No. 94-3113

 

Daniel Lee Holterman *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

James Helling, John Emmett, *

Robert Washington, John * [UNPUBLISHED]

Goetz, Thomas Hundley, *

*

 Appellees. *

 

Submitted: October 19, 1995

 Filed: November 30, 1995

 

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

 

PER CURIAM.

Daniel Lee Holterman appeals the district court's adverse grant of

summary judgment in his section 1983 action against Iowa prison officials.

We affirm.

Holterman, an Oregon inmate, was incarcerated in the Iowa State

Penitentiary from March 17, 1990 until July 8, 1993, when he was

transferred back to the Oregon Department of Corrections. Holterman

brought this section 1983 claim against the Iowa prison officials for

failing to provide him with a kosher diet in violation of his First

Amendment free exercise rights as a Hasidic Jew. In response to

Holterman's request for a kosher diet, prison officials instead issued him

a non-pork diet and permitted him to purchase kosher food, at his own

expense, during Jewish holidays. 
2

There is no doubt that the Iowa State Penitentiary's policy of

providing a non-pork diet and permitting special requests for kosher meals

on Jewish holidays significantly restricts the free exercise of a Hasidic

Jew's religious belief. The district court granted summary judgment to the

prison officials, however, concluding that they had not burdened

Holterman's free exercise rights in such a way as to amount to a

constitutional violation under the test set forth in Turner v. Safely, 482

U.S. 78, 89-91 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-

352 (1987). Alternatively, the district court concluded that defendants

were entitled to qualified immunity.

On appeal, Holterman contends that the district court should have

reviewed his free exercise claim under the compelling interest standard

revived by the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§

2000bb to 2000bb-4 (1994) (RFRA). We recognize that RFRA applies

retroactively, § 2000bb-3(a), and that it applies to prisoner litigation.

S. Rep. No. 111, 103d Cong. 1st Sess. at 9 (1993), reprinted in 1993

U.S.C.C.A.N. 1892, 1898-1890. In this case, however, we do not consider

the new RFRA standard for prisoner free exercise claims because Holterman

failed to amend his complaint to allege a RFRA violation. See Brown-El v.

Harris, 26 F.3d 68, 69 (8th Cir. 1994). We therefore agree with the

district court that Holterman's claim should be reviewed in light of preRFRA standards.

Under pre-RFRA standards, a prison regulation that impinges on an

inmate's constitutional rights is valid if it is reasonably related to

legitimate penological interests. O'Lone, 482 U.S. at 349; Turner, 482

U.S. at 89. The prison officials assert that, given the few kosher diet

requests in the Iowa Department of Corrections, the administrative burden

and costs of providing kosher food were not warranted. Applying the

deferential Turner standard, we conclude that the penitentiary's policy was

rationally related to its economic and administrative concerns. Because

we
3

affirm the district court's grant of summary judgment for lack of a

constitutional violation, we need not discuss the applicability of

qualified immunity in this case.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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