UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JERRY BLAIR, Plaintiff - Appellant,

v. RICK RAEMISCH, Ex ecutive Director, C.D.O.C.; STEVEN OWENS, CSP Warden; CPT. RICH ARD, CSP Kitchen Supervisor; OFFRELIG, Creator of Religious Menue, C.D.O.C.; CHARLEEN CROCKETT, Food Service Administrator; CAPT. PHIPPS, SCF Kitchen Supervisor; CANTEEN REVIEW COMMITTEE, C.C.I., Defendants - Appellees. No. 18-1349 (D.C. No. 1:17-CV -00830-CMA-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and CARSON , Circuit Judges.

________________ _________________ Jerry Blair, a state prisoner proceed ing pro se, filed this action under 42 U.S.C. § 1983; the Religious Land Use a nd Institutionalized Persons Act (RLUIPA),

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 2, 2020 Christopher M. Wolpert Clerk of Court2 42 U.S.C. § 2000cc to 2000 cc-5; and Colo. Rev. Stat . § 24-34-601(2)(a), alleging officials with the Colorado Department of Corrections (CDOC), the Sterling Correctional Facility (SCF), and Colorado State Prison (CSP) vi olated his federal and state rights. He now appeals the district court’s dismissal of his case under Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part. I. BACKGROUND As relevant to this appeal, Blair alle ges the following fact s in the operative complaint: 1
Blair is a Buddhist and has followed a Buddhi st vegan religious diet in prison for the last five years. In 2015, while he wa s incarcerated at SCF, the prison’s kitchen supervisor, Defendant Phipps, changed his relig ious diet for all lunches and dinners to pinto beans and steamed rice. Blair was serv ed this same diet from January 24, 2015 through April 10, 2015, when CDOC transfe rred him to the CSP, even though another Buddhist vegan inmate at SCF was served a more varied vegan menu during this time. As a result of the alleged overdo se of beans in his diet at SCF, Blair developed a severe case of gout. In the fall of 2016, after Blair’s transferto the CSP, the CD OC changed the vegan religious diet menu there to incl ude a “vegan patty,” made at the prison, that consists of left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked. Id. at 15, 33. Blair alleges this patty is essentially a pu nitive food known as

1 Because Blair is acting pro se, we c onstrue his pleadings and other filings liberally. Trackwell v. United States , 472 F.3d 1242, 1243 ( 10th Cir. 2007).3 “nutra loaf,” 2 and that it is inedible, and “stinks” to the point that he cannot eat his entire meal after smelling it. Id. at 15; see id. at 32-34. And when he does eat the patty, it causes gastrointestinal distress, vomiting, horrible gas, and diarrhea. Although Blair repeatedly informed pr ison authorities that the vegan pat ties make him sick and that he cannot eat them, CSP continues to serve them on nineteen of th e twenty-eight days in his recurring four-week religious meal cycle. Be cause the vegan patty is inedible and makes him sick, Blair must buy his own vegan meal from the prison canteen on the days it is served or go hungry. Based on these and other allegations, Bl air filed this action in April 2017, asserting claims under 42 U.S.C. § 1983 for violations of his ri ghts under the First, Eighth, and Fourteenth Amendm ents and RLUIPA, as well as a state discrimination claim under Colo. Rev. Stat. § 24-34-601(2)(a), agai nst various CDOC, SCF and CSP officials. The district court identified de ficiencies in Blair’s complain t and ordered him to file an amended complaint. After he did so, the dist rict court granted Blai r in forma pauperis (IFP) status under 28 U.S.C. § 1915 and then reviewed the amended complaint under § 1915(e)(2)(B). As a result of this review , the district court dismissed a number of Blair’s claims as legally frivolous pursuant to § 1915(e)(2)(B)(i), but found the following

2 Nutra loaf, also known as “nutralo af,” “nutriloaf,” “prison loaf,” or “disciplinary loaf,” is “a bad-tasting food given to prisoners as a form of punishment,” Prude v. Clarke , 675 F.3d 732, 733 (7th Cir. 2012). “It is made by blending a variety of foods fro m normal prison meals” and ba king it into solid loaf. LeMaire v. Maass , 12 F.3d 1444, 1455 (9th Cir. 1993). Blair alleges CSP serves the “nutra loaf” vegan patty to him even t hough he has not been accused of any disciplinary infractions. ROA Vol. 1 at 15.4 claims survived this initial screening: (1) Blair’s Eight h Amendment, First Amendment free exercise and Fourteenth Amendment equa l protection claims ba sed on being served rice and beans for a prolonged period of time at the SCF; (2) his First Amendment free exercise and RLUIPA claims for being served vegan pa tties as part of his religious diet at the CSP; and (3) his state-law discrimination claim based on these a nd additional, largely unrelated allegations. Defendants moved to dismiss these re maining claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Blair filed a re sponse in opposition to their motion and a motion to again amend his complaint. A magistrate judge, acting on referral from the court, denied Blair’s motion to amend an d recommended that the district court grant Defendants’ motion to dismiss. The magistrate judge also notified the parties that they could file objections to her proposed findings and recommenda tions within fourteen days after service of the Recommendation. Blair placed his objections to the Reco mmendation in the prison mail system the day before the objection deadlin e, but the court did not r eceive them until eight days later, on August 16, 2018, hours after it had entered an or der and judgment adopting the Recommendation in part and rejecting it in part (“August 16 Order”). More specifically, in the August 16 Order the district court ad opted the magistrate judge’s recommendation to dismiss Blair’s remaining federal clai ms with prejudice under Rule 12(b)(6) but rejected her recommendation to dismiss his state law discrimination claim on the same basis. Instead, the district court declined to exercise supplemental jurisdiction over the5 state-law claim in light of its dismissal of Blair’s federal claims, and therefore dismissed this claim without prejudice. On August 23, Blair filed a written protest of the district court’s failure to consider his objections before ruling, invoking the pris on mailbox rule, and shortly thereafter filed a notice appealing the district court’s August 16 Order. But upon cons ideration of Blair’s August 23 filing, the district court vaca ted its August 16 Or der and accompanying judgment, and on September 5, 2018, issu ed a new order (September 5 Order) that considered Blair’s objections but again a dopted the magistrate judge’s recommendation in part and rejected it in pa rt and dismissed his case. It entered final judgment the following day. II. APPELLATE JURISDICTION “Jurisdiction is a thres hold question that a federal court must address before reaching the merits.” United States v. Springer , 875 F.3d 968, 973 (10th Cir. 2017) (internal quotation marks omitted). One of the prerequisites to appellate jurisdiction is that the appellant complied with Fed. R. App. P. 3(a)(1 ) by filing a timely notice of appeal. See United States v. Smith , 182 F.3d 733, 734 (10th Cir. 1999). In a civil case such as this, an appellant must file a notice of appeal within 30 days of entry of the judgment or order being appealed. See Fed. R. App. P. 4(a)(1)(A). A jurisdictional question arises in this case because Blair time ly filed a notice of appeal of the August 16 Order, but di d not file a new notice of app eal after the district court6 vacated the August 16 Order and judgment and issued the September 5 Order and accompanying judgment in its stead. 3 Fed. R. App. 4(a)(4)(B)(ii) provides th at a party seeking to appeal an amended judgment must timely file a new or amended notice of a ppeal. After reviewing the record, we conclude Blair comp lied with this requirement because he timely filed the functional equivalent of a notice of appeal after the district court entered the September 5 Order. See Smith v. Barry , 502 U.S 244, 248-49 (1 992) (“If a document filed within the time speci fied by [Fed. R. App. P.] 4 gives the notice required by [Fed. R. App. P.] 3, it is effect ive as a notice of appeal.”). To qualify as a functional notice of a ppeal, a party’s filing must provide notice of the party taking the appeal, the judgment or order appealed from, and the court to which the appeal is taken. See id. at 249; United States v. Smith , 182 F.3d at 735. Blair provided this notice in a filing in this court on September 17, 2018, in which he clearly communicated his inte nt to appeal the district court’s revised decision. 4 He

3 The district court had jurisdiction to take this action, despite Blair having filed a notice of appeal, be cause it treated Blair’s A ugust 23 notice protesting the court’s failure to consider his objections as a Rule 59(e) motion to alter or amend its August 16 Order and judgment. See Constien v. United States , 628 F.3d 1207, 1212 n.5 (10th Cir. 2010) (stating that when a notice of appeal is filed while a Rule 59(e) and certain other post-judgment motions are pendi ng, “the notice of appeal, and with it the appellate court’s jurisdiction, is suspe nded until such motions are disposed of”).

4 Blair made this filing in response an Order to S how Cause (OSC) this court issued after it received Blair’ s notice of appeal regarding the August 16 Order. In the OSC, we noted that it appeared from the district court’s docket that Blair had not objected to the magistrate judge’s recommendation, an omission that we generally hold waives the right to appe llate review under this circ uit’s “firm waiver rule.” See Morales-Fernandez v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005) (stating firm waiver7 also filed this document with in the 30-day period for filing a notice of appeal of that decision. Accordingly, we hold we have juri sdiction to consider Bl air’s appeal of the September 5 Order and final judgment dismissing his case. III. ISSUES ON APPEAL Blair challenges the dismissal of his claims on various grounds. With two exceptions, discussed below, we conc lude his contentions lack merit. 5

rule generally applies when a party “fails to make a timely objection to the magistrate judge’s findings and recomme ndations”). Accordingly, th e OSC directed Blair to show cause why the court should not find he had waived his right to appeal by failing to object to the magistrate judge’s recommendation. In his September 17 response, Blair notified us that he had filed objections to the ma gistrate judge’s recommendation, as described earlier in this decision, provided additional information and documentation regarding rele vant circumstances, and indicated that he wished to proceed with his appeal. Defendants have not challenged Blair’s account or otherwise asserted that the firm waiver rule bars this appeal. Based on this lack of opposition, Bl air’s response, and other re levant considerations, we exercise our discretion not to apply th e firm waiver rule in this case. See id. (discussing court’s discretion re garding firm waiver rule); Hicks v. Franklin , 546 F.3d 1279, 1283 n.3 (10t h Cir. 2008) (declining to apply firm waiver rule because defendant had forfeited application of the rule by failing to raise it in its argument).

5 In his opening brief, Blair lists several of the claims the district court dismissed as legally frivolous under 28 U.S.C. § 1915(e)(2 )(B) as “important grounds for relief” not considered by the district court. Aplt. Openi ng Br. at 11-13. To the extent Blair intended to appeal the district court’s dismissal of th ese claims by this list, he forfeited appellate review of this issue by failing to includ e any argument disputing their dismissal. See, e.g. , Fed. R. App. P. 28(a)(8)(A) (requiring that an appellant’s opening brief identify “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on wh ich the appellant relies”); Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (noting “we routinely have declined to consider arguments that are . . . inadequately presented[] in an appellant’s opening brief”); Utahns for Better Transp. v. U.S. Dep’t of Transp. , 305 F.3d 1152, 1175 (10th Ci r. 2002) (“We do not consider merely including an issue within a list to be adequate briefi ng.”). Blair similarly forfeited appellate review of the district court’s July 17, 2018 denial of hi s motion to amend his8 A. Failure to Allo w Evidence Blair first asserts that the district c ourt erred in dismissing his claims under Rule 12(b)(6) without allowing him to present evidence. But as the district court correctly noted, its function under Rule 12 (b)(6) was “not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a clai m for which relief may be granted.” Smith v. United
States , 561 F.3d 1090, 1098 (10t h Cir. 2009) (internal quotation marks omitted). In making this assessment, a court may consider exhibits to the comp laint and undisputed documents referenced in it that are central to the plaintiff’s claims, see id. , but Blair did not attach any documents to his complaint or otherwise identify documents referenced in it that he believes should have been includ ed in the court’s Rule 12(b)(6) review. Accordingly, the district court did not err in limiting its review under Rule 12(b)(6) to the allegations in Blair’s amended complaint.
B. Dismissal of Federal Claims Blair challenges the district court’s dismis sal of each of the federal claims that survived the court’s § 1915 sc reening determination, asserti ng he did state a claim as to each in his amended complaint. We revi ew the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) for failu re to state a claim de novo. Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012).

complaint, because while he requested that we review this decision in his opening brief, he did not include any argument regarding it. See Bronson , 500 F.3d at 1104.9 To state a claim, a complaint must contain sufficient facts “to state a claim to relief that is plausible on its face,” taking all well-pl eaded facts, but not conclusory allegations, as true and construing them in the light most favorable to the plaintiff. Ashcroft v. Iqbal , 556 U.S. 662, 678 ( 2009) (internal quotation marks omitted); see Acosta v. Jani-King of Okla., Inc. , 905 F.3d 1156, 11 58 (10th Cir. 2018). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. We construe Blair’s pro se pleadin gs liberally in our review. Trackwell v. United States , 472 F.3d 1242, 1243 (10th Cir. 2007). Applying these standards to the claims at issue, we conclude Blair’s complaint states a claim under the First Amendment’s Free Exercise Clause and RLUIPA with respect to the vegan patty meals he received as part of his vega n religious diet at the CSP. Accordingly, we reverse the district court’s di smissal of these claims . But we agree that Blair failed to state any other federal clai ms and hence affirm the district court’s dismissal of them. 1. Religious diet claims We have long recognized that prisone rs have the right under both the First Amendment and RLUIPA to a diet that conf orms to their sincerely held religious beliefs. See Beerheide v. Suthers , 286 F.3d 1179, 1185 (10th Cir. 2002) (First Amendment); Abdulhaseeb v. Calbone , 600 F.3d 1301, 1316 (10th Cir. 2010) (RLUIPA). Blair alleges that Defendant Phipps, acting in his individual capacity, violated this First Amendment right by serving him beans and rice so often while he was10 at the SCF that he develope d gout and that De fendants Crockett, Ri chard, and Offrelig, also acting in their individual capacities, di d the same at CSP by developing and serving him vegan patty meals that were so inedible that they made him si ck. He also seeks injunctive relief against Defenda nt Raemisch, acting in his o fficial capacity, for violating RLUIPA by allowing CSP to serve the vegan patty meals as part of Blair’s vegan religious diet. 6
To state a claim for violation of the Fi rst Amendment’s Free Exercise Clause, the plaintiff must plead facts that plausibly sh ow or allow the inference that the prison regulation or action at issue “substantially bu rdened sincerely-held religious beliefs.” Kay v. Bemis , 500 F.3d 1214, 1218 (10th Cir. 2007) (internal quotation marks and alterations omitted). 7 Similarly, to state a claim under RLUIPA, a plaintiff must plead that “he wishes to engage in (1) a religious exercise (2) motivated by a sincerely held

6 Blair also asserted claims for da mages under RLUIPA against Defendants Phipps, Crockett, Richard, and Raemisch in their individual capacities, but the district court properly dismissed thes e claims during its § 1915 review. See Stewart v. Beach , 701 F.3d 1322, 1335 (10th Cir. 2012) (“[T]here is no cause of action under RLUIPA for individual-capacity claims.”).

7 A prison regulation or action that impinges on these or other constitutional rights is nonetheless valid “if it is reasonabl y related to legitimate penological interests.” Kay , 500 F.3d at 1218 (internal quotation marks omitted). As a result, we have held that for an inmate to state a plausible claim based on a c onstitutional violation he must also plead “facts from which a plausible in ference can be drawn that the [allegedly impinging] action was not reason ably related to a legitimate penological interest.” Gee v. Pacheco , 627 F.3d 1178, 1187-88 (10th Cir. 2010). Defendants here have not given a reason for allegedly impinging on Blair’s First Amendment free exercise rights by including inedible or unhealthy meals in his vegan religious diet. Nor have they argued that Blair failed to state a First Amendmen t claim because it could not be plausibly inferred from his allegations that including such meals in his religious diet was not reasonably related to legitim ate penological interests.11 belief, which exercise (3) is subject to a s ubstantial burden imposed by the government.” Abdulhaseeb , 600 F.3d at 1312. 8 For purposes of their motion to dismi ss, Defendants conceded that Blair’s sincerely held religious beliefs motivate his desire to engage in the religious exercise at issue, maintaining a Buddhist vegan diet. Bu t they argued he nonetheless failed to state either a First Amendment or a RLUIPA claim because he had not plausibly alleged that either the rice and beans diet he received at SCF or the vegan patty meals served at CSP substantially burdened this religious exercise. The dist rict court agreed and dismissed Blair’s First Amendment and RL UIPA claims on this basis. A government substantially burdens a pers on’s religious exercise for purposes of RLUIPA when it (1) “requires participation in an activity prohibited by a sincerely held religious belief,” (2) “prevents participati on in conduct motivated by a sincerely held religious belief,” or (3) “places substantia l pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincer ely held religious belief.” Id. at 1315. This test is grounded in the Supreme Court’s interpreta tion of substantial bur den under the First

8 A defendant does not need plead more than this to st ate a RLUIPA claim. This is so even though a defendant can avoid liability under th e statute for substantially burdening a prisoner’s religious exercise by demonstrati ng that “impositio n of the burden on [the prisoner] -- (1) is in furtherance of a compelling gove rnmental interest; and (2) is the least restrictive means of furthering th at compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). Because this is an affirmative defense, a plaintiff need not plead it to state a RLUIPA claim. See Ghailani v. Sessions , 859 F.3d 1295, 1305-06 (10th Cir. 2017) (regarding near-identical pr ovision in Religious Freedom Restoration Act).12 Amendment’s Free Exercise Clause, see id. , and thus is applicable to Blair’s First Amendment claim as well.

a. First Amendment claim based on rice and beans diet at SCF Blair alleges the rice and beans diet at the SCF substantially burdened his religious exercise because it caused him “to be sick with stomach cramps [and] vomiting” and the “pain [and] suffering of gout.” ROA Vol. 1 at 27. Blair apparently contends these health conseque nces placed substantia l pressure on him not to continue with his vegan religious diet . But Blair alleges only one instance in which the rice and beans diet caused stom ach cramps and vomiting, which is not sufficient to establish subs tantial burden for purposes of a Firs t Amendment claim. 9 See Gallagher v. Shelton , 587 F.3d 1063, 1070 (10th Ci r. 2009) (holding allegations of “isolated” violations of religious diet requirements do not state a claim for denial of prisoner’s First Amendm ent free-exercise rights); see also Abdulhaseeb , 600 F.3d at 1321 (affirming summary judgment agai nst RLUIPA claim because evidence showed only one instance in which a religious meal was inedible). And it is not plausible that Blair’s development of gout as a result his prolonged rice and beans diet at the SCF placed substantial pressu re on him to abandon his vegan religious diet, because he stopped receiv ing this diet three days af ter his gout diagnosis, when

9 Blair’s RLUIPA claim against Defe ndant Phipps based on this diet was dismissed on screening. See supra n.6

.13 he was transferred from the SCF to the CSP. 10 Accordingly, we affirm the district court’s decision that Blair failed to state a First Amendment claim based on the rice-and-beans vegan religious di et he received at the SCF.
b. First Amendment and RLUIPA claims based on vegan patty meals at CSP We reach a different conc lusion with respect to Bl air’s First Amendment and RLUIPA claims based on the vegan patty meal s that were a regular component of his vegan religious diet at CSP. The district court held Blair had not pled substantial burden with respect to these meals in part because he failed to allege “that the CDOC deprives him of vegan meals” or that “the vegan food he is served prevents him from practicing Buddhism.” ROA Vol. 2 at 21. Th ese conclusions are correct, but they are not dispositive. “[A] burden can be ‘substantial’ even if it does not compel or order the claimant to betray a sincerely held religious belief.” Yellowbear v. Lampert , 741 F.3d 48, 55 (10th Cir. 2014). As noted abov e, a substantial burden also exists if “the claimant is presented with a choice in which he faces considerable pressure to abandon the religious exercise at issue.” 11 Id. ; see Abdulhaseeb , 600 F.3d at 1315.

10 Under these circumstances, health concerns could not have motivated Blair’s allegations that he repeatedly complain ed to SCF staff about “the unyealding [sic] diet of beans and rice.” ROA Vol. 1 at 26.

11 The district court also cited Blair’s failure to allege that the vegan patty meals were nutritionally inadeq uate in support of its holdi ng on substantial burden. See ROA Vol. 2 at 21. But a nutritionally adequate diet may still substantially burden an inmate in his abil ity to adhere to a religious diet. For example, the nutritionally adequate foods at issue may not conform to the inmate’s religious beliefs as to what is allowed in his religious diet or, as alleged here, may be inedible or sickening.14 To the extent the district court assesse d Blair’s allegations under this additional test for substantial burden, it appears to ha ve found them wanting because Blair had not alleged that CDOC “pressures him to eat a non-vegan diet.” ROA Vol. 2 at 21. But whether CDOC intentionally pressured Blair to abandon his religious diet is not the proper focus in assessing wh ether Blair sufficiently allege d substantial burden under the “pressure” test. Rather, this “inqui ry focuses only on the coercive impact of the government’s actions.” Yellowbear , 741 F.3d at 55 (emphasis added). And “[c]reating a situation that forces the religious claimant to choose between following the dictates of his faith and winning an important benefit or fo rgoing a considerable penalty is coercion enough” to demonstrate substan tial burden under this test. Id. at 56. We also disagree with the district court’ s conclusion that all of Blair’s allegations, “taken as true, reflect mere ly an inconvenience of vari ety, quality, and rotation of non-preferred items in a completely vegan meal.” 12 ROA Vol. 2 at 21. As relevant to the substantial burden inquiry, Blair alleged the vegan patty meals included in his religious diet were inedible, forcing him to go hung ry or purchase vegan food in the prison commissary. He further alle ged that when he does eat the vegan patty, he vomits and suffers other gastrointestinal distress. And these were not isolated or sporadic occurrences, because Blair alleged the vegan patties were a scheduled part of his vegan

12 This is not to say that the district court was all wrong in its assessment of Blair’s complaints. To be sure, several of Blair’s allegations smack only of complaints regarding the variety, quality an d rotation of meals. The district court correctly concluded that those allegations did not support a claim upon which relief could be granted.15 religious diet on nineteen out of the twenty-eight days in each four-week meal cycle. Thus, taking Blair’s allegations as true, as we must under our standard of review, nineteen out of every twenty-eight days, or tw o out of every three da ys, Blair either could not eat one of his vegan religious meals or became sick because it included the nutraloaf-like vegan patty. Accepting Blair’s allegations as true, th is situation reflects more than a mere inconvenience. To the contrary, we conclude Blair’s allegations plausibly assert that the vegan patty meals at CSP substantially burde ned his sincerely held religious beliefs because they put cons iderable pressure on him to ab andon his vegan religious diet. 13 While a single or sporadic service of inedible religious meals does not rise to the level of substantial burden, see Gallagher , 587 F.3d at 1070 (First Amendment free exercise claim); Abdulhaseeb , 600 F.3d at 1321 (RLUIPA); id. at 1325 (Gorsuch, J. concurring), we have recognized that “as the frequency of presenting unacceptable foods increases, at some point the s ituation would rise to the le vel of a substantial burden,” Abdulhaseeb , 600 F.3d at 1321. Blair’s allegations that the vegan patty meals forced him to forgo a religious diet meal or be sick two days out of three rises to this level. As a

13 That Blair may be able to avoid go ing hungry or becoming sick by purchasing alternative vegan food at the prison commiss ary does not change this conclusion. See Abdulhaseeb , 600 F.3d at 1317-18 (rejecting case law finding no subs tantial burden under RLUIPA in denial of religious di et based on inmate’s ability to purchase religious foods). That these reactions may be personal to Bl air also is not relevant to our analysis. As we do with plaintiffs in tort law, “we take religious claimants as we find them, assessing the coercive impact [of] the government’s acti ons on the individual claimant’s ability to engage in a religious exercise.” Yellowbear , 741 F.3d at 55.16 result, we conclude Blair suffi ciently alleged that these me als substantially burdened his religious practice and that he therefore stat ed both a First Amendment free exercise claim and a RLUIPA claim based on the vegan patty meals included in his religious diet at CSP. Accordingly, we reverse the dist rict court’s dismissal of these claims. In so ruling, we have considered Defenda nts’ request that we affirm dismissal of any federal claims we find viable on the a lternative basis of qualified immunity. Defendants asserted this defense in the di strict court, which shifted the burden to Blair to demonstrate that the factual allegati ons in his complaint established a violation of his federal rights and that the right at issue was clearly established at the time of Defendants’ alleged misconduct. See Pearson v. Callahan , 555 U.S. 223, 232 (2009); Riggins v. Goodman , 572 F.3d 1101, 1107 (10th Cir. 2009). The magistrate judge recommended that the district court find Defendants had qua lified immunity on Blair’s federal claims, but ba sed only on her conclusion that Blair had failed to state a federal claim. The district court stated in a footnote th at while it agr eed with the magistrate judge’s recommenda tion, it did not need to a ddress this issue because there were other grou nds for dismissal. See ROA Vol. 2 at 23 n.3. Our conclusion that Blair stated a claim with respect to the vegan patty meals undermines the basis of the magistrate judge’s recommenda tion on the qualified immunity issue, which the di strict court did not adopt in any event. In addition, neither the magistrate judge nor the district court addresse d the “clearly established” component of Defendants’ qualified imm unity defense, which Defendants barely touched on in their argument to the district court. Under these circumstances, the17 better practice is to leave the qualified immun ity determination to the district court to consider on remand. See Rife v. Okla. Dep’t of Pub. Safety , 854 F.3d 637, 649 (10th Cir. 2017). We note, however, that qualified immunity is not a defense to Blair’s RLUIPA claim against Defendant Raem isch, and thus is onl y relevant to his First Amendment free exerci se claim against Defendant s Crockett, Richard, and Offrelig. See Meiners v. Univ. of Kan. , 359 F.3d 1222, 1233 n.3 (10th Cir. 2004) (“Qualified immunity applies to claims for monetary relie f against officials in their individual capacities, but it is not a defense against claims for injunctive relief against officials in their o fficial capacities.”). 2. Eighth Amendment claim Blair asserts in his amended complain t that Defendant Phipps, the kitchen supervisor at SCF, also violated the Ei ghth Amendment’s ban on cruel or unusual punishment by being deliberately indifferent to the gout and a ssociated pain Blair alleges he suffered from being served pinto beans an d rice twice a day for several months. To state an Eighth Amendment cl aim for deliberate indifferenc e to the medical needs of prisoners, the prisoner must demonstrate, am ong other things, that the defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan , 511 U.S. 825, 837 (1994). The district court concluded Blair had not included such allegations in his complaint, because he at no point alleged that Ph ipps knew of Blair’s gout and related issues or knew that the rice and beans diet was the cause. Blair does not challenge this conclusion on appeal, and inst ead asserts only that the attending physician should have notified Phipps to change Blair’s diet after he developed gout. This is not18 sufficient to state an Eighth Amendment claim against Phipps. Accordingly, the district court correctly dismissed this cl aim for failing to state a claim. 3. Equal Protection claim Blair further alleges Defendant Phipps vi olated the Equal Protection Clause of the Fourteenth Amendment by serving him rice and pinto beans twice a day for months while at the same time “often” serving “the regular vegan diet meal” to a nother inmate who was also on the Buddhist vegan relig ious diet. ROA Vol. 1 at 27. To state a “class of one” equal protection claim, Blair needed to allege that he “has been intentionally treated differently from others simila rly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per curiam). This required Blair to allege facts establishing that others who were “similarly situated in every material respect were treated differently,” and that “this difference in treatment was without rational ba sis, that is, . . . [it] was irrational and abusive, and wholly unrelated to any legitimate state activity.” Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1216 (10th Cir. 2011) (citation and internal quotation marks omitted). The district court he ld Blair’s allegations failed to meet either requirement, because he did not demonstrate that the other inmate was si milarly situated to him “in every material respect” or that Phipps’ a lleged conduct, servi ng Blair rice and beans twice a day for months, was irrational and abus ive. ROA Vol. 2 at 23 (internal quotation marks omitted). It further he ld Blair’s allegations that he and the other inmate received different vegan religious meals were too vague to establish differential treatment. After19 reviewing Blair’s allegations , we agree that his allegations were too vague and incomplete to state a plausi ble equal protection claim. C. Dismissal of State-Law Claim In his amended complaint, Blair asserted a state-law claim under Colo. Rev. Stat. § 24-34-601(2)(a), in which he alleged Defe ndants discriminated against him in various ways, including by feeding him rice and bean s at the SCF and the vegan patty meals at CSP. As noted earlier, the district court de clined to exercise supplemental jurisdiction over this state-law claim and dismissed it wi thout prejudice because it had dismissed all of Blair’s federal claims. We review this decision for abuse of discretion. Koch v. City of Del City , 660 F.3d 1228, 1248 (10th Cir. 2011). “When all federal claims have been dism issed, the court may, and usually should, decline to exercise jurisdiction ove r any remaining state claims.” Id. (internal quotation marks omitted). Accordingly, the district c ourt did not abuse its discretion by declining to exercise supplemental juri sdiction over Blair’s state-law claim when it dismissed all of Blair’s federal claims. See id. But our decision to reverse and remand the dismissal of Blair’s federal religious diet claims regard ing the vegan patty me als at CSP undermines the district court’s rationale for declini ng to exercise supplemental jurisdiction over Blair’s state-law claim. Accordingly, we re verse that decision and remand this claim to the district court for fu rther consideration. IV. CONCLUSION For the reasons stated above, we affirm dismissal of Blair’s First Amendment free exercise claim based on his religious diet at SCF, as well as his Eighth Amendment and20 equal protection claims. But we reverse dismissal of Blair’s First Amendment free exercise and RLUIPA claims based on the vegan patty meals included in his religious diet at CSP and his state discrimination clai m. We therefore rema nd this case to the district court for further proceedings consiste nt with this decision. We note that our decision addresses the district court’s decision to dismiss Blair’s case pursuant to Federal Rule of Civil Procedure 12(b)(6). We express no opinion on the merits of the case at later stages of the case. 14

Entered for the Court

Joel M. Carson III Circuit Judge

14 We grant Blair’s request to proceed IF P on appeal, but remind him that he must continue making partial paymen ts until the entire filing fee fo r this appeal is paid in full.