (6th Cir.
1999) (which the majority distinguishes) held that a prison
was not constitutionally required to provide a Buddhist
inmate with a vegan diet. In sum, a clear understanding of
the precise nature and parameters of the special diet that
DeHart seeks (for example, whether the diet prohibit fruits
and vegetables that have been fertilized with organic
material) is essential to a proper assessment of the
_________________________________________________________________

4. The majority apparently believes that DeHart can be accommodated
with extra portions of vegetables and bread, and with a cup of specially-
purchased soy milk with each meal. But, as noted supra, the record
contains conflicting evidence as to the precise nature of the diet that
DeHart seeks (including a "beans and rice" diet that DeHart suggested at
the preliminary injunction hearing). Moreover, DeHart has not rebutted
the testimony of the defendants' expert that the"extra portions plus soy
milk" diet fails to meet the relevant regulatory nutritional requirements
for inmates, is based on an out-of-date master prison menu (and is
therefore not accurate with respect to food items that the prison has
available), and cannot fully be evaluated because it proposes only a five-
day menu, compared to the prison's forty-two day menu cycle. Unless
DeHart addresses these issues on remand, his proposed diet does not
appear to be a viable one.

                               27
resulting burden on the prison in complying with his
request, and the overall balancing of the Turner factors.5

In assessing the burden on the prison of accommodating
DeHart's request, I believe the majority fails to take
sufficient account of the evidence of the potential for "ripple
effect" within the prison. The Supreme Court has
encouraged courts to give "particular deference" to the
informed discretion of corrections officials on this issue.
Turner, 482 U.S. at 90.

Finally, with respect to DeHart's equal protection claim
that he is being treated differently from Jewish inmates
who request and receive kosher meals, I do not believe that
DeHart has stated a valid claim. In order to do so, he must
come forward with some evidence of discriminatory intent
on the part of the defendants. DeHart has not done so.
Accordingly, I would affirm the grant of summary judgment
on this issue.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

5. The majority's point as to the need for a bona fide balancing of the
factors is well-taken. But we have noted that in the course of conducting
that balancing, the first Turner factor "looms especially large."
Waterman,
183 F.3d at 208.

                                28
