CLD-057                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-3747
                                    ____________

                              MICHAEL NORWOOD,
                                   Appellant,

                                          v.

                        JOHN JOHNSON; RONNIE HOLT
                      __________________________________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 10-cv-01816)
                    District Judge: Honorable William W. Caldwell
                      __________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 1, 2011

            Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

                           (Opinion filed: January 11, 2012)
                                   ____________

                             OPINION OF THE COURT
                                  ____________

PER CURIAM

      Appellant Michael Norwood, an inmate at the United States Penitentiary-Canaan,

is a member of the Nation of Islam. He was participating in the kosher/common-fare
religious diet program at the prison when it underwent a change. 1 In June, 2009, the

Bureau of Prisons switched to prepared meals where certain items were no longer

individually wrapped. These pre-packaged meals were not always vegetarian. Prior to

June, 2009, some of the items in the prepared kosher meals were individually wrapped in

cellophane to ensure that kosher standards were met. After the change, Norwood

requested that Chaplain John Johnson provide him with a halal vegetarian diet consistent

with his religious beliefs. Chaplain Johnson apparently concluded that the diets provided

at USP-Canaan, that is, the “kosher/common-fare” and “mainline/no-flesh” diets, were

adequate to meet Norwood’s religious needs.

         Norwood then submitted an informal request to his counselor, claiming that the

change meant that the prison’s kosher religious diet no longer satisfied Nation of Islam

teachings. On June 24, 2009, Norwood received a response from a counselor explaining

the prison’s two existing options, and advising Norwood that, if he was dissatisfied with

the options, he could submit a “New Or Unfamiliar Religious Components

Questionnaire” form to the chaplain.

         Norwood then submitted a Request for an Administrative Remedy directly to

Warden Holt. On or about July 11, 2009, Warden Holt responded and noted that

Norwood had been advised to submit a “New Or Unfamiliar Religious Components

Questionnaire.” Citing Bureau of Prisons Program Statement 5360.09, Warden Holt

stated: “While you have started completing this form it has been revealed that the

chaplain needs additional information from you in order to have it processed…. This is

1
    Kosher meals meet the religious requirements for Muslims.
                                             2
provided for informational purposes only.” See Defendants’ Exhibit 3 in Support of

Motion to Dismiss, or, in the alternative, for Summary Judgment, at 6. Thereafter,

Norwood appealed unsuccessfully to the Regional Director and the Central Office. The

Regional Director also noted the incomplete “New Or Unfamiliar Religious Components

Questionnaire.” In July, 2009, Norwood was observed eating from the mainline-non-

certified food menu, and, as a result, he was removed from the religious diet program. 2

       On August 30, 2010, Norwood filed a complaint against Chaplain Johnson and

Warden Holt in the United States District Court for the Middle District of Pennsylvania,

alleging that they violated his rights under the First Amendment and the Religious

Freedom Restoration Act, 42 U.S.C. § 2000bb (“RFRA”). Norwood sought an award of

damages in the amount of $100,000.00 against each defendant and such other relief as the

court deemed proper. The defendants filed a motion to dismiss, or, in the alternative, for

summary judgment, arguing that Norwood failed to state a claim under either the First

Amendment or RFRA, that the defendants were qualifiedly immune from a suit for

money damages, and that Warden Holt lacked any personal involvement in the conduct

alleged. In a Declaration in support of the motion, Chaplain Johnson stated that Norwood

completed a “New Or Unfamiliar Religious Components Questionnaire,” but it had been

inadvertently submitted (by Johnson) to the Regional Chaplain, when it should have gone

instead to Warden Holt. Chaplain Johnson stated that a new form would be provided to

Norwood.

2
 Norwood would later argue that he ate from the mainline/non-certified food menu out of
necessity when his initial informal request for an administrative remedy was
unsuccessful.
                                            3
       Norwood filed a response in opposition to the defendants’ motion to dismiss, etc.

In a brief in reply to Norwood’s response, the defendants grasped that Norwood wanted a

vegetarian halal diet free of cross-contamination by animal-based foods. This he could

no longer accomplish through the new kosher religious diet because it did not provide for

certain items to be individually wrapped in cellophane. The defendants argued for the

first time that Norwood had failed to exhaust his administrative remedies with respect to

this specific religious diet claim. They also stated that Norwood had recently completed

a “New Or Unfamiliar Religious Components Questionnaire,” seeking a vegetarian halal

diet free of cross-contamination by animal based foods. The questionnaire had been

routed to the Warden and the Regional Religious Services Staff, and a decision on

Norwood’s request had not yet been made. The defendants also advised the court that

one other federal prisoner had filed suit in the Middle District over an identical issue, see

Jupiter v. Johnson, D.C. Civ. No. 10-cv-01968.

       The Magistrate Judge filed a Report and Recommendation, in which he

recommended that the defendants’ motion to dismiss or for summary judgment be

denied. The Magistrate Judge specifically considered and rejected the defendants’

exhaustion of administrative remedies argument, because Norwood had an appeal that

went all the way up to the Central Office. The defendants then filed Objections. In an

order entered on September 28, 2011, the District Court granted the defendants’ motion

to dismiss or for summary judgment, and rejected the Report and Recommendation

insofar as the Magistrate Judge concluded that the defendants were not entitled to

qualified immunity. The court concluded that the defendants were indeed qualifiedly

                                              4
immunized from a suit for damages, reasoning that the Magistrate Judge had defined the

asserted “clearly established constitutional right,” see Anderson v. Creighton, 483 U.S.

635, 640 (1987), as the right to a diet consistent with one’s religious beliefs. The right

defined by the Magistrate Judge was at too high a level of generality, see Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2080 (U.S. 2011). In the District Court’s view, Chaplain Johnson

had merely failed to submit the “New Or Unfamiliar Religious Components

Questionnaire” to the correct party, but this minor error did not expose him to a suit for

money damages. Similarly, Warden Holt merely told Norwood that the Chaplain needed

additional information. His conduct too thus was cloaked in qualified immunity.

       Norwood appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk

granted him leave to appeal in forma pauperis and advised him that the appeal was

subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B), or summary affirmance

under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in

writing, and, in response, he submitted a pro se brief, which we have considered.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The

District Court properly granted the defendants’ motion to dismiss or for summary

judgment because Norwood failed to exhaust his administrative remedies prior to

bringing suit, as required by 42 U.S.C. § 1997e(a). See Booth v. Churner, 532 U.S. 731

(2001). 3 Giving an agency the opportunity to correct its errors is a central purpose of the


3
 We “are free” to affirm the judgment “on any basis which finds support in the record.”
See Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980).
                                              5
exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). The Supreme

Court has explained that:

              Because exhaustion requirements are designed to deal with parties who do
              not want to exhaust, administrative law creates an incentive for these
              parties to do what they would otherwise prefer not to do, namely, to give
              the agency a fair and full opportunity to adjudicate their claims.
              Administrative law does this by requiring proper exhaustion of
              administrative remedies, which means using all steps that the agency holds
              out, and doing so properly (so that the agency addresses the issues on the
              merits).

Id. (citations and internal quotation marks removed).

       Pursuant to 28 C.F.R. § 548.12, “[i]nstitution chaplains are responsible for

managing religious activities within the institution.” A religious diet is considered to be a

“religious activity.” See id. at § 548.11. The parties do not dispute that the “New Or

Unfamiliar Religious Components Questionnaire” is the form to be filled out when an

inmate requests a religious activity, like a new diet, and when additional information is

required by the Chaplain to decide whether or not to approve it. See id. at § 548.12.

Eventually, it should go to the Warden. In Norwood’s case, the agency inadvertently

failed to properly handle his form, resulting in the need for him to resubmit it. As the

District Court noted in prematurely reaching the qualified immunity issue, Warden Holt

neither granted nor denied Norwood’s request for a vegetarian halal diet free of cross-

contamination by animal-based foods. Even the Regional Director noted the incomplete

“New Or Unfamiliar Religious Components Questionnaire.” Once the defendants

asserted in their reply brief that Norwood had recently completed the “New Or

Unfamiliar Religious Components Questionnaire,” specifically seeking a vegetarian halal


                                             6
diet free of cross-contamination by animal based foods, and that the questionnaire had

been routed to the Warden for a decision, it was clear that the agency had not rendered a

final decision in Norwood’s case and that his federal civil action was subject to dismissal

for failure to exhaust administrative remedies, 42 U.S.C. § 1997e(a).

       Proper exhaustion means using all of the steps the agency holds out, Woodford,

548 U.S. at 89, including, here, the unremarkable step of resubmitting a form the agency

lost, or resubmitting a form to clarify for the agency the exact nature of one’s claim.

Efficiency is not promoted, see Nyhuis v. Reno, 204 F.3d 65, 76 (3d Cir. 2000), by

allowing a claim to proceed in federal court under the circumstances presented here. The

importance of the lack of administrative finality in Norwood’s case cannot be overstated.

As the parties well know, the Jupiter case, D.C. Civ. No. 10-cv-01968, raised the

identical issue. To illustrate that completion of the “New Or Unfamiliar Religious

Components Questionnaire” is an essential component of the exhaustion process in a case

like Norwood’s, and that agencies are capable of correcting their errors, we note the

following satisfying outcome. In a brief, defendants Chaplain Johnson and Warden Holt

noted that inmate Jupiter filed the required form on May 7, 2011; a kosher vegetarian

certified food menu then was approved for him, starting on June 5, 2011. See

Defendants’ Reply Brief in Support of their Objections, Jupiter v. Johnson, D.C. Civ. No.

10-cv-01968, Docket Entry No. 53, at 5. The District Court dismissed the action for

failure to exhaust administrative remedies, and no appeal has been taken.




                                             7
       For the foregoing reasons, we will summarily affirm the order of the District

Court granting the defendants’ motion to dismiss or, in the alternative, for summary

judgment.




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