                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KAMAL K. PATEL,

                Plaintiff-Appellant,

    v.                                                   No. 00-1187
                                                     (D.C. No. 96-M-286)
    TOM L. WOOTEN, Ex-Warden,                              (D. Colo)
    FCI Florence; LOU ROCKVAM,
    Food Service Administrator; JENNY
    ROPER, Ex-Food Service
    Administrator; WENDELL BELL,
    Assistant Food Service Administrator,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.




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

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the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.
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.

       Plaintiff Kamal K. Patel, a federal prisoner 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 of Fed. Bureau of Narcotics            ,

403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.

       At this juncture, plaintiff’s remaining claim is for damages against

defendants based on his assertion that they violated his Fifth Amendment right to

the equal protection of the law while he was housed at the Federal Correctional

Institution, Florence, Colorado (“FCI-Florence”).    See Patel v. United States ,

No. 97-1083, 1997 WL 764570 (10th Cir. Dec. 4, 1997).      1
                                                               Plaintiff was housed

at FCI-Florence from March 25, 1993 until January 26, 1997. He is a Hindu and

therefore does not eat meat. He alleges that defendants failed to provide him with

an appropriate substitute for meat on either of FCI-Florence’s two meal plans,

even though defendants always provided Jewish and Muslim inmates with a

substitute for pork, which Jews and Muslims do not eat.

       The district court decided that plaintiff was not treated differently than

other inmates because no inmate, whatever his religious faith, was allowed to



1
       Plaintiff’s First Amendment claim, his only other claim to survive his first
appeal, was dismissed by stipulation. See R. Vol. I, docs. 91, 92.

                                           -2-
choose the protein source in his meal. R. doc. 130, at 12. The district court

therefore concluded that plaintiff had failed to establish a constitutional claim.

Id. The district court also held in the alternative that defendants were following

Bureau of Prisons (BOP) policy related to inmate meals and, as a result, were

entitled to qualified immunity on plaintiff’s claim.        Id.

       Plaintiff argues on appeal that: (1) BOP regulations do not shield

defendants because defendants failed to accommodate his religious dietary

restrictions while accommodating the dietary needs of inmates of other faiths,

even after they knew that he was a Hindu and did not eat meat; and

(2) regulations governing the BOP’s “common fare” religious meal plan allowed

defendants to replace a meat item with a vegetarian item from the shelf, but they

refused to exercise this option.

       We review the grant of summary judgment de novo.             Eastman Kodak Co. v.

Image Technical Servs., Inc. , 504 U.S. 451, 465 n.10 (1992). Summary judgment

is appropriate if there is no genuine issue of material fact and the moving parties

are entitled to judgment as a matter of law.         Celotex Corp. v. Catrett , 477 U.S.

317, 322 (1986); Fed. R. Civ. P. 56(c). To withstand summary judgment, the

nonmoving party “must come forward with ‘specific facts showing that there is

a genuine issue for trial .’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.        ,

475 U.S. 574, 587 (1986) (quoting Rule 56(e) (emphasis added)). The evidence is


                                               -3-
considered in the light most favorable to the non-moving party.    Behrens v.

Pelletier , 516 U.S. 299, 309 (1996). When defendants base a motion for summary

judgment on the defense of qualified immunity, the plaintiff must show that

defendants violated “clearly established statutory or constitutional rights of

which a reasonable person would have known.”        Harlow v. Fitzgerald , 457 U.S.

800, 818 (1982).

      “[T]he Due Process Clause of the Fifth Amendment contains an equal

protection component prohibiting the United States from invidiously

discriminating between individuals or groups.”      Washington v. Davis , 426 U.S.

229, 239 (1976). The challenged disparate treatment must be the result of

purposeful discrimination.   Harris v. McRae , 448 U.S. 297, 323 n.26 (1980).    2



Because plaintiff is a prisoner, however, our analysis of his equal protection claim



2
       This circuit has previously required a plaintiff to meet a heightened
pleading standard when subjective intent was an element of the substantive claim
and the defendant raised a qualified immunity defense.     See, e.g. , Breidenbach v.
Bolish , 126 F.3d 1288, 1292 (10th Cir. 1997) (reviewing denial of motion to
dismiss); Gehl Group v. Koby , 63 F.3d 1528, 1535 (10th Cir. 1995) (reviewing
grant of summary judgment). We recently held, reviewing a dismissal under
Fed. R. Civ. P. 12(b)(6), that our heightened pleading requirement does not
survive the Supreme Court’s opinion in     Crawford-El v. Britton , 523 U.S. 574
(1998). Currier v. Doran , 242 F.3d 905, 916 (10th Cir. 2001). Even though we
were reviewing a dismissal in Currier , we noted that Crawford-El decided that the
D.C. Circuit’s heightened pleading requirement at the summary judgment stage
was improper. Currier , 242 F.3d at 913-14, 916. Thus, there is no question that
our heightened pleading requirement at the summary judgment stage was also
overturned by Crawford-El .

                                           -4-
is guided by the Supreme Court’s decision in      Turner v. Safley , 482 U.S. 78

(1987). Washington v. Harper , 494 U.S. 210, 223-24 (1990) (“We made quite

clear that the standard of review we adopted in    Turner applies to all

circumstances in which the needs of prison administration implicate constitutional

rights.”). In Turner , the Supreme Court adopted a lower standard of scrutiny in

evaluating the constitutionality of prison rules and regulations, in order to balance

prisoners’ constitutional rights with the deference due officials delegated the

responsibility of administering prisons.    Id. at 84-85. The Court decided that

“when a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.”

Id. at 89. Four factors are relevant to determining the validity of a prison

regulation that infringes a prisoner’s constitutional right: (1) whether a valid and

rational connection exists between the regulation and a legitimate governmental

interest advanced as a justification; (2) whether, notwithstanding the regulation,

alternative means exist for the prisoner to exercise the right; (3) what effect an

accommodation of the prisoner’s constitutional right would have on guards,

inmates and prison resources; and (4) whether an alternative is available which

would accommodate the prisoner’s rights at a de minimis cost to valid penological

interests. Id. at 89-91. Because the district court found that plaintiff had not




                                           -5-
made a prima facie showing of a constitutional violation, it did not consider these

factors.

       We hold that plaintiff made a sufficient threshold showing of an equal

protection violation and the case must be remanded for the district court to do the

Turner analysis. To briefly summarize the evidence more fully presented in his

district court brief: pork was always accompanied by a protein substitute on the

main cafeteria line. R. Vol. III, Doc. 106, Ex. A at 25, Ex. F at 54, Ex. G. This

was done not as a matter of regulation, but as a matter of discretion.     Id. , Ex. A

at 25. The practice originated because it would accommodate Jewish and Muslim

inmates, who did not eat pork for religious reasons, although other inmates would

also choose an alternative to pork.    Id. , Ex. C at 15-16. Pork was never served

on the “common fare” religious diet, and meat was frequently the only entree.

See id. , Ex. D, Att. A. The common fare plan ostensibly serves the dietary needs

of all faiths, but specifically mentions only issues of concern to Jews and

Muslims. Id. , Ex. D. Protein substitutes such as beans, cheese, and peanut butter

were not regularly available on the salad bar.     Id. , Ex. B, ¶ 3. Such protein

substitutes were regularly stocked in the kitchen and were readily available,

however. Id. , Ex. C at 18-19. The common fare regulations specifically allowed

hot entrees on that meal plan to be replaced with “shelf stabilized meals from the

commissary.” Id. , Ex. D, Att. A at 1-7. Plaintiff told defendants that he desired


                                             -6-
a substitute for meat due to his religious beliefs.   Id. , Ex. H. In response,

defendants told him to choose the common fare plan or to pick and choose

between the main line and the salad bar if he did not wish to eat a meat entree.

Id.

       Defendants argue that they did not serve a substitute for pork to

accommodate the religious needs of Jewish and Muslim inmates, and plaintiff

therefore cannot show that they discriminated against him. This argument is

without merit. By defendants’ admission, they intended to accommodate Jewish

and Muslim inmates’ dietary restrictions on the common fare plan.        Id. , Ex. D.

Plaintiff presented evidence that defendants began a practice of providing a meat

substitute for pork on the main cafeteria line to accommodate Jewish inmates.

Id. , Ex. C at 15-16. Moreover, whatever the reason that defendants provided

a meat substitute for pork on the main cafeteria line, the effect of that practice

was to accommodate the religious dietary needs of Jewish and Muslin inmates.

Plaintiff’s evidence therefore creates a genuine issue of fact as to whether

defendants intentionally discriminated against him after he pointed out that the

meat they provided as a substitute for pork on both plans did not satisfy the

requirement of his Hindu faith to avoid meat as well as pork. A fair inference can

be drawn that defendants deliberately treated plaintiff differently than Jewish and

Muslim inmates.


                                              -7-
      Defendants also argue that the alleged disparate treatment between plaintiff

and other inmates was justified because they were following BOP policy.       3
                                                                                  This

argument ignores that defendants’ conduct is not judged by whether it comported

with BOP policy, but by whether this conduct comported with the Constitution.

See Turner , 482 U.S. at 84-85. We decline to decide in the first instance whether

the BOP meal regulations are valid under     Turner .

      Defendants maintain that plaintiff did not raise in the district court his

argument that the common fare regulations allowed them to substitute a shelf item

for the planned entree. Contrary to defendants’ assertion, plaintiff advanced this

argument in his response to their motion for summary judgment.        See, e.g. ,

R. Vol. III, Doc. 106, at 2, 5, 16, Ex. B, at 2 ¶ 7, Ex. D, Att. 1, at 1-7.

      In sum, because plaintiff made a prima facie showing of an equal protection

claim, we REVERSE the district court’s grant of summary judgment to

defendants, and REMAND for the district court to appoint counsel for plaintiff




3
      Plaintiff moves to supplement the record with evidence that FCI-El Reno,
Oklahoma, provides a no-flesh alternative to meat. Plaintiff offers this evidence
ostensibly to prove that BOP policy did not prevent defendants from
accommodating his requests for such a substitution at FCI-Florence. Because this
evidence was created several years after the events plaintiff complains of at
FCI-Florence, and because it was not presented to the district court, we decline to
consider it now. Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1458 n.13
(10th Cir. 1997).


                                           -8-
and to conduct further proceedings consistent with this order and judgment.    4



Plaintiff’s motion to supplement the record with newly discovered evidence is

denied.


                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




4
     Defendants on appeal do not assert the defense of qualified immunity, so
we decline to address it.

                                           -9-
00-1187, Patel v. Wooten

PORFILIO, Senior Circuit Judge, dissent.



      I dissent for two reasons. First, I believe the court has lost sight of the

nature of this case. In an attempt to ferret out the constitutionality of the menu

policies of the Bureau of Prisons, this disposition ignores, I believe, the absence

from this case of either the Bureau of Prisons or any official responsible for those

policies. Second, because this action is merely one for damages in which the

liability of four individuals employed at FCI-Florence is the only issue, the

disposition fails to take their immunity into account.

      Because the BOP was dismissed from this case, I believe the

constitutionality of its regulations is not a question before us. In my opinion,

therefore, the Turner inquiry ordered here is inapposite. This case is simply

about the action of four discrete individuals and their individual liability, not the

regulations and policy of the BOP.

      Moreover, a finding that the BOP policy in question is in violation of the

Constitution could not resolve this case. Because the case is postured only as a

claim of damages from the named defendants, their immunity would foreclose

judgment for the plaintiff. Oddly enough, a finding that the menu policy is

constitutionally supportable would not be dispositive either. There would remain


                                         -10-
unresolved the plaintiff’s claim the defendants are liable because they refused to

take what he contends are discretionary actions allowed under the BOP policy.

      Finally, I submit we have no indication in the record that the policy in issue

is viable. Indeed, having long ago been transferred from FCI-Florence, Mr. Patel

has submitted to us information purporting to show he was able to obtain an

acceptable menu from another federal penal institution. Thus, I seriously

question whether the constitutional issue is not moot. I am concerned also that

the remand would result in a needless waste of precious judicial resources.

      Further, I agree with the district court that the defendants are at least

qualifiedly immune from suit in this case. Saucier v. Katz,         U.S.      , 121 S.

Ct. 2151, 2156 (2001) reminds us unless it would be clear to a reasonable official

in the circumstances of the case that his actions were unlawful, immunity should

be granted. The Court emphasized this result obtains even if the official’s actions

could be considered unconstitutional, 121 S. Ct. at 2158. In this case, the district

court properly noted the defendants were “following orders” by enforcing the

policy they believed required by the BOP.

      Thus, the immunity paradigm requires that we ask, “Was it clear at the time

the defendants acted that what they did violated the law?” Because this court

itself is not presently prepared to answer that question, I find it difficult to fathom

how the defendants could be held to a higher standard of knowledge.


                                         -11-
