                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 02-1155
                                ___________

Kelvin Ray Love,                       *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Patrick McCown,                        * Appeal from the United States
                                       * District Court for the
            Defendant,                 * Eastern District of Arkansas.
                                       *      [UNPUBLISHED]
Marvin Evans, Warden, East Arkansas *
Regional Unit, ADC; Ray Hobbs,         *
Deputy Director, Arkansas Department *
of Correction; Gary Cox, Senior        *
Chaplain, East Arkansas Regional Unit, *
ADC; Don Yancey,                       *
                                       *
            Appellants.                *
                                 ___________

                       Submitted: June 6, 2002

                            Filed: July 8, 2002
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________
PER CURIAM.

       Arkansas Department of Correction (ADC) employees appeal the district
court’s1 imposition of preliminary injunctive relief in Arkansas inmate Kelvin Ray
Love’s 42 U.S.C. § 1983 action. Having carefully reviewed the record, we affirm the
district court.

      By amended complaint, Love sought an injunction directing defendants to
provide him with a kosher diet. The district court concluded, following a bench trial,
that Love was entitled to relief under the Religious Land Use and Institutionalized
Person Act of 2000, 42 U.S.C. § 2000cc et seq., and the First Amendment. The court
ordered the parties to “confer, negotiate in good-faith and report back to the Court”
on a proposal consistent with the court’s opinion.

      The parties subsequently reported that they had failed to reach an agreement.
Defendants’ kosher-meal plan involved food items processed through the prison
kitchen, while Love sought prepackaged items, fearing that the food prepared in
defendants’ non-kosher kitchen could easily become non-kosher. Noting that it
lacked sufficient information to fashion a remedy, the court ordered ADC to come
forward with detailed information on its food resources and its efforts to find kosher
food. The court further ordered ADC to supply Love, in the interim, with various
kosher food items and weekly deposits of $15 in his prison account to be used only
to buy kosher food from the commissary at cost.

       Defendants appeal that portion of the district court’s order requiring the deposit
of cash payments, arguing that the Eleventh Amendment bars such relief. Defendants
rely heavily on Campbell v. Arkansas Dep’t of Corr., 155 F.3d 950, 962 (8th Cir.
1998), in which a prison warden brought a section 1983 action against prison

      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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officials, claiming that his demotion violated his free speech rights. The district court
agreed and ordered that the warden be reinstated or awarded $74,000 in front pay.
We reversed on Eleventh Amendment grounds because the front pay would
necessarily be “paid from public funds in the state treasury.” See id. (quoting another
source).

       Campbell is distinguishable from this case. In Campbell, the demoted
warden’s front pay was intended to compensate him for a static, past constitutional
violation--his demotion. Here, the district court’s remedy targets a continuing
constitutional violation; it does not seek to make Love whole based on a past wrong.
Thus we view the instant remedy as providing only prospective relief. See Edelman
v. Jordan, 415 U.S. 651, 667-68, 677-78 (1974) (federal judiciary, consistent with
Eleventh Amendment, may grant prospective injunctive relief against states, as
distinguished from prohibited retroactive awards requiring payment of funds from
state treasury; injunction may affect state treasury without violating Eleventh
Amendment if fiscal consequences are “the necessary result of compliance with
decrees which by their terms were prospective in nature”); Green v. Mansour, 474
U.S. 64, 71 (1985) (injunctive relief is not prospective if there is no “continuing
violation” of federal law); Little Rock Sch. Dist. v. Pulaski County Special Sch., 778
F.2d 404, 434-36 (8th Cir. 1985) (en banc) (directing district court to modify remedy
so state would fund cost of transporting students opting for inter-district transfers, pay
benefits to sending and receiving schools for inter-district transfers, and pay
customary aid to pupils attending any magnet schools established). See also Papasan
v. Allain, 478 U.S. 265, 278-79 (1986); Antrican v. Odom, 290 F.3d 178, 185-86 (4th
Cir. 2002).

       Because we believe that the challenged preliminary relief is neither
jurisdictionally barred, nor an abuse of discretion under the multi-factor
considerations laid out in Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114
(8th Cir. 1981) (en banc), the order granting preliminary injunctive relief is affirmed.

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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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