                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2004

Robert Perry Dehart v. Martin Horn
Precedential or Non-Precedential: Precedential

Docket No. 03-4250P




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                 PRECEDENTIAL                      (Filed: November 16, 2004)
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT                Edward A. Olds, Esq. (Argued)
          __________                         1007 M ount Royal Boulevard
                                             Pittsburgh, PA 15223
              No. 03-4250                         Counsel for Appellant
              ___________
                                             Gerald J. Pappert, Attorney General
      ROBERT PERRY DEHART,                   J. Bart DeLone, Esq. (Argued)
                                             Calvin R. Koons, Esq.
                      Appellant              John G. Knorr, III, Esq.
                                             Office of the Attorney General
                      v.                     Appellate Litigation Section
                                             15 th Floor, Strawberry Square
  MARTIN HORN, Commissioner of               Harrisburg, PA 17120
   Corrections; JAMES S. PRICE,
 Superintendent SCI Greene; UNITED           Rodney M. Torbic, Esq.
       STATES OF AMERICA                     Office of the Attorney General
          (Intervenor in D.C.)               564 Forbes Avenue
                                             5 th Floor
              ___________                    Manor Complex
                                             Pittsburgh, PA 15219
   On Appeal From the United States
District Court for the Western District of     Counsel for Appellees Martin Horn
               Pennsylvania                           and James S. Price
       (D.C. Civ. No. 95-cv-01238)
     District Judge: The Honorable           Bonnie R. Schlueter, Esq.
           William L. Standish               Office of United States Attorney
                                             700 Grant Street
         Argued October 1, 2004              Suite 400
                                             Pittsburgh, PA 15219
   BEFORE: ROTH and CHERTOFF,
         Circuit Judges and                  Catherine Y. Hancock, Esq.
    IRENAS,* Senior District Judge.          United States Department of Justice
                                             Civil Division, Appellate Staff
*       Honorable Joseph E. Irenas,          601 D. Street, N.W.
Senior District Judge for the United         Suite 9547
States District Court for the District of    Washington, D.C. 20530
New Jersey, sitting by designation.
Michael S. Raab, Esq.                              summary judgment for the Appellees on
United States Department of Justice                DeH art’s constitutional claims, and
Civil Division, Appellate Staff                    dismissed his RLUIPA claim for failure to
601 D Street, N.W.                                 comply with the exhaustion requirement of
Room 9136                                          42 U.S.C. § 1997e(a). We affirm the
Washington, D.C. 20530                             District Court’s grant of summary
                                                   judgment as to the constitutional claims
       Counsel for Appellee USA                    and reverse the dismissal of DeHart’s
                                                   RLUIPA claim.
                                                                         I.
      OPINION OF THE COURT                            DeHart is a practitioner of Mahayana
                                                   Buddhism, a religion to which he was
                                                   introduced while a prisoner. He has
                                                   practiced his religion daily since early
IRENAS, Senior District Judge.                     1990, although his interest in and study of
                                                   Buddhism dates back to the early 1980s.
       Robert Perry DeHart (“DeHart”) is
                                                   He meditates and recites mantras for up to
an inmate at SCI-Greene (“the Prison”), a
                                                   five hours a day and corresponds with the
Pennsylvania state correctional facility.
                                                   City of Ten Thousand Buddhas, a religious
He is serving a life sentence for murder, as
                                                   organization located in Talmadge,
well as shorter consecutive sentences for
                                                   California. According to DeHart’s self-
robbery, burglary and escape, and has been
                                                   taught understanding of Buddhist religious
incarcerated in the state correctional
                                                   texts, he is not permitted to eat any meat or
system since 1980. He brings this action
                                                   dairy products, nor can he have foods
pursuant to 42 U.S.C. § 1983 against
                                                   containing “pungent vegetables” such as
M artin H o r n , P e n n s yl v a n i a’ s
                                                   onions, garlic, leeks, shallots and chives.
Commissioner of Corrections, and James
                                                   As a result, DeHart became a vegetarian in
S. Price, the Superintendent of the Prison
                                                   1989, and began declining food trays
(“Appellees”), alleging that his Free
                                                   containing meat in 1993. When he does
Exercise and Equal Protection rights under
                                                   accept food trays, he eats only fruit, certain
the First and Fourteenth Amendments
                                                   cereals, salads when served without
were violated by the Prison’s refusal to
                                                   dressing, and vegetables served with
provide him with a diet comporting with
                                                   margarine. DeHart supplements his meals
his Buddhist beliefs. DeHart also brought
                                                   with items purc hase d fro m th e
a claim pursuant to the Religious Land Use
                                                   commissary, including peanut butter,
and Institutionalized Persons Act of 2000,
                                                   peanuts, pretzels, potato chips, caramel
42 U.S.C. § § 2000cc et seq. (2000)
                                                   popcorn, and trail mix. He requests that
(“RLUIPA”). The District Court of the
                                                   the Prison provide him with a diet free of
Western District of Pennsylvania granted
                                                   meat, dairy products and pungent

                                               2
vegetables.                                         Sahoora Bag contains some items not
                                                    served on that day’s master menu. Special
   The legal issues related to DeHart’s
                                                    items for the therapeutic and religious
request are best understood against the
                                                    diets are purchased through the medical
background of the system employed to
                                                    department and prison commissary.
feed prisoners in Pennsyl vania’s
                                                       DeHart submitted a written grievance to
correctional facilities. Inmates receive
                                                    the Prison on June 17, 1995, requesting a
standardized meals prepared pursuant to a
                                                    diet free of “animal products and by-
master menu, which is designed to provide
                                                    products”consistent with his religious
all of an inmate’s daily nutritional
                                                    beliefs.1 After his request for a vegan2
requirements. Food for the inmates is
                                                    diet was denied, DeHart unsuccessfully
purchased and prepared in bulk. Inmates
                                                    appealed his request to Superintendent
are given limited choice in what appears
                                                    Price and the Department of Corrections
on their food trays; they are able to decline
                                                    Central Office Review Committee. He also
pork products and elect to receive an
                                                    sent a letter to Commissioner Horn
alternative protein source, such as tofu or
                                                    outlining his religious dietary restrictions,
a bean burger, when available. The only
                                                    dated July 1, 1995. After completing the
deviations from the mass production of
                                                    appeals process within the Department of
meals are for inmates with health
                                                    Corrections, DeHart filed this suit,
conditions necessitating therapeutic dietary
                                                    pursuant to 42 U.S.C. § 1983, in the
modifications and inmates with particular
religious dietary restrictions. Doctors
prescribe a variety of therapeutic diets, and         1
                                                        DeHart also filed an official
the master menu includes seven different            grievance objecting to the use of butter in
menus for diabetic inmates, sodium and fat          the preparation of vegetables a month
restricted menus, and a menu for inmates            before, although he did not mention the
with renal problems. Jewish inmates who             religious basis for his complaint. DeHart
adhere to a kosher diet receive special             first raised the issue of his religious
meals in the form of a “cold kosher bag,”           beliefs in a written letter to
which contain raw fruits and vegetables,            Superintendent James Price dated May
Ensure® dietary supplements, pretzels,              22, 1995, in which he specifically
crackers, coffee and granola. Muslim                mentioned that his Buddhist beliefs
inmates receive special meals in their cells        prohibited the consumption of meat,
during Ramadan, when they observe a                 dairy and pungent vegetables.
daylight fast. The Prison provides a post-
                                                      2
sunset evening meal after the normal                    DeHart’s proposed diet is referred to
supper hour and a breakfast bag, called a           in the briefs and court documents
“Sahoora Bag,” to be eaten before sunrise.          alternately as a vegetarian and a vegan
As a result of concerns about food                  diet. Because he refuses to eat meat, fish
spoilage and serving temperature, the               and dairy products, we will use the term
                                                    vegan to describe his dietary preferences.

                                                3
Western District of Pennsylvania.                  decision in Johnson v. Horn, 150 F.3d 276
                                                   (3d Cir. 1998), between religious
   This appeal marks DeHart’s third
                                                   commandments and positive expressions
appearance before this Court. In his first
                                                   of belief. 227 F.3d at 54. Specifically, we
appeal, we affirmed the District Court’s
                                                   ordered the lower court to reconsider
denial of preliminary injunctive relief.
                                                   whether DeHart retained other means of
DeHart v. Horn, 127 F.3d 1094 (3d Cir.
                                                   exercising his religious beliefs in light of
1997) (mem.) (“DeHart I”). The District
                                                   our overruling Johnson. Id. We also
Court held that DeHart’s request for a
                                                   asked the District Court to assess the
preliminary injunction should be denied on
                                                   impact of granting DeHart’s request for a
the ground that keeping a vegan diet was
                                                   meat and dairy-free diet on the prison
not a command of Buddhism. Despite
                                                   community in light of the accommodations
upholding the r esu lt, this Court
                                                   made to Jewish inmates adhering to the
emphasized that the District Court should
                                                   kosher dietary rules. Id. at 58-59. With
not determine “whether [DeHart’s] beliefs
                                                   respect to DeHart’s Equal Protection
are doctrinally correct or central to a
                                                   claim, we emphasized that our overruling
particular school of Buddhist teaching.” Id.
                                                   of Johnson required Appellees to offer a
at 2.
                                                   legitimate penological reason for treating
   We next heard DeHart’s appeal of the            DeHart differently than Jewish inmates
District Court’s first grant of summary            other than simply drawing a line between
judgment for the Appellees. The District           inmates with orthodox and non-orthodox
Court held that the Prison’s policy of             religious beliefs. Id. at 61.
denying individual dietary requests of
                                                      On remand after DeHart II, the District
inmates was reasonably related to a
                                                   Court adopted the Magistrate’s Report and
legitimate penological interest under the
                                                   Recommendation to grant summary
standard set out in Turner v. Safely, 482
                                                   judgment for Appellees. DeHart v. Horn,
U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64
                                                   No. 95-1238 (W.D. Pa. Sept. 23, 2003).
(1987). 3 After the decision of a panel to
                                                   The District Court rejected Appellees’
reverse the District Court’s judgment,
                                                   argument that DeHart’s beliefs were not
DeHart’s appeal was reheard en banc.
                                                   sincere and religious in nature. See Magis.
DeHart v. Horn, 227 F.3d 47 (2000) (en
                                                   Rep. & Rec. on Mot. for Summ. J., at R.R.
banc) (“DeHart II”). This Court reversed
                                                   19a-24a.4 The lower court concluded that
the lower court’s judgment and remanded
                                                   the second Turner factor weighed in favor
for reconsideration of the second, third and
                                                   of the Prison because DeHart had more
fourth Turner factors. Id. In doing so, we
                                                   than adequate alternative means of
overruled the distinction drawn by our

                                                     4
                                                      We use the notation “R.R.” to
  3
   The Turner factors are outlined and             designate page numbers in the
discussed infra Part III.                          Reproduced Record.

                                               4
expressing his religious beliefs: he was               (W.D. Pa. Jan. 30, 2001). However, in a
permitted to meditate, recite the Sutras               separate order, the District Court adopted
(Buddhist religious texts), correspond with            the Magistrate’s Report and
the City of Ten Thousand Buddhas,                      Recommendation that DeHart’s RLUIPA
purchase canvas sneakers instead of                    claim be dismissed for failure to exhaust
leather, have Buddhist materials sent to               all administrative remedies as required by
him from outside the prison and have a                 42 U.S.C. § 1997e. DeHart v. Horn, No.
Buddhist religious advisor visit him in                95-1238 (W.D. Pa. Feb. 27, 2003). The
prison. See id. at R.R. 25a-26a. With                  District Court concluded that RLUIPA
regard to the third Turner factor, the                 adopted a different substantive standard of
District Court found that the dietary                  review for prisoner religious freedom
accommodation proposed by DeHart was                   claims than RFRA. See Magis. Rep. &
much more burdensome than what was                     Rec. on M ot. to Dismiss, at R.R. 44a.
provided to Jewish and Muslim inmates                  Therefore, because DeHart presented his
because his diet w ould req uire                       claim to the prison grievance process
individualized preparation of meals and                while RFRA provided the applicable
special ordering of food items not on the              standard, his claim was no longer
master menu. See id. at R.R. 26a-34a.                  exhausted now that it was based on
The lower court concluded that DeHart’s                RLUIPA. See id. at R.R. 46a.
d i e t a r y r e q u e s ts c o u l d n o t b e
                                                          DeHart appeals both the grant of
accommodated without imposing more
                                                       summary judgment on his First and
than a de minimis cost on the Prison. See
                                                       Fourteenth Amendment claims and the
id. at R.R. 34a-36a.
                                                       dismissal of his RLUIPA claim.
   DeHart’s complaint, as initially filed,
                                                                           II.
also claimed that his right to freely
exercise his religious beliefs had been                   We have jurisdiction to hear this appeal
impaired in violation of the Religious                 pursuant to 28 U.S.C. § 1291. Our review
Freedom Restoration Act, 42 U.S.C. § §                 of a district court’s grant of summary
2000bb et seq. (1993) (“RFRA”). In City                judgment is plenary and we employ the
of Boerne v. Flores, 521 U.S. 507, 117                 same standard as applied below. United
S.Ct. 2157, 138 L.Ed. 624 (1997), the                  States ex rel. Quinn v. Omnicare, 382 F.3d
S u p re m e C o u r t d e c la r e d R F RA           432, 436 (3d Cir. 2004). A district court
unconstitutional as applied to the States,             may grant summary judgment when there
and DeHart’s claim was extinguished.                   is no genuine issue of material fact to be
After DeHart II and before the lower                   resolved at trial and the moving party is
court’s decision on remand, RLUIPA was                 entitled to judgment as a matter of law. Id.
enacted as a replacement for RFRA.                     Summary judgment is appropriate “if the
DeHart was granted leave to amend his                  pleadings, depositions, answers to
complaint to state a claim under the new               interrogatories, and admissions on file,
statute. DeHart v. Horn, No. 95-1238                   together with the affidavits, if any, show


                                                   5
that there is no genuine issue as to any          related to legitimate penological interests.”
material fact and that the moving party is        Id. at 89. We elaborated in DeHart II that:
entitled to a judgment as a matter of law.”
                                                     [T]his standard of review requires a
Fed. R. Civ. P. 56 (c). The substantive law
                                                     court to respect the security,
governing the dispute will determine
                                                     rehabilitation and administrative
which facts are material, and only disputes
                                                     concerns underlying a prison
over those facts “that might affect the
                                                     regulation, without requiring proof
outcome of the suit under the governing
                                                     that the regulation is the least
law will properly preclude the entry of
                                                     restrictive means of addressing those
summary judgment.” Anderson v. Liberty
                                                     concerns, it also requires a court to
Lobby, Inc., 477 U.S. 242, 248 (1986). “In
                                                     give weight, in assessing the overall
reviewing the grant of summary judgment,
                                                     reasonableness of regulations, to the
we must affirm if the record evidence
                                                     inmate’s interest in engaging in
submitted by the non-movant ‘is merely
                                                     constitutionally protected activity.
colora ble or is no t signific antly
probative.’” Port Auth. of New York &             227 F.3d at 51. Thus, DeHart’s appeal
New Jersey v. Affiliated FM Ins. Co., 311         forces us to resolve the tension between a
F.3d 226, 232 (3d Cir. 2002).                     court’s duty to redress constitutional
                                                  violations resulting from neutral prison
                   III.
                                                  regulations and its obligation not to
                    A.                            unreasonably interfere with the complex
                                                  issues involved in managing the day-to-
   In Turner v. Safely the Supreme Court
                                                  day activities of a prison.
identified the crucial balance in assessing
inmates’ claims that their constitutional            Turner articulated a four factor test for
rights were violated by prison regulations.       determining whether a prison regulation is
While “[p]rison walls do not form a barrier       reasonably related to a legitimate
separating prison inmates from the                penological interest. 482 U.S. at 79. As
protections of the Constitution. . . . ‘the       we explained in Waterman v. Farmer, 183
problems of prisons in America are                F.3d 208, 213 n.6 (1999) (citation
complex and intractable, and, more to the         omitted):
point, they are not readily susceptible of
                                                     [Turner] requires courts to consider
resolution by decree.’” 482 U.S. at 84
                                                     (1) whether a rational connection
(quoting Procunier v. Martinez, 416 U.S.
                                                     exists between the regulation and a
396, 404-405, 94 S.Ct. 1800, 40 L.Ed.2d
                                                     neutral, legitimate government
224 (1974)). Recognizing this tension in
                                                     interest; 5 (2) whether alternative
principles, Turner established the standard
of review for prisoner constitutional
claims:     “when a prison regulation
                                                    5
impinges on inmates’ constitutional rights,          In DeHart II we upheld the District
the regulation is valid if it is reasonably       Court’s finding that this factor favored
                                                  the Prison. We held that a prison’s

                                              6
  means exist for inmates to exercise             fourth Turner factors. 227 F.3d at 57-59.
  the constitutional right at issue; (3)          Specifically, we asked the District Court to
  what impact the accommodation of                assess the potential impact on the prison
  the right would have on inmates,                community of granting DeHart’s request
  prison personnel, and allocation of             for a special diet comporting with his
  prison resources; and (4) whether               religious beliefs in light of the prison
  obvious, easy alternatives exist.               system’s experience with providing other
                                                  religious diets. Id. at 58. We also asked
We cautioned in DeHart II that this
                                                  the lower court to reexamine whether
approach “does not call for placing each
                                                  DeHart’s religious dietary restrictions
factor in one of two columns and tallying
                                                  could be accommodated in such a way as
a numerical result,” but that assessing the
                                                  to impose only a de minimis cost on the
reasonableness of a prison regulation
                                                  Prison.     Id.     We noted that “the
requires consideration of all the evidence
                                                  defendants’ treatment of Jewish inmates,
in the record. 227 F.3d at 59.6
                                                  in the absence of some further explanation,
   When we reversed the District Court’s          casts substantial doubt on their assertion
grant of summary judgment in DeHart II,           that accommodating DeHart’s request
we directed the lower court to reevaluate         would result in significant problems for
its findings on the second,7 third and            the prison community.” Id. We are
                                                  satisfied that the District Court on remand
                                                  properly considered the impact on other
interests in an efficient food system and         inmates, guar ds an d th e prison
in avoiding inmate jealousy were                  administration of providing of religious
legitimate penological concerns. 227              diets for adherents of other faiths, and we
F.3d at 53. Additionally, the Prison’s            agree that the third Turner factor favors
refusal to provide DeHart with a                  the Prison. While neither party separately
religious diet bore some rational relation        addressed the lower court’s findings on the
to that interest. Id.                             fourth Turner factor in this appeal, we are
  6                                               also satisfied with the District Court’s
   In DeHart II we explained that
Turner was equally applicable to
DeHart’s Free Exercise and Equal
Protection claims, and that the analysis          Buddhist beliefs through meditation,
significantly overlapped. 227 F.3d at 61.         correspondence with Buddhist religious
                                                  organizations, and through the purchase
  7
    We instructed the lower court to              of canvas, rather than leather, sneakers,
reconsider its analysis of the second             amongst other accommodations. See
Turner factor on remand in light of our           Magis. Rep. & Rec. on Mot. for Summ.
decision to overrule Johnson. 227 F.3d            J., at R.R. 19a-24a. DeHart has not
at 54. The District Court subsequently            appealed this finding, so that only the
held that this factor also favored the            third and fourth factors are at issue in
Prison, as DeHart was able to express his         this appeal.

                                              7
analysis on that issue.                           DeHart has repeatedly affirmed the Avon
                                                  diet, he has also continued to insist that he
                    B.
                                                  be served no pungent vegetables.10
   The third Turner factor requires that we
analyze the impact of accommodating
DeHart’s dietary requests on inmates,
                                                  and onions: “garden burgers, the chili,
prison personnel, and allocation of prison
                                                  the bean chili, the tofu salad, the stewed
resources. When DeHart II was decided,
                                                  tomatoes, the vegetable soup, . . . , the
DeHart proposed that he be served a diet
                                                  bean and pasta casserole, the vegetable
created by dietician Karen Avon which
                                                  bean soup, . . . , the soy pasta sauce, the
modified serving sizes of items on the
                                                  pasta bean soup, . . . , the soy barbeque,
master menu and added soy milk and
                                                  the fried potatoes, the baked beans, . . . ,
whole grain bread as supplements.8 The
                                                  and the bean burger.” Dep. of Margaret
Avon diet, however, includes items that
                                                  Gordon, at R.R. 712a. Avon’s proposed
contain pungent vegetables.9 Although
                                                  menu included stewed tomatoes, baked
                                                  beans, and beet and onion salad. Aff. of
                                                  Karen Avon, at R.R. 202a-210a.
  8
    Aff. of Karen Avon, at R.R. 195a-
                                                    10
232a. Avon includes as an appendix to                  DeHart’s affidavit submitted in
her affidavit modifications based on one          support of his Opposition to the
week’s master menu. For example, on               Appellees’ Motion for Summary
Monday inmates were served for supper             Judgment, which his counsel affirmed
egg salad made with one egg yolk, three           during oral argument, included the
egg whites, onion, celery and                     following statements:
mayonnaise, one half cup noodles, one                4. I cannot eat dairy products,
half cup succotash, one half cup beet and            pungent vegetables, or meat
onion salad, fresh fruit and eight ounces            products, in any form and follow
of skim milk. Avon proposed that                     my religious beliefs.
DeHart be served one half cup of                     5. I would agree to eat extra
noodles, one cup succotash, one cup beet             servings of vegetables, and extra
and onion salad, two slices of whole                 servings of non-meat items such as
grain bread, two teaspoons of margarine,             tofu, beans, soy milk, and peanut
fresh fruit, eight ounces of soy milk and            butter, which are consistent with my
eight ounces of iced tea. Id. at R.R.                religious beliefs. These items, with
202a.                                                the exception of soy milk, appear in
                                                     the main menu offered to all
  9
    Margaret Gordon, a clinical dietitian            inmates, nearly every day and are
for the Commonwealth of Pennsylvania,                readily available. They are also
testified at her deposition that the                 regularly mixed with onions and
following non-meat, non-dairy items                  garlic, which are prohibited
from the master menu contained garlic                pungent vegetables.

                                              8
DeHart’s proposed diet now appears to be          whole grain bread and extra servings of the
that he be served extra portions of               few alternative protein sources DeHart
vegetables and grains on the master menu,         would eat, all at extra cost to the Prison.
consistent with the Avon diet, but with the       Id.   Secured food storage would be
portions individually prepared to his             required in order to prevent theft of the
dietary specifications. Alternatively, he         specially ordered items. Id. The District
proposes that he receive extra daily              Court noted that DeHart’s proposed diet
servings of the alternative protein sources       was not nutritionally adequate, and would
available at the Prison, but specially            require regular nutritional audits by a
prepared without pungent vegetables and           contract dietician, also at extra cost to the
outside of their rotation on the master           Prison.11 Id. In contrast, the District Court
menu. Therefore, to the extent that               found that the religious diets provided to
DeHart II’s discussion of the third and           Jewish and M uslim inmates did not require
fourth Turner factors used the Avon diet
as its comparison point, our prior ruling
provides little guidance for our analysis.          11
                                                      In DeHart II we directed the District
   The District Court held that DeHart’s          Court to determine how and if the
proposed diet would place a greater burden        Pennsylvania Department of Corrections
on the Prison than the dietary                    Food Services Administrative Directive
accommodations granted to Jewish and              requiring a registered dietician to verify
Muslim inmates. See Magis. Rep. & Rec.            that the master menu meets or exceeds
on Mot. for Summ. J., at R.R. 30a-36a.            the recommended daily nutritional
DeHart’s diet would require individualized        allowances would apply to DeHart’s
preparation of his meals, which is made           proposed diet. 227 F.3d at 49 n.1. If the
more burdensome by the fact that the              District Court found that DeHart’s
Prison’s kitchen was set up only for bulk         proposed diet fell short of the nutritional
food preparation. Id. Additionally, it            standards contained in the Administrative
would require special ordering soy milk,          Directive, we indicated that the issue
                                                  would remain under Turner whether the
                                                  directive was reasonably related to a
  ...                                             legitimate penological interest. Id.
  7. Now that the Commonwealth                    Neither party nor the District Court
  serves alternate protein sources                addressed this question on remand.
  such as tofu, peanut butter and                 However, we recognize the link between
  beans, if they were to give me                  good health and a nutritionally adequate
  servings of those items without                 diet, and note that the prison has a
  pungent vegetables, it would come               significant interest in keeping prisoners
  far closer to satisfying my                     healthy, given the costs of medical
  nutritional needs than they do now.             treatment and the difficulty in preventing
Aff. of Robert P. DeHart, at R.R. 256a-           the spread of illness between prisoners in
260a (emphasis added).                            close quarters.

                                              9
special ordering of items not already               involve supplementing or alternating
available at the Prison or through the              regular prison meals with additional foods
Prison’s current vendors, nor did they              already available at the prison. However,
require individualized preparation of               providing a diet free of pungent vegetables
meals. Id.                                          would mandate that the prison alter the
                                                    way it prepares meals. This problem is
   On appeal, DeHart argues that the cold
                                                    only heightened by DeHart’s failure to put
kosher meals served to Jewish inmates and
                                                    forward, in specific terms, a diet that
the Sahoora bags provided to Muslim
                                                    would fit within his restrictions. While
inmates during Ramadan also require
                                                    some of the therapeutic diets include
individualized preparation and the serving
                                                    specially prepared items and foods not
of items not appearing, or outside their
                                                    included on the master menu,13 the failure
rotation, on the master menu. He contends
                                                    to provide medically necessary therapeutic
that there is no reason why granting his
                                                    diets puts the health of inmates at risk and
request would pose any greater burden on
                                                    could result in significant medical
the Prison than other special diets because
                                                    expenses.
individualized preparation is required for
all the therapeutic meals and religious                With     respect to the dietary
diets. Additionally, he argues that his             accommodations provided to Jewish
dietary request is no more likely to lead to        inmates, the cold kosher meals do not
an increase in requests for dietary                 require special ordering of items not
accommodations than any of the other                already available at the Prison. The kosher
special diets served at the Prison.                 meals involve negligible preparation, as
                                                    they are uncooked, and in the case of some
   DeHart’s arguments overlook a crucial
                                                    fruits and vegetables, uncut as well. In
distinction. None of the other special diets
                                                    fact, the diet DeHart requests bears a
served at the Prison require individualized
                                                    greater resemblance to the hot kosher
preparation and reorganization of the way
                                                    meals we declined to require in Johnson.
prison kitchens prepare food and are
                                                    The Sahoora bags provided to Muslim
provided to accommodate an inmate’s
                                                    inmates require some special preparation
religious beliefs.12 Other religious diets
                                                    in order to prevent foods in the breakfast
                                                    bags from spoiling overnight, and add the
                                                    complication of being served outside of
  12
     There are no inmates receiving the
cold kosher diet at SCI-Greene, so we
                                                      13
compare DeHart’s request to the diet                    For example, the therapeutic diets
served to Jewish inmates at SCI-                    include items that do not appear on the
Pittsburgh. The record does not specify             master menu, such as pineapple and
exactly how many Muslim inmates there               grapefruit juice, apricots, sugar free
are at SCI-Greene or in the Pennsylvania            beverages, cold cuts, chicken pieces in
correctional system, but the record                 broth, pineapple chunks, and applesauce.
indicates that the number is considerable.          Aff. of Karen Avon, at R.R. 219a-232a.

                                               10
normal mealtimes.       However, these               today. Although analysis under Turner is
Sahoora bags do not require major changes            not a mere tabulation of factors, it is clear
to how the prison purchases, stores or               from the foregoing analysis that the
prepares food, in contrast to the special            Prison’s denial of DeHart’s request for a
preparation of single servings sought by             diet consistent with his Buddhist beliefs is
DeHart.                                              reasonably related to the Prison’s
                                                     legitimate interest in efficient food
                        With regard to th e
                                                     provision.
fourth Turner factor, the District Court
found that there was no alternative that                                 IV.
could fully accommodate DeHart’s
                                                        As we noted in DeHart II, the analysis
religious dietary restrictions while
                                                     of DeHart’s Equal Protection claim
imposing only a minimal burden on the
                                                     incorporates much of the discussion of the
Prison. See Magis. Rep. & Rec. on Mot.
                                                     third and fourth Turner factors. 227 F.3d
For Summ. J., at R.R. 34a-36a. Simply
                                                     at 61. In our earlier opinion, we directed
providing double servings of vegetables
                                                     the District Court to reconsider its grant of
and grains on the master menu, or daily
                                                     summary judgment for Appellees in light
servings of the available alternative protein
                                                     of our invalidation of the distinction drawn
sources, would not meet DeHart’s needs
                                                     between religious commandments and
because they include pungent vegetables,
                                                     positive expressions of belief. Id. We
which he has repeatedly affirmed that he
                                                     held that “the distinction drawn between
would not eat. Id. at R.R. 35a. Special
                                                     orthodox and non-orthodox believers
ordering of soy milk, whole grain bread
                                                     cannot justify the refusal of DeHart’s
and extra servings of alternative protein
                                                     request” in the absence of some nexus
sources is costly and burdensome, as is the
                                                     between this distinction and a legitimate
individualized preparation of master menu
                                                     penological concern. Id. On remand and
items without pungent vegetables. Id.
                                                     in this appeal, the Appellees argue instead
DeHart denies that his proposed diet poses
                                                     that DeHart is not similarly situated to any
any special burden, but we agree that the
                                                     group for equal protection purposes
record supports the conclusion that his
                                                     because his request poses a greater burden
religious dietary restrictions cannot be met,
                                                     than the dietary accommodations given to
by the menu he suggests or any obvious
                                                     Jewish and Muslim inmates. DeHart
and easy alternative, with only a de
                                                     argues that he is similarly situated to
minimis cost to the Prison.
                                                     Jewish and Muslim inmates, and again
   In DeHart II we affirmed the District             contests the District Court’s conclusion
Court’s conclusion that first Turner factor          that his proposed diet is more burdensome.
favored the Prison, and reversed its                 However, because we find that the burden
findings as to the second, third and fourth          imposed by DeHart’s proposed diet
factors. On remand, the lower court                  exceeds the burden imposed by
determined that those factors also favored           accommodating Muslim and Jewish
the Prison, a conclusion that we affirm              inmates, we affirm the District Court’s

                                                11
grant of summary judgment for Appellees          review over a district court’s decision to
on DeHart’s Equal Protection claim.14            grant a motion to dismiss, and to the extent
                                                 that our review turns on the statutory
                   V.
                                                 construction of the exhaustion requirement
    Subsequent to our decision in DeHart         in Section 1997e(a), our review is also
II, DeHart amended his complaint to state        plenary. Spruill v. Gillis, 372 F.3d 218,
a claim under the newly enacted Religious        226 (3d Cir. 2004) (citations omitted).
Land Use and Institutionalized Persons
                                                     Section 1997(e)(a) provides that “[n]o
Act. Appellees filed a motion to dismiss
                                                 action shall be brought with respect to
the amended complaint on the ground that
                                                 prison conditions under Section 1983 . . .
DeHart had not exhausted the prison
                                                 or any other Federal law, by a prisoner
administrative grievance process for his
                                                 confined in any jail, prison, or other
RLUIPA claim.        The District Court
                                                 c o r r e c t io n a l f a c i l it y u n t i l s u c h
accepted the Magistrate’s Report and
                                                 administrative remedies as are available
Recommendation to dismiss and DeHart
                                                 are exhausted.” 42 U.S.C. § 1997e(a)
now appeals.15     We exercise plenary
                                                 (1996).            This stringent exhaustion
                                                 requirement was established by the Prison
                                                 Litigation Reform Act of 1995 (“PLRA”),
  14
    As a result of our conclusion that           replacing language that required prisoners
DeHart is not similarly situated to any          to exhaust only those “plain, speedy, and
other group of inmates, there is no need         effective remedies as are available.” Civil
to consider the Turner factors in                Rights of Institutionalized Persons Act,
addressing his Equal Protection claim.           Pub. L. No. 96-247, 94 Stat. 349, § 7(a)
                                                 (1980), amended by Prison Litigation
  15
    Although the District Court’s order          Reform Act of 1995, Pub. L. No. 104-134,
does not so specify, we conclude that the        110 Stat. 1321 at 66 (1996). The PLRA
dismissal for failure to exhaust                 was enacted with a two-fold purpose: to
administrative remedies was with                 limit the number of prison condition
prejudice, and therefore final and               lawsuits then flooding the courts and to
appealable under 28 U.S.C. § 1291.               return control over prison policies and
Plaintiff has never argued that the              decision-making to local prison officials.
dismissal should be without prejudice,           See Porter v. Nussle, 534 U.S. 516, 524-
but instead contends that exhaustion is          25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
not required. In essence, the lower
court’s ruling was an adjudication on the
merits of his contention because it              complaint, rather than attempt to exhaust
addressed the question of whether                his RLUIPA claim. As a result, the order
RLUIPA so altered the standard of                is appealable. See Deutsch v. United
review as to require re-exhaustion of            States, 67 F.3d 1080, 1083 (3d Cir.
claims grieved under RFRA. Plaintiff             1995); Borelli v City of Reading, 532
has elected to stand on his dismissed            F.3d 950, 951-52 (3d Cir. 1976).

                                            12
   This Court has repeatedly held that                Appellees argue that DeHart has not
Section 1997e(a) makes exhaustion of               given the Prison an opportunity to address
prison administrative remedies mandatory,          his claim under what they assert is a new
regardless of the efficacy of the grievance        substantive standard contained in
process. See, e.g., Nyhuis v. Reno, 204            RLUIPA, and as a result, the District
F.3d 65, 67 (3d Cir. 2000) (holding that           Court’s dismissal for failure to exhaust
“the PLRA amended § 1997e(a) in such a             administrative remedies is proper.
way as to make exhaustion of all                   Appellees have never contended that
administrative               remedies              DeHart did not exhaust all the available
mandatory–whether or not they provide the          administrative remedies when the claim
inmate-plaintiff with the relief he says he        was brought under RLUIPA’s predecessor,
desires”); Booth v. Churner, 206 F.3d 289          RFRA. In fact, DeHart’s suit predates the
(3d Cir. 2000) (finding exhaustion                 PLRA, and therefore he is not required to
mandatory in Eighth Amendment claim                exhaust all remedies under the PLRA’s
brought by prisoner under § 1983 even              stringent standard. It is clear from the
though plaintiff s o ug h t m onetary              record that prior to filing suit, DeHart
damages), aff’d 532 U.S. 731 (2001). We            exhausted all the administrative remedies
held that an across-the-board, mandatory           available to him in seeking a diet that
exhaustion requirement serves the                  comported with his religious beliefs. The
underlying policies of the PLRA,                   issue is then whether RLUIPA and RFRA
including:                                         are sufficiently different as to justify
                                                   requiring DeHart to present his claim for a
  (1) avoiding premature interruption
                                                   second time to the prison grievance
  of the administrative process and
                                                   process.     Because we disagree with
  giving the agency a chance to
                                                   Appellees’ contention that RLUIPA
  discover and correct its own errors;
                                                   enacted a new substantive standard of
  (2) conserving scarce judicial
                                                   review for prisoner religious claims, we
  resources, since the complaining
                                                   hold that DeHart has satisfied the
  party may be successful in
                                                   exhaustion requirement of Section
  vindicating his rights in the
                                                   1997e(a) and may proceed with his
  administrative process and the courts
                                                   RLUIPA claim.
  may never have to intervene; and (3)
  improving the efficacy of the                       RFRA provided that “[g]overnment
  administrative process.                          shall not substantially burden a person’s
                                                   exercise of religion even if the burden
Nyhuis, 204 F.3d at 75. Although we
                                                   results from a ru le of gene ral
rejected a judicially-created futility
                                                   applicability.” 42 U.S.C. § 2000bb-1(a)
exception to the exhaustion requirement in
                                                   (1993). RFRA included an exception to its
Nyhuis, 204 F.3d at 71, we have never held
                                                   blanket rule:        “Government may
that a prisoner must exhaust his claims
                                                   substantially burden a person’s exercise of
more than once.
                                                   religion only if it demonstrates that


                                              13
application of the burden to the                    change substantive constitutional law
person—(1) is in furtherance of a                   rather than re med y constitu tional
compelling governmental interest, and (2)           violations, given the broad scope of the
is the least restrictive means of furthering        Act, its applicability to the States, and the
that compelling governmental interest.”             lack of evidence of First Amendment
42 U.S.C. § 2000bb-1(b).                            violations on par with the type of
                                                    widespread abuse as demonstrated in
    RFRA had been passed in response to
                                                    support of the Voting Rights Act of 1965.
the Sup reme Court’s decision in
                                                    City of Boerne, 521 U.S. at 530, 532.
Employment Division v. Smith, in which
the Court declined to apply strict scrutiny            Following the decision in City of
to a facially neutral, generally applicable         Boerne, Congress attempted to preserve
law that incidentally burdened members of           RFR A’s com pelling gov ernm enta l
a particular religious group. 494 U.S. 872,         interest/least restrictive means test by
110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).             recasting it in a form that could avoid the
In doing so, the Court held that application        fatal constitutional problems of that
of the compelling government interest test          statute. The result of this effort, RLUIPA,
it set forth in Sherbert v. Verner, 374 U.S.        essentially reiterates the language of
398, 83 S.Ct. 1790, 10 L.Ed.2d 965                  RFRA as it applies to institutionalized
(1963), would have created the “anomaly”            persons:
of a “constitutional right to ignore neutral
                                                       No government shall impose a
laws of general applicability.” City of
                                                       substantial burden on the religious
Boerne, 521 U.S. at 513 (citing Smith, 494
                                                       exercise of a person residing in or
U.S. at 885). The Congressional findings
                                                       confined to an institution, as defined
a c c o m p a nying R F R A spec ificall y
                                                       in section 1997 of this title, even if
repudiated the Court’s decision in Smith,
                                                       the burden results from a rule of
see 42 U.S.C. § 2000bb(a)(4), with
                                                       general applicability, unless the
Congress stating that the purpose of RFRA
                                                       government demonstrates that
was “to restore the compelling interest test
                                                       imposition of the burden on that
as set forth in Sherbert v. Verner and
                                                       person–
Wisconsin v. Yoder and to guarantee its
application in all cases where free exercise           (1) is in furtherance of a compelling
of religion is substantially burdened.” 42             governmental interest; and
U.S.C. § 2000bb(b)(1) (citations omitted).
                                                       (2) is the least restrictive means of
   In City of Boerne, the Supreme Court                f u r t h e ri n g t h a t c o m p e l l i n g
overturned RFRA as it applied to the                   governmental interest.
States. It held that Congress had exceeded
                                                    42 U.S.C. § 2000cc-1(a) (2000). Congress
the scope of its enforcement powers under
                                                    was explicit in its intent to replicate in
Section 5 of the Fourteenth Amendment in
                                                    RLUIPA the substantive portions of
enacting RFRA. The Court concluded that
                                                    RFRA. 146 Cong. Rec. E1563-01 (daily
RFRA was an impermissible attempt to

                                               14
ed. Sept. 22, 2000) (statement of Rep.               First, it pares the scope of the legislation
Canady) (“[Section 2000cc-1(a)] applies              from RFRA’s broad applicability down to
the RFRA standard to protect the religious           only land use issues and claims by
exercise of persons residing in or confined          institutionalized persons. Compare 42
to institutions”); 146 Cong. Rec. S7774-01           U.S.C § 2000bb-1 (“Government shall not
(daily ed. July 27, 2000) (joint statement of        substantially burden a person’s exercise of
Sens. Hatch and Kennedy) (“[RLUIPA]                  religion even if the burden results from a
applies the standard of the Religious                rule of general applicability . . .”), with 42
Freedom Restoration Act”).                           U.S.C. § 2000cc (“No government shall
                                                     impose or implement a land use regulation
   Contrary to the position of Appellees
                                                     in a manner that imposes a substantial
and the District Court, it cannot be argued
                                                     burden on the religious exercise of a
that RLUIPA does not apply the same
                                                     person . . .”), and 42 U.S.C. § 2000cc-1
standard to prisoner free exercise claims as
                                                     (“No government shall impose a
did RFRA. The statutory language is
                                                     substantial burden on the religious exercise
nearly identical, and statements by
                                                     of a person residing in or confined to an
RLUIPA’s sponsors in the Congressional
                                                     institution, . . . , even if the burden results
Record indicate that the legislative intent
                                                     from a rule of general applicability. . .”).
was to reenact RFRA in constitutional
                                                     Second, it shifts the source of Congress’
form.16 See 146 Cong. Rec. E1563-01;
                                                     power to pass the Act. While RFRA was
146 Cong. Rec. S7774-01. RLUIPA
                                                     styled as an expression of congressional
makes two fundamental changes to RFRA.
                                                     authority under Section 5 of the Fourteenth
                                                     Amendment, RLUIPA w as enacted
  16
     Appellees raised the question of                pursuant to Congress’ powers under the
RLUIPA’s constitutionality before the                Spending Clause, U.S. Const. art. I, § 8, cl.
District Court, but the issue was mooted             1, and the Commerce Clause, U.S. Const.
by the District Court’s holding that                 art. I, § 8, cl. 3. See 42 U.S.C. § 2000cc-
DeHart had not exhausted his RLUIPA                  1(b) (“This section applies in any case in
claim. The United States of America                  which – (1) the substantial burden is
joined this case as an intervenor to                 imposed in a program or activity that
defend the constitutionality of RLUIPA               receives Federal financial assistance; or (2)
before the District Court. The Supreme               the substantial burden affects, or removal
Court recently granted certiorari in a case          of that substantial burden would affect,
raising this issue. See Cutter v.                    commerce with foreign nations, among the
Wilkinson, 349 F.3d 257 (6th Cir. 2003)              several States, or with Indian tribes.”).
(holding that RLUIPA violates the                    RLUIPA makes no change to the standard
Establishment Clause), cert. granted, 73             by which prisoners’ free exercise claims
U.S.L.W. 3229 (U.S. Oct. 12, 2004) (No.              are reviewed.
03-9877). The constitutionality of                      The District Court’s reliance on Wilson
RLUIPA may be an issue on remand to                  v. Moore, No. 4:01CV158-RV, 2002 WL
the District Court.

                                                15
950062 (N.D. Fla. Feb. 28, 2002), is in              errors under the compelling interest/least
error. In Wilson, the Northern District of           restrictive alternative test of RFRA and
Florida dismissed several claims made by             RLUIPA. Forcing DeHart to present the
the plaintiff, an inmate in a Florida state          same claim under the same standard as a
correctional facility, on the ground that the        prerequisite to judicial review of his
plaintiff had not exhausted his claims               RLUIPA claim is unnecessary and serves
under the new RLUIPA standard, even                  none of the purposes of the PLRA’s
though the claims were filed before                  exhaustion requirement.
RLUIPA was enacted.             The crucial
                                                                        VI.
difference between Wilson and the instant
case is that DeHart exhausted his free                  For the foregoing reasons, the judgment
exercise claim under RFRA, which applied             of the District Court with respect to
the same standard as contained in                    DeHart’s First and Fourteenth Amendment
RLUIPA, whereas in Wilson, the                       claims will be affirmed. The judgment of
plaintiff’s grievances were filed well after         the District Court with respect to DeHart’s
RFRA was declared unconstitutional. See              claim under the Religious Land Use and
Wilson, 2002 WL 950062, at *3-4 (noting              Institutionalized Persons Act will be
that plaintiff filed grievances on July 10,          reversed and remanded for further
Aug. 21, Aug. 22, Dec. 18, and Dec. 25,              proceedings consistent with this opinion.
2000). As a result, the prison reviewed the
Wilson plaintiff’s claim under the pre-
RFRA standard employed in Smith and
O’Lone v. Shabazz, 482 U.S. 342, 107
S.Ct. 2400, 96 L.Ed.2d 282 (1987), which
applied the Turner reasonableness test to
prisoner free exercise claims. Wilson,
2002 WL 950062, at *5. The actual
holding of Wilson is that RLUIPA
substantively changed the standard of
review from what it was before RFRA was
passed and after RFRA was declared
unconstitutional, and not, as the lower
court and Appellees suggest, from the
standard contained in RFRA itself.
   DeHart is not required to re-exhaust his
RLUIPA claim.            He appropriately
presented his grievance to the Prison under
the identical standard before commencing
the instant lawsuit in 1995. The Prison has
had its opportunity to correct its own


                                                16
