After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

February 16, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JIMMY SEARLES,

Plaintiff-Appellee,

 v.

L. E. BRUCE, Warden, Hutchinson

Correctional Facility; STEVEN

DECHANT, Deputy Warden for

KDOC, Hutchinson Correctional

Facility; WILLIAM CUMMINGS,

Deputy Secretary of Corrections for

KDOC,

Defendants-Appellants,

 and

KARIM KHALIL GREEN, Chaplain

for KDOC, Hutchinson

Correctional Facility; FNU LNU,

Unknown Security Person,

Defendants.

No. 05-3031

(D.C. No. 01-CV-3379-JTM)

(D. Kan.)

ORDER AND JUDGMENT

*
Because plaintiff appears pro se, we review his pleadings and other papers 1

liberally and hold them to a less stringent standard than those drafted by

attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

Tefillin are leather boxes with attached leather straps containing passages 2

from the Torah that are used in Jewish prayer.

-2-

Before O’BRIEN, HOLLOWAY, and BALDOCK, Circuit Judges.

Defendants-Appellants appeal from the denial of a motion for summary

judgment seeking qualified immunity and the denial of a motion to reconsider that

ruling. For the reasons stated below, we lack jurisdiction and dismiss the appeal.

I. Background and Procedural History

Plaintiff-Appellee Jimmy Searles, appearing pro se, was incarcerated as a 1

state prisoner at the Hutchinson Correctional Facility in Hutchinson, Kansas, at

all times relevant to the acts that form the basis of his claims in this action. He

filed a complaint under 42 U.S.C. § 1983 alleging that defendants denied him the

use of Tefillin and a meaningful religious observance of the Jewish festival of 2

Sukkoth in 1999 and 2000, both in violation of his First Amendment right to free

exercise of religion.

Defendants filed a motion for summary judgment asserting, inter alia,

qualified immunity due to lack of personal participation and requesting summary

judgment on the merits of plaintiff’s claims (First Summary Judgment Motion). 

The district court denied the motion as to qualified immunity, finding that
The amended complaint was filed in March 2004, nearly five months after 3

the district court ruled on the First Summary Judgment Motion.

-3-

plaintiff adequately had alleged personal participation of each of the defendants. 

The court granted summary judgment on the merits of all of plaintiff’s claims

except the denial of a “festive meal” of apples and honey, stating that “a factual

issue remains concerning whether defendants provided apples as part of the

plaintiff’s meal in celebration of Rosh Hoshana [sic].” Aplt. App. at 37-38. The

court also noted the existence of a “larger issue,” namely, “the authorization for

festive meals while in segregation,” and stated that defendants “offer no rationale

for the policy of denying inmates festive meals while in segregation.” Id. at 38.

On the record provided to us, it appears that the denial of the festive meal

was not raised in the original complaint. Instead, it appears in “Count III” of

plaintiff’s amended complaint, apparently in the allegation that defendants denied

him a meaningful observance of Rosh Hashanah in 2000. Id. at 51. Shortly 3

after plaintiff filed his amended complaint, defendants filed a “supplemental”

motion for summary judgment in which they argued that plaintiff failed to

establish their personal participation in the denial of the festive meal because his

claims were merely conclusory allegations unsupported by any facts (Second

Summary Judgment Motion). The district court denied the motion, concluding

that whether or not defendants provided plaintiff with a festive meal remained a

disputed fact issue. The court also ruled that defendants’ citation to
Because we have not found a copy of this section in the appendices, we rely 4

on the district court’s representation of its contents.

-4-

§ 20-105(IV)(A) of the Kansas Department of Internal Management Policy and

Procedure, which apparently states that inmates in segregation shall be treated as

nearly as possible like any other inmate in the general population of the

institution or facility, “does not settle the factual dispute at issue here.” Id. at 4

63.

Defendants Bruce, DeChant, and Cummings (but not Green) (hereinafter,

appellants) then filed a third motion for summary judgment, which was amended

three times (Third Summary Judgment Motion). They argued that they are

entitled to qualified immunity because there is no clearly established right to a

favorable result from the grievance process. They based this argument on the

factual assertions set forth in the final pretrial order, namely, that defendant

Green denied the festive meal and appellants denied plaintiff’s grievances of that

denial.

The district court denied the motion, framing plaintiff’s claim against

appellants as a violation of his constitutional right to have his religiously based

dietary requirements accommodated rather than, as appellants had framed it, a

violation of his right to a favorable result from the grievance process. Citing its

earlier order denying the First Summary Judgment Motion, the court stated that

plaintiff had alleged that he was denied a festive meal. The court concluded that,
-5-

at the time of the alleged denial, there was a clearly established constitutional

right to accommodation of religiously based dietary requirements, and reiterated

its concern that appellants offered no rationale for a policy of denying festive

meals to inmates in segregation. Id. at 141-42. Appellants filed a motion for

reconsideration of that order, which the district court denied.

II. Discussion

Under the collateral order doctrine, “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). 

However, this jurisdiction is limited to appeals challenging “not which facts the

parties might be able to prove, but, rather, whether or not certain given facts

showed a violation of ‘clearly established’ law.” Johnson v. Jones, 515 U.S. 304,

311 (1995) (quoting Mitchell, 472 U.S. at 528). An appellate court, therefore,

generally “need not consider the correctness of the plaintiff’s version of the facts,

nor even determine whether the plaintiff’s allegations actually state a claim.” 

Mitchell, 472 U.S. at 528. 

Based on Mitchell and Johnson, we lack jurisdiction over this appeal

because appellants challenge the denial of qualified immunity on the facts, not the

law. Appellants do not argue that the district court erred in ruling that the denial

of the festive meal violated plaintiff’s clearly established constitutional right to
We note that, even if appellants had raised this as an issue, we would 5

affirm the order denying the Third Summary Judgment Motion for substantially

the same reasons as the district court.

We note that the district court expressed its conclusions on appellants’

6

personal participation in an earlier order, albeit prior to the filing of the final

pretrial order. Aplt. App. at 36 (denying qualified immunity because “plaintiff

adequately alleged the personal participation of each of the defendants”).

-6-

have his religiously based dietary requirements accommodated. Instead, they 5

argue that, in the final pretrial order, plaintiff alleges only that they denied his

grievances, not that they denied him a festive meal. They conclude that, because

the final pretrial order does not include a claim that appellants had a policy to

deny festive meals to inmates in segregation, the alleged policy is irrelevant to the

qualified immunity analysis, and the court erred by basing its analysis on it.

In substance, this argument challenges the district court’s treatment of

plaintiff’s remaining claim as one “that defendants . . . denied him a festive meal

in celebration of Rosh Hashona [sic] while he was in segregation[,]” Aplt. App. at

138. Apparently, the district court construed this claim to include the existence

of a “policy of denying festive meals while in segregation[,]” id. at 142. By their

argument, therefore, appellants ask us to address the nature and extent of their

personal participation in the denial of the festive meal based on the wording of

the final pretrial order. This would require us to consider the factual basis of 6

plaintiff’s claim rather than a purely legal issue based on certain given facts. 
We decline to address appellants’ alternative argument concerning their 7

proffered rationales for a policy to deny festive meals to inmates in segregation. 

Appellants raised these arguments in the Second Summary Judgment Motion, the

denial of which they have not appealed. It appears that motion did not rely on the

qualified immunity defense. Therefore, it is unlikely that appellants could have

taken an interlocutory appeal from the order denying it.

-7-

Accordingly, we lack jurisdiction under the collateral order doctrine. See

Johnson, 515 U.S. at 311.7

Conclusion

Because we lack jurisdiction, we DISMISS the appeal and REMAND this

action to the district court for further proceedings.

Entered for the Court

Terrence L. O’Brien

Circuit Judge