                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-1998

Johnson v. Horn
Precedential or Non-Precedential:

Docket 97-3581,97-3582




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Recommended Citation
"Johnson v. Horn" (1998). 1998 Decisions. Paper 174.
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Filed July 28, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-3581, 97-3582

JEFFREY E. JOHNSON; BRUCE HOWARD SHORE,

       Appellants in No. 97-3581

v.

MARTIN F. HORN; RAYMOND J. SOBINA,

       Appellants in No. 97-3582

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 96-cv-00318J)

Argued: June 10, 1998

Before: BECKER, Chief Judge, ALDISERT and WEIS,
Circuit Judges

(Filed: July 28, 1998)

       Jon Pushinsky (argued)
       1808 Law & Finance Building
       Pittsburgh, PA 15219
        Attorney for Appellants/
       Cross-Appellees
       Jeffrey E. Johnson and
       Bruce Howard Shore
       Sarah B. Vandenbraak,
        Chief Counsel (argued)
       Jill Fluck, Assistant Counsel
       Pennsylvania Department of
        Corrections
       2520 Lisburn Road, P.O. Box 598
       Camp Hill, PA 17001-0598
        Attorneys for Appellees/
        Cross-Appellants
        Martin F. Horn and
        Raymond J. Sobina

       Isaac M. Jaroslawicz,
        Director of Legal Affairs
       The Aleph Institute
       9450 Collins Avenue
       Surfside, FL 33154
        Attorney for Amicus Curiae
        The Aleph Institute

       Burton Caine
       Temple University School of Law
       1719 North Broad Street
       Philadelphia, PA 19122
        Attorney for Amicus Curiae
        American Civil Liberties Union of
        Pennsylvania

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This case once again presents the federal courts with the
serious and difficult task of balancing an individual's First
Amendment right to free exercise of religion with the
principle, derived from the concepts of separation of powers
and federalism inherent in our constitutional order, that
federal courts should afford substantial deference to the
administration of state correctional institutions.
Specifically, we are asked to decide whether two Jewish
inmates detained in the Pennsylvania prison system have a
constitutional right to hot kosher meals provided to them at
the Commonwealth's expense.

                               2
As inmates at the Pennsylvania State Correctional
Institute in Somerset (the "Prison"), Appellants Jeffrey
Johnson and Bruce Shore (the "Inmates") sued Appellees
Raymond Sobina, the Prison Superintendent, and Martin
Horn, the Commissioner of the Pennsylvania Department of
Corrections (the "Prison Officials"), in federal district court.
Johnson, a former inmate, and Shore, still an inmate, are
members of the Jewish faith. They allege that the Prison
Officials' denial to them of a daily kosher diet, including two
hot kosher meals, violated several of their constitutional
rights. The district court granted partial summary
judgment to both sides and entered an injunction requiring
the Prison Officials to provide Shore with a cold kosher diet
at the Prison's expense. Both sides appeal from that order.

We have jurisdiction over that part of the district court's
order granting summary judgment pursuant to 28 U.S.C.
S 1291, and we will affirm the order in that respect.
Because we decide that the district court's injunction is
moot, we will vacate that part of the order granting
prospective relief.

I.

In November 1996, Johnson and Shore were inmates at
the Prison. Johnson was serving one to two years for
attempted theft by deception and Shore was serving four to
eight years for burglary.

Both Johnson and Shore are Jewish and consider
themselves bound by the laws of kashrut, or kosher.
According to the affidavit of Rabbi Dr. Baruch A. Poupko,
the laws of kosher are "categorically binding upon every
Jewish man and woman." JA at 64. Kosher laws dictate
what foods can be eaten and how they can be prepared.
Kosher food cannot be prepared in a non-kosher kitchen,
but a sealed, frozen kosher meal can be stored in a
conventional freezer and heated in a conventional or
microwave oven.

A Department of Corrections policy provides that all
inmates shall receive three meals a day, two of which are
hot. Johnson, who previously had received kosher foods
while in the federal prison system, arrived at the Prison in

                                3
May 1996. In June and July 1996, utilizing the Prison's
grievance system, Johnson requested a kosher diet from
Prison officials. The Prison's Grievance Coordinator denied
his request, and Sobina affirmed this decision, stating: "Mr.
Johnson has the ability to pick and choose items that are
to his liking, whether it be for religious or personal diet
reasons." JA at 39. If Sobina meant to suggest that
Johnson's diet was a matter of personal choice, his
response demonstrated a misunderstanding of the laws of
kashrut. However, neither Johnson nor his Rabbi ever
explained to Prison officials what a kosher diet entails.
Johnson appealed Sobina's decision to the Central Office of
the Pennsylvania Department of Corrections. Upon
recommendation of the Central Office Review Committee,
Commissioner Horn upheld the decision.

Shore arrived at the Prison in December 1995. In October
and November 1996, Shore attempted for the first time to
obtain kosher meals through the Prison's grievance
procedures. As with Johnson, his request was denied.

In November 1996, Johnson and Shore filed suit against
Horn and Sobina in federal district court, alleging that the
denial of kosher meals violated the First Amendment, giving
rise to a cause of action under 42 U.S.C. S 1983, and
violated the Religious Freedom Restoration Act ("RFRA"), 42
U.S.C. SS 2000bb to 2000bb-4 (West 1997). The Supreme
Court subsequently declared RFRA unconstitutional. City of
Boerne v. Flores, 117 S. Ct. 2157, 2172 (1997) (RFRA
exceeds Congress's Fourteenth Amendment enforcement
powers). Johnson and Shore allege that after theyfiled suit,
they were subject to a continuing pattern of retaliation and
anti-semitic harassment from other inmates and prison
guards.1 Complaints to Sobina about the alleged
harassment were unavailing.

On November 13, 1996, the district court issued a
temporary restraining order requiring the Prison Officials to
provide Johnson and Shore with kosher food at every meal.
_________________________________________________________________

1. The Inmates made these allegations in a March 1997   motion for
emergency preliminary injunction. The record does not   indicate that the
district court ever ruled on this motion, and neither   these allegations
nor
the accompanying motion for injunctive relief are now   before us.

                               4
The Prison subsequently provided Johnson and Shore with
a kosher diet consisting of milk, unpeeled fruit, uncut raw
vegetables and a vanilla-flavored liquid nutritional
supplement called "Resource" (the "cold kosher diet"). The
Prison charged the Inmates for the kosher food by
deducting funds from their inmate accounts. In an affidavit
submitted on the Inmates behalf, dietician Joanne
Perelman stated that this diet "probably [provided] the
proscribed [sic] number of calories and the required
nutritional composition of vitamins and minerals." JA at
230. However, she felt the diet placed the Inmates"in a
compromised dietary condition" because the liquid
nutritional supplement provided "the bulk of their
nutrition." Id. The magistrate judge recommended against
this original cold kosher diet as a long-term solution, but
endorsed it pending the final outcome of the litigation, with
the understanding that the Prison would continue to
provide the cold kosher diet to the Inmates. Based on this
recommendation, the district court dissolved the temporary
restraining order on December 24, 1996.

The cold kosher diet eventually was augmented to
include granola, pretzels, cereal and saltines. Id. at 236.
Prison dietician Brian Shedleski stated in his affidavit that
he had performed an in-depth analysis of this diet using a
computer model which considered the height, weight, age,
gender and activity level of each Inmate, as well as the
Recommend Dietary Allowance values set by the National
Academy of Sciences. Based on this analysis, Shedleski
concluded that "the diet is adequate and sufficiently meets
the nutritional criteria set forth by the National Academy of
Sciences." JA at 235.

Johnson was released from custody on August 9, 1997,
at which time his claims for injunctive relief became moot.
He remains a plaintiff only for the purpose of seeking
damages.

At the close of discovery, the parties filed cross-motions
for summary judgment. The Inmates argued that the cold
kosher diet the Prison was providing them was
constitutionally inadequate and that they, like other
prisoners, were entitled to two hot, appetizing meals a day.
Shore asked that the Prison be required to purchase frozen

                               5
kosher meals which could be heated for him twice a day in
the Prison kitchen. The cost of purchasing frozen kosher
meals is around $2.00 per meal, or approximately $4.00
per inmate per day.2 On the other hand, the cold kosher
diet costs the prison $7.24 per inmate per day. Id. at 316.

On August 29, 1997, the magistrate judge filed a report
recommending that the district court grant partial
summary judgment to both sides. Specifically, the
magistrate judge recommended that, in order for the Prison
Officials to comply with the First Amendment and the
Equal Protection Clause of the Fourteenth Amendment, the
district court issue an injunction requiring the Prison
Officials to (1) continue providing Shore the cold kosher diet
and (2) refrain from charging Shore for kosher meals. The
magistrate judge also determined that Johnson and Shore
had no equal protection right to hot kosher meals, and
recommended that the district court grant the Prison
Officials qualified immunity from the Inmates' claims for
money damages. On September 24, 1997, after the parties
filed objections to the magistrate judge's report, the district
court filed an opinion and order granting partial summary
judgment to both sides and entering an injunction as
recommended. Both sides appealed.

Oral argument was heard on June 10, 1998, at which
time counsel for the Prison Officials made the following two
concessions: (1) the Prison Officials are required to provide
Shore with some form of kosher diet and (2) they may not
charge him for it. These concessions have narrowed not
only the scope of our review, but also the jurisdiction of the
district court.

We have plenary review over the district court's decision
to grant summary judgment. Sabo v. Metropolitan Life Ins.
_________________________________________________________________

2. For the first time at oral argument, the Prison Officials asserted that
the provision of kosher meals was actually more expensive than this
because the Prison needed to buy an additional frozen meal for heat
testing. This assertion is not supported by the record. The declaration of
Prison Food Services Chief Marcia Noles does state that frozen kosher
meals have to be heat tested, but her cost evaluation does not indicate
that a separate meal must be purchased for this purpose. See JA at 83-
84.

                               6
Co., 137 F.3d 185, 195 (3d Cir. 1998). Summary judgment
is appropriate if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law. Id.; Rule 56(c), Federal Rules of Civil Procedure.

II.

The First Amendment provides that "Congress shall make
no law respecting an establishment of religion, or
prohibiting a free exercise thereof . . . ." U.S. Const. amend.
I. In order to establish that the Prison Officials' denial of a
hot kosher diet violates the Free Exercise Clause, the
Inmates must show that the Prison Officials' decision
contravenes their sincere religious beliefs, Africa v.
Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981), and that
it is not "reasonably related to legitimate penological
interests," Cooper v. Tard, 855 F.2d 125, 129 (3d Cir.
1988).

The scope of our review has been narrowed by the Prison
Officials' concessions at oral argument. Relevant to the
First Amendment claim, the Prison Officials conceded that
the Inmates are entitled to receive some kosher diet. In light
of this concession, the Prison Officials' cross-appeal
challenging the sincerity of the Inmates' religious beliefs is
moot. The only issue, then, is whether the Free Exercise
Clause requires the Prison Officials to provide the Inmates
with hot kosher meals, as distinguished from the cold
kosher diet.3 On this particular issue, the district court
granted the Prison Officials partial summary judgment. We
conclude that summary judgment was appropriate because
the First Amendment requires only that the Prison Officials
provide the Inmates with a kosher diet sufficient to sustain
the Inmates in good health, and the Inmates have failed to
create a genuine issue that the cold kosher diet
compromises their health.

"[A] prison regulation impinging on inmates'
_________________________________________________________________

3. The Prison Officials' total denial of any kosher diet   prior to the
establishment of the cold kosher diet is relevant to the   Inmates' damages
count, but summary judgment is appropriate on that count   because the
Prison Officials are entitled to qualified immunity. See   infra part V.

                               7
constitutional rights is valid if reasonably related to
legitimate penological interests." Cooper, 855 F.2d at 128.
The Supreme Court has noted that this inquiry necessarily
involves the balance of two competing principles: First, an
individual does not surrender the protections which the
Constitution provides him when he passes through the
prison gate; and second, prison officials must be given
substantial deference in the administration of their
institutions. Turner v. Safley, 482 U.S. 78, 84 (1987). In
light of these considerations, the Court has formulated a
four-factor test for evaluating the validity of prison
regulations, which we previously have summarized as
follows: (1) whether there is a rational connection between
the regulation and the penological interest asserted; (2)
whether inmates have alternative means of exercising their
rights; (3) what impact accommodation of the right will
have on guards, other inmates and the allocation of Prison
resources generally and (4) whether alternative methods for
accommodation exist at de minimis cost to the penological
interest asserted. Cooper, 855 F.2d at 129 (citing Turner,
482 U.S. 78, 89-90 (1987)).

The first Turner factor clearly favors the Prison Officials.
The Prison has a legitimate penological interest in keeping
its food service system as simple as possible. Ward v.
Walsh, 1 F.3d 873, 877 (9th Cir, 1993) ("The prison has a
legitimate interest in running a simplified food service,
rather than one that gives rise to many administrative
difficulties."); see Kahey v. Jones, 836 F.2d 948, 950 (5th
Cir. 1988). In addition, we believe Shore's request for hot
kosher food creates legitimate security concerns, including
bringing additional foods from new sources into the Prison
and the possible belief by other Inmates that Johnson and
Shore are receiving special treatment.

The second Turner factor--alternative means of
observance--is neutral, favoring neither the Prison Officials
or the Inmates. Insofar as that factor addresses the
Inmates' general ability to exercise their faith, this interest
weighs in the Prison Officials' favor because the Inmates
are free to pray, meet with a Rabbi and have weekly
religious services. See Cooper, 855 F.2d at 129. However,
the importance of alternative means of religious observance

                               8
is an irrelevant consideration when the belief at issue is a
"religious commandment," rather than a "positive
expression of belief." Ward, 1 F.3d at 878 (discussing
Jewish kosher laws). As the United States Court of Appeals
for the Ninth Circuit has stated: "It is one thing to curtail
various ways of expressing belief, for which alternative ways
of expressing belief may be found. It is another thing to
require a believer to defile himself, according to the
believer's conscience, by doing something that is completely
forbidden by the believer's religion." Id. As in Ward, the
Inmates here are "defiling" themselves under the laws of
kosher when forced to eat non-kosher foods. By
acknowledging this, we do not intend to suggest that all
"religious commandments" must be accommodated,
whatever their costs to legitimate penological concerns.
However, in such situations the centrality of the religious
tenet carries greater weight and the existence of alternative
means of observance is of no use in the ultimate balancing
which Turner commands.

The third Turner factor--impact on guards, other inmates
and Prison resources--is also neutral. The Prison Officials
argue that providing Johnson and Shore with hot kosher
meals will cause resentment among the other inmates, who
will perceive Johnson and Shore as recipients of special
treatment. At oral argument, counsel for the Prison Officials
maintained that this concern would not exist if the Prison
continues to provide only the cold kosher diet. We are not
persuaded by this distinction. To the contrary, the record
viewed in the light most favorable to the Inmates indicates
that, subsequent to their requests for kosher foods and the
provision of the cold kosher diet, both other inmates and
Prison guards retaliated against and harassed them. We
therefore believe that the preferential treatment problem,
although legitimate, will exist no matter what kosher diet
the Prison is required to serve to Shore.

Finally, the fourth Turner factor--the reasonableness of
alternatives--ultimately favors the Prison Officials. To the
extent this factor relates to financial considerations, it
favors the Inmates. The Prison Officials assert cost as a
legitimate penological justification for denying the Inmates'
request, but providing the hot kosher meals would be

                               9
cheaper than providing the current kosher diet. The cost
factor, which might suggest a certain arbitrariness on the
part of prison officials could be given some weight were we
free to apply the state regulation requiring "reasonable
accommodations for dietary restrictions." 37 Pa. Code
S 93.6. However, it is not our function to look to such
sources in circumstances like those presented here. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
122-123 (1984). As Turner makes clear, we are to avoid
"unnecessarily perpetuating the involvement of the federal
courts in the affairs of prison administration." 482 U.S. at
89 (quoting Procunier v. Martinez, 416 U.S. 396, 407
(1974)). Moreover, a careful reading of Turner suggests that
the fourth factor is most important when the desired action
accommodates an inmate more fully than the challenged
regulation. See Turner, 482 U.S. at 91 (regulation may not
be reasonable if suggested alternative "fully accommodates
the prisoner's rights at de minimis cost to valid penological
interests"). If the cold kosher diet currently being provided
satisfies kosher requirements, then the hot kosher diet
which the Inmates suggest does not accommodate the
Inmates any more "fully;" it merely accommodates them in
a more palatable manner. Taste, however, is not a relevant
constitutional consideration.

Balancing these factors, we hold that the First
Amendment requires the Prison Officials to provide the
Inmates with a diet sufficient to sustain them in good
health without violating the kosher laws. See Ashelman v.
Wawrzaszek, 111 F.3d 674, 678 (9th Cir. 1997); Kahane v.
Carlson, 527 F.2d 492, 496 (2d Cir. 1975), re-aff'd under
Turner test by Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir.
1992). In reaching this conclusion, we emphasize that each
prison should receive substantial deference in formulating
its particular plan for dietary accommodation. Here, the
Prison is fully permitted to create the diet it believes best
serves its legitimate penological interests as long as that
diet (1) is kosher, and (2) sustains the Inmates in good
health.

Applying the Turner reasonableness test to the case at
bar, the cold kosher diet currently being provided passes
constitutional muster because it is sufficient to keep the

                                10
Inmates in good health. This conclusion is supported by the
affidavit of Prison dietician Brian Shedleski, who found the
kosher diet to be nutritionally adequate after a detailed
analysis of the diet as applied to each Inmate's individual
characteristics. Once the Prison Officials put forth this
evidence, in order to survive summary judgment the
Inmates were required to "designate `specific facts showing
that there is a genuine issue for trial.' " Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (quoting Rule 56(e),
Federal Rules of Civil Procedure). The Inmates made no
such designation.

To rebut Shedleski, the Inmates presented the affidavit of
dietician Joanne Perelman, who gave the opinion that the
original kosher diet placed the Inmates in a "compromised
dietary condition." JA at 230. However, Perelman did not
consider the cold kosher diet after its augmentation, which
added granola, pretzels, cereal and saltines. Rather, she
concluded that the original kosher diet was unhealthy
because it relied heavily on the use of the liquid
supplement to provide essential nutrients. Perelman's
failure to consider the complete kosher diet strips her
affidavit of any real probative value. Moreover, we cannot
credit Perelman's statement that, because the cold kosher
diet includes the Resource liquid supplement, the Inmates
should be "monitored medically on an ongoing basis for
nutritional deficiencies." Id. at 231. Perelman's conclusion
in this regard was based on the fact that medical
monitoring is appropriate for individuals "placed on liquid
diets for the purpose of weight control," id. at 230, which
clearly is not the case here. For these reasons, Perelman's
affidavit is insufficient to rebut Shedleski's thorough
analysis. Therefore, there is no genuine issue that the cold
kosher diet, in its current form, will sustain the Inmates in
good health, and the district court properly granted the
Prison Officials summary judgment on this issue.

III.

The Inmates' second theory is that the Prison Officials'
failure to provide the hot kosher diet violates the Equal
Protection Clause, U.S. Const. amend. XIV, S 1, because the

                               11
Prison provides a hot pork alternative to Muslims. 4 The
district court granted summary judgment to the Prison
Officials on this issue.

Initially, the Prison Officials argue that the Inmates
waived their equal protection argument because they did
not explicitly raise an equal protection claim in either their
complaint or their summary judgment papers. We generally
will not consider issues raised for the first time on appeal,
Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir.
1994); however, the argument was raised sufficiently in the
district court. See Venuto v. Carella, Byrne, Bain, Gilfillan,
Cecchi & Stewart, P.C., 11 F.3d 385, 388 (3d Cir. 1993). In
Venuto, defendants in a malicious prosecution action
argued that the plaintiffs waived their argument that being
forced into bankruptcy was a "special grievance" supporting
their claim. Even though the plaintiffs had not raised the
issue, the district court considered it on the merits and
ruled against them. We held that the issue was preserved
for appeal because the plaintiffs could have sought leave to
amend their complaint, the district court was put on notice,
it decided the issue on the merits and the defendant was
not prejudiced because both parties had briefed the issue
fully on appeal. Id.

For similar reasons, the Inmates' equal protection claims
are properly before us. Even though the Inmates did not
raise this claim in their complaint or their motion for
summary judgment, the magistrate judge's report discusses
the equal protection claims. The subsequent objections to
the report by the Inmates and the Prison Officials certainly
put the district court on notice that equal protection was an
issue. Indeed, the district court "considered the record in
light of the Report and Recommendations and the
objections thereto," Add. at 2, and adopted the report, with
certain modifications, as its opinion. Id. at 6. In addition,
_________________________________________________________________

4. The Inmates also had argued that the Equal Protection Clause
prohibits the Prison Officials from charging them for a kosher diet, and
the district court granted the Inmates summary judgment on this issue.
The Prison Officials' cross-appeal challenges that portion of the district
court's order. At oral argument, however, the Prison Officials conceded
that they could not--and will not--charge Shore for kosher meals.
Therefore, their appeal will be dismissed as moot.

                               12
the Inmates could have sought leave to amend their
complaint, Rule 15(a), Federal Rules of Civil Procedure, but
the magistrate judge's consideration of the equal protection
issues probably made amendment seem unnecessary.
Finally, because both parties have addressed the merits of
the equal protection claim fully, the Prison Officials will not
be prejudiced. Therefore, we can proceed to the merits of
the equal protection claim.

The Inmates base their equal protection claim on the fact
that, although to stay kosher they must eat cold foods and
a liquid supplement only, the Prison accommodates Muslim
inmates by providing hot alternatives on days when the
Prison serves pork. "[I]n order to maintain an equal
protection claim with any significance independent of [their]
free exercise [claim] . . . [the Inmates] must also allege and
prove that they received different treatment from other
similarly situated individuals or groups." Brown v. Borough
of Mahaffey, 35 F.3d 846, 850 (3d Cir. 1994). The Inmates'
claim fails because they failed to create a genuine issue
that they are similarly situated to Muslim inmates.

It is true that the Prison Officials provide an alternative
to pork to all inmates when it appears on the menu.
However, although Muslims are not allowed to eat pork, the
Inmates have presented no evidence that this alternative,
which is available to all inmates, is provided for the
purpose of accommodating Muslims. Even assuming that
the pork alternative is offered to accommodate Muslims,
Muslim and Jewish inmates are not similarly situated. The
Inmates have not pointed to evidence in the record as to
what alternatives to pork appear on the Prison menu as an
accommodation to Muslim inmates. Accordingly, there is no
basis for comparing the non-pork diet with the cold kosher
diet. Moreover, the pork substitutes are provided from
items already in the Prison kitchen, but the proposed hot
kosher diet would require the Prison to undertake the extra
effort to obtain frozen meals from a new vendor and
specially heat them in a conventional or microwave oven.
Under these circumstances, Muslim and Jewish inmates
are not similarly situated, because the accommodation of
Jewish inmates would require substantially greater effort
than the accommodation of Muslims inmates. See Dexter v.

                               13
Kirschner, 984 F.2d 979, 986 (9th Cir. 1992) (patients with
same disease not similarly situated unless they can be
treated with the same procedure); cf. Klinger v. Department
of Corrections, 31 F.3d 727, 732-733 (8th Cir. 1994) (men
and women at different prisons with different
administrative and security concerns not similarly
situated). Therefore, the Inmates' claim that the Equal
Protection Clause requires the Prison Officials to provide
hot kosher meals is without merit, and summary judgment
on that issue was appropriate.

IV.

The Inmates argue for the first time on appeal that the
cold kosher diet violates their right to be free from cruel
and unusual punishment. U.S. Const. amend. VIII. Again,
we generally will not consider issues raised for thefirst time
on appeal. Harris, 35 F.3d at 845. The Inmates argue that
they did not raise this issue in the district court because
initially the magistrate judge only approved the cold kosher
diet on an interim basis. The Eighth Amendment only
became an issue, they argue, when the magistrate judge's
second report recommended the diet's approval as a
permanent solution. This argument is meritless.

First, insofar as the Inmates' complaint requests
monetary relief, whether the cold kosher diet violated the
Eighth Amendment was relevant even if the diet was only
temporary. The Inmates could have raised their Eighth
Amendment claim, like their equal protection claim, in their
objections to the magistrate judge's second report.
Alternatively, they could have amended their complaint to
include a count for an Eighth Amendment violation. Unlike
their equal protection claim, the Inmates did not raise their
Eighth Amendment claim by either of these means, and the
district court did not consider the Eighth Amendment in
reaching its decision. We therefore decline to consider this
issue.

V.

The Inmates argue that the district court erred by
granting the Prison Officials qualified immunity from money

                               14
damages, holding that the law entitling Jewish inmates to
a kosher diet under the First Amendment was not clearly
established. We believe the district court properly granted
immunity.5 Because summary judgment was appropriate on
the Inmates' equal protection and Eighth Amendment
claims, the question of whether the Prison Officials were
entitled to qualified immunity on those claims is moot. The
only question, then, is whether the Prison Officials are
entitled to qualified immunity on the Inmates' First
Amendment claims. We have held that the First
Amendment does not entitle the Inmates to hot kosher
meals, and the Prison Officials have conceded that they
must provide some kosher diet. However, because the
Prison Officials did not agree to provide even the cold
kosher diet until November 1996, the Inmates have a
colorable First Amendment claim against the Prison
Officials based on their failure to provide the Inmates with
any kosher diet prior to that time. The Inmates cannot
receive damages from the Prison Officials for such a
violation, however, if the Prison Officials are entitled to
qualified immunity.

A public official is entitled to qualified immunity from
monetary liability unless a "reasonable public official [in his
or her position] would know that his or her specific conduct
violated clearly established rights." Grant v. City of
Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing Anderson
v. Creighton, 483 U.S. 635, 636-637 (1987)). This inquiry is
divided into two separate issues. See Sharrar v. Felsing,
128 F.3d 810, 826 (3d Cir. 1997). First, we must determine
whether the Prison Officials' conduct violated clearly
established law; then--but only if we answer thefirst
inquiry affirmatively--we must determine whether an
objectively reasonable prison official would have realized
the illegality of his conduct. See id. Employing this
_________________________________________________________________

5. Initially, the Inmates argue that Horn waived his qualified immunity
defense. However, in their answer to the Inmates' complaint, the Prison
Officials allege that they are immune from suit. In addition the Inmates
had the opportunity to present objections to the merits of the magistrate
judge's recommendation that Horn receive qualified immunity, and the
district court fully considered the merits of the immunity claims. The
issue was preserved for appeal. See Venuto, 11 F.3d at 388.

                               15
analysis, we believe the district court correctly held that the
Prison Officials are entitled to qualified immunity because
the right of a prisoner to receive a kosher diet was not
clearly established prior to November 1996.

The law was clearly established if "reasonable officials in
the [Prison Officials'] position at the relevant time could
have believed, in light of what was in the decided case law,
that their conduct would be lawful." See Acierno v. Cloutier,
40 F.3d 597, 616 (3d Cir. 1994) (in banc) (internal
quotations omitted). The Inmates point to no decision of the
Supreme Court or this Court, and we are aware of none,
that clearly establishes their right to a kosher diet. This,
however, may not end the inquiry, because the courts of
appeals are divided as to whether, and to what extent, out-
of-circuit decisions may be considered in determining
whether the law was clearly established.6 We need not
answer this difficult question, because we conclude that,
under any standard, the law entitling the Inmates to a
kosher diet was not clearly established when Horn and
Sobina refused the Inmates' requests for kosher meals.
Only two courts of appeals have recognized the right of a
Jewish inmate to receive a kosher diet, Ward, 1 F.3d at 879
_________________________________________________________________

6. The courts of appeals have taken three different approaches to this
issue: (1) decisions from other courts of appeals may be considered, see
Baptiste v. J.C. Penney Co., 1998 WL 348150, at *8 n.9 (10th Cir. June
30, 1998) (can rely on "clearly established weight of authority from other
courts"); Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997); Norfleet ex
rel.
Norfleet v. Arkansas Dep't of Human Servs., 989 F.2d 289, 291 (8th Cir.
1993). Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989);
Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989), (2) such decisions
may be considered only in exceptional circumstances, see Wilson v.
Layne, 141 F.3d 111, 117 (4th Cir. 1998) (en banc) ("inappropriate as a
general matter"); Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997) (en
banc) ("Although decisions of other courts can clearly establish the law,
such decisions must both point unmistakenly to the unconstitutionality
of the conduct and be so clearly foreshadowed by applicable direct
authority as to leave no doubt in the mind of a reasonable officer that
his conduct was unconstitutional.") (internal quotation omitted), and
(3) such decisions never may be considered, see Jenkins ex rel. Hall v.
Talladega City Bd. of Educ., 115 F.3d 821, 823 & n.4 (11th Cir.), cert.
denied sub nom. Jenkins ex rel. Hall v. Herring, 118 S. Ct. 412 (1997);
Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995).

                               16
(9th Cir.), Kahane, 527 F.2d at 496 (2d Cir.), and at least
one of them does not view that right as a per se
entitlement, Ward, 1 F.3d at 879 (remanding for
consideration of whether prison's legitimate interests
justified denial of kosher meals); cf. Kahey , 836 F.2d at 951
(prison not required to comply with Muslim inmate's
particularized diet request). Therefore, the district court
properly granted qualified immunity to the Prison Officials.7

VI.

In their cross-appeal, the Prison Officials argue that the
district court entered prospective relief in Shore's favor in
violation of the Prison Litigation Reform Act of 1996
("PLRA"). Pub. L. No. 104-134, 1996 U.S.C.C.A.N. (110 Stat.
1321) 66-77 (codified in scattered sections of 11, 18, 28,
and 42 U.S.C.). The PLRA, which took effect on April 26,
1996, 110 Stat. at 1321-1, reforms the federal courts'
adjudicatory powers over prisoner-initiated civil litigation.
Among its many provisions, the PLRA limits the power of
district courts to grant prospective relief:

       Prospective relief in any civil action with respect to
       prison conditions shall extend no further than
       necessary to correct the violation of the Federal right of
       a particular plaintiff or plaintiffs. The court shall not
       grant or approve any prospective relief unless the court
       finds that such relief is narrowly drawn, extends no
       further than necessary to correct the violation of the
       Federal right, and is the least intrusive means
       necessary to correct the violation of the Federal right.
_________________________________________________________________

7. Because the law was not clearly established, we need not decide
whether an objectively reasonable prison official in Horn's and Sobina's
positions would have believed his conduct violated the Inmates' First
Amendment right to a kosher diet. In particular, we express no opinion
as to the reasonableness of Sobina's misunderstanding of kosher law.

In addition, we need not reach Horn's argument that summary
judgment was appropriate because he was not "personally involve[d]" in
the decision to deny the Inmates a hot kosher diet. See Rode v.
Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ("personal involvement"
giving rise to S 1983 liability requires "personal direction or . . .
actual
knowledge and acquiescence").

                               17
         The court shall give substantial weight to any adverse
         impact on public safety or the operation of a criminal
         justice system caused by the relief.

18 U.S.C. S 3626(a)(1)(A).

The Prison Officials argue that the district court ordered
them to continue providing Shore with the cold kosher diet
and to refrain from charging him for it without making
findings required by S 3626(a). This argument presents
several important PLRA interpretive issues, for example: (1)
what, if any, specific findings does the PLRA require a
district court to make before granting prospective relief?
and (2) must a party challenging the district court's entry
of prospective relief make a motion to terminate that relief--
pursuant to S 3626(b)8-- in the district court before taking
an appeal to this Court? We must leave these questions to
another day, however, because the concessions made by
the Prison Officials at oral argument render these issues
moot.

The Constitution limits the power of the federal judiciary
to the resolution of "cases and controversies." See U.S.
Const. art. III, S 2, cl. 1; Whitmore v. Arkansas, 495 U.S.
149, 154-155 (1990). Mootness "ousts the jurisdiction of
the federal courts and requires dismissal of the case."
Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 335
_________________________________________________________________

8. Section 3626(b) provides:

         (2) Immediate termination of prospective relief.--In any civil
action
         with respect to prison conditions, a defendant or intervener shall
be
         entitled to the immediate termination of any prospective relief if
the
         relief was approved or granted in the absence of afinding by the
         court that the relief is narrowly drawn, extends no further than
         necessary to correct the violation of the Federal right, and is the
         least intrusive means necessary to correct the violation of the
         Federal right.

         (3) Limitation.--Prospective relief shall not terminate if the
court
         makes written findings based on the record that prospective relief
         remains necessary to correct a current and ongoing violation of the
         Federal right, extends no further than necessary to correct the
         violation of the Federal right, and that the prospective relief is
         narrowly drawn and the least intrusive means to correct the
         violation.
18
(1980). The Supreme Court recently clarified that this
fundamental principle prohibits federal courts from
deciding on the merits any case over which they lack
subject matter jurisdiction. See Steel Co. v. Citizens for a
Better Environment, 118 S. Ct. 1003, 1012 (1998)
(specifically disapproving the practice of assuming
jurisdiction and proceeding to the merits). Absent
exceptional circumstances not present here,9 where a
defendant agrees to afford all the prospective relief a
plaintiff is requesting, mootness doctrine bars a federal
court from deciding the merits of the issue. Philadelphia
Police & Fire Ass'n for Handicapped Children, Inc. v. City of
Philadelphia, 874 F.2d 156, 161 (3d Cir. 1989) ("Full
compliance with an injunction amounting to the entirety of
the relief sought renders an issue moot."); see 13A Charles
Alan Wright et al., Federal Practice and Procedure S 3533.2,
at 238-239.

The district court entered an injunction requiring the
Prison Officials to provide Shore the cold kosher diet and to
refrain from charging him for it. At oral argument, however,
the Prison Officials conceded that (1) Shore was entitled to
a kosher diet and (2) they were not permitted to charge him
for it. By complying with these concessions, as they have
been since November 1996, the Prison Officials are
providing Shore with all the relief to which he
constitutionally is entitled. Under these circumstances,
there is no live "case or controversy" regarding prospective
relief before us, and Article III ousts both us and the
district court of jurisdiction to consider the merits of this
issue. Accordingly, that part of the district court's order
enjoining the Prison Officials to provide Shore with a cold
_________________________________________________________________

9. The Supreme Court has crafted a well-established exception to the
mootness rule: Mootness will not prevent jurisdiction where the conduct
in question is "capable of repetition, yet evading review." Spencer v.
Kemna, 118 S. Ct. 978, 988 (1998). This doctrine applies only where: "(1)
the challenged action [is] in its duration too short to be fully litigated
prior to cessation or expiration, and (2) there[is] a reasonable
expectation that the same complaining party [will] be subject to the same
action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam). The actions of the Prison Officials do not satisfy either of
these
conditions.

                               19
kosher diet and to refrain from charging him for it will be
vacated as moot.

VII.

We have not reached today's decision without sympathy
for the plight of Mr. Shore and Mr. Johnson. The diet which
the Prison has chosen to afford them is one which,
perhaps, few would select as a matter of personal choice.
Nonetheless, we must take proper heed of the federal
courts' role in prison oversight. On this point, we turn
again to the words of the Supreme Court:

       [T]he problems of prisons in America are complex and
       intractable, and, more to the point, they are not readily
       susceptible of resolution by decree. Running a prison is
       an inordinately difficult undertaking that requires
       expertise, planning, and the commitment of resources,
       all of which are peculiarly within the province of the
       legislative and executive branches of government.
       Prison administration is, moreover, a task that has
       been committed to the responsibility of those branches,
       and separation of powers concerns counsel a policy of
       judicial restraint. Where a state penal system is
       involved, federal courts have . . . additional reason to
       accord deference to the appropriate prison authorities.

Turner, 482 U.S. at 84-85. In light of this admonition and
the enactment of the PLRA, we are left wondering why the
Inmates did not bring their claim in state court, where they
would be entitled to the full protection of the Pennsylvania
Constitution and enforcement of Department of Corrections
regulations, without the strictures imposed by the PLRA.
Notwithstanding the concerns expressed by the Inmates'
counsel at oral argument, we have full confidence that the
Pennsylvania judiciary will enforce the civil rights of prison
inmates to the full extent permitted by the law.

We have considered all the parties' arguments and
conclude that no further discussion is necessary. That part
of the district court's order granting partial summary
judgment to both parties and granting Horn and Sobina
qualified immunity will be affirmed. That part of the district

                               20
court's order enjoining Horn and Sobina to provide Shore a
kosher diet at no cost will be vacated as moot.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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