                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 4 1997
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    KAMAL K. PATEL,

               Plaintiff-Appellant,

    v.                                                 No. 97-1083
                                                   (D.C. No. 96-M-286)
    UNITED STATES OF AMERICA;                           (D. Colo.)
    BUREAU OF PRISONS; TOM (I)
    WOOTEN, Ex-Warden, FCI Florence;
    LOU ROCKVAN, Food Service
    Administrator; JENNY ROPER, Ex-
    Food Service Administrator; FNU
    BELL, Assistant Food Service
    Administrator; FNU FISHMAN, Food
    Service Employee; GIL LYDE, Unit
    Manager; FNU PELTIER, Counselor;
    KEN LINCOLN, Counselor; FNU
    McNAMARA, Food Service
    Employee; N. WAYNE SMITH,
    Associate Warden and One John Doe,
    Food Service Employees; J. ARMIJO,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff, a federal inmate appearing pro se, appeals from the district

court’s grant of summary judgment to defendants in his action brought pursuant to

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). We have

jurisdiction under 28 U.S.C. § 1291.

      Plaintiff, a Hindu, was incarcerated at the Federal Correctional Institution,

Florence, Colorado (FCI Florence) from March 25, 1993 until January 26, 1997.

He maintains that as a Hindu, he may not eat meat or foods prepared with utensils

that have been contaminated by meat. He participated in the prison’s “common

fare” religious diet program from September 9, 1994 until January 15, 1995, in an

attempt to receive food satisfying his religious restrictions. For the rest of his

time at FCI Florence, plaintiff took food off the main cafeteria line. In his

complaint, he asserted that defendants denied him food conforming to his

religious beliefs while he was housed at FCI Florence, in contrast to their practice


**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.

                                         -2-
of accommodating the dietary needs of Jewish and Muslim inmates, and in

violation of the United States Constitution, the Religious Freedom Restoration

Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and their own regulations. He

also alleged that defendants seized his copy of the Bhagvad Gita, the Hindu

equivalent of the Christian Bible, in violation of his constitutional rights. He

sought damages and declaratory and injunctive relief. Defendants filed a motion

to dismiss or, in the alternative, for summary judgment. They asserted, among

other defenses, their entitlement to qualified immunity on plaintiff’s claims

concerning his diet. They denied that any of them had seized plaintiff’s holy

book, and argued that plaintiff had not exhausted his administrative remedies on

his claim that his holy book was unlawfully seized.

      The magistrate judge recommended that defendants’ motion be granted in

part and denied in part. 1 The district court reviewed the case de novo and granted



1
       Plaintiff requested that his claims for injunctive relief regarding the alleged
seizure of his Bhagvad Gita and his claims for damages against defendants in
their official capacities be dismissed; the magistrate judge therefore included
these requests in his recommendations. The magistrate judge further
recommended that summary judgment be granted in favor of defendant Smith, as
plaintiff had not shown that Smith personally participated in the claims related to
his diet. The magistrate judge also recommended that summary judgment be
granted in favor of the United States and the Bureau of Prisons on the basis of
their sovereign immunity. Plaintiff has waived any arguments to these adverse
recommendations because he did not object to the magistrate judge’s findings and
recommendation. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.
1992). They are also supported by the record and the law.

                                         -3-
the motion in it entirety. It held that plaintiff’s claims for injunctive relief were

moot because plaintiff had been transferred away from FCI Florence. It held,

further, that plaintiff did not have a clearly established constitutional right to a

diet conforming to his religious beliefs, and that defendants were entitled to

qualified immunity on plaintiff’s claims related to his diet as a result. The court

held that plaintiff had not shown that defendants acted with the intention to

deprive him of his holy book, and that his claims that it was unlawfully seized

were therefore inadequate. The court also held that plaintiff had failed to exhaust

his administrative remedies on claims related to his book.

      On appeal, plaintiff argues that the district court erred: (1) in dismissing

his claims that defendants failed to provide him with a diet conforming to his

religious practice in violation of the First, Fifth, and Eighth Amendments, the

Religious Freedom Restoration Act, and their own regulations; (2) in dismissing

his claim that some of the defendants seized his Bhagvad Gita in violation of the

First Amendment; and (3) in holding that defendants were entitled to qualified

immunity.

      We note at the outset that the district court correctly dismissed plaintiff’s

claims for injunctive relief. Plaintiff’s claims for declaratory relief are likewise

moot. He has been transferred away from FCI Florence and there is no indication




                                           -4-
that he will be transferred back. Only plaintiff’s claims for money damages

remain.

         In addition, the Supreme Court has recently held the Religious Freedom

Restoration Act unconstitutional. See City of Boerne v. Flores, 117 S. Ct. 2157,

2172 (1997). We therefore need not consider the merits of plaintiff’s RFRA

claim.

         We review the grant of summary judgment de novo, applying the same

standard as that applied by the district court. See Clemmons v. Bohannon,

956 F.2d 1523, 1525 (10th Cir. 1992). “Summary judgment is appropriate ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

         We also review de novo defendants’ claim that they are entitled to qualified

immunity. See Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Qualified

immunity is analyzed in two steps: first, we determine whether plaintiff has

alleged the violation of a constitutional right, “and then we decide whether that

right was clearly established such that a reasonable person in the defendant’s

position would have known that [his] conduct violated the right.” Id. (quoting




                                           -5-
Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siegert v.

Gilley, 500 U.S. 226, 231 (1991))).

      Plaintiff adequately alleged that defendants failed to accommodate his

religious dietary needs in violation of the First and Fifth Amendments. Thus, the

first part of the qualified immunity inquiry is satisfied. As for the second step, it

was established in this circuit in 1991 that prisoners have a constitutional right to

a diet conforming to sincerely held religious beliefs, unless the regulation denying

that accommodation “is reasonably related to legitimate penological interests.”

LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (quoting Turner v.

Safley, 482 U.S. 78, 89 (1987)). Because plaintiff’s complaint relates to events

that are alleged to have occurred in 1993 or later, defendants are not entitled to

qualified immunity on the claims related to his diet.

      Plaintiff must demonstrate, however, that each remaining defendant

personally participated in the alleged deprivation of his constitutional rights. See

Kaul v. Stephan, 83 F.3d 1208, 1213 & n.3 (10th Cir. 1996) (§ 1983 case).

Evidence in the record shows that defendants Wooten, Bell, Rockvam, 2 and Roper

knew that plaintiff requested meat substitutes for religious reasons. See

R. doc. 41, ex. 16, 20; doc. 52, PE 5, 7. Plaintiff has therefore established a



2
      The government informs the court that plaintiff erred, and that this
defendant’s name is “Rockvam.”

                                          -6-
genuine issue of material fact as to these defendants, and his First Amendment

claim must be remanded. There is no evidence to show that defendants Fishman,

Lyde, Peltier, Lincoln, McNamara, Armijo, or One John Doe knew about

plaintiff’s religious beliefs as they related to his diet, however. These defendants

are therefore entitled to summary judgment on all of plaintiff’s claims related to

his diet.

       Plaintiff’s equal protection claim must also be remanded for further

proceedings. Cf. LaFevers, 936 F.2d at 1120 (remanding state inmate’s equal

protection claim for determination whether his religious dietary requirements

were sincerely held). Plaintiff has pointed out that defendants’ regulation for the

“common fare” religious diet program purports to accommodate religious dietary

needs. See R. doc. 41, ex. 3. He alleges in his affidavit, however, that he has

observed that Muslim inmates are provided a pork substitute, while Hindu inmates

are not afforded a meat substitute. See id. doc. 52, PE 2 at 1-2. Defendants have

asserted no reason, at this point, that would justify treating Muslims and Hindus

differently with respect to diet substitutions. Plaintiff has sufficiently supported

his equal protection claim at this juncture. Cf. Abbott v. McCotter, 13 F.3d 1439,

1441 (10th Cir. 1994) (affirming dismissal of prisoner’s conclusory allegations

that failed to describe different treatment of classes of inmates).




                                          -7-
      Plaintiff’s Eighth Amendment claim was properly dismissed. Plaintiff

alleged that during a three-week lockdown in late 1995, he was frequently given

two meat sandwiches in his brown bag meal instead of one meat and one meatless

sandwich, and was subjected to “severe hunger.” Appellant’s Opening Br. at 4.

The relevant exhibit shows that two meat sandwiches were served only on

Fridays, however, and indicates that there was food in each Friday’s brown bag

meal other than the meat sandwiches. See R. doc. 52, PE 11. This showing is

insufficient to demonstrate cruel and unusual punishment. Cf. LaFevers, 936 F.2d

at 1120 (holding prisoner given three meals each day does not state Eighth

Amendment claim).

      Defendants are entitled to summary judgment on plaintiff’s claims that his

Bhagvad Gita was unlawfully seized during the lockdown. Although his claim for

money damages for the alleged unlawful seizure does not require exhaustion of

administrative remedies, see McCarthy v. Madigan, 503 U.S. 140, 149 (1992),

plaintiff’s evidence (as opposed to his allegations) fails to name which defendants

participated in the alleged seizure. His evidence is therefore inadequate to

establish the personal participation of any defendant in the alleged seizure of his

book. See Kaul, 83 F.3d at 1213 & n.3.




                                         -8-
      The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part and REVERSED in part and the case is

REMANDED for further proceedings consistent with the order and judgment.

The mandate shall issue forthwith.



                                                   Entered for the Court



                                                   J. Thomas Marten
                                                   District Judge




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