                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                               March 2, 2020
                         _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 JERRY BLAIR,

       Plaintiff - Appellant,

 v.                                                          No. 18-1349
                                                (D.C. No. 1:17-CV-00830-CMA-KMT)
 RICK RAEMISCH, Executive Director,                           (D. Colo.)
 C.D.O.C.; STEVEN OWENS, CSP
 Warden; CPT. RICHARD, CSP Kitchen
 Supervisor; OFFRELIG, Creator of
 Religious Menue, C.D.O.C.; CHARLEEN
 CROCKETT, Food Service Administrator;
 CAPT. PHIPPS, SCF Kitchen Supervisor;
 CANTEEN REVIEW COMMITTEE,
 C.C.I.,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
                  _________________________________

      Jerry Blair, a state prisoner proceeding pro se, filed this action under

42 U.S.C. § 1983; the Religious Land Use and Institutionalized Persons Act (RLUIPA),



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
42 U.S.C. § 2000cc to 2000cc-5; and Colo. Rev. Stat. § 24-34-601(2)(a), alleging

officials with the Colorado Department of Corrections (CDOC), the Sterling Correctional

Facility (SCF), and Colorado State Prison (CSP) violated his federal and state rights. He

now appeals the district court’s dismissal of his case under Fed. R. Civ. P. 12(b)(6).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

                                   I. BACKGROUND

       As relevant to this appeal, Blair alleges the following facts in the operative

complaint:1

       Blair is a Buddhist and has followed a Buddhist vegan religious diet in prison for

the last five years. In 2015, while he was incarcerated at SCF, the prison’s kitchen

supervisor, Defendant Phipps, changed his religious diet for all lunches and dinners to

pinto beans and steamed rice. Blair was served this same diet from January 24, 2015

through April 10, 2015, when CDOC transferred him to the CSP, even though another

Buddhist vegan inmate at SCF was served a more varied vegan menu during this time.

As a result of the alleged overdose of beans in his diet at SCF, Blair developed a severe

case of gout.

       In the fall of 2016, after Blair’s transfer to the CSP, the CDOC changed the vegan

religious diet menu there to include a “vegan patty,” made at the prison, that consists of

left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and

then baked. Id. at 15, 33. Blair alleges this patty is essentially a punitive food known as


       1
          Because Blair is acting pro se, we construe his pleadings and other filings
liberally. Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007).
                                              2
“nutra loaf,”2 and that it is inedible, and “stinks” to the point that he cannot eat his entire

meal after smelling it. Id. at 15; see id. at 32-34. And when he does eat the patty, it

causes gastrointestinal distress, vomiting, horrible gas, and diarrhea. Although Blair

repeatedly informed prison authorities that the vegan patties make him sick and that he

cannot eat them, CSP continues to serve them on nineteen of the twenty-eight days in his

recurring four-week religious meal cycle. Because the vegan patty is inedible and makes

him sick, Blair must buy his own vegan meal from the prison canteen on the days it is

served or go hungry.

       Based on these and other allegations, Blair filed this action in April 2017,

asserting claims under 42 U.S.C. § 1983 for violations of his rights under the First,

Eighth, and Fourteenth Amendments and RLUIPA, as well as a state discrimination claim

under Colo. Rev. Stat. § 24-34-601(2)(a), against various CDOC, SCF and CSP officials.

The district court identified deficiencies in Blair’s complaint and ordered him to file an

amended complaint. After he did so, the district court granted Blair in forma pauperis

(IFP) status under 28 U.S.C. § 1915 and then reviewed the amended complaint under

§ 1915(e)(2)(B). As a result of this review, the district court dismissed a number of

Blair’s claims as legally frivolous pursuant to § 1915(e)(2)(B)(i), but found the following



       2
         Nutra loaf, also known as “nutraloaf,” “nutriloaf,” “prison loaf,” or
“disciplinary loaf,” is “a bad-tasting food given to prisoners as a form of
punishment,” Prude v. Clarke, 675 F.3d 732, 733 (7th Cir. 2012). “It is made by
blending a variety of foods from normal prison meals” and baking it into solid loaf.
LeMaire v. Maass, 12 F.3d 1444, 1455 (9th Cir. 1993). Blair alleges CSP serves the
“nutra loaf” vegan patty to him even though he has not been accused of any
disciplinary infractions. ROA Vol. 1 at 15.
                                               3
claims survived this initial screening: (1) Blair’s Eighth Amendment, First Amendment

free exercise and Fourteenth Amendment equal protection claims based on being served

rice and beans for a prolonged period of time at the SCF; (2) his First Amendment free

exercise and RLUIPA claims for being served vegan patties as part of his religious diet at

the CSP; and (3) his state-law discrimination claim based on these and additional, largely

unrelated allegations.

       Defendants moved to dismiss these remaining claims under Fed. R. Civ.

P. 12(b)(6) for failure to state a claim. Blair filed a response in opposition to their motion

and a motion to again amend his complaint. A magistrate judge, acting on referral from

the court, denied Blair’s motion to amend and recommended that the district court grant

Defendants’ motion to dismiss. The magistrate judge also notified the parties that they

could file objections to her proposed findings and recommendations within fourteen days

after service of the Recommendation.

       Blair placed his objections to the Recommendation in the prison mail system the

day before the objection deadline, but the court did not receive them until eight days

later, on August 16, 2018, hours after it had entered an order and judgment adopting the

Recommendation in part and rejecting it in part (“August 16 Order”). More specifically,

in the August 16 Order the district court adopted the magistrate judge’s recommendation

to dismiss Blair’s remaining federal claims with prejudice under Rule 12(b)(6) but

rejected her recommendation to dismiss his state law discrimination claim on the same

basis. Instead, the district court declined to exercise supplemental jurisdiction over the



                                              4
state-law claim in light of its dismissal of Blair’s federal claims, and therefore dismissed

this claim without prejudice.

       On August 23, Blair filed a written protest of the district court’s failure to consider

his objections before ruling, invoking the prison mailbox rule, and shortly thereafter filed

a notice appealing the district court’s August 16 Order. But upon consideration of Blair’s

August 23 filing, the district court vacated its August 16 Order and accompanying

judgment, and on September 5, 2018, issued a new order (September 5 Order) that

considered Blair’s objections but again adopted the magistrate judge’s recommendation

in part and rejected it in part and dismissed his case. It entered final judgment the

following day.

                           II. APPELLATE JURISDICTION

       “Jurisdiction is a threshold question that a federal court must address before

reaching the merits.” United States v. Springer, 875 F.3d 968, 973 (10th Cir. 2017)

(internal quotation marks omitted). One of the prerequisites to appellate jurisdiction

is that the appellant complied with Fed. R. App. P. 3(a)(1) by filing a timely notice of

appeal. See United States v. Smith, 182 F.3d 733, 734 (10th Cir. 1999). In a civil

case such as this, an appellant must file a notice of appeal within 30 days of entry of

the judgment or order being appealed. See Fed. R. App. P. 4(a)(1)(A). A

jurisdictional question arises in this case because Blair timely filed a notice of appeal

of the August 16 Order, but did not file a new notice of appeal after the district court




                                              5
vacated the August 16 Order and judgment and issued the September 5 Order and

accompanying judgment in its stead.3

       Fed. R. App. 4(a)(4)(B)(ii) provides that a party seeking to appeal an amended

judgment must timely file a new or amended notice of appeal. After reviewing the

record, we conclude Blair complied with this requirement because he timely filed the

functional equivalent of a notice of appeal after the district court entered the

September 5 Order. See Smith v. Barry, 502 U.S 244, 248-49 (1992) (“If a document

filed within the time specified by [Fed. R. App. P.] 4 gives the notice required by

[Fed. R. App. P.] 3, it is effective as a notice of appeal.”).

       To qualify as a functional notice of appeal, a party’s filing must provide notice

of the party taking the appeal, the judgment or order appealed from, and the court to

which the appeal is taken. See id. at 249; United States v. Smith, 182 F.3d at 735.

Blair provided this notice in a filing in this court on September 17, 2018, in which he

clearly communicated his intent to appeal the district court’s revised decision.4 He


       3
          The district court had jurisdiction to take this action, despite Blair having
filed a notice of appeal, because it treated Blair’s August 23 notice protesting the
court’s failure to consider his objections as a Rule 59(e) motion to alter or amend its
August 16 Order and judgment. See Constien v. United States, 628 F.3d 1207, 1212 n.5
(10th Cir. 2010) (stating that when a notice of appeal is filed while a Rule 59(e) and
certain other post-judgment motions are pending, “the notice of appeal, and with it the
appellate court’s jurisdiction, is suspended until such motions are disposed of”).
       4
         Blair made this filing in response an Order to Show Cause (OSC) this court
issued after it received Blair’s notice of appeal regarding the August 16 Order. In the
OSC, we noted that it appeared from the district court’s docket that Blair had not
objected to the magistrate judge’s recommendation, an omission that we generally
hold waives the right to appellate review under this circuit’s “firm waiver rule.” See
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (stating firm waiver
                                             6
also filed this document within the 30-day period for filing a notice of appeal of that

decision. Accordingly, we hold we have jurisdiction to consider Blair’s appeal of the

September 5 Order and final judgment dismissing his case.

                                III. ISSUES ON APPEAL

       Blair challenges the dismissal of his claims on various grounds. With two

exceptions, discussed below, we conclude his contentions lack merit.5



rule generally applies when a party “fails to make a timely objection to the magistrate
judge’s findings and recommendations”). Accordingly, the OSC directed Blair to
show cause why the court should not find he had waived his right to appeal by failing
to object to the magistrate judge’s recommendation. In his September 17 response,
Blair notified us that he had filed objections to the magistrate judge’s
recommendation, as described earlier in this decision, provided additional
information and documentation regarding relevant circumstances, and indicated that
he wished to proceed with his appeal. Defendants have not challenged Blair’s
account or otherwise asserted that the firm waiver rule bars this appeal. Based on
this lack of opposition, Blair’s response, and other relevant considerations, we
exercise our discretion not to apply the firm waiver rule in this case. See id.
(discussing court’s discretion regarding firm waiver rule); Hicks v. Franklin,
546 F.3d 1279, 1283 n.3 (10th Cir. 2008) (declining to apply firm waiver rule
because defendant had forfeited application of the rule by failing to raise it in its
argument).
       5
           In his opening brief, Blair lists several of the claims the district court dismissed
as legally frivolous under 28 U.S.C. § 1915(e)(2)(B) as “important grounds for relief” not
considered by the district court. Aplt. Opening Br. at 11-13. To the extent Blair intended
to appeal the district court’s dismissal of these claims by this list, he forfeited appellate
review of this issue by failing to include any argument disputing their dismissal. See,
e.g., Fed. R. App. P. 28(a)(8)(A) (requiring that an appellant’s opening brief identify
“appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”); Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (noting “we routinely have declined to consider arguments that are
. . . inadequately presented[] in an appellant’s opening brief”); Utahns for Better Transp.
v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“We do not consider
merely including an issue within a list to be adequate briefing.”). Blair similarly forfeited
appellate review of the district court’s July 17, 2018 denial of his motion to amend his
                                              7
                                  A. Failure to Allow Evidence

       Blair first asserts that the district court erred in dismissing his claims under

Rule 12(b)(6) without allowing him to present evidence. But as the district court

correctly noted, its function under Rule 12(b)(6) was “not to weigh potential evidence

that the parties might present at trial, but to assess whether the plaintiff’s complaint alone

is legally sufficient to state a claim for which relief may be granted.” Smith v. United

States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotation marks omitted). In

making this assessment, a court may consider exhibits to the complaint and undisputed

documents referenced in it that are central to the plaintiff’s claims, see id., but Blair did

not attach any documents to his complaint or otherwise identify documents referenced in

it that he believes should have been included in the court’s Rule 12(b)(6) review.

Accordingly, the district court did not err in limiting its review under Rule 12(b)(6) to the

allegations in Blair’s amended complaint.

                                 B. Dismissal of Federal Claims

       Blair challenges the district court’s dismissal of each of the federal claims that

survived the court’s § 1915 screening determination, asserting he did state a claim as to

each in his amended complaint. We review the district court’s dismissal under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim de novo. Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012).




complaint, because while he requested that we review this decision in his opening brief,
he did not include any argument regarding it. See Bronson, 500 F.3d at 1104.
                                               8
       To state a claim, a complaint must contain sufficient facts “to state a claim to relief

that is plausible on its face,” taking all well-pleaded facts, but not conclusory allegations,

as true and construing them in the light most favorable to the plaintiff. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks omitted); see Acosta v. Jani-King of

Okla., Inc., 905 F.3d 1156, 1158 (10th Cir. 2018). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. We

construe Blair’s pro se pleadings liberally in our review. Trackwell v. United States,

472 F.3d 1242, 1243 (10th Cir. 2007).

       Applying these standards to the claims at issue, we conclude Blair’s complaint

states a claim under the First Amendment’s Free Exercise Clause and RLUIPA with

respect to the vegan patty meals he received as part of his vegan religious diet at the CSP.

Accordingly, we reverse the district court’s dismissal of these claims. But we agree that

Blair failed to state any other federal claims and hence affirm the district court’s

dismissal of them.

1.     Religious diet claims

       We have long recognized that prisoners have the right under both the First

Amendment and RLUIPA to a diet that conforms to their sincerely held religious

beliefs. See Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (First

Amendment); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316 (10th Cir. 2010)

(RLUIPA). Blair alleges that Defendant Phipps, acting in his individual capacity,

violated this First Amendment right by serving him beans and rice so often while he was

                                              9
at the SCF that he developed gout and that Defendants Crockett, Richard, and Offrelig,

also acting in their individual capacities, did the same at CSP by developing and serving

him vegan patty meals that were so inedible that they made him sick. He also seeks

injunctive relief against Defendant Raemisch, acting in his official capacity, for violating

RLUIPA by allowing CSP to serve the vegan patty meals as part of Blair’s vegan

religious diet.6

       To state a claim for violation of the First Amendment’s Free Exercise Clause, the

plaintiff must plead facts that plausibly show or allow the inference that the prison

regulation or action at issue “substantially burdened sincerely-held religious beliefs.”

Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (internal quotation marks and

alterations omitted).7 Similarly, to state a claim under RLUIPA, a plaintiff must plead

that “he wishes to engage in (1) a religious exercise (2) motivated by a sincerely held


       6
          Blair also asserted claims for damages under RLUIPA against Defendants
Phipps, Crockett, Richard, and Raemisch in their individual capacities, but the
district court properly dismissed these claims during its § 1915 review. See Stewart v.
Beach, 701 F.3d 1322, 1335 (10th Cir. 2012) (“[T]here is no cause of action under
RLUIPA for individual-capacity claims.”).
       7
          A prison regulation or action that impinges on these or other constitutional
rights is nonetheless valid “if it is reasonably related to legitimate penological interests.”
Kay, 500 F.3d at 1218 (internal quotation marks omitted). As a result, we have held
that for an inmate to state a plausible claim based on a constitutional violation he must
also plead “facts from which a plausible inference can be drawn that the [allegedly
impinging] action was not reasonably related to a legitimate penological interest.” Gee v.
Pacheco, 627 F.3d 1178, 1187-88 (10th Cir. 2010). Defendants here have not given a
reason for allegedly impinging on Blair’s First Amendment free exercise rights by
including inedible or unhealthy meals in his vegan religious diet. Nor have they argued
that Blair failed to state a First Amendment claim because it could not be plausibly
inferred from his allegations that including such meals in his religious diet was not
reasonably related to legitimate penological interests.
                                             10
belief, which exercise (3) is subject to a substantial burden imposed by the government.”

Abdulhaseeb, 600 F.3d at 1312.8

       For purposes of their motion to dismiss, Defendants conceded that Blair’s

sincerely held religious beliefs motivate his desire to engage in the religious exercise at

issue, maintaining a Buddhist vegan diet. But they argued he nonetheless failed to state

either a First Amendment or a RLUIPA claim because he had not plausibly alleged that

either the rice and beans diet he received at SCF or the vegan patty meals served at CSP

substantially burdened this religious exercise. The district court agreed and dismissed

Blair’s First Amendment and RLUIPA claims on this basis.

       A government substantially burdens a person’s religious exercise for purposes of

RLUIPA when it (1) “requires participation in an activity prohibited by a sincerely held

religious belief,” (2) “prevents participation in conduct motivated by a sincerely held

religious belief,” or (3) “places substantial pressure on an adherent either not to

engage in conduct motivated by a sincerely held religious belief or to engage in

conduct contrary to a sincerely held religious belief.” Id. at 1315. This test is

grounded in the Supreme Court’s interpretation of substantial burden under the First



       8
          A defendant does not need plead more than this to state a RLUIPA claim. This
is so even though a defendant can avoid liability under the statute for substantially
burdening a prisoner’s religious exercise by demonstrating that “imposition of the burden
on [the prisoner] -- (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). Because this is an affirmative defense, a plaintiff need not
plead it to state a RLUIPA claim. See Ghailani v. Sessions, 859 F.3d 1295, 1305-06
(10th Cir. 2017) (regarding near-identical provision in Religious Freedom Restoration
Act).
                                             11
Amendment’s Free Exercise Clause, see id., and thus is applicable to Blair’s First

Amendment claim as well.

      a. First Amendment claim based on rice and beans diet at SCF

      Blair alleges the rice and beans diet at the SCF substantially burdened his

religious exercise because it caused him “to be sick with stomach cramps [and]

vomiting” and the “pain [and] suffering of gout.” ROA Vol. 1 at 27. Blair

apparently contends these health consequences placed substantial pressure on him not

to continue with his vegan religious diet. But Blair alleges only one instance in

which the rice and beans diet caused stomach cramps and vomiting, which is not

sufficient to establish substantial burden for purposes of a First Amendment claim.9

See Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009) (holding allegations

of “isolated” violations of religious diet requirements do not state a claim for denial

of prisoner’s First Amendment free-exercise rights); see also Abdulhaseeb, 600 F.3d

at 1321 (affirming summary judgment against RLUIPA claim because evidence

showed only one instance in which a religious meal was inedible). And it is not

plausible that Blair’s development of gout as a result his prolonged rice and beans

diet at the SCF placed substantial pressure on him to abandon his vegan religious

diet, because he stopped receiving this diet three days after his gout diagnosis, when




      9
        Blair’s RLUIPA claim against Defendant Phipps based on this diet was
dismissed on screening. See supra n.6.
                                           12
he was transferred from the SCF to the CSP.10 Accordingly, we affirm the district

court’s decision that Blair failed to state a First Amendment claim based on the

rice-and-beans vegan religious diet he received at the SCF.

       b. First Amendment and RLUIPA claims based on vegan patty meals at
          CSP

       We reach a different conclusion with respect to Blair’s First Amendment and

RLUIPA claims based on the vegan patty meals that were a regular component of his

vegan religious diet at CSP. The district court held Blair had not pled substantial

burden with respect to these meals in part because he failed to allege “that the CDOC

deprives him of vegan meals” or that “the vegan food he is served prevents him from

practicing Buddhism.” ROA Vol. 2 at 21. These conclusions are correct, but they are not

dispositive. “[A] burden can be ‘substantial’ even if it does not compel or order the

claimant to betray a sincerely held religious belief.” Yellowbear v. Lampert,

741 F.3d 48, 55 (10th Cir. 2014). As noted above, a substantial burden also exists if “the

claimant is presented with a choice in which he faces considerable pressure to abandon

the religious exercise at issue.”11 Id.; see Abdulhaseeb, 600 F.3d at 1315.


       10
           Under these circumstances, health concerns could not have motivated
Blair’s allegations that he repeatedly complained to SCF staff about “the unyealding
[sic] diet of beans and rice.” ROA Vol. 1 at 26.
       11
          The district court also cited Blair’s failure to allege that the vegan patty
meals were nutritionally inadequate in support of its holding on substantial burden.
See ROA Vol. 2 at 21. But a nutritionally adequate diet may still substantially
burden an inmate in his ability to adhere to a religious diet. For example, the
nutritionally adequate foods at issue may not conform to the inmate’s religious
beliefs as to what is allowed in his religious diet or, as alleged here, may be inedible
or sickening.
                                            13
       To the extent the district court assessed Blair’s allegations under this additional

test for substantial burden, it appears to have found them wanting because Blair had not

alleged that CDOC “pressures him to eat a non-vegan diet.” ROA Vol. 2 at 21. But

whether CDOC intentionally pressured Blair to abandon his religious diet is not the

proper focus in assessing whether Blair sufficiently alleged substantial burden under the

“pressure” test. Rather, this “inquiry focuses only on the coercive impact of the

government’s actions.” Yellowbear, 741 F.3d at 55 (emphasis added). And “[c]reating a

situation that forces the religious claimant to choose between following the dictates of his

faith and winning an important benefit or forgoing a considerable penalty is coercion

enough” to demonstrate substantial burden under this test. Id. at 56.

       We also disagree with the district court’s conclusion that all of Blair’s allegations,

“taken as true, reflect merely an inconvenience of variety, quality, and rotation of

non-preferred items in a completely vegan meal.”12 ROA Vol. 2 at 21. As relevant to the

substantial burden inquiry, Blair alleged the vegan patty meals included in his religious

diet were inedible, forcing him to go hungry or purchase vegan food in the prison

commissary. He further alleged that when he does eat the vegan patty, he vomits and

suffers other gastrointestinal distress. And these were not isolated or sporadic

occurrences, because Blair alleged the vegan patties were a scheduled part of his vegan



       12
         This is not to say that the district court was all wrong in its assessment of
Blair’s complaints. To be sure, several of Blair’s allegations smack only of
complaints regarding the variety, quality and rotation of meals. The district court
correctly concluded that those allegations did not support a claim upon which relief
could be granted.
                                             14
religious diet on nineteen out of the twenty-eight days in each four-week meal cycle.

Thus, taking Blair’s allegations as true, as we must under our standard of review,

nineteen out of every twenty-eight days, or two out of every three days, Blair either could

not eat one of his vegan religious meals or became sick because it included the

nutraloaf-like vegan patty.

       Accepting Blair’s allegations as true, this situation reflects more than a mere

inconvenience. To the contrary, we conclude Blair’s allegations plausibly assert that the

vegan patty meals at CSP substantially burdened his sincerely held religious beliefs

because they put considerable pressure on him to abandon his vegan religious diet.13

While a single or sporadic service of inedible religious meals does not rise to the level of

substantial burden, see Gallagher, 587 F.3d at 1070 (First Amendment free exercise

claim); Abdulhaseeb, 600 F.3d at 1321 (RLUIPA); id. at 1325 (Gorsuch, J.

concurring), we have recognized that “as the frequency of presenting unacceptable foods

increases, at some point the situation would rise to the level of a substantial burden,”

Abdulhaseeb, 600 F.3d at 1321. Blair’s allegations that the vegan patty meals forced him

to forgo a religious diet meal or be sick two days out of three rises to this level. As a



       13
          That Blair may be able to avoid going hungry or becoming sick by purchasing
alternative vegan food at the prison commissary does not change this conclusion. See
Abdulhaseeb, 600 F.3d at 1317-18 (rejecting case law finding no substantial burden
under RLUIPA in denial of religious diet based on inmate’s ability to purchase
religious foods). That these reactions may be personal to Blair also is not relevant to
our analysis. As we do with plaintiffs in tort law, “we take religious claimants as we
find them, assessing the coercive impact [of] the government’s actions on the individual
claimant’s ability to engage in a religious exercise.” Yellowbear, 741 F.3d at 55.

                                             15
result, we conclude Blair sufficiently alleged that these meals substantially burdened his

religious practice and that he therefore stated both a First Amendment free exercise claim

and a RLUIPA claim based on the vegan patty meals included in his religious diet at

CSP. Accordingly, we reverse the district court’s dismissal of these claims.

       In so ruling, we have considered Defendants’ request that we affirm dismissal of

any federal claims we find viable on the alternative basis of qualified immunity.

Defendants asserted this defense in the district court, which shifted the burden to

Blair to demonstrate that the factual allegations in his complaint established a violation

of his federal rights and that the right at issue was clearly established at the time of

Defendants’ alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009);

Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). The magistrate judge

recommended that the district court find Defendants had qualified immunity on

Blair’s federal claims, but based only on her conclusion that Blair had failed to state

a federal claim. The district court stated in a footnote that while it agreed with the

magistrate judge’s recommendation, it did not need to address this issue because

there were other grounds for dismissal. See ROA Vol. 2 at 23 n.3.

       Our conclusion that Blair stated a claim with respect to the vegan patty meals

undermines the basis of the magistrate judge’s recommendation on the qualified

immunity issue, which the district court did not adopt in any event. In addition,

neither the magistrate judge nor the district court addressed the “clearly established”

component of Defendants’ qualified immunity defense, which Defendants barely

touched on in their argument to the district court. Under these circumstances, the

                                              16
better practice is to leave the qualified immunity determination to the district court to

consider on remand. See Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d 637, 649

(10th Cir. 2017). We note, however, that qualified immunity is not a defense to

Blair’s RLUIPA claim against Defendant Raemisch, and thus is only relevant to his

First Amendment free exercise claim against Defendants Crockett, Richard, and

Offrelig. See Meiners v. Univ. of Kan., 359 F.3d 1222, 1233 n.3 (10th Cir. 2004)

(“Qualified immunity applies to claims for monetary relief against officials in their

individual capacities, but it is not a defense against claims for injunctive relief against

officials in their official capacities.”).

2.     Eighth Amendment claim

       Blair asserts in his amended complaint that Defendant Phipps, the kitchen

supervisor at SCF, also violated the Eighth Amendment’s ban on cruel or unusual

punishment by being deliberately indifferent to the gout and associated pain Blair alleges

he suffered from being served pinto beans and rice twice a day for several months. To

state an Eighth Amendment claim for deliberate indifference to the medical needs of

prisoners, the prisoner must demonstrate, among other things, that the defendant “knows

of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). The district court concluded Blair had not included such

allegations in his complaint, because he at no point alleged that Phipps knew of Blair’s

gout and related issues or knew that the rice and beans diet was the cause. Blair does not

challenge this conclusion on appeal, and instead asserts only that the attending physician

should have notified Phipps to change Blair’s diet after he developed gout. This is not

                                              17
sufficient to state an Eighth Amendment claim against Phipps. Accordingly, the district

court correctly dismissed this claim for failing to state a claim.

3.     Equal Protection claim

       Blair further alleges Defendant Phipps violated the Equal Protection Clause of the

Fourteenth Amendment by serving him rice and pinto beans twice a day for months while

at the same time “often” serving “the regular vegan diet meal” to another inmate who was

also on the Buddhist vegan religious diet. ROA Vol. 1 at 27. To state a “class of one”

equal protection claim, Blair needed to allege that he “has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

(per curiam). This required Blair to allege facts establishing that others who were

“similarly situated in every material respect were treated differently,” and that “this

difference in treatment was without rational basis, that is, . . . [it] was irrational and

abusive, and wholly unrelated to any legitimate state activity.” Kan. Penn Gaming, LLC

v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (citation and internal quotation marks

omitted). The district court held Blair’s allegations failed to meet either requirement,

because he did not demonstrate that the other inmate was similarly situated to him “in

every material respect” or that Phipps’ alleged conduct, serving Blair rice and beans

twice a day for months, was irrational and abusive. ROA Vol. 2 at 23 (internal quotation

marks omitted). It further held Blair’s allegations that he and the other inmate received

different vegan religious meals were too vague to establish differential treatment. After



                                               18
reviewing Blair’s allegations, we agree that his allegations were too vague and

incomplete to state a plausible equal protection claim.

                             C. Dismissal of State-Law Claim

       In his amended complaint, Blair asserted a state-law claim under Colo. Rev. Stat.

§ 24-34-601(2)(a), in which he alleged Defendants discriminated against him in various

ways, including by feeding him rice and beans at the SCF and the vegan patty meals at

CSP. As noted earlier, the district court declined to exercise supplemental jurisdiction

over this state-law claim and dismissed it without prejudice because it had dismissed all

of Blair’s federal claims. We review this decision for abuse of discretion. Koch v. City

of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011).

       “When all federal claims have been dismissed, the court may, and usually should,

decline to exercise jurisdiction over any remaining state claims.” Id. (internal quotation

marks omitted). Accordingly, the district court did not abuse its discretion by declining

to exercise supplemental jurisdiction over Blair’s state-law claim when it dismissed all of

Blair’s federal claims. See id. But our decision to reverse and remand the dismissal of

Blair’s federal religious diet claims regarding the vegan patty meals at CSP undermines

the district court’s rationale for declining to exercise supplemental jurisdiction over

Blair’s state-law claim. Accordingly, we reverse that decision and remand this claim to

the district court for further consideration.

                                   IV.    CONCLUSION

       For the reasons stated above, we affirm dismissal of Blair’s First Amendment free

exercise claim based on his religious diet at SCF, as well as his Eighth Amendment and

                                                19
equal protection claims. But we reverse dismissal of Blair’s First Amendment free

exercise and RLUIPA claims based on the vegan patty meals included in his religious

diet at CSP and his state discrimination claim. We therefore remand this case to the

district court for further proceedings consistent with this decision. We note that our

decision addresses the district court’s decision to dismiss Blair’s case pursuant to Federal

Rule of Civil Procedure 12(b)(6). We express no opinion on the merits of the case at

later stages of the case.14


                                              Entered for the Court


                                              Joel M. Carson III
                                              Circuit Judge




       14
        We grant Blair’s request to proceed IFP on appeal, but remind him that he must
continue making partial payments until the entire filing fee for this appeal is paid in
full.
                                             20
