                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 16, 2007
                              FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                       Clerk of Court

    JIM M Y SEA RLES,

                Plaintiff-Appellee,
                                                       No. 05-3031
     v.                                         (D.C. No. 01-CV-3379-JTM )
                                                         (D . Kan.)
    L. E. BRUCE, W arden, Hutchinson
    Correctional Facility; STEVEN
    DECHANT, Deputy W arden for
    KDOC, Hutchinson Correctional
    Facility; W ILLIAM CU M M INGS,
    Deputy Secretary of Corrections for
    KDO C,

                Defendants-Appellants,

          and

    KARIM KHALIL GREEN, Chaplain
    for KDOC, Hutchinson
    C orrectional Facility; FN U LN U,
    Unknown Security Person,

                Defendants.



                              OR D ER AND JUDGM ENT *




*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.




      Defendants-Appellants appeal from the denial of a motion for sum mary

judgment seeking qualified immunity and the denial of a motion to reconsider that

ruling. For the reasons stated below, we lack jurisdiction and dismiss the appeal.

                        I. Background and Procedural H istory

      Plaintiff-Appellee Jimmy Searles, appearing pro se, 1 was incarcerated as a

state prisoner at the Hutchinson Correctional Facility in Hutchinson, Kansas, at

all tim es relevant to the acts that form the basis of his claims in this action. H e

filed a complaint under 42 U.S.C. § 1983 alleging that defendants denied him the

use of Tefillin 2 and a meaningful religious observance of the Jewish festival of

Sukkoth in 1999 and 2000, both in violation of his First Amendment right to free

exercise of religion.

      Defendants filed a motion for summary judgment asserting, inter alia,

qualified immunity due to lack of personal participation and requesting summary

judgment on the merits of plaintiff’s claims (First Summary Judgment M otion).

The district court denied the motion as to qualified immunity, finding that

1
       Because plaintiff appears pro se, we review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
2
      Tefillin are leather boxes with attached leather straps containing passages
from the Torah that are used in Jewish prayer.

                                          -2-
plaintiff adequately had alleged personal participation of each of the defendants.

The court granted summary judgment on the merits of all of plaintiff’s claims

except the denial of a “festive meal” of apples and honey, stating that “a factual

issue remains concerning whether defendants provided apples as part of the

plaintiff’s meal in celebration of Rosh Hoshana [sic].” Aplt. App. at 37-38. The

court also noted the existence of a “larger issue,” namely, “the authorization for

festive meals w hile in segregation,” and stated that defendants “offer no rationale

for the policy of denying inmates festive meals while in segregation.” Id. at 38.

      On the record provided to us, it appears that the denial of the festive meal

was not raised in the original complaint. Instead, it appears in “Count III” of

plaintiff’s amended complaint, apparently in the allegation that defendants denied

him a meaningful observance of Rosh Hashanah in 2000. Id. at 51. 3       Shortly

after plaintiff filed his amended complaint, defendants filed a “supplemental”

motion for summary judgment in which they argued that plaintiff failed to

establish their personal participation in the denial of the festive meal because his

claims were merely conclusory allegations unsupported by any facts (Second

Summary Judgment M otion). The district court denied the motion, concluding

that whether or not defendants provided plaintiff with a festive meal remained a

disputed fact issue. The court also ruled that defendants’ citation to



3
       The amended complaint was filed in M arch 2004, nearly five months after
the district court ruled on the First Summary Judgment M otion.

                                         -3-
§ 20-105(IV)(A) of the Kansas Department of Internal M anagement Policy and

Procedure, which apparently states that inmates in segregation shall be treated as

nearly as possible like any other inmate in the general population of the

institution or facility, 4 “does not settle the factual dispute at issue here.” Id. at

63.

      Defendants Bruce, DeChant, and Cummings (but not Green) (hereinafter,

appellants) then filed a third motion for summary judgment, which was amended

three times (Third Summary Judgment M otion). They argued that they are

entitled to qualified immunity because there is no clearly established right to a

favorable result from the grievance process. They based this argument on the

factual assertions set forth in the final pretrial order, namely, that defendant

Green denied the festive meal and appellants denied plaintiff’s grievances of that

denial.

      The district court denied the motion, framing plaintiff’s claim against

appellants as a violation of his constitutional right to have his religiously based

dietary requirements accommodated rather than, as appellants had framed it, a

violation of his right to a favorable result from the grievance process. Citing its

earlier order denying the First Summary Judgment M otion, the court stated that

plaintiff had alleged that he was denied a festive meal. The court concluded that,



4
      Because we have not found a copy of this section in the appendices, we rely
on the district court’s representation of its contents.

                                           -4-
at the time of the alleged denial, there was a clearly established constitutional

right to accommodation of religiously based dietary requirements, and reiterated

its concern that appellants offered no rationale for a policy of denying festive

meals to inmates in segregation. Id. at 141-42. Appellants filed a motion for

reconsideration of that order, which the district court denied.

                                   II. Discussion

      Under the collateral order doctrine, “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of law , is an appealable

‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment.” M itchell v. Forsyth, 472 U.S. 511, 530 (1985).

However, this jurisdiction is limited to appeals challenging “not which facts the

parties might be able to prove, but, rather, whether or not certain given facts

showed a violation of ‘clearly established’ law.” Johnson v. Jones, 515 U.S. 304,

311 (1995) (quoting M itchell, 472 U.S. at 528). An appellate court, therefore,

generally “need not consider the correctness of the plaintiff’s version of the facts,

nor even determine whether the plaintiff’s allegations actually state a claim.”

M itchell, 472 U.S. at 528.

      Based on M itchell and Johnson, we lack jurisdiction over this appeal

because appellants challenge the denial of qualified immunity on the facts, not the

law. Appellants do not argue that the district court erred in ruling that the denial

of the festive meal violated plaintiff’s clearly established constitutional right to

                                          -5-
have his religiously based dietary requirements accommodated. 5 Instead, they

argue that, in the final pretrial order, plaintiff alleges only that they denied his

grievances, not that they denied him a festive meal. They conclude that, because

the final pretrial order does not include a claim that appellants had a policy to

deny festive meals to inmates in segregation, the alleged policy is irrelevant to the

qualified immunity analysis, and the court erred by basing its analysis on it.

      In substance, this argument challenges the district court’s treatment of

plaintiff’s remaining claim as one “that defendants . . . denied him a festive meal

in celebration of Rosh Hashona [sic] while he was in segregation[,]” Aplt. App. at

138. Apparently, the district court construed this claim to include the existence

of a “policy of denying festive meals while in segregation[,]” id. at 142. By their

argument, therefore, appellants ask us to address the nature and extent of their

personal participation in the denial of the festive meal based on the wording of

the final pretrial order. 6 This would require us to consider the factual basis of

plaintiff’s claim rather than a purely legal issue based on certain given facts.




5
      W e note that, even if appellants had raised this as an issue, we would
affirm the order denying the Third Summary Judgment M otion for substantially
the same reasons as the district court.
6
       W e note that the district court expressed its conclusions on appellants’
personal participation in an earlier order, albeit prior to the filing of the final
pretrial order. Aplt. App. at 36 (denying qualified immunity because “plaintiff
adequately alleged the personal participation of each of the defendants”).

                                          -6-
Accordingly, we lack jurisdiction under the collateral order doctrine. See

Johnson, 515 U.S. at 311. 7

                                     Conclusion

      Because we lack jurisdiction, we DISM ISS the appeal and REM AND this

action to the district court for further proceedings.



                                                        Entered for the Court



                                                        Terrence L. O’Brien
                                                        Circuit Judge




7
       W e decline to address appellants’ alternative argument concerning their
proffered rationales for a policy to deny festive meals to inmates in segregation.
Appellants raised these arguments in the Second Summ ary Judgment M otion, the
denial of which they have not appealed. It appears that motion did not rely on the
qualified immunity defense. Therefore, it is unlikely that appellants could have
taken an interlocutory appeal from the order denying it.

                                          -7-
