                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3611
                         ___________________________

                         Napoleon-Ahmed Mbonyunkiza

                                Plaintiff - Appellant

                                         v.

                          Jeff Beasley; Kristine Weitzell

                              Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: December 12, 2019
                             Filed: April 24, 2020
                                 ____________

Before LOKEN, GRASZ, and STRAS, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Iowa inmate Napolean-Ahmed Mbonyunkiza has been a practicing Muslim
since birth; his religious beliefs forbid consumption of pork or pork by-products. In
2017, Mbonyunkiza filed four separate grievances claiming he had eaten or been
served food items that contained pork. Dissatisfied with the responses, Mbonyunkiza
filed this 42 U.S.C. § 1983 damage action against Food Services Director Jeff
Beasley and Warden Kristine Weitzell of the Newton Correctional Facility (“NCF”)
in Newton, Iowa, alleging violations of his First Amendment right to free exercise of
religion. The district court1 granted summary judgment in favor of Beasley and
Weitzell. Mbonyunkiza appeals. Reviewing the grant of summary judgment de novo
and viewing the evidence in the light most favorable to the non-moving party, we
conclude Mbonyunkiza failed to show defendants deprived him of a constitutional
right and therefore affirm. See Parks v. City of Horseshoe Bend, 480 F.3d 837, 839
(8th Cir. 2007) (standard of review).

                                   I. Background

        The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a
prisoner confined in any . . . correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a). Congress strengthened and
made mandatory this exhaustion provision “to reduce the quantity and improve the
quality of prisoner suits [by] afford[ing] corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal case.” Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). Full exhaustion is required even when, as
in this case, the inmate seeks a damage remedy the grievance process does not award.
See Booth v. Churner, 532 U.S. 731, 741 (2001).

      A four-step grievance procedure created by the Iowa Department of
Corrections (“IDOC”) Central Office is available to NCF inmates. First, the inmate
must attempt informal resolution. Second, the inmate files a formal grievance with
the NCF grievance officer within thirty days of the incident; the grievance officer
must investigate and respond within twenty-one days. Third, a dissatisfied inmate
may appeal to the Warden, who must respond within fifteen days. Fourth, if still


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

                                          -2-
dissatisfied, the inmate may appeal to the IDOC Central Office, which must respond
within thirty days. In this case, defendants contested whether Mbonyunkiza fully
exhausted two of the four grievances, but they do not challenge on appeal the district
court’s ruling that all four were fully exhausted. Although exhaustion is therefore not
at issue, given the purpose of the requirement, Mbonyunkiza’s four grievances and
the prison administrators’ responses are important background facts.

       1. On March 29, 2017, Mbonyunkiza submitted grievance No. 32317 alleging
that, during breakfast that day and several other times, he was served a pop tart pastry
that contained gelatin made from pork. He asked that the pop tart no longer be served
and that he be paid $200,000 because “my faith had been and continues to be abused
by NCF Main Kitchen Staffs.” The NCF Executive Officer responded that Food
Services Director Beasley contacted the manufacturer to determine whether the pop
tart contained pork gelatin. Because the manufacturer was only 95% sure the gelatin
was derived from beef, not pork, Beasley decided to stop purchasing that brand of
toaster pastry. The grievance was denied because “[m]onetary compensation is not
a resolution attainable through the grievance process.” Mbonyunkiza appealed the
denial of $200,000 compensation. Warden Weitzell upheld the denial.

       2. On July 10, 2017, Mbonyunkiza submitted grievance No. 33273 alleging
that “NCF Main Kitchen Staffs have sent mixed food trays containing pork and [non-
pork] without any sign indicating that there is pork on the menu.” He requested
investigation of kitchen staffs “who continue to abuse my faith” and appointment of
a food coordinator who does not eat pork. The response stated that “the menus posted
on the units and [closed circuit] Channel 50 have meals underlined that contain pork.
This process was done for the date in question.” Mbonyunkiza appealed, explaining
that pork-free trays were placed underneath pork trays on the cart sent from the main
kitchen; that pork leaked onto the pork-free food; that the cart did not have a sign
indicating there was pork on the menu; and that he had complained to the unit



                                          -3-
manager, who could not resolve the situation. Warden Weitzell denied the appeal
because “the meal was posted accurately and according to our process.”

       3. On November 17, 2017, Mbonyunkiza submitted Grievance No. 34765
alleging that, the day before, he was served and ate “Shredded Wheat Frosted Cereal
at breakfast which contains pork gelatin ingredient which is against my religion.” He
requested that NCF investigate and “repair the damage” caused by kitchen staff. The
unit manager’s response stated the grievance was partially sustained: “NCF Dietary
Department was unaware that the meal in question contained pork. Having
discovered this, the item will no longer be served.” Mbonyunkiza appealed,
requesting $400,000 “to repair my faith and belief.” Warden Weitzell upheld the
decision, again explaining that monetary compensation is not a grievance remedy.

       4. On December 10, 2017, Mbonyunkiza submitted grievance No. 34964
alleging the main kitchen sent a lunchtime meal cart containing both pork and pork-
free trays without a sign indicating pork was on the menu that warns correction
officers not to serve pork trays to inmates who do not eat pork. The unit manager’s
response partially sustained the grievance: “You are correct the officers were not
notified on the cart that there was pork on the menu. Once that was discovered, staff
took action to correct the situation. . . . Non-pork eaters are also made aware of this
by the pork item being underlined on the menu.” Mbonyunkiza appealed, requesting
that kitchen staff stop “providing us pork in hidden ways intentionally” and to “repair
the damage.” Warden Weitzell upheld the decision ruling, explaining that dietary
staff was not withholding information intentionally and, once discovered, the mistake
was corrected.

       The summary judgment record established that meals at NCF are prepared in
the main kitchen and transported via portable serving stations to cell houses where
inmate workers serve the food. Inmates who do not eat pork are offered a non-pork
alternative. Meals are planned five weeks in advance, and menus are made available

                                         -4-
to inmates at least one week in advance through postings in the cell houses and
NCF’s closed-circuit television channel. Food items are underlined on the weekly
menu to indicate that they contain pork. For example, the menu on July 10, 2017,
underlined “Ham & Beans,” with “Pork” written and underlined next to Ham &
Beans. Inmates can request a meatless substitute marked “S” on the menu when pork
is served. As Food Services Director at NCF, Beasley plans meals and orders food
for those meals. Warden Weitzell is not personally involved in planning, preparing,
or ordering food for meals.

      After Mbonyunkiza filed his initial complaint pro se, the district court granted
his motion to appoint counsel. Counsel filed a Supplemental Complaint alleging that
defendants intentionally, recklessly, willfully, and maliciously -

      violated Plaintiff’s Constitutional rights by providing pork or pork
      products in violation of Plaintiff’s faith and continued to do so after
      being informed on several occasions products contained pork or were
      mixed with pork without providing sufficient notice to Plaintiff and
      inmates.

The district court granted summary judgment dismissing this First Amendment claim.
The court concluded Mbonyunkiza did not satisfy his burden to show that defendants
violated his right to free exercise of religion because four “inadvertent and isolated”
incidents failed to show a “substantial burden on his . . . ability to practice his
religion,” citing Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008).

                                   II. Discussion

       As relevant here, the First Amendment provides that “Congress shall make no
law . . . prohibiting the free exercise [of religion].” U.S. Const. amend. I. This
prohibition applies to state legislatures through the Fourteenth Amendment. See
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The Free Exercise Clause

                                         -5-
prohibits government from enacting laws, promulgating regulations, or adopting
policies that “compel affirmation of religious belief, punish the expression of
religious doctrines it believes to be false, impose special disabilities on the basis of
religious views or religious status, or lend its power to one or the other side in
controversies over religious authority or dogma.” Emp’t Div., Dep’t of Human Res.
of Or. v. Smith, 494 U.S. 872, 877 (1990) (citations omitted).

       “Prison walls do not form a barrier separating prison inmates from the
protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). But courts
owe deference to the challenges facing prison administrators. Thus, when a prison
regulation or policy impinges on an inmate’s sincerely held religious beliefs, “the
regulation is valid if it is reasonably related to legitimate penological interests.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987), quoting Turner, 482 U.S. at
89. Although the Supreme Court has not addressed the issue, like most courts we
have applied this standard to prison regulations that conflict with an inmate’s
sincerely held religious dietary beliefs. However, like other courts, we have made the
standard more restrictive -- to warrant a Turner analysis of penological interests, the
inmate must show the challenged regulation “substantially burdens” his sincerely held
belief. Patel, 515 F.3d at 813. The substantially burdens requirement was the basis
of the district court’s summary judgment decision and the focus of the parties’ briefs
on appeal. That Mbonyunkiza’s religious dietary belief is sincerely held is not at
issue, and the district court did not reach the Turner analysis.

       The origin of a substantially burdens requirement in § 1983 Free Exercise
Clause cases is somewhat obscure. See Thomas v. Review Bd. of Ind. Employ. Sec.
Div., 450 U.S. 707, 716-18 (1981). Congress incorporated the restriction in a related
context, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc-1(a): “No government shall impose a substantial burden on the
religious exercise of a person residing in [a prison] . . . .” RLUIPA’s legislative
history suggests that this statutory requirement is intended “to weed out false

                                          -6-
religious claims that are actually attempts to gain special privileges or to disrupt
prison life.” Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996) (quotation
omitted).2 We have defined the § 1983 requirement in general terms. To
substantially burden an inmate’s free exercise of religion, a prison regulation -

      must significantly inhibit or constrain conduct or expression that
      manifests some central tenet of a person’s individual religious beliefs;
      must meaningfully curtail a person’s ability to express adherence to his
      or her faith; or must deny a person reasonable opportunities to engage
      in those activities that are fundamental to a person’s religion.

Patel, 515 F.3d at 813, quoting Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th
Cir. 2004), cert. denied, 543 U.S. 991 (2004).3

       The substantial burden test is relatively well-suited for the consideration of
many § 1983 claims based on the Free Exercise Clause, such as the religious claims
at issue in Weir, 114 F.3d at 819-20. But courts have struggled to define when a
regulation or policy that allegedly impinges on an inmate’s religious dietary belief
“substantially burdens” that belief. Cf. Abdulhaseeb v. Calbone, 600 F.3d 1301,
1324-26 (10th Cir. 2010) (Gorsuch, J., concurring, discussing the somewhat different
“substantially burdens” requirement in RLUIPA), cert. denied, 562 U.S. 967 (2010).


      2
       Mbonyunkiza’s Supplemental Complaint did not assert a claim under
RLUIPA, no doubt because Iowa’s sovereign immunity bars RLUIPA damage claims.
See Sossamon v. Texas, 563 U.S. 277 (2011). This opinion considers only § 1983
claims based upon the Free Exercise Clause. For a discussion of the interplay
between the two types of claims, see generally Holt v. Hobbs, 574 U.S. 352 (2015).
      3
       For the most part, our Free Exercise Clause cases have declared that whether
an inmate’s rights were substantially burdened is a question of law. See Altman v.
Minn. Dep’t of Corr., 251 F.3d 1199, 1204 (8th Cir. 2001); Weir v. Nix, 114 F.3d
817, 820 (8th Cir. 1997). But there is considerable disagreement on that issue, which
we need not attempt to reconcile in this case.

                                         -7-
As the district court noted, there is extensive (but not total) agreement that an
isolated, intermittent, or otherwise de minimis denial or interruption of an inmate’s
religiously required diet does not substantially burden his religious belief. See Colvin
v. Caruso, 605 F.3d 282, 293-94 (6th Cir. 2010); Abdulhaseeb, 600 F.3d at 1321;
Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009); Rapier v. Harris, 172
F.3d 999, 1006-07 n.4 (7th Cir. 1999); Watkins v. Donnelly, 551 F. App’x 953, 960-
61 (10th Cir. 2014) (unpublished); Tapp v. Proto, 404 F. App’x 563, 566 (3d Cir.
2010) (unpublished); Norwood v. Strada, 249 F. App’x 269, 272 (3d Cir. 2007)
(unpublished). But see Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016); Ford
v. McGinnis, 352 F.3d 582, 591-94 (2d Cir. 2003).

        We agree with the district court’s interpretation and application of the
substantially burdens requirement in this case. In addition, we conclude that
Mbonyunkiza’s Free Exercise Clause claim suffers from a more fundamental defect.
The Free Exercise Clause is directed at legislative action -- “Congress shall make no
law . . . prohibiting the free exercise [of religion].” See Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 451 (1988) (“The crucial word in the constitutional
text is ‘prohibit.’”); Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006). Accordingly,
the Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our
research has uncovered, have involved claims alleging that a statute, or a regulation
or policy implementing a statute, unconstitutionally prohibited a sincerely held
religious belief or otherwise unduly burdened the free exercise of religion.

       By contrast, in this case NCF’s food policies affirmatively accommodate the
beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not
challenge those policies. Rather, his Supplemental Complaint asserts that defendants
are liable in damages because they did not properly implement those policies on
certain occasions. The responses to his grievances confirm that, to the extent his
complaints were accurate, they were the result of four inadvertent and isolated
mistakes by a “kitchen staff” that served Mbonyunkiza approximately 771 meals over

                                          -8-
the 257 days between the first and last grievances. Although he alleged in conclusory
fashion that defendants did this intentionally, recklessly, and maliciously, he
presented no evidence that the incidents were anything other than negligent mistakes.

       “[I]n any given § 1983 suit, the plaintiff must still prove a violation of the
underlying constitutional right; and depending on the right, merely negligent conduct
may not be enough to state a claim.” Daniels v. Williams, 474 U.S. 327, 330 (1986).
In Daniels, the Court concluded “that the Due Process Clause is simply not implicated
by a negligent act of an official causing unintended loss of or injury to life, liberty,
or property.” Id. at 328 (emphasis in original). Although the decision in Daniels did
not establish what state of mind must be proved to establish a Free Exercise Clause
claim, Mbonyunkiza has cited no case holding that the negligent failure to implement
a prison policy intended to protect inmates’ free exercise of religion is actionable
under § 1983. The fact that inmates are confined in the government’s custody does
not suggest that it is. “Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97,
106 (1976).

       For these reasons, we conclude that, absent evidence that an underlying prison
regulation or policy violates the Free Exercise Clause, evidence that a correction
official negligently failed to comply with an inmate’s sincerely held religious dietary
beliefs does not establish a Free Exercise Clause claim under § 1983. Accord
Gallagher, 587 F.3d at 1070. Therefore, the district court properly granted summary
judgment dismissing Mbonyunkiza’s claims. Although evidence of pervasive
“mistakes” might support a claim that NCF had a de facto policy of ignoring or
deviating from its free-exercise-compliant policies, no such evidence was presented
here.

      The judgment of the district court is affirmed.
                     ______________________________

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